Kourlas v Teachers Registration Board of South Australia (No 2)
[2024] SADC 74
•2 July 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KOURLAS v TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA (No 2)
[2024] SADC 74
Reasons for Decision of her Honour Judge Deuter
2 July 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
An applicant for registration as a teacher was substantially successful in his appeal to the Administrative and Disciplinary Division of the Court. Appeal involved a decision of a panel of the Teacher’s Registration Board (the Board) that the applicant was not a fit and proper person to be registered as a teacher pursuant to s21(1)(e) of the Teachers Registration and Standards Act 2004, as a result of previous charged offences involving the possession of drugs.
In my reasons for judgment, I left open the issue of whether the applicant’s application should be remitted to the respondent, and the question of costs in the context of an administrative appeal. The applicant sought costs, and also argued that the Court should determine the issue of the applicant’s fitness and propriety to be registered as a teacher.
The Board as respondent argued that remittal to a newly commissioned panel of members with proposed directions was the appropriate order in the context of the Board being the body with specialist expertise to determine registration of newly trained teachers. The Board argued that an order for costs should not be made pursuant to s42G(2) of the District Court Act 1991.
Held:
1. Remittal to the Board is the proper remedy in all of the circumstances.
2. Any remittal to the Board to include directions that:
- there should be a new panel constituted to consider the application;
- the panel is not to take into account the applicant’s involvement in any incident on Hindley Street on 10 March 2018;
- the panel’s deliberations should occur as soon as possible.
3. It is not necessary in the interests of justice that there be an order for costs in the appellant’s favour.
District Court Act 1991 (SA) s 42F and s 42G; Teachers Registration and Standards Act 2004 (SA) s 4, s 7, s 21(1)(a)-(e), s 23, referred to.
Kourlas v Teacher's Registration Board of South Australia [2024] SADC 5; Al Moussawi v Passenger Transport Standards Committee [2021] SADC 79; Fox v Percy (2003) 2014 CLR 118; Commissioner of For Consumer Affairs v McMurray (2017) 128 SASR 1; Moore v Registrar of Motor Vehicles (No 2) [2001] SADC 14; MJW v The Commissioner of Police (No 2) [2024] SADC 10; Marin v Chiropractic Board of Australia (No 2) [2009] SADC 43; The Estate of Babich v South Australian Superannuation Board (No 2) [2019] SADC 54, considered.
KOURLAS v TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA (No 2)
[2024] SADC 74Introduction
On 8 February 2024, I found that the decision of the respondent (the Board) that the applicant was not a fit and proper person to be registered as a teacher pursuant to s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA) (TRS Act) should be rescinded. I allowed an appeal against that decision and indicated that I would hear the parties on remission and costs.[1]
[1] Kourlas v Teacher’s Registration Board of South Australia [2024] SADC 5 (Kourlas).
The applicant had successfully completed the required study to be registered as a teacher in 2020. He had also completed the required professional placements to be registered as a teacher. His application to be registered was refused, based upon the Board’s determination that events that occurred on Hindley Street on 10 March 2018, involving the alleged possession of illegal drugs. This led to a conclusion that the applicant was not a fit and proper person to be registered as a teacher.[2]
[2] Pursuant to s 21(1)(e) of the TRS Act.
On 12 April 2024, I heard the parties as to whether the Court should determine the issue of whether the applicant was a fit and proper person to be registered as a teacher, and substitute the Board’s decision, or remit the matter back to the Board for further consideration. I also heard submissions regarding the issue of costs. Both parties filed written summaries of their arguments.[3]
[3] FDN 25 and FDN 28.
By an affidavit filed on 10 April 2024, a solicitor employed in the Crown Solicitor’s Office advised that if I remitted the matter back to the Board, it could constitute a sub-committee, and deliver a decision within 4 to 6 weeks.[4]
[4] FDN 27.
The solicitor for the applicant filed an affidavit on 11 April 2024 attaching a letter from the applicant.[5] This set out an update on his life and career over the preceding 12 months. Two references attested to the applicant’s character and work ethic.
[5] FDN 29.
Remission
Section 42F of the District Court Act 1991 (SA) (District Court Act) provides that upon a successful appeal the Court can:
·rescind the original decision and substitute its own decision; or
·remit the matter back to the original decision-maker for further consideration with any directions or recommendations of the Court.
The Parties’ submissions
The Applicant’s Submissions
It was contended that, the only appropriate disposition was for me to substitute a decision that the applicant satisfies the criteria in s 21(1)(a)‑(e) of the TRS Act. This includes that he is a fit and proper person to be registered as a teacher. I should exercise the discretion to grant the applicant registration.[6]
[6] Pursuant to s 23(2) of the TRS Act.
The applicant submitted that the effect of my finding that the Board had erred in relying on evidence of ‘drug dealing’, is that it had taken into account matters that were not open to it. It was argued that the evidence relating to drug dealing was the only matter relied upon by the Board to determine that the applicant was not a fit and proper person.[7] As a result, if the matter was remitted to the Board and it was directed not to rely upon that evidence, based upon my decision, the only result could be registration for the applicant.
[7] T2.
It was also argued that it would be oppressive to remit the decision back to the Board, given that no other evidence, other than the impugned evidence, was relied upon by them in reaching the initial decision.[8] It would be unfair for fresh evidence to be led by the Board in determining the test of ‘fit and proper person’ beyond the new references confirming the applicant’s activities since his initial application for registration of May 2020.
[8] Ibid.
In making his submission, the applicant relied upon the decision of Judge Burnett in Al Moussawi v Passenger Transport Standards Committee[9] (Moussawi) In that matter, after a finding that a decision of the respondent to remove the applicant’s accreditation to drive taxis should be rescinded, Judge Burnett imposed his own penalty of suspension for 12 months.
[9] [2021] SADC 79.
The applicant argued that his case was similar to Moussawi, in that Judge Burnett had found that the Board could never have come to the decision that they did. He could therefore come to his own conclusion regarding the applicant’s licence to work. It was submitted that this was the same situation as presented in this matter, in that by my earlier ruling the Court had found that there was no basis to find that the applicant had engaged in drug dealing.
Counsel for the applicant relied upon the following in relation to Judge Burnett’s decision to substitute his own decision:[10]
[54]In that regard, I am mindful that the Committee is a specialised committee that deals with regulatory and disciplinary matters against accredited drivers on a regular basis. I accept therefore that it is in a better position to set appropriate tariffs as to penalty.
[55]However, where an appeal is in the nature of a rehearing, the appeal court should determine the matter itself if it can and only remit (or order a re-trial), if it cannot do so.[11] The present appeal is an appeal in the nature of a rehearing.[12]
[56]I am also mindful that under s 42E of the District Court Act, I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Section 42F of the District Court Act gives me the power to rescind the decision of the Committee and substitute a judgment that I consider appropriate.
[10] Al Moussawi v Passenger Transport Standards Committee at paragraphs [54, 55, and 56].
[11] Fox v Percy (2003) 2014 CLR 118.
[12] Commissioner of Consumer Affairs v McMurray (2017) 128 SASR 1 at [80].
The applicant’s counsel queried what further outcome was available to the Board, given any suspension had already been served.[13]
[13] T6.
It was also argued that the Court was better placed to determine the outcome of appeal issues as, unlike the Board, it had institutional knowledge in dealing with criminal matters.[14] If the matter returned to the Board and they did not follow my decision this could lead to a further appeal.[15] This was not a matter where the issue of fitness and propriety was at large, rather the Board had made its decision solely upon the previous police charges regarding drug offending. This was even though those charges never proceeded. The personal, and other references were never challenged, nor was the applicant’s required teaching experience.[16] With the alleged ‘drug dealing’ removed there was no impediment to registration.[17]
[14] T7.
[15] Ibid.
[16] T7-T9.
[17] T11.
It was submitted that the Board could not re-open my decision regarding the alleged ‘drug dealing’. This was particularly as I had ruled that the majority of the police evidence relied on by the Board was inadmissible, or of little probative value; and that none of the evidence was sufficient to establish criminal offending.[18] As a result, if the matter was to be remitted, then the Board would simply be replicating or duplicating decisions that I had already made, in exercising the Court’s supervisory jurisdiction.[19] I was in a better position to deal with the evidentiary issues than the Board. As a result, there was no practical purpose in sending the matter back to the Board. I had sufficient evidence to determine the applicant’s fitness and proprietary to be a registered teacher.
[18] FDN 28 at para 8.
[19] FDN 28 at [10].
A further significant issue was that four years had passed since the applicant applied to be registered as a teacher, and six years since the alleged ‘drug dealing’ was said to have occurred. The applicant submitted that this was a significant period during which he has been unable to work as a teacher. There should be no further delay, where the only decision relates to the alleged offending.[20] As a result of my findings, the applicant is entitled to finality. At the very least he was entitled to immediate provisional registration.[21]
[20] FDN 28 at [15] – [17].
[21] T3.
The Respondent’s Submissions
The respondent’s position is that the matter should be remitted to the original decision-maker, being a sub-committee of the Board. This is in the context of the Board having the discretionary power to grant registration pursuant to s 23 of the TRS Act, and the specialist experience and knowledge to determine if the applicant is eligible for provisional or full registration, and/or whether any conditions need to be imposed on his registration.[22]
[22] FDN 25 at [5].
The respondent argued that although I had found that cogent reasons existed to depart from the Board’s decision, I had made no factual findings as to whether the applicant was a fit and proper person to be eligible for registration. As a result, there was not a sufficient factual basis upon which I could substitute my own decision regarding fitness and proprietary.[23]
[23] Ibid at [8].
It was submitted in any event, that my judgment had not superseded the exclusive jurisdiction that the Board has to determine that teachers in this state are ‘competent educators and fit and proper persons to have the care of children.’[24] It was further argued that my judgment dealt with procedural issues, and that there was no basis upon which to argue that I was in a better position than the Board to determine if the applicant was a fit and proper person to be registered as a teacher.[25]
[24] Ibid at [8].
[25] Ibid at [9].
The respondent’s counsel submitted that before any matter could be finally determined, it was important to consider exactly what decision I was mindful to rescind in my judgment. Whilst accepting that it included the decision to refuse the applicant’s registration as a teacher, it was argued that this was based solely upon the Board’s finding that the applicant was not a fit and proper person to be registered as a teacher. As a result, to give effect to my judgment, there must be a factual finding as to whether the applicant is a fit and proper person. It was submitted that this was a finding for the Board to make and not the Court. The matter should be remitted with directions.
In this regard, it was said that the Court should not engage with the discretion pursuant to s 23 of the TRS Act to grant the applicant provisional registration. This would not only go beyond the originating application,[26] but engage the Court in a topic on which no evidence had been led regarding appropriate conditions etc.[27]
[26] FDN 1.
[27] T24.
In considering what directions should be given the Board upon remittal, the Board’s counsel submitted that these could include:[28]
1.that a freshly constituted panel should consider the application for registration;
2.that the applicant is a fit and proper person for the purpose of s 21.1(c) of the TRS Act, leaving the Board to determine the other mandatory issues in relation to Registration, upon which the Court does not have the knowledge to decide;
3.clarification as to what evidence, or if any, of the alleged offending in March 2018 should be taken into account;
4.the timing of the Board’s deliberations, and whether this should be that they proceed with all due expedition.
[28] T24-T28.
The Board’s counsel submitted that another reason why there should be remission is that there are still two issues to be determined in relation to fitness and proprietary:-[29]
1.the applicant’s lack of candour in failing to report the criminal charges in his initial application form; and
2.the treatment of the applicant’s character references in the absence of the alleged offending being taken into account.
[29] FDN T28-T20.
The Board’s position is that there is still work for them to do, as an expert body, in determining fitness and propriety absent my findings regarding the alleged ‘drug dealing’. There should therefore be a clearly structured remittal to provide guidance regarding the issue of fitness and proprietary.
Consideration
I agree with counsel for the respondent that the determination of the issue of remission is dependent upon what my decision that led to the appeal being allowed, was based upon and as a result, what this leads to.
I have reviewed my decision in Kourlas and confirm the finding that it was not open to the Board to determine that the applicant was involved in ‘drug dealing’. That to do so, based upon disputed evidence, was unjust and unreasonable. This was the extent of my decision. The police evidence should not have ben used to provide a basis for a determination that the applicant was involved in some type of illegal conduct involving drugs.
As a result of the Board’s reliance upon their finding that the applicant was involved in ‘drug dealing’, it was determined that he should not be granted registration as a teacher. I found that this decision should be rescinded. However, I made no positive finding that the applicant was a fit and proper person to be registered as a teacher pursuant to the TRS Act. I am of the view that I could not have done so.
Section 21 of the TRS Act sets out the eligibility of a person to be registered as a teacher. This provides:
21—Eligibility for registration
(1)Subject to this Act, a person is eligible for registration as a teacher if—
(a) the person has qualifications and experience—
(i)prescribed by regulation; or
(ii)determined by the Teachers Registration Board to be appropriate for registration; and
(b) the person has met any other requirements for registration—
(i)prescribed by regulation or contained in professional standards for teachers; or
(ii)determined by the Teachers Registration Board to be necessary for registration; and
(c) a working with children check has been conducted in relation to the person within the preceding 5 years; and
(d) the person is not a prohibited person; and
(e) the person is otherwise a fit and proper person to be a registered teacher.
(2)Subject to this Act, a person is eligible for provisional registration as a teacher if the person does not have the necessary experience but is otherwise eligible for registration under subsection (1).
The Board is the body with power to grant registration as a teacher, where a person is eligible and has made an application.[30] A very important issue is a person’s fitness and propriety to be registered, in relation to a role that involves extensive contact with children.
[30] Section 23 of the TRS Act.
The applicant first applied for registration on 21 May 2020. After extensive investigation (as set out in my reasons in Kourlas), a decision was made on 14 June 2022 that the applicant was not a fit and proper person to be registered as a teacher. On my findings, this was solely because he had been involved in ‘drug dealing’ in March 2018.
The Teachers Registration Board is a specialist body that performs a number of functions in carrying out its purpose of maintaining ‘a teacher’s registration system and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children’.[31] This includes overseeing the registration process for teachers.
[31] Section 4 of the TRS Act.
By section 7, ‘the welfare and best interests of children is the paramount consideration in relation to…’ the operation of the TRS Act.
In reaching my initial decision regarding the applicant’s application for registration, my consideration was focussed only upon the decision making processes of the Board. I concluded that procedural errors had been made by the Board which led me to conclude that the Board’s decision should be rescinded. I did not however consider any, or all of the evidence, to determine if the applicant was a fit and proper person to be registered as a teacher, in the context of the objects of the TRS Act.
I am of the view that it remains for the Board, as the specialist body responsible for protecting the welfare and best interests of children, to determine if the applicant is a fit and proper person to be registered as a teacher.
I make this decision also taking account of the fact that it has been over four years since the applicant applied for registration as a teacher. I have no information or specialist experience by which to assess what is required to decide fitness and propriety, and other requirements, for registration of a teacher where there has been an extended period between completing teacher training and seeking registration.
Decision
I find that the proper body to determine the applicant’s application for registration as a teacher is the Board.
I remit the applicant’s application for registration to the Board. I direct the Board that in considering and determining the application it is not to take into account any evidence of the applicant’s involvement in any incident on Hindley Street on 10 March 2018. This does not include consideration of the applicant’s failure to advise the Board of the police charges that had been laid in his initial application for registration.
I also direct that:
·there should be a new panel constituted to consider the application;
·that the Board’s deliberations should occur as soon as possible.
Costs
The Parties submissions
Applicant’s submissions
The applicant seeks an order for costs pursuant to s 42G of the District Court Act, whilst acknowledging that costs do not automatically follow the event, and are only to be awarded where there is a finding that such an order is ‘necessary in the interests of justice’.[32] The Board agreed that these were the applicable principles.[33] The issue was how the principles are to be applied in this matter.
[32] T19 and [19] of FDN 28.
[33] T28.
The applicant relied upon Judge Smith’s decision in Moore v the Registrar of Motor Vehicles (No 2), (Moore)[34] where s 42G was first considered by the Court Judge Smith concluded that for costs to be awarded there must be:-
‘…some unusual or out of the ordinary feature of the contest which demonstrates that one party in the interests of justice is entitled to an order for costs. Ordinary course, a successful outcome will be but a qualifying requirement. To succeed in obtaining an order something further would need to be established.[35]
[34] [2001] SADC 14.
[35] Ibid at [6].
The factors relied upon by the applicant in seeking accosts order are:[36]
1.the proceedings of the Board miscarried through no fault of the applicant and despite detailed submissions from his counsel;
2.the Board relied upon inadmissible evidence in reaching its decision;
3.the Board did not properly address the character references;
4.that I found the Board acted in a highly irregular manner in the way the proceedings before it were conducted;
5.that it is not in the public interest for an administrative body to engage in a quasi criminal investigation.
Respondent’s submissions
[36] T250-T22.
I was referred to the recent decision of Judge Thomas in MJW v The Commissioner of Police (No 2)[37] (MJW), in which the principles in Moore regarding the interpretation of ‘necessary in the interests of justice’ were re‑affirmed. It was submitted that there was a difference between finding it is ‘appropriate’ in the interests of justice for costs to be awarded, and it being ‘necessary’ in the interests of justice to do so, with the word ‘necessary’ adding a level of urgency.[38]
[37] [2024] SADC 10.
[38] T29-T30.
It was argued that although it had been found that errors had been made in determining the applicant’s application, I had made no finding or suggestion of misconduct on the part of the Board, or bad faith towards the applicant. Additionally, these were not proceedings in the public interest, but rather for the applicant’s personal gain in becoming a teacher.[39]
[39] T31; Marin v Chiropractic Board of Australia (No 2) [2009] SADC 43.
Consideration
In determining the issue of costs, I have adopted Judge Thomas’ statement in MJW that the ‘Court’s discretion as to costs must be examined in its precise statutory context.’ Her Honour found that no order as to costs can be made unless it is ‘necessary in the interests of justice’ to do so, and that this was an express departure from usual principles that it was just and reasonable for an unsuccessful party to indemnify or compensate the successful party for the costs of litigation.[40]
[40] MJW at [41] – [42].
In MJW, Judge Thomas reviewed in detail what the test for ‘necessary in the interest of justice’ required for the general rules as to costs not to apply. She assessed the case law in the Court commencing with Moore[41] through to Judge Chivell’s differing view in 2019.[42] I adopt Judge Thomas’ assessment of the law and agree with her finding that s 42G(2):
‘manifests a clear legislative intention that the usual rationale for a costs order is not sufficient and ‘something further’ is necessary.’[43]
The burden of establishing this falls upon the applicant.
[41] Ibid at [46] – [63].
[42] The Estate of Babich v South Australian Superannuation Board (No 2) (Babich) [2019] SADC 54.
[43] MJW at [61].
The applicant’s counsel submitted that the decision in MJW was factually different, and that Judge Smith’s comments in Moore provided better guidance, in the facts of this matter. I disagree. Whilst Judge Smith stated that guidance could be obtained from cases related to solicitor/client costs cases he concluded that there ‘must be some special or unusual features’.
Costs – Determination
The applicant relies upon the approach taken by the Board to the evidence before it as taking the matter outside of the ordinary range of matters contemplated by s 42G(2). These evidentiary matters relate to the Board’s investigation of the applicant’s alleged ‘drug dealing’ offending, and are outlined in paragraph 20 of the applicant’s written submissions.
a.The proceedings before the Board miscarried through no fault of the applicant. The Board:
i) Arrived at a finding in relation to the alleged drug offending which was not open to it,
ii) Took into account inadmissible evidence or attributed weight to aspects of the evidence which it ought not to have,
iii) Cherry picked the evidence, and failed to apply the rules of evidence (insofar as the rules were relevant) to the material before them, and failed to have regard to the applicant’s evidence and character references,
iv) Acted in a manner which far exceeded its jurisdiction and function, by a quasi-criminal investigation,
v) Used its discretion in order to obtain an unfair forensic advantage,
vi) Acted in a “highly irregular” manner by generating new evidence, and
vii) Erroneously determined a new class of criminal conduct which was not reflected in the Controlled Substances Act.
Whilst I found that the parts of the Board’s investigation was irregular, and that evidence was relied upon in error, I do not find that the Board’s approach was so unusual or out of the ordinary to justify a departure from principle in s 42G(2).
Although I was of the view that improperly obtained evidence was used in the Board’s determination, I did not find that this was a matter of the Board acting in bad faith. As I set out in my judgment, ‘the Board’s approach in determining whether the applicant was a fit and proper person required them to consider the evidence held by SAPOL. This was not an error in the exercise of their discretion in the context of ss 4 and 7 of the TRS Act’.[44]
[44] Kourlas at [215].
I am not satisfied on the evidence that the applicant has established that it is necessary in the interests of justice for a costs order to be made in his favour. I order that the parties bear their own costs.
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