Re Kenner
[2003] WASCA 37
•10 MARCH 2003
RE KENNER; EX PARTE MINISTER FOR EDUCATION [2003] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 37 | |
| Case No: | CIV:2105/2002 | 13 DECEMBER 2002 | |
| Coram: | PARKER J TEMPLEMAN J OLSSON AUJ | 10/03/03 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari and mandamus made absolute | ||
| A | |||
| PDF Version |
| Parties: | MINISTER FOR EDUCATION STEPHEN JOHN KENNER, COMMISSIONER, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION MELODY HOUSTON |
Catchwords: | Administrative law Prerogative writs Certiorari and mandamus Appeal by dismissed teacher to Industrial Relations Commission Commissioner declines jurisdiction Whether jurisdictional error by not conducting rehearing de novo Whether statute intended Minister conduct separate inquiries according to source of complaints |
Legislation: | Education Act 1928 (WA), s 7C Education Regulations 1960 (WA), reg 86A, reg 135 Industrial Relations Act 1979 (WA), s 23B |
Case References: | Allesch v Maunz (2000) 203 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Craig v The State of South Australia (1995) 184 CLR 163 Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 Kioa & Ors v West & Anor (1985) 159 CLR 550 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1 State School Teachers Union of Australia (Inc) v Minister for Education (1997) 77 WAIG Pt 2 2859 Woolworths (WA) v Thomas [2001] WASCA 257 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE KENNER; EX PARTE MINISTER FOR EDUCATION [2003] WASCA 37 CORAM : PARKER J
- TEMPLEMAN J
OLSSON AUJ
MINISTER FOR EDUCATION
Applicant
AND
STEPHEN JOHN KENNER, COMMISSIONER, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
MELODY HOUSTON
Second Respondent
(Page 2)
Catchwords:
Administrative law - Prerogative writs - Certiorari and mandamus - Appeal by dismissed teacher to Industrial Relations Commission - Commissioner declines jurisdiction - Whether jurisdictional error by not conducting rehearing de novo - Whether statute intended Minister conduct separate inquiries according to source of complaints
Legislation:
Education Act 1928 (WA), s 7C
Education Regulations 1960 (WA), reg 86A, reg 135
Industrial Relations Act 1979 (WA), s 23B
Result:
Order nisi for certiorari and mandamus made absolute
Category: A
Representation:
Counsel:
Applicant : Mr D J Matthews
First Respondent : Mr M D Cox
Second Respondent : Mr M D Cox
Solicitors:
Applicant : State Crown Solicitor
First Respondent : Slater & Gordon
Second Respondent : Slater & Gordon
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Craig v The State of South Australia (1995) 184 CLR 163
(Page 3)
Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158
Kioa & Ors v West & Anor (1985) 159 CLR 550
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22
Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1
State School Teachers Union of Australia (Inc) v Minister for Education (1997) 77 WAIG Pt 2 2859
Woolworths (WA) v Thomas [2001] WASCA 257
Case(s) also cited:
Nil
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1 PARKER J: For the reasons published by Olsson AUJ I agree that the order nisi should be made absolute to quash the order of the Commissioner and that the proceedings should be remitted with a direction that they be further heard and determined according to law.
2 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Olsson AUJ. I agree with those reasons. There is nothing I wish to add.
3 OLSSON AUJ: This is the return of an order nisi to show cause why writs of certiorari and mandamus should not be issued against Stephen John Kenner, a Commissioner of the Western Australian Industrial Relations Commission. I shall refer to Commissioner Kenner as "the Commissioner" and the Commission as "the WAIRC".
4 The order nisi was obtained on the application of the Minister for Education, to whom I shall refer as "the Minister". It seeks to impeach an order of the Commissioner reversing a decision of the Minister made on 11 December 2000, whereby he dismissed Melody Houston from the teaching service on the ground of inefficiency. I shall refer to her as "the teacher". The grounds sought to be relied on by the Minister as founding the order nisi are as follows:
(1) That the Commissioner refused or failed to exercise his jurisdiction under s 23B of the former Industrial Relations Act 1979 in that -
• he erroneously ruled that the Minister's decision to dismiss the teacher for inefficiency pursuant to reg 86A of the Education Regulations (now repealed) was ultra vires and invalid because of the Minister's failure to comply with reg 135; and
• he also erroneously ruled that the Minister had failed to accord the teacher procedural fairness.
and
(2) That the Commissioner refused or failed to exercise his jurisdiction under the same section by further ruling that, regardless of whether his above rulings were correct, he was compelled to decide the matter by quashing the dismissal of the teacher as a result of those rulings, rather
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- than by considering and deciding the matter before him on the merits.
The relevant facts
5 The teacher attained her professional qualifications in 1971 and taught in New South Wales until about 1976, when she travelled overseas. She returned to Australia in about 1981, and, in 1985, was employed by the Minister as a primary school teacher. She was posted to the East Maylands Primary School at the beginning of 1998.
6 It appears that, from some time early in 1998, the school principal received a series of complaints concerning the teacher from students, parents and staff. These spanned a number of matters. The principal said that she advised the teacher of the detailed complaints and afforded her an opportunity of responding to them. At a meeting between the two of them, held in May 1998, a so-called "teaching plan" was developed. Further meetings were held in August of that year to conduct reviews of the plan and the performance of the teacher in relation to what were referred to as the five teaching dimensions.
7 The principal continued to receive complaints from parents, students and staff members throughout 1999 concerning the teacher's professional behaviour, attitude and teaching style. The informal review process continued up to the end of 1999 and the relevant teacher union was involved in some of the review meetings. On 13 December 1999 the teacher was advised that her performance continued to be unsatisfactory and that a formal process within reg 86A would be implemented.
8 Further reviews took place in February and March 2000. The Minister asserted that, on 4 February 2000, a formal performance improvement plan was prepared, which included "identified areas of concern, expected outcomes, support available and timelines for review".
9 By a formal letter, dated 17 March 2000, the principal advised the teacher that sufficient progress had been made "in the teaching areas of professional interaction and collaboration and interpersonal skills" "to warrant reverting to normal performance management". However, it was said that further improvement needed to be demonstrated for an additional six weeks in the areas of teaching style and classroom management, with a review of these areas to be conducted on 17 May 2000. It seems clear that the major criticism in the teaching style area was in relation to the "outcomes focus" approach underlying a then newly developed
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- Curriculum Framework, which was in course of progressive introduction in schools generally.
10 Regulation 86A of the Education Regulations 1960, as then in force, was expressed in the following terms:
"Division 5A - Dismissal for inefficiency
86A. Penalties for inefficiency
(1) Subject to this regulation, a teacher who is inefficient is liable to be -
(a) reduced to a position carrying a lower salary or remuneration; or
(b) dismissed.
(2) Where the chief executive officer receives no less than 2 reports that a teacher is inefficient the chief executive officer shall forward a copy of the reports to the teacher and request that the teacher submit a written explanation on the reports within the time specified in the request:
(2a) Each of the reports referred to in subregulation (2) come from -
(a) the principal of the school at which the teacher is employed; or
(b) a person holding or acting in a position of Superintendent or a higher position,
and may be given by the same person or by different persons.
(3) Where after considering the reports made under subregulation (2) in relation to a teacher and the written explanation (if any) given by the teacher in respect of the reports the chief executive officer is satisfied that the teacher is inefficient the chief executive officer may -
(a) direct that the teacher be reduced to a position carrying a lower salary or remuneration; or
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- (b) recommend to the Minister that the teacher be dismissed.
- (5) Upon considering the -
(a) reports made pursuant to subregulation (2) that a teacher is inefficient;
(b) explanation (if any) given by the teacher pursuant to subregulation (2) in respect of the reports; and
(c) recommendation made by the chief executive officer pursuant to subregulation (33)(b),
the Minister may by order in writing dismiss the teacher and the order has effect accordingly."
"In the areas of professional interaction and collaboration, and in interpersonal skills, I believe Melody has made sufficient progress and has demonstrated, during my classroom visits and a meeting with a student's parent, outcomes as stated in the Action Plan Term 1 2000. I acknowledge the progress made by Melody.
In the area of teaching style and classroom management, I believe more time is required to implement what we have talked about. More time will allow Melody to demonstrate outcomes as stated in the Action Plan.
From the beginning of the term, Melody has been absent through back problems for approximately two weeks. We have had two weeks of interm swimming. Of the six and a half weeks of school this year, Melody has had only two and a half weeks to work effectively with her class.
Consequently, I recommend that the formal process continue in the area of teaching style and classroom management, and I strongly suggest that Melody take advantage of the support offered by district office through Andrew Newhouse.
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- In the areas of professional interaction and collaboration and interpersonal skills, I recommend that Melody revert to the standard performance management process, but be aware of the importance of continued progress in these areas."
12 The Minister asserted that the teacher was afforded an opportunity of responding to the first report, as a consequence of which a second performance management plan was implemented.
13 Evidence before the Commissioner indicated that, on 21 January 2000, the District Director advised the principal to continue with the reg 86A process.
14 A meeting between the principal, the teacher and a senior officer of the Swan Districts Education Office was convened on or about 30 June 2000. The principal informed the teacher that, because there had been complaints from parents in May 2000, it was considered that the teacher had not made sufficient sustained progress in the areas of professional interaction and collaboration and interpersonal skills to warrant the normal performance management process.
15 In an action plan prepared for the teacher for the third term of 2000, within the formal reg 86A context, a final review meeting was to take place on 14 August 2000 between the principal, the teacher and representatives of the union and the District Office. For some reason which remains unexplained this did not take place.
16 Having regard to certain parent complaints and other matters, the principal forwarded a second report, purportedly in reliance on reg 86A, to the District Office. She told the Commissioner that, in her view, there had been insufficient evidence of satisfactory improvement in all of the various areas mentioned above. Following receipt of that report and after she had been afforded an opportunity of responding to it, steps were taken to initiate a dismissal of the teacher. The Minister formally terminated her employment as a teacher on 11 December 2000. It is said that, prior to the taking of the decision the teacher was, on 24 October 2000, formally supplied with copies of the first and second reports and given an opportunity to respond to them. She submitted a response on 2 November 2000.
17 On 19 December 2000 the teacher filed a notice of application with the WAIRC which sought two separate forms of relief. First, she asserted, pursuant to s 29(b)(i) of the Industrial Relations Act1979 ("the IRA"), that her dismissal was harsh, oppressive and unfair. She sought an order
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- that she be reinstated in her employment as a teacher and compensated for remuneration lost. Second, she appealed, pursuant to s 23B of the statute, against her dismissal for inefficiency on the grounds that the process engaged in by the Minister was unfair, in that the Minister failed to clearly delineate the standards required of her, and that the penalty imposed "was excessive".
18 The first basis for relief relied upon sought to involve what may loosely be described as the then general "unfair dismissal" jurisdiction of the WAIRC. In the event the teacher did not pursue her claim in that regard.
19 The second enlivened the specific provisions of s 23B of the IRA which, relevantly, provided as follows:
"23B Jurisdiction to hear Education Act appeals
(1) The Commission has jurisdiction to hear and determine -
(a) an appeal by a teacher against any punishment for alleged misconduct imposed on the teacher under the Education Act 1928 other than a punishment that is a reprimand or a fine that does not exceed $50;
(b) an appeal by a teacher (not being a person to whom subsection (2) applies) against the dismissal, or reduction to a position carrying a lower salary or remuneration, of the teacher for inefficiency under any regulations relating to the assessment of inefficiency and made under the Education Act 1928; and
(c) an appeal under section 7D(4) of the Education Act 1928.
(a) a teacher appointed on probation; or
(b) a teacher who is reduced to a position carrying a lower salary or lower
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- remuneration but whose salary or remuneration is not by reason only of that reduction reduced to the level of the lower salary or lower remuneration.
- (3) Without limiting the generality of subsection (1) the Commission may confirm, modify or reverse any decision, determination, finding or declaration appealed against."
20 The Minister having filed an answer, by way of defence, denying the assertions of the teacher, the matter came on before the Commissioner for hearing and determination. In the event there was a trial of the relevant issues, extending over some eight days. A total of 13 witnesses, including the teacher and the principal, gave evidence. A large quantity of documentary evidence was also tendered.
21 On 3 May 2002 the Commissioner published lengthy written reasons for decision. He upheld the appeal and quashed the Minister's decision to dismiss the teacher. It is to that decision and the order giving effect to it that the order nisi is directed.
The basis of the Commissioner's decision
22 It will suffice, for present purposes, simply to precis the content of the decision of the Commissioner. That decision was the product of the consideration by him of what he described as a "Preliminary Issue".
23 He commenced his analysis of the conceptual issues arising before him by directing attention to the judgment of the Full Court in Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1. He relied upon it as authority for the proposition that the situation of employers and employees in the public sector, where that relationship is governed by a statutory regime, is quite different from an employment relationship in the private sector governed by the common law. This is particularly so, he said, in the areas of appointment, promotion and discipline governed by specific statutory provisions. In any case, where it can be established that applicable statutory requirements have not been substantively complied with, any decision arrived at may be ultra vires and void ab initio.
24 I pause to comment that such a proposition is undoubtedly correct in instances in which an employer is vested by statute with a jurisdiction of a
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- disciplinary nature. The case above cited stands as authority for the proposition that such statutory provisions usually give rise to a quasi judicial function which must be exercised in accordance with the relevant statutory procedures and in compliance with the principles of natural justice. It follows that, to the extent that these requirements precondition the jurisdiction and are not complied with, action taken, including a purported dismissal, is ultra vires and void.
25 The Commissioner sought to contrast the s 23B appeal process with a claim in the general jurisdiction of the WAIRC related to alleged unfair dismissal. He opined that, in the latter case, the critical focus is on the fairness of the decision to dismiss, whereas, in the former the emphasis is on due statutory process and the correctness of the impugned decision in the context of that process.
26 In the course of his reasons the Commissioner contrasted the provisions of reg 86A (Dismissal for Inefficiency), reg 135 (Misconduct and Complaints) and s 7C of the Education Act (Disciplinary action for misconduct). He drew attention to the fact that the relationship between s 7C and reg 135 had been the subject of consideration by the Full Bench of the Industrial Appeal Court in State School Teachers Union of Australia (Inc) v Minister for Education (1997) 77 WAIG Pt 2 2859 ("the SSTU case").
27 I have earlier recited the applicable text of reg 86A.
28 Regulation 135, relevantly, stipulates as follows:
"Division 10 - Misconduct and complaints
135 Complaint
(1)(a) Where a complaint is made against a teacher by a parent of a pupil or by some other person, the chief executive officer shall cause a copy of the complaint as so made to be referred to the teacher for his remarks.
(b) After receipt of the teacher's remarks, the chief executive officer shall, if he considers the complaint worthy of investigation, inform the complainant that an investigation of the complaint will be made upon receipt by the chief executive officer of the complaint in writing on a departmental form and signed by the complainant before Justice of the Peace and that upon
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- the application of the complainant the appropriate departmental form shall be supplied to him.
(c) If the complaint so signed differs in substance from the original complaint referred to in paragraph (a) no further action shall be taken by the chief executive officer and the complainant shall be informed accordingly; but if the complaint so signed does not differ in substance from the original complaint, the chief executive officer may cause an inquiry to be held, and notice of that inquiry shall be given to the teacher against whom the complaint was made, and to the complainant, at least a week before the date fixed for the inquiry.
- (2) If it appears to the chief executive officer that the complaint is of a nature which would admit of a settlement between the parties, without a formal inquiry, every assistance shall be given to the parties to reach a settlement.
(3) …"
29 By way of contrast, the key provisions of s 7C read as under:
"7C Disciplinary action for misconduct
(1) …
(2) …
(3) Where it appears to the chief executive officer that a teacher may be guilty of misconduct the chief executive officer shall cause an inquiry to be held by an authorized person.
(4) It is not necessary for an inquiry under subsection (3) to be formal but the teacher shall be informed of the nature of the alleged misconduct and be given an opportunity of furnishing an explanation in relation thereto.
(5) …
(6) …
(7) …
(Page 13)
- (8) …
(9) Where -
(a) after an inquiry has been held under subsection (3) the chief executive officer is not satisfied that the teacher has been guilty of misconduct; or
(b) upon the hearing by a court of the charge against a teacher referred to in subsection (5)(b) who has been suspended from duty under that subsection the teacher does not plead guilty to, and is not found guilty of, the offence with which he was charged or of another offence that appears to the chief executive officer to be such as to constitute misconduct by the teacher, or the charge against such a teacher is not proceeded with,
the chief executive officer shall, if he has not already done so, remove the suspension.
(12) Where as a result of an inquiry under this section the chief executive officer determines that a teacher is guilty of misconduct he may -
(a) …
(b) make a report and recommendation to the Minister that the teacher be dismissed.
(13) Upon considering the report and recommendation of the chief executive officer made pursuant to subsection (12)(b) the explanation (if any) given by the teacher pursuant to subsection (4) the Minister may order in writing that the teacher be dismissed and the order has effect accordingly.
(14) …
(15) …"
30 The principal reasons for decision in the SSTU case were published by Kennedy J. In the course of them he rejected the proposition that where a complaint about a teacher, relevant to issues falling for
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- consideration within an inquiry under s 7C, originates outside the Education Ministry, there is a requirement for the successive conduct of two separate enquiries, one under reg 135 and one under s 7C.
31 He went on to make these points:
"It would appear that the penalties for misconduct now to be found in s 7C may only be imposed after an inquiry which has been conducted by an authorised person. An inquiry under reg 135 will not necessarily, or perhaps even normally, relate to misconduct as described in s 7C(2). The word 'misconduct' does not appear in the regulation and it is quite apparent that reg 135 is dealing with a much broader range of complaints than those directed to misconduct within the meaning of reg 134 and s 7C. By reason of the provisions of s 7C, once it appears to the chief executive officer that a teacher may be guilty of misconduct, he is required to proceed under that section, whether or not there has been an inquiry under reg 135.
In my opinion, s 7C is clear in its terms and there is no basis for reading into it as a necessary prerequisite to an inquiry under that section the conducting of an inquiry under reg 135. This was the view reached by the School Teachers Tribunal in The State School Teachers Union of WA (Inc) v The Minister for Education (1987) 67 WAIG 1028, at 1031, and it was the conclusion which appears to have been taken by Malcolm CJ, in a judgment with which Pidgeon and Nicholson JJ agreed, in Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158, at 169, where he said:
'The procedure to be followed on an inquiry under s 7C(3) is not spelled out in any detail in the Act or in the Education Regulations 1960 (WA). Section 7C(4) of the Act provides that it is not necessary for the inquiry to be 'formal', but requires that: '...... the teacher shall be informed of the nature of the alleged misconduct and be given an opportunity of furnishing an explanation thereto'.
There is a more detailed provision regarding complaints against a teacher in reg 135 of the Regulations, but this provision has no bearing on the present case. The only other relevant regulation is reg 136, which provides that: 'An inquiry shall be confined only to matters relevant to the
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- complaint notice of which shall be given to the teacher against whom the complaint was made'.'
- It is not to be doubted that a teacher must be accorded procedural fairness in an inquiry under s 7C, but there is no necessity to resort to reg 135 for this purpose."
32 Having reflected upon the above authorities, the Commissioner considered that the issues before him "are very different and SSTU is distinguishable". They did not involve any allegation of misconduct. The terms of reg 86A were, he said, directed to a process that involved an evaluation of a teacher's overall performance as a teacher - tested against established standards. By way of contrast, reg 135 directed its attention to specific complaints against a teacher from a parent or some other person and was not confined to misconduct. It set out a process that encouraged early and informal resolution of complaints against teachers. He commented that, no doubt, "such complaints that may have been established [as a result of a reg 135 inquiry] could then be referred to and relied upon in any reg 86A process or even a s 7C inquiry, if appropriate". He further stressed that both reg 135 and s 7C processes involve inquiries and findings as to matters of fact, whereas this is not central to a reg 86A procedure.
33 Given the foregoing statutory environment, the Commissioner first noted that "parent complaints against the appellant featured prominently in the periods 1998 - 2000. The content of the First Report and the Second Report "… were replete with references to parent complaints …", none of which had been or were the subject of any reg 135 process. He went on to find that, of approximately 31 complaints referred to in the two reports, 11 were either admitted by the teacher to have been seen by or discussed with her, but she had been totally unaware of the balance of them until she was permitted to review the District Office files when compiling responses to the reports. Few had ever been "finally resolved", but the issue of the complaints was the subject of considerable adverse comment by the principal.
34 The Commissioner concluded that those having the responsibility of deciding the outcome of the reg 86A process must have been influenced by the existence of the reference to complaints in the two reports. It was his opinion that, viewed as a totality, the statutory scheme necessitated a finding that the reg 86A process, as implemented, "was fundamentally flawed in that none of … [the] complaints were ever the subject of due process under reg 135". That being so:
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- "In my opinion, consistent with the principles dealt with in Re Railway Appeal Board and the authorities cited therein, the requirements of reg 135 not having been complied with at all with which as a statutory body the respondent was required to so comply at the material times, the decision of the respondent to dismiss the appellant must be regarded as ultra vires and invalid."
35 He further said:
"In the alternative, if I am wrong in the conclusion that the requirements of reg 135 were in the circumstances of this case mandatory, and the failure to comply with its provisions does not render the respondent's decision invalid, then the issue that arises is whether the appellant has, as a consequence, been denied procedural fairness as to these matters by the respondent, such that the respondent's decision should be reversed on appeal.
In my opinion, given the extent of the reference to complaints in the First Report and the Second Report, the appellant has been denied procedural fairness in not having had an adequate opportunity to deal with all of these matters, which matters clearly adversely affected the appellant's interests and in my opinion, substantially contributed to the respondent's decision to dismiss the appellant: Kioa.
For the foregoing reasons, it is not necessary for me to express any concluded view on the merits of the present matter and I expressly refrain from so doing. Notwithstanding this, I have concerns as to the appellant's attitude to the performance management process engaged in by the respondent, her attitude to authority figures in a school such as a principal, and aspects of her teaching performance. However, for the foregoing reasons, I am compelled to the conclusion that the respondent's decision to dismiss the appellant must be reversed which I do by quashing it. I so order."
The issues debated before the Full Court
36 In the course of submissions to the Full Court an issue arose as to whether the privative provisions inserted into the relevant industrial legislation on 1 August 2002, by s 124 of the Labour Relations Reform
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- Act 2002, constituted a bar to the present proceedings. All that need be said as to this is that it became common ground that, having regard to the provisions of s 37(1)(c) of the Interpretation Act 1984, such privative provisions do not apply to the matter now before the Court.
37 As I understand the primary argument of counsel for the Minister, it was to the effect that:
• the appeal under s 23B of the Industrial Relations Act to the WAIRC was of the nature of an appeal de novo. That was, in effect, recognised in the reasoning of the Full Court in Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158, albeit apropos different legislative provisions;
• accordingly, it was a proceeding in which the appellate body is required to exercise its powers and hear the relevant matter afresh whether or not there was error at first instance (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202 - 204;
• therefore the Commissioner could and should have conducted what was described as a "merits review de novo", in which he gave a decision in relation to the merits of the matter to which the appeal related;
• his failure to do so amounted to jurisdictional error.
38 In my opinion, there are two obvious fallacies in that strand of argument.
39 First, Gudgeon does not stand as authority for the proposition attributed to it and, patently, s 23B does not confer a right of appeal whereby the WAIRC is to rehear the matter de novo. As is illustrated by the reasoning and discussion in Allesch v Maunz (2000) 203 CLR 172 at 179 - 180, the formulation in the section is classically that of an appeal by way of rehearing, although there is no express power to admit fresh evidence. It is also similar to that which was under consideration in Re Railway Appeal Board. There is nothing in the section to suggest that the appeal is a rehearing de novo and such a proposition was not advanced in either of the two cases referred to. Such an appeal is the exception rather than the rule, and usually (but not invariably), the statute conferring it expressly provides that the appeal is to be a rehearing de novo.
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- Section 23B stops far short of doing so. I read nothing in Gudgeon which suggests that it stands as authority for a proposition contrary to that conclusion. The only reference in that case to an appeal hearing de novo was in relation to a discussion of R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22, which related to a situation in which such a right of appeal plainly existed.
40 Second, as was indicated in Re Railway Appeal Board, even if the appeal was properly to be characterised as a rehearing de novo, that would avail the Minister nothing in the instant case. In such a scenario the appellate tribunal would stand in no better position than the Minister. To the extent that any statutory preconditions to the making of a decision to dismiss had not been satisfied, then such a situation would stand as no less a consideration before the appellate tribunal as it did in the case of the Minister. The ability to have a fresh hearing on the merits does not mean that the tribunal hearing the appeal commences with a clean slate in the sense that it is entitled to ignore any irregularities as to statutory requirements that indicate that necessary preconditions to the exercise of the power in question have not been satisfied.
41 In his contrary argument, I took counsel for the Minister to seek to derive support from what fell from Kirby P (as he then was) in Macksville & District Hospital v Mayze (1987) 10 NSWLR 7088, concerning a situation in which there was an appeal de novo, although the legislation did not expressly say so. At p 721, Kirby P commented that, because the appeal was a re-hearing de novo, the appellant would have an opportunity of a completely fresh hearing by entirely different people, thereby curing the defects complained of in relation to the original hearing before the Hospital Board. Those defects in fact consisted of serious denials of natural justice in the mode of conduct of the hearing. They had nothing to do with jurisdictional proceedings. The dictum of Kirby J, made in context, provides no support at all for the somewhat extraordinary propositions advanced.
42 That proposition is patently untenable and, accordingly, the first basis of attack on the decision of the Commissioner cannot be sustained.
43 Counsel for the Minister further submitted that, in any event, the Commissioner plainly fell into error when he concluded that, insofar as the decision to dismiss was, in substantial degree, based on complaints received from parents or other persons, it was mandatory that the two separate procedures envisaged by both reg 86A and reg 135 had to be
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satisfied; and that, because this had not occurred, the decision of the Minister was ultra vires.
44 In my opinion, this contention must be upheld, substantially on a basis of reasoning similar to that adopted in the SSTU case.
45 In this regard it is important to commence with the same appreciation of the historical evolution of the various processes related to teachers as that which was canvassed in SSTU.
46 Originally, all relevant processes were to be found in the Education Regulations, hence the title "Misconduct and complaints" to Div 10. However, reg 134, dealing with misconduct, was repealed on 19 March 1982, following the enactment of s 7C of the Education Act - although, no doubt per incuriam, the phrase "Misconduct and" was not deleted from the heading to the Division.
47 As was pointed out in SSTU, the clear intendment of the legislation was that s 7C was to constitute a separate, self-contained code for dealing with disciplinary proceedings for misconduct. This was apparent from its terms. Insofar as the misconduct may have been identified by, or been the subject of, a complaint, it was not a precondition to s 7C proceedings that any reg 135 inquiry process should have been pursued.
48 The point was also made in SSTU that reg 135 spanned a far broader range of complaints than those related to misconduct; and that reg 136 stipulated that any inquiry conducted pursuant to the former was to be confined only to matters relevant to the complaint, notice of which had to be given to the teacher concerned, ie, each "complaint" under reg 135 had to be dealt with on an individual, stand-alone basis.
49 In my opinion, the correct conceptual basis of approach to reg 86A is the same as that applicable to s 7C. That regulation sets out a discrete, detailed and all embracing procedure for dealing with situations in which it is asserted that a teacher is performing inefficiently, to the point that dismissal may need to be contemplated if there is no adequate performance improvement. It is a carefully constructed scheme which is designed not only to accord procedural fairness to the teacher concerned, but is also designed to give every opportunity to the person concerned to uplift his or her performance. There is a specific requirement to supply copies of the relevant reports (and thus the grounds of dissatisfaction or complaint) to the teacher.
50 Just as s 7C is intended to be a self-contained code related to disciplinary processes, it is obvious that reg 86A is intended to be a stand-alone code dealing with perceived professional incompetence or inadequacy. I do not consider that there is any inter-dependence between reg 86A and reg 135. Just as relevant complaints may, to some extent (or
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50 Just as s 7C is intended to be a self-contained code related to disciplinary processes, it is obvious that reg 86A is intended to be a stand-alone code dealing with perceived professional incompetence or inadequacy. I do not consider that there is any inter-dependence between reg 86A and reg 135. Just as relevant complaints may, to some extent (or even in substantial degree) "trigger off" a s 7C process, they may also "trigger off" a reg 86A procedure, or at least form some contextual backdrop to it. In neither case is the processing of a complaint pursuant to reg 135 a precondition to activating substantive process in question. Indeed, there is less force in arguing that there ought to be a prior reg 135 inquiry in the case of a perceived teacher inefficiency case than in a disciplinary setting, because the issue is one of more general professional incompetence than of discrete misbehaviour. In other words, whilst a omplaint or complaints may flag a need to consider the general professional performance of a teacher, it is not any complaint itself which is in issue in the reg 86A situation. Rather, what is contemplated is professional performance itself over time, after proper review and counselling.
51 Following the repeal of reg 134, reg 135 stands as a separate provision designed to deal with situations in which specific complaints are made about teachers as to a wide range of matters, some of which may well impinge on areas of alleged misconduct or have professional implications, but do not, of themselves, necessarily give rise to separate, formal processes pursuant to either reg 86A or s 7C. If it were the case that, whenever a relevant complaint was received, the conduct of a full reg 135 procedure was an essential precondition to the enlivening of either reg 86A or s 7C procedures, a quite remarkable situation would develop - as is illustrated by the instant case. If the Commissioner's view is accepted, then it may well have been necessary to conduct 31 separate, formal inquiries before the reg 86A process could be carried out. To state that proposition is to indicate its unsustainability. Such a situation was clearly not intended by the legislature.
52 Finally, it is to be noted that, in his submissions, counsel for the Minister sought to contend that, s 6 of the IRA (which stipulates, in effect, that one of the objects of the statute is to provide a means of prompt, inexpensive and final settlement of disputes) necessarily mandated that the Commissioner consider the merits of the relevant dispute and finally settle it. This had not occurred. The short riposte to that argument is that it fails in limine. The Commissioner did finally settle the matter before him and he did so on the merits. He set aside the Minister's order of
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dismissal because he considered that that order was ultra vires. That was the merit of the appeal before him as he found it to be.
Conclusion
53 For the reasons earlier expressed, I consider that the Commissioner fell into error in ruling that the Minister's decision to dismiss the teacher
was ultra vires by reason of the fact that the requisite statutory preconditions to dismissal had not been complied with.
54 Equally, I am of the view that his alternative proposition related to procedural fairness is, with respect, also not sustainable on the facts. In this regard his sole basis of reasoning was that, given the extent of references to complaints in the two reports, the appellant was denied procedural fairness "in not having an adequate opportunity to deal with all of these matters, which matters clearly adversely affected the appellant's interests and … substantially contributed to the respondent's decision to dismiss the appellant".
55 In this regard he appears to have drawn comfort from Kioa & Ors v West & Anor (1985) 159 CLR 550, although he does not elaborate his reasons in that regard.
56 Kioa stands as authority for the basic proposition that, when a decision is to be made which will deprive a person of some right or interest, that person is entitled to know the case sought to be made against them and to be given an opportunity of replying to it. This carries with it a concomitant duty to adopt fair procedures which are appropriate, in conformity with relevant statutory requirements, and adapted to the circumstances of the case. (See per Mason J at 582 - 585.)
57 As the Commissioner himself found, copies of the reports were given to the teacher and she was afforded an opportunity of responding to them. She actually availed herself of that opportunity. His main concern seems to have been that certain of the complaints surfaced for the first time in the reports well after the events to which they related and that a failure, at the time of complaint, to activate the reg 135 process resulted in prejudice to her.
58 Whether or not that be a valid criticism, it seems to me that, on the Commissioner's own findings, it simply could not fairly be said that the Kioa principles were breached. The question of delay did not go to any issue relevant to the matter to be determined.
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59 In my opinion, there was no basis for asserting, on the alternative prong of the Commissioner's reasoning, that the Minister's decision should be quashed on the footing that the teacher was denied procedural fairness, even given the reasoning in Woolworths (WA) v Thomas [2001] WASCA 257. The Commissioner's alternative approach appears to me to focus on what, at best, was a peripheral issue. The critical consideration in this matter was not the complaints, per se, but the professional competence of the teacher upon which some of them may, indirectly, have reflected. The Minister was not required to consider the merits of the individual complaints, but the substantive general efficiency of the teacher (or lack of it).
60 It follows that the proceedings before the Commissioner have patently miscarried. On the basis of his reasoning as to what he describes as a "Preliminary Issue", he has refrained from hearing and determining the appeal on the merits and purported to dispose of it on an inappropriate conclusion as to the legal invalidity of the Minister's decision by virtue of a non-observance of statutory preconditions. In so doing, he has fallen into jurisdictional error in not discharging the function vested in him (cfCraig v The State of South Australia (1995) 184 CLR 163 at 177 - 178).
61 I would make the order nisi absolute for the purpose of quashing the order of the Commissioner and remitting the proceedings to the tribunal below with the direction that they be further heard and determined according to law.
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