Malcolm v The Department of Education and Early Childhood Development & Anor
[2008] VSC 530
•3 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6211 of 2008
BETWEEN
| HARRY MALCOLM | Plaintiff |
| And | |
| THE DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT | First Defendant |
| And | |
| THE MERIT PROTECTION BOARDS | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 November 2008 | |
DATE OF JUDGMENT: | 3 December 2008 | |
CASE MAY BE CITED AS: | Malcolm v The Department of Education and Early Childhood Development & Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 530 | |
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ADMINISTRATIVE LAW – Judicial review – Application for certiorari – Legitimate expectation – Preliminary step in process – Whether plaintiff entitled to and denied procedural fairness – Whether failure by second defendant to detect alleged denial of procedural fairness constituted jurisdictional error or error of law on face of record – Discretion – Effect of delay and acquiescence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J O’Bryan and Mr T Sowden | Ken Smith & Associates |
| For the First Defendant | Mr J Bourke | Maddocks |
| For the Second Defendant | Ms R Doyle | Victorian Government Solicitor |
HIS HONOUR:
The plaintiff was a temporary teacher employed by the first defendant from 1977 to 1985, and from 1989 to September 2004, pursuant to s 9 of the Teaching Service Act 1981 (“the Act”). For the last 15 years, he was employed as a teacher at the Upper Yarra Secondary College. Following complaints made in relation to him, the Acting Deputy Secretary of the Office of School Education, in December 2003, removed the plaintiff from teaching duties pending the outcome of procedures instituted under the Act. There then followed a lengthy process of investigation and review. Ultimately, on 19 February 2008, the Merit Protection Boards confirmed the recommendation of an investigator, appointed by the Deputy Secretary, that the plaintiff not be reinstated to the teaching service. In these proceedings, the plaintiff claims relief in the nature of certiorari in respect of that determination.
The history of the events, which preceded the determination in question, is rather lengthy. It commenced with a complaint on 30 May 2002 by the mathematics coordinator of the school to its principal, Mr Way. After investigating that complaint, the principal wrote a letter to the plaintiff dated 2 June 2003. In that letter, the principal set out the findings which he had made in relation to the various complaints made about the plaintiff. On the second last page of the letter, the principal stated:
“I wish to inform you that these behaviours are not acceptable. Please note that a repeat of this, or like, conduct may represent a breach of the Teaching Service Act 1981 and may lead to action under the Teaching Service Act 1981, such action may result in your dismissal.”
On the final page of the letter, the principal stated that he had determined to institute a “13 week period of support and monitoring” for the plaintiff. The principal described what was involved in the support and monitoring, and advised the plaintiff that he had arranged for a Mr Garry Cooper to provide “in class support and monitoring” for him.
Pursuant to that letter, the plaintiff underwent a period of support and monitoring from Mr Cooper. The monitoring concluded in August 2003. Subsequently, in October 2003, further complaints were made to the principal in relation to the plaintiff. Accordingly, on 27 October 2003, the principal wrote to the plaintiff, setting out the allegations, and requesting a response from him.
On 21 November 2003, the principal wrote a further letter to the plaintiff, advising that he had formed the view that the behaviour of the plaintiff, referred to in the principal’s letter of 27 October 2003, constituted “continuing unsatisfactory teaching performance and unprofessional conduct”. The principal informed the plaintiff that he was referring the matter to the Secretary, Department of Education and Training, for consideration as to what action might be taken under the Act.
On the same day, the principal also wrote a letter to the Secretary of the Department of Education and Training, attaching a report regarding “the continuing unsatisfactory performance and unprofessional conduct/misconduct of the plaintiff”. In the letter, the principal referred to the complaints against the plaintiff, including those made by the mathematics coordinator. The principal informed the Secretary that he believed that the plaintiff’s behaviour constituted “continuing serious misconduct”. He concluded by referring the matter to the Secretary for consideration of action to be taken against the plaintiff under the Act.
On 4 December 2003, the Deputy Secretary, Department of Education and Training, wrote a letter to the plaintiff stating that, “as a result of serious allegations related to your professional performance”, he was removed from teaching duties and placed under the direction of the Regional Director, Eastern Metropolitan Region, pending the outcome of procedures under the Act.
On 7 May 2004 the Deputy Secretary issued a notice under s 9(8) of the Act. The notice set out a number of allegations against the plaintiff, and advised that grounds may exist upon which the Department might terminate his employment as a temporary teacher. On 11 May 2004 the Deputy Secretary requested Ms Glenda Strong, the Regional Director, Barwon South Western Region, to investigate the allegations against the plaintiff in the notice and to decide what further action, if any, should be taken in relation to the plaintiff’s employment. After conducting that investigation, Ms Strong, on 22 September 2004, wrote to the plaintiff, advising him that she had found all the allegations against him substantiated. She further advised that she determined that the plaintiff should be dismissed from the Teaching Service of Victoria.
In response, on 15 October 2004, the plaintiff lodged a notice of appeal to the Merit Protection Boards (“the Board”), which were constituted by a Teaching Service Order made under the Act. The Board treated the “appeal” as a “grievance” in accordance with Teaching Service Order 186, to which I shall later refer. On 27 November 2006, the Board published its findings, upholding the plaintiff’s grievance, and ordering that a new investigation should be undertaken. Essentially, the Board found that the plaintiff had been denied procedural fairness by Ms Strong, because her investigation did not include interviews with a number of persons at the school who had provided witness statements supporting the complaints against the plaintiff.
As a result of that finding, the Secretary of the Department of Education, on 13 March 2007, requested Mr Greg Gibbs to conduct a new investigation into the allegations against the plaintiff, and to make a recommendation whether the plaintiff should be reinstated to the Teaching Service. The Secretary requested Mr Gibbs to conduct the investigation, taking into account the findings of the Board of 27 November 2006. Pursuant to that request, Mr Gibbs undertook the investigation. On 28 August 2007, Mr Gibbs wrote to the Secretary, advising that he had completed his investigation, and enclosing his report. In that report, Mr Gibbs upheld most of the allegations against the plaintiff, and recommended that the plaintiff not be reinstated to the Teaching Service. On 14 September 2007, the Secretary wrote to the plaintiff, advising him of the findings and recommendation of Mr Gibbs, and stating that he had accepted Mr Gibbs’ recommendation that the plaintiff not be reinstated.
On 12 October 2007, the plaintiff lodged an application for a grievance review to the Board. Written submissions were exchanged and filed with the Board. On 18 February 2008, a hearing took place before the Board at which the plaintiff was represented by counsel. On 19 February, the Board published its decision. The Board found that there was no substance to the grounds contained in the plaintiff’s grievance, and concluded by stating that it was open to the investigator to find the majority of the allegations against the plaintiff proven. Accordingly, the Board disallowed the plaintiff’s grievance, and confirmed the investigator’s recommendation that the plaintiff not be reinstated to the Teaching Service. It is that decision which is the subject of the plaintiff’s application for judicial review in this proceeding.
The procedure before the Board
Section 64 of the Act established Boards known as “Merit Protection Boards” whose function (inter alia) was to hear reviews and appeals in relation to decisions made under the Act. Pursuant to s 11, the Minister issued Teaching Service Order No 186, entitled the “Teaching Class (Employment Conditions, Salaries, Allowances and Selection) Order 2004” (“TSO 186”). Clause 5.1.2 of the Order provided that a teacher may lodge an application for a “personal grievance” with the Senior Chairperson of the Merit Protection Boards. Clause 5.1.1(3)(a) defined “personal grievance to mean”:
“… a grievance of a teacher in respect of any action … taken within a work location which directly affects that teacher and which the teacher considers:
(i)is in breach of the Act or this Order; or
(ii)infringes the principles of merit and equity, or infringes any personnel policy or guidelines issued by the Secretary; or
(iii)is otherwise unreasonable.”
The plaintiff’s application for grievance contained eight grounds. The first seven grounds related to the sufficiency of the evidence relied on by Mr Gibbs, and on his findings. The sixth ground was expressed as follows:
“(f)The delegate failed to apply the principles of natural justice and/or procedural fairness in making the decision.”
The written and oral submissions, which were presented on behalf of the plaintiff to the Board, did not address the first five grounds. Rather, as observed by the Board in its decision, the plaintiff’s case to it concerned issues of procedure and not the substantive merits of the allegations against the plaintiff. The Board noted that the hearing was not conducted as a hearing de novo, and that the Board “gave careful consideration as to how the investigation was undertaken by the investigator”.
Grounds of review
The originating motion, by which this proceeding was instituted, contained three grounds for review of the decision of the Board. However, in submissions before me, the plaintiff did not rely on any of those grounds. Rather, Mr J O’Bryan, who appeared with Mr T Sowden for the plaintiff, relied on a different ground. Mr O’Bryan submitted that, in rejecting the plaintiff’s grievance, the Board made an error of law, which constituted jurisdictional error. He submitted that that error consisted of the failure of the Board to identify that, in referring the allegations against the plaintiff to the Secretary of the Department on 21 November 2003, the principal had failed to accord procedural fairness to the plaintiff.
Submissions
Mr O’Bryan’s submissions were based on the contents of the Victorian Government Schools Teacher Class Handbook (“the handbook”) published in February 2001. In particular, his submissions concerned the section of the handbook entitled “Complaints, Unsatisfactory Performance and Serious Misconduct”. Mr O’Bryan submitted that that part of the handbook prescribed specific procedures, where an issue arose concerning either a complaint, alleged misconduct, or unsatisfactory performance, on the part of the teacher. He submitted that, depending upon the view taken by the principal of the nature of the allegation made against the teacher, or the nature of the concern relating to that teacher, the principal was obliged to follow a particular procedure prescribed by the handbook. Mr O’Bryan submitted that in June 2003 the principal had assessed the allegations, made against the plaintiff, as constituting “unsatisfactory performance” by the plaintiff. Having reached that conclusion, the principal commenced to implement the “unsatisfactory performance procedures”, which are found at pages 44 and following of the handbook, by commencing a first period of monitoring for the plaintiff. Accordingly, as prescribed by the handbook, the principal was obliged to allow to the plaintiff two periods of monitoring, if he continued to have concerns about the performance of the plaintiff after completion of the first period of monitoring. Mr O’Bryan submitted that consequently the plaintiff had a “legitimate expectation”, based on the procedure for dealing with performance based complaints set out in the handbook, that he would be given an opportunity by the principal to be heard, before the principal departed from the regime for performance based complaints set out in the handbook. Thus, Mr O’Bryan submitted that, having commenced to deal with the complaints against the plaintiff, on the basis that they related to unsatisfactory performance, the principles of procedural fairness required that the principal of the school afford the plaintiff a right to be heard, before the principal referred the matter to the Secretary of the Department in November 2003. The principal failed to give the plaintiff that opportunity, and the plaintiff was thereby denied procedural fairness.
Mr O’Bryan then submitted that the Board, in its decision of 19 February 2008, made an error of law, because it “failed to identify that the action that was the subject of the grievance before it was undertaken by the principal and the Department without regard to procedural fairness”.[1] Mr O’Bryan submitted that that error of law constituted a jurisdictional error by the Board. Alternatively, he submitted that the error by the Board was an error on the face of the record, and thus was amenable to relief by certiorari.
[1]Plaintiff’s outline of submissions, 25 November 2008, [27].
In response, Mr J Bourke, who appeared for the first defendant, commenced by pointing out that the ground of review, now relied on by the plaintiff, is not a ground set out in the originating motion. However, he did not object to the plaintiff relying on that ground, and he was able to meet the new point in his submissions to me.
Mr Bourke commenced his substantive submissions by contending that the employment rights of the plaintiff were governed solely by a contract between the plaintiff and the first defendant. Consequently, in exercising its right to dismiss the plaintiff, the first defendant was not obliged to afford the plaintiff procedural fairness. Alternatively, Mr Bourke submitted that the decision of the principal, to refer the matter to the Secretary of the Department in November 2003, was no more than a subsidiary step in the procedures, the ultimate outcome of which was the dismissal of the plaintiff. He submitted that such a subsidiary step did not, in any event, attract the principles of procedural fairness. Further, he submitted that if those principles applied to the decision made by the principal, in November 2003, to refer the matter to the Secretary, the plaintiff, by his subsequent conduct, waived his right to rely on any breach by Mr Way of the principles of procedural fairness. In particular, Mr Bourke submitted that at no stage, until the hearing of the originating motion before me, has the plaintiff made a complaint that the principal had failed to afford him procedural fairness in making the decision to refer the matter to the Secretary. In the meantime, Ms Strong had embarked on her first investigation, the Board had conducted the first hearing, Mr Gibbs had conducted the second investigation, and the Board had conducted the second hearing. All those processes took place without the plaintiff, at any time, seeking relief, from this Court, or otherwise, based on an alleged failure of Mr Way, in November 2003, to have afforded him procedural fairness. Accordingly, Mr Bourke submitted that the plaintiff had waived his right to complain of any want of procedural fairness by Mr Way in November 2003.
Mr Bourke further submitted that, in any event, there was no lack of procedural fairness by the principal, as now alleged by the plaintiff. Mr Bourke submitted, first, that, in June 2003, Mr Way had not treated the allegations against the plaintiff as matters relating to unsatisfactory performance; rather, Mr Way had treated them, initially, as matters arising from a complaint. In the handbook, the procedures for dealing with a “complaint” did not specify a second period of monitoring. In this connection, Mr Bourke pointed out that the terms of the letter, sent by the principal to the plaintiff on 2 June 2003, were inconsistent with the principal treating the matter as “unsatisfactory performance”, but, rather, indicated that the principal was treating the matter as a serious complaint. In any event, Mr Bourke submitted that the handbook did not purport to prescribe a strict set of procedures which must invariably be implemented by the principal in any case. If the principal did initially treat the allegations against the plaintiff as relating to unsatisfactory performance, he was not, in any case, obliged to give the plaintiff two periods of monitoring come what may. Mr Bourke submitted that the handbook should be given a common sense construction. In particular, it should be regarded a useful guide to principals when dealing with allegations and complaints relating to teachers, and not treated as a binding and inflexible set of prescriptions.
Mr Bourke further submitted that, if the principal did treat the matter as one relating to unsatisfactory performance, and if, as maintained by the plaintiff, he was entitled to be heard if the principal decided not to allow him a second period of monitoring, any failure by the principal to afford the plaintiff the right to be heard in respect of his decision to refer the matter to the Secretary was not productive, in a practical sense, of any injustice to the plaintiff. Rather, that step put in train a process, in the course of which the plaintiff was given an abundant opportunity to be heard and to defend his position. Mr Bourke submitted that a defect in the procedure, in a case such as this, could only amount to procedural unfairness, entitling an applicant to prerogative relief, if that defect was truly productive of practical injustice. In this connection Mr Bourke referred to the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam[2].
[2](2003) 214 CLR 1.
Mr Bourke then turned to the decision of the Merits Protection Board of 19 February 2008. He submitted that even if the plaintiff could establish that Mr Way, in November 2003, had failed to afford him procedural fairness when he referred the matter to the Secretary, the plaintiff could not identify any error of law made by the Board in its decision in February 2008. In particular, Mr Bourke submitted that the plaintiff did not raise, before the Board, the issue now raised before me, namely, the alleged breach by Mr Way of the principles of procedural fairness when he referred the matter to the Secretary. Thus, Mr Bourke submitted the Board could not have made an error, since it did not, and was not called upon to, decide that point. Mr Bourke further submitted that, if there was any error by the Board as alleged by the plaintiff, that error did not constitute jurisdictional error. In that respect, he referred to a number of authorities, including the decision of the High Court in Craig v The State of South Australia[3], and the decision of the Court of Appeal of Victoria in The Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor[4]. Mr Bourke further submitted that any such error was not an error of law on the face of the record, since the handbook did not constitute part of the record of the Board. Further, he submitted that, in any event, any such error was not reviewable, because it was not an error which was material to the decision under review.[5] Finally, Mr Bourke submitted that, even if the plaintiff has established reviewable error, in the exercise of my discretion, I should not grant the plaintiff prerogative relief. That submission was based on the failure of the plaintiff to agitate the point, now raised before me, on any previous occasion. He submitted that the plaintiff had thereby acquiesced in any want of procedural fairness by Mr Way, and that in the exercise of the court’s discretion, I should refuse the plaintiff prerogative relief based on a complaint which he had hitherto desisted from making on a number of occasions when had the opportunity to do so.
[3](1995) 184 CLR 163, 179 and following.
[4][1999] 2 VR 191.
[5]See Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321, 353, 384.
Ms R Doyle, who appeared on behalf of the second defendant, in conformity with the principles stated by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman& Others[6], assisted the Court by drawing my attention to a number of matters relating to the history of the legislative regime relevant to this proceeding.
[6](1980) 144 CLR 13, 35-36.
Conclusions
In my view, the plaintiff’s claim for prerogative relief should fail for a number of reasons. First, it is fundamental to Mr O’Bryan’s submissions that the principal, Mr Way, in June 2003, when dealing with the allegations against the plaintiff, elected to implement the “unsatisfactory performance procedures” specified in the handbook. I am not satisfied that the principal did adopt those procedures. Rather, in my view, the principal adopted alternative, and different, procedures, than the unsatisfactory performance procedures.
The precise structure, and interrelationship, of the procedures, set out in the handbook, for dealing with “Complaints, Unsatisfactory Performance and Serious Misconduct”, is not entirely clear cut. It is hardly surprising that that is so. The handbook was not intended to constitute a strict statute setting out, in precise form, the procedures which must be adopted in particular cases. Rather, as submitted by Mr Bourke, it was clearly designed to be a guide to assist teachers understand the employment arrangements relative to them.
To the extent that the relevant section of the handbook does prescribe any set of procedures, it would seem that that section describes four different responses, which may be adopted by a principal, where that principal has a complaint relating to a teacher brought to his or her attention. Essentially, the principal may: refer the matter to an external agency; implement “complaints procedures”; implement “unsatisfactory performance procedures”; or contact the “Complaints and Investigations Unit” on matters relating to serious misconduct. That structure is evident from page 34 of the handbook, which is the first page of the section entitled “Complaints and Satisfactory Performance and Serious Misconduct”. On page 39, the book describes the processes which can be adopted when determining an appropriate action by a principal. The handbook states that where the complaint involves “misconduct or sexual harassment”, the principal must contact the Complaints and Investigations Unit for advice. Where the complaint raises “significant issues in relation to unsatisfactory performance”, the principal “should implement the managing unsatisfactory performance procedures”. The next paragraph states that “in determining the appropriate action” the principal may consider a number of different possible responses, ranging from a formal apology to referring the complainant to the appropriate external authority. One of those responses is described as “implementing a formal period of monitoring”. For simplicity of reference, I shall refer to that process as the “complaint monitoring” process. Page 42 of the handbook contains the section which commences with the heading “Unsatisfactory Performance”. That section provides that where the principal considers a teacher’s performance to be unsatisfactory the “following procedures may be applied”. (Emphasis added). On page 46, the handbook describes part of the procedures as the “first period of monitoring”. On page 47, the handbook states that if, after the first period of monitoring, the performance of the teacher continues to be below the required standard, the principal should notify the teacher in writing and provide the opportunity for the teacher to meet and discuss the matter. The principal may then provide a further opportunity for a second period of monitoring.
It can be seen, then, that the handbook provides two different bases, upon which the principal may require a teacher to undergo monitoring. The first procedure is that described on page 39, namely, the “complaints monitoring” procedure. The second procedure is that in which the principal implements the unsatisfactory performance procedures. Mr O’Bryan’s submission is that the principal, in June 2003, commenced, and thus committed to, implementing the unsatisfactory performance procedures.
In my view, the letter of the principal of 2 June 2003 did not contain any such commitment. That letter, in some detail, set out the principal’s findings concerning a number of the allegations made against the plaintiff. I pause to note that, based on the number and nature of those findings, the principal could only have concluded that there were serious deficiencies in the conduct and performance of the plaintiff. As I have already stated, on the second last page of the letter, the principal advised the plaintiff that his behaviours “are not acceptable”, and that any repetition of that conduct “may lead to action under the Teaching Service Act 1981 (which) may result in your dismissal”. On the last page of the letter the principal stated that he would implement a thirteen week period of support and monitoring. The letter did not contain any reference to the “unsatisfactory performance procedures” prescribed in the handbook. Nor did it purport to adopt those procedures. The reference by the principal, on the second last page of the letter, to the plaintiff’s behaviour being “not acceptable”, could not be construed as a reference to a finding of “unsatisfactory performance”. Indeed, a number of the findings made by the principal in his letter – and in particular the description of the plaintiff’s inappropriate communications with his colleagues – related to matters which do not readily fall within the description of “unsatisfactory performance”. The warning, on the second last page of the letter, that any repetition of the conduct identified in the letter may lead to dismissal, is at odds with any suggestion that the plaintiff might be afforded a second period of monitoring. In those circumstances, I am not satisfied that the principal, in June 2003, determined to implement the “unsatisfactory performance procedures” described in the handbook. Rather, it seems clear that the principal was implementing the “complaints monitoring” process.
The conclusion, which I have just reached, is sufficient to dispose of the plaintiff’s application for prerogative relief. However, there are a number of other bases upon which, in my view, the plaintiff’s claim should fail. If, contrary to my conclusion above, the principal did embark on the “unsatisfactory performance” procedures prescribed in the handbook, he did so in circumstances in which he did not commit to providing the plaintiff with two periods of monitoring. First, the letter of 2 June 2003 is to the contrary. Secondly, and in any event, I agree with Mr Bourke that the section of the handbook, relating to “unsatisfactory performance” procedures, was not designed to be as inflexible as contended by Mr O’Bryan. The handbook was designed to provide a common sense and practical guide to teachers in dealing with matters arising in the course of their employment. The “unsatisfactory performance” procedures could not, in that context, have been intended to straight jacket a principal in such a way as to require him, in each case, to provide a teacher with two periods of monitoring. If Mr O’Bryan’s submissions are correct, then a principal, who committed to implementing the “unsatisfactory performance” procedures, would be obliged to permit a teacher two periods of monitoring, notwithstanding that during, or at the end of, the first period of monitoring, the principal may come to the conclusion that a second period might be entirely futile. In the present case, after the first period of monitoring, the principal was advised of further complaints and issues relating to the plaintiff. In his letter to the plaintiff dated 21 November 2003, the principal described the plaintiff’s behaviour as “continuing unsatisfactory teaching performance and unprofessional conduct”. In that letter, the principal set out the findings which he had made in relation to eleven further complaints relating to the plaintiff. The nature of those complaints, and the reference by the principal to “unprofessional conduct”, clearly indicate that, even if the principal had, in June 2003, commenced to implement the unsatisfactory performance procedures, he was now treating the matter as being more serious, and as requiring the referral by him of the matter to the Secretary.
Furthermore, if contrary to the views I have just expressed, the principal did implement the unsatisfactory performance procedures prescribed in the handbook, and if the principal did make a decision not to proceed with the second period of monitoring prescribed in those procedures, I do not consider that the principles of procedural fairness required the principal, at that point, to afford the plaintiff the right to be heard, before the principal made that decision and referred the matter to the Secretary.
In reaching that conclusion, it is not necessary for me to determine whether the relationship between the plaintiff rests solely in contract, such as to exclude from its operation the principles of procedural fairness.[7] Certainly, the definition of “personal grievance” in clause 5.1.1(4) of TSO 186 is consistent with a requirement that any action in respect of a teacher not infringe “the principles of merit and equity” or “any personnel policy or guidelines” issued by the Secretary of the Department. That definition, and the right of a teacher to seek review of any action, affecting the teacher, before the Merits Protection Boards, indicate that the processes affecting a teacher may not be governed solely by the laws of contract. However, and in any event, even if the principles of procedural fairness were applicable to the processes undertaken by the first defendant in dismissing the plaintiff, I do not consider that the principal was required to afford the plaintiff a right to be heard, if, contrary to the views which I have already expressed, the principal, in November 2003, determined to divert from the unsatisfactory performance processes, and to refer the matter to the Secretary, without the plaintiff undergoing a second period of monitoring.
[7]Compare Intico (Vic) Pty Ltd v Walmsley [2004] VSCA 90.
The action taken by the principal in November 2003 was essentially a preliminary step in the procedures, the ultimate outcome of which was that the plaintiff was dismissed by the Secretary on the recommendation of the investigator, Mr Gibbs. Following that decision, a number of other processes took place. They included the investigation conducted by Mr Gibbs, in which the plaintiff was afforded a right to be heard. The process also included the right of the plaintiff to present his grievance, in respect of that investigation, to the Merits Protection Boards, and to be heard in respect of that grievance. In the totality of the processes which resulted in his dismissal, the plaintiff was afforded an abundance of procedural fairness, before the ultimate decision was made, and affirmed, whereby he was dismissed from the teaching service. Viewed in their entirety, the processes which preceded the plaintiff’s dismissal gave him substantial and reasonable opportunity to be heard and to present his case in response to the matters alleged against him. On any realistic view of the processes, it could not be realistically maintained that he was denied procedural fairness.
Generally, the law does not impose an obligation on a decision maker to provide procedural fairness at a preliminary stage of disciplinary or similar proceedings, where the disciplinary procedures, as a whole, entitle the plaintiff to a fair right to be heard. In Ainsworth v Criminal Justice Commission[8], Mason CJ, Dawson, Toohey and Gaudron JJ (in their joint judgment) stated the applicable principle as follows:
“It is not in doubt that, 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’.”[9]
[8](1992) 175 CLR 564, 578.
[9]See also Cornall v AB (a solicitor) [1995] 1VR 372, 400; Byrne v Marles & Law Institute of Victoria Limited [2008] VSCA 78, [82] (Nettle JA).
The plaintiff founded his claim to a right to procedural fairness on the basis that he had a “legitimate expectation” that if the principal did not accord him a second monitoring period as described in the handbook, he would be given a right to be heard before the matter was referred to the Secretary. The proposition advanced on behalf of the plaintiff has as its starting point a “legitimate expectation” residing in the plaintiff, and deriving from the requirement that he otherwise be accorded a second period of monitoring before any further action is taken in respect of him. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam[10], the High Court made it clear that it is not the case that each and every departure from a “legitimate expectation” affords an aggrieved party a right to relief on the basis of an infringement of procedural fairness. As the separate judgments in that case made plain, the ultimate question is whether such a departure involved unfairness to the relevant party in respect of the processes by which the decision, affecting that party, was made.[11] Thus Gleeson CJ stated:
“But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”[12]
[10](2003) 214 CLR 1.
[11]Ibid, [34] (Gleeson CJ), [105] to [106] (McHugh and Gummow JJ), [122] (Hayne J), [150] (Callinan J).
[12]Ibid [34].
In the present case, even if I were to accept that the plaintiff had a legitimate expectation that, all things being equal, he was entitled to a second monitoring period, the disappointment of that expectation by the action of the principal referring the matter to the Secretary without first hearing from the plaintiff, could not, in the overall context, be sensibly regarded as involving procedural unfairness to the plaintiff. For, as I have already pointed out, there then ensued a number of processes, in the course of which, at at least two stages, the plaintiff was afforded a full right to be heard. There is no suggestion that any of those processes were conducted irregularly or unfairly. The processes could properly be described as comprehensive and fair. Viewed in that light, any undermining of the plaintiff’s “expectation” in November 2003, in respect of a second monitoring period, did not involve any unfairness such as to constitute a breach of his entitlement to natural justice or procedural fairness.
Indeed, it is relevant that the point relied on by the plaintiff was not raised at any stage during the disciplinary processes, and indeed did not expressly find its place in any of the three grounds stated in the originating motion. The plaintiff was represented by counsel in the two separate hearings before the Merit Protection Boards. Counsel made written submissions in those proceedings, and was given the opportunity to address the Board. It is not necessary for me to enter into the question whether the plaintiff thereby waived his right to complain subsequently of any lack of procedural fairness in respect of the conduct of the principal in November 2003.[13] For, in any event, the lack of complaint by the plaintiff, or by his legal representatives, throughout the long investigative processes, reinforces the absence of any reality to the complaint now made, that, at an early stage in those processes, the principal of his school denied him procedural fairness in the manner of which he now complains.
[13]Compare Escobar v Spindaleri (1991) 7 NSWLR 51; Mayes v Mayes [1971] 1 WLR 679, 684 (Simon P); In the Marriage of DJ & MY Collins (1990) 14 Fam LR 162, 179.
Finally, even if there had been a denial of procedural fairness by the principal in November 2003, I do not accept that the Board, in its decision of 19 February 2008, made any relevant error in failing to detect that want of procedural fairness, as contended by Mr O’Bryan. As I have already stated, the plaintiff, in his submissions to the Board, did not raise the point now agitated before me. Thus, it was not put to the Board that Mr Way, in November 2003, erred in failing to accord to the plaintiff a right to be heard, when he referred the matter to the Secretary. It is correct, as observed by Mr O’Bryan, that in both the written submissions filed on behalf of the plaintiff, and the oral submissions put on his behalf, before the Board, it was contended that the plaintiff had a legitimate expectation that the principal would adhere to the handbook, and that a second monitoring period would be implemented in the event that the principal remained concerned as to his performance after the first monitoring period. However, that expectation was argued before the Board, as a basic right of the applicant to be afforded a second monitoring period. It was not contended before the Board that that “legitimate expectation” gave rise to an entitlement to a hearing, should the principal be minded to refer the matter to the Secretary without a second period of monitoring taking place. That issue was not raised before the Board. The Board was not required to decide it. The Board did not decide it. The plaintiff has not established any error, of law or otherwise, by the Board in not deciding an issue which was not argued before it.
Further, if the Board did make any such error, it was not, in my view, an error amenable to prerogative relief by way of certiorari. An error of law by an inferior court or tribunal may only form the basis of an entitlement to certiorari, if it constitutes jurisdictional error, or an error of law on the face of the record. Mr O’Bryan’s primary submission was that the error of law, which he submitted was made by the Board, constituted a jurisdictional error.
In determining whether there is a want of jurisdiction, by reason of an error of law made by a tribunal, the critical question is whether the tribunal was entrusted, by statute, with the jurisdiction to decide the question of law, the determination of which is alleged to have been erroneous. Ordinarily, it is presumed that an administrative tribunal lacks authority to determine authoritatively questions of law. However, that presumption yields to any contrary intention in the statute or in the instrument which establishes the tribunal.[14] The principles were examined and stated by Phillips JA in The Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor[15] in the following terms:
“… Parliament could if so minded confer upon anybody the power to decide (and to decide conclusively, I would add) questions of law as well as questions of fact, and it was a presumption only that Parliament did not intend to confer such power on an administrative tribunal, as distinct from an inferior court. If that presumption were borne out by the statute in question in a particular case, then of course the conclusion might well follow that error of law went to jurisdiction …
In short, it seems to me that, though critical in some cases …, the distinction between a court of law and a true administrative tribunal is essentially of importance only if and insofar as the nature of the one sheds any light on deciding the intention of the Parliament in committing the task at stake to the body in question – and in particular whether that task includes not only the power to decide but also the power to decide wrongly (and whether on questions of fact or law) without attracting prerogative relief … In Australia legislative experience is so diverse that there must be a danger in relying too quickly upon presumption, and especially a presumption which depends upon the nature and function of the body in question …
Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction.”
[14]Craig v The State of South Australia(1995) 184 CLR 163, 179; In Re Racal Communications Limited [1981] AC 374, 383 (Lord Diplock).
[15][1999] 2 VR 203, 214 to 215; see also Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors (2006) 32 WAR 501, [109]-[110] (Martin CJ); Re The State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342, [13]-[16] (Steytler P, Wheeler and McLure JJA).
In the present case, TSO 186 clause 5.1.1(3)(a) defines “personal grievance” to include an infringement of the “principles of merit and equity” or of “any personnel policy or guidelines issued by the Secretary”. Clause 5.1.2 entitles a teacher to lodge a “personal grievance” with the Merit Protection Board. Thus, the Board was empowered to determine issues including whether action taken in respect of a teacher “infringes the principles of merit and equity” or “infringes any personnel policy or guidelines” issued by the Secretary. It was that task which was entrusted to the Board. If, in carrying out that task, the Board made an error of law, in failing to identify the alleged breach of procedural fairness as a relevant infringement, and thus as constituting a “personal grievance”, any such error of law was made by the Board within its jurisdiction. In other words, the scope of the task, reposed by TSO 186 in the Board, involved it determining authoritatively whether there had been a relevant infringement. If the Board made an error of law in carrying out that task, by failing to identify the alleged breach of procedural fairness by the principal, that error was made within, and not outside, the jurisdiction of the Board. Accordingly, any such error did not constitute jurisdictional error on behalf of the Board.
Mr O’Bryan contended, in the alternative, that the error, relied on by him, constituted an error by the Merit Protection Board on the face of its record, and that it was therefore amenable to prerogative relief by way of certiorari. At common law, the documents which comprised the “record” of an inferior court or tribunal, for the purposes of certiorari, were restricted to the documents which initiated the proceedings, the pleadings (if any) and the formal adjudication of the inferior court or tribunal.[16] The record was also held to include any documents referred to in the formal record of the proceedings, in a way which would incorporate those documents as “an integral part” of the record of the inferior court or tribunal. For that purpose, it was not sufficient that the reference to the document, in the record of the inferior court or tribunal, was merely introductory or incidental. Rather, the reference to the document must constitute an express or implicit incorporation of those documents in the record of the proceeding.[17]
[16]Craig v State of South Australia (1995) 184 CLR 163, 182.
[17]Ibid.
At common law, the reasons given by a court or tribunal, for its ultimate decision, did not form part of the record of that court or tribunal. However, s 10 of the Administrative Law Act 1978 provides that any statement by a tribunal or inferior court of its reasons for decision “shall be taken to form part of the decision and accordingly to be incorporated in the record”. Thus, the record of the Merit Protection Board, for the purposes of certiorari, includes its reasons for decision published on 19 February 2008. At paragraph 4.2.2 of those reasons, the Board expressly referred to the procedure for handling complaints outlined on page 39 of the handbook, and concluded that the process adopted by the principal, Mr Way, was that described as the “complaints process”. It was for that reason that the Board concluded that the principal had not implemented a process requiring a second monitoring period. In my view, the reference to the handbook, and in particular to the processes described in that handbook, is sufficient to incorporate the section of the handbook, relevant to this case, as part of the record of the Board.
However, if (contrary to my earlier conclusions) I had sustained the plaintiff’s submission that that part of the reasons of the Board contained an error of law, consisting of the alleged failure of the Board to identify a want of procedural fairness by the principal in November 2003, in my view that error of law would not be such as to render the decision of the Board amenable to prerogative relief by way of certiorari. In order that an error of law, apparent on the record, render the decision of the lower court or tribunal liable to prerogative relief in the form of certiorari, the error must be material to the decision in question. The relevant test is that stated by Mason CJ in Australian Broadcasting Tribunal v Bond & Ors[18]:
“A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.”[19]
[18](1990) 170 CLR 321, 353.
[19]See also at 384 (Toohey and Gaudron JJ); Ex parte Brown; Re McNamara (1967) 68 SR (NSW) 188, 191 (Wallace P), 200 (Walsh JA); Samad v District Court of New South Wales (2002) 209 CLR 140, 155 [44] (Gleeson CJ and McHugh J).
In the present case, the task of the Board was to determine whether the plaintiff had established grounds of “personal grievance” as defined in clause 5.1.1(3)(a) of TSO 186. In approaching that task, the Board addressed the grounds of review asserted in the plaintiff’s application to it. As I have already stated, the sixth ground alleged a failure by the “delegate” (Mr Gibbs) to apply the principles of natural justice and/or procedural fairness in making his decision. If, in some way, the Board did make an error of law by failing to identify the alleged lack of procedural fairness by the principal in November 2003, it has not been demonstrated how such an error (if it were made) could conceivably have been relevant to the determination by the Board of the ground of personal grievance raised by the plaintiff. In view of the issues before the Board, any such error could only have been incidental to its findings. It did not affect, and was not relevant to, the ground agitated by the plaintiff before the Board, namely, whether the delegate had denied him natural justice. Nor did it have any material connection to the Board’s consideration whether a grievance, as defined in clause 5.1.1(3)(a) of TSO 186, had been established by the plaintiff. Thus, any such error (if it were made) was not material to the decision which the Merit Protection Board made in response to the grievance asserted by the plaintiff.
Finally, if, contrary to each of the conclusions I have so far expressed, the plaintiff had established the error of law by the Merit Protection Board relied on by him before me, I would have declined to grant the plaintiff relief by way of certiorari in the exercise of my discretion. As I have already stated, the plaintiff had abundant opportunity to raise the point, relied on before me, in the period of five years between the alleged erroneous decision made by the principal (in November 2003) and this proceeding. During that time, the plaintiff was represented by counsel before the two Merit Protection Boards which reviewed the investigations in relation to his conduct. The plaintiff permitted the investigative processes, undertaken by the first defendant, to proceed over a substantial period of time, without challenge based on the point made before me. Accordingly, if the plaintiff had otherwise made out grounds for intervention by this Court by prerogative relief, I would have declined to intervene in the exercise of my discretion, based on the plaintiff’s unexplained delay[20] and acquiescence[21] in the procedures undertaken by the first defendant before his dismissal was confirmed in February 2008.
[20]R v Aston University Senate, Ex parte Roffey & Another [1969] 2 QB 538, 555 (Donaldson J), 559 (Blain J); R v O’Sullivan; Ex parte Clarke [1967] WAR 168, 171 (Wolff CJ), 173 (Jackson J).
[21]Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown & Another (1960) 105 CLR 401, 413 (Menzies J); R v Lilydale Magistrates’ Court; Ex parte Ciccone [1973] VR 122, 134 (McInerney J).
Thus, for the reasons which I have stated, the plaintiff’s application for prerogative relief by certiorari must fail. Accordingly, the proceeding should be dismissed. I shall hear counsel on the question of costs.
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