KEANE v Spring No. Scgrg-00-224

[2000] SASC 439

KEANE v SPRING
[2000] SASC 439

Civil

1................ WICKS J......................... In these proceedings the plaintiff seeks an order in the nature of certiorari to quash the decision of the defendant made on or about 19 January 2000 purporting to appoint Nicholas Francis Hardie to the position of Principal at Aberfoyle Park High School for a period of five years pursuant to s 15C of the Education Act 1972.

1. Positions of deputy principal and principal of State schools are classified from PC01 to PC08.  The highest classification is PC08.  The classification attaches to a particular position.  The position of Principal of Aberfoyle Park High School carries with it a classification level denominated as PC08. 

2. The plaintiff was the Deputy Principal of Aberfoyle Park High School from its foundation in 1984 to the end of Term 2 in 1999.  As Deputy Principal, the plaintiff’s classification was PC04 and this remains her current classification.  At the end of Term 2 in 1999, the then principal of the school, Mr John Gregory, who had been principal from 1995, resigned.  The plaintiff assumed the role of Acting Principal for Terms 3 and 4 in 1999.

3. At all material times, the defendant is and was the Director-General of Education holding office as such under the Education Act 1972.

4. Aberfoyle Park High School is a very large complex school having a population of some 1,450 students.  It is the largest public school in South Australia on one campus.

5. Following the resignation of Mr Gregory, the position of Principal was advertised and a selection panel was convened to choose a suitable candidate.  On this occasion the plaintiff did not apply.  A suitable candidate did not emerge and as a result the position was advertised again - this time on a national basis.  On the second occasion, the plaintiff applied for the position.  There were several other applicants.  Two of the applicants, the plaintiff and one other, were interviewed by the selection panel.  However, the selection panel was divided on the matter with two members selecting the plaintiff and two members selecting the other candidate.

6. Following the failure of the selection panels to make a choice, enquiries were made to find a suitable candidate for appointment with a view to making an approach.  After such enquiries it was ascertained that Mr Nicholas Hardie would be prepared to accept appointment as principal for a period of five years.  He was appointed as Principal of Hamilton Secondary College commencing at the beginning of the 1995 school year for a term of approximately five years expiring on 27 January 2000 with a possible extension of his appointment (to be negotiated) for a further year.  During his appointment as Principal of Hamilton Secondary College, Mr Hardie enjoyed a classification level denominated PC08.  At the end of his appointment his classification level would revert to his original classification level of PC03.  In July 1998, his tenure as Principal of the Hamilton Secondary College was extended to 25 January 2001.

7. On 17 January 2000, Mr Hardie was appointed to the position of Principal of Aberfoyle Park High School for a period from 27 January 2000 to January 2005.  On that appointment it is not clear what was to happen to the Hamilton Secondary College appointments.  Presumably those appointments lapsed on the Aberfoyle Park High School appointment taking effect, although I have not been able to find anything to that effect either in the affidavits or the transcript of argument.

The Legislation

1. Sections 15, 15A, 15B and 15C of the Education Act 1972 are relevant to this matter and I set out the terms of these sections in full as follows:

   "         15.(1)  Subject to this Act, the Minister may appoint such teachers to be officers of the teaching service as he thinks fit.

   (2)  An officer may be so appointed on a permanent or temporary basis.

   (3)  The first appointment of an officer to the teaching service may be made upon probation.

   (4)  The probation shall be for such period of effective service (not exceeding two years effective service) as may be determined by the Minister.

   (5) No officer appointed on a permanent basis shall be dismissed or retired from the teaching service except in accordance with the provisions of this Act.

   (6)  An officer appointed on a temporary basis shall hold office at the pleasure of the Minister.

   15A.  The Director-General may from time to time -

   (a).... fix the duties and titles of officers and positions in the teaching service;

   (b).... classify officers in the teaching service;

   (c).... in classifying officers, impose conditions, which may include conditions -

   (i).... limiting the classifications to specified terms; and

   (ii)... fixing the classifications of officers at the end of such terms;

   (d).... classify positions in the teaching service at promotional levels.

   15B. (1) The Minister may, subject to this Act, appoint officers to positions in the teaching service classified at promotional levels.

   (2)  The Minister may, in making such appointments, impose conditions, which may include conditions -

   (a)     limiting the appointments to specified terms; and

   (b).... fixing their classifications at the end of such terms or fixing the processes to be followed for appointment of the officers at the end of such terms.

   (3)  The Director-General may appoint an officer to a position classified at a promotional level in an acting capacity for a term not exceeding 12 months.

   15C  The Director-General may transfer officers between positions in the teaching service but not so as to -

   (a)     reduce an officer’s salary without the officer’s consent; or

   (b).... effect promotion of an officer to a position at a higher classification level."

1. Section 15 relates to the appointment for the first time of officers of the teaching service. Such appointments are made by the Minister. The Minister having made the appointment, it is then left to the Director-General under s 15A to classify officers and positions within the service. Section 15B deals with the special category of officer within the service, namely an officer classified at a promotional level position. School principals come within this group. Officers at promotional levels may be appointed to a position classified at a promotional level in an acting capacity for a term not exceeding twelve months. Under s 15C of the Education Act, the Director-General is authorised to transfer officers between positions in the teaching service.  There are two qualifications.  The first is that there must be no reduction of salary without the officer’s consent and the second is that the transfer must not effect a promotion to a position at a higher classification level. 

2. This case was argued by both counsel on the footing that the appointment of Mr Hardie as Principal of Hamilton Secondary College was validly made under the Education Act. Presumably such appointment, in order to be valid would have to be made by the Minister under s 15B of that Act.

3. Counsel for the plaintiff submitted that the appropriate construction of the Education Act is one which limits the power to make transfers for the period of the appointment which has been made by the Minister but not thereafter. He submitted that a transfer of a principal between schools at the same classification allowing for some overlap but extending for a greater period than the period of initial appointment by the Minister, is a transfer which is effecting a promotion and therefore not one authorised by s 15C of the Act to the extent of any period extending beyond the period of the appointment made by the Minister.

4. I do not think that the plaintiff’s contention is correct.  A transfer takes effect in the sense that it is effective in whole.  It cannot be a transfer in part.  The plaintiff’s counsel referred to the power in the Director-General to make transfers “for the period of the appointment that has been made by the Minister but not thereafter”.  I do not consider that a transfer can operate for a limited period as the plaintiff’s contention seems to suggest.

5. Counsel for the defendant submitted that s 15C of the Education Act should be interpreted in a more liberal fashion.  There was no question of any reduction in an officer’s salary.  At the time of the Aberfoyle Park High School appointment, it was submitted that Mr Hardie held a classification of PC08 by virtue of the position held as Principal of Hamilton Secondary College and that in accepting the Aberfoyle Park appointment he was simply maintaining his classification at PC08.  No promotion was involved.  It was submitted that so long as Mr Hardie’s classification was PC08 at the time of his appointment, he would continue to hold that classification while his appointment as Principal of Aberfoyle Park High School remained in force.

6. I cannot accept that submission.  An interpretation of the Education Act in the manner contended by counsel for the defendant would leave s 15C of the Act wide open to be used by the Director-General in a manner which, I am sure was never contemplated when the relevant provisions of the Act were enacted. Once a person is appointed by the Minister for a period, no matter how short, the provisions of s 15C could be used indefinitely thereafter to achieve transfers between classification levels without effecting a promotion.

7. In my opinion, where the Minister makes an appointment under s 15B of the Education Act of an officer to a position in the teaching service classified at a promotion level, a transfer of that officer to a higher classification level under s 15C of the Act effects a promotion to a position at a higher classification level within the meaning of par 15C(b) of that Act and is contrary to s 15C of that Act.

8. In my opinion, the position is that Mr Hardie’s classification at the PC08 level reverted to the PC03 level on him ceasing to hold appointment as Principal of the Hamilton Secondary College for any reason. It would follow that if Mr Hardie were appointed as Principal of the Aberfoyle Park High School, he would need to be promoted from his classification level of PC03 to the classification level PC08. Such an act would be beyond the power of the Director-General and would require an appointment by the Minister under s 15B of the Education Act.

9. I am satisfied that the plaintiff, as an unsuccessful applicant for the position of Principal of the Aberfoyle Park High School, has standing to bring these proceedings.  She has a special interest in the subject matter of these proceedings.  She is someone who has a “peculiar grievance” different from the grievance which the public at large may have felt: Kioa v West (1985) 159 CLR 550 per Brennan J at 621-622.

10. In any new appointment to a position in the teaching service classified at a promotional level, the provisions of s 53 of the Education Act 1972 would appear to be relevant. That section is concerned with appeals in respect of appointments to promotional level positions. The section provides, inter alia, that a person must not be appointed to a position to which the section applies except in accordance with the section. The section does not, however, apply to a transfer of officers between positions in the teaching service. A transfer between positions classified at a promotional level is in the same position as any other transfer. Section 53 has no application. I need not deal with it further.

11. As the act in question is beyond the power of the Director-General, I consider that all I can do is make an order the nature of certiorari substantially in terms of paragraph 1 of the prayer for relief.

12. In her summons, the plaintiff also seeks an order in the nature of mandamus directing the defendant to appoint the plaintiff to be Acting Principal of Aberfoyle Park Secondary School for a period of twelve months in accordance with the procedures and practices adopted previously by the Department of Education, Training and Development and in accordance with the provisions of s 15B(3) of the Education Act.  This claim was abandoned by the plaintiff’s counsel at trial. 

13. For these reasons, I make an order in the nature of certiorari to quash the decision of the defendant made about 19 January 2000 purporting to appoint Nicholas Francis Hardie to the position of Principal of Aberfoyle Park High School for a period of five years pursuant to s 15C of the Education Act.

14. I will hear counsel as to costs.