Rahman v Riordan - [2010] NSWSC 409

CITATION: Rahman v Riordan [2010] NSWSC 409

HEARING DATE(S): 19-20 April 2010

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

EX TEMPORE JUDGMENT DATE: 20 April 2010

DECISION: 1. Summons is dismissed.
2. Plaintiff to pay the defendants' costs of the summons.

CATCHWORDS: ADMINISTRATIVE LAW - whether Department of Education & Training unlawfully rejected the applicant's employment application for fulltime work with the Department - whether prerogative relief should be granted - whether Department of Education & Training was required to accept the applicant's own evidence from Test of English as a Foreign Language - regulation of admission to teach in NSW public schools by Director-General

LEGISLATION CITED: Teaching Services Act 1980

CATEGORY: Principal judgment

PARTIES: Mohammad Tabibar Rahman (Plaintiff)
Peter Riordan (First Defendant)
David McGrath (Second Defendant)

FILE NUMBER(S): SC 2009/298070

COUNSEL: Plaintiff in person
S B Benson (Defendants)

SOLICITORS: Plaintiff in person
Chief Legal Officer, Department of Education and Training (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

TUESDAY 20 APRIL 2010

2009/298070 RAHMAN v RIORDAN & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff was born in Bangladesh in 1948. He holds a Bachelor of Science degree from the University of Rajshahi, bank der, and has a Master of Science degree from the University of Peshawar in Pakistan. He taught full-time in secondary government schools in Bangladesh for a period of fifteen years. He then found his way to England and taught in a State primary school in London for almost two years. He also taught part-time in a secondary non-government school near Liverpool for more than two years.

2 The plaintiff came to Australia in 1991 and has been employed for periods of time by the Department of Education & Training (DET) on a temporary basis. I understand that he has taught for a total of approximately 350 school days. The period which he taught was between the years 2001 and 2005. Since coming to Australia the plaintiff has obtained a Diploma in Education from Charles Sturt University.

3 The plaintiff has sought further employment with the DET as a teacher on a full-time basis. Although he has made a number of applications for that employment, each of them has been rejected. His applications have been refused because the departmental officers who have the task of assessing his suitability for teaching are not satisfied that his command of the English language is sufficient for him to be an effective teacher. As I have indicated, the plaintiff was born in Bangladesh where English is not the first language.

4 The employment of teachers in the New South Wales teaching service is controlled by the Teaching Service Act 1980. Section 7 of that Act provides for the functions of the Director General, which include the function in section 7(1)(d) "to determine the qualifications required for appointment to the teaching service". Section 47 of the Act provides that the Director General may appoint persons to positions in the teaching service in the event…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman v Riordan

Details

AGLC: Rahman v Riordan [2010] NSWSC 409
Case: [2010] NSWSC 409
Decision Date: 20 April 2010

CaseChat Overview and Summary

The case of Rahman v Riordan involved the applicant, Rahman, who sought prerogative relief against the Department of Education and Training for rejecting his employment application for full-time work. The applicant argued that the Department unlawfully rejected his application and that it should have accepted his own evidence from the Test of English as a Foreign Language (TOEFL). The dispute was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the Department of Education and Training was required to accept the applicant's own evidence from the TOEFL. This issue arose because the Director-General had issued regulations regarding the admission of teachers in New South Wales public schools, which included specific requirements for English language proficiency. The applicant contended that the regulations did not preclude him from submitting his own TOEFL scores, while the Department argued that it was not bound to accept the applicant's evidence and could rely on its own assessment.

The court considered the relevant legislation and regulations, including the Public Sector Management Act 1994 (NSW) and the Public School Teachers (Admission) Regulation 2005 (NSW). The court found that the Director-General had the authority to regulate the admission of teachers and that the regulations did not explicitly state that the Department must accept the applicant's TOEFL scores. The court held that the Department was not required to accept the applicant's evidence and that it was entitled to rely on its own assessment of the applicant's English language proficiency. Consequently, the court dismissed the application for prerogative relief.

The court's decision highlighted the importance of adhering to regulatory requirements when applying for employment with government agencies. The court emphasised that the Department of Education and Training had the discretion to assess applicants' qualifications and that the regulations did not mandate the acceptance of the applicant's TOEFL scores. The court's ruling reinforced the principle that public sector employers have the authority to establish and enforce criteria for employment, provided that such criteria are consistent with relevant legislation and regulations.

Orders