The Queen v Pearson, Eric Sterndale
[1980] FCA 192
•17 DECEMBER 1980
And: ERIC STERNDALE PEARSON; JOHN MARK EDMUNDS and JOHN ALBERT MORLEY
Ex parte REBECCA CHONG
F.C. No. 5 of 1980
Certiorari
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
Connor J.
Evatt J.
Keely J.
Certiorari - Decision of Disciplinary Appeal Board constituted under the Commonwealth Teaching Service Act 1972 dismissing appeal from decision of the Commissioner of the Commonwealth Teaching Service to retire a teacher - Whether Board made an error of law on the face of the record - Whether any error of law affected the Board's decision - Commonwealth Teaching Service Act 1972 s.34.
SYDNEY
#DATE 17:12:1980
1. The appeal be dismissed.
2. The respondents' costs of the appeal be taxed and paid by the appellant.
This is an appeal from a judgment of Blackburn C.J. in the Supreme Court of the Australian Capital Territory in which he discharged an order nisi for a writ of certiorari sought by the appellant as prosecutrix against the three members of the Disciplinary Appeal Board constituted under the Commonwealth Teaching Service Act 1972.
In March 1973 the appellant was appointed a teacher on probation at Lyneham High School as a music teacher and thus became a member of the Commonwealth Teaching Service under the Commonwealth Teaching Service Act 1972. In July of the same year she was appointed as a music teacher at the Weston Creek High School with the rank of Band 1 or assistant teacher. At the beginning of the school year 1974 she was appointed a teacher of music at Melrose High School where she remained until the beginning of the 1976 school year when she was appointed to Holder High School. She was stationed there when in July she applied for promotion to Band 2, which is a rank senior to Band 1. The Eligibility Committee, consisting of a principal (Band 4), an assistant principal (Band 3) and another Band 1 teacher, after considering a long report on the appellant, wrote as follows:-
"The Panel believes that the foregoing sections of the report indicate considerable strengths, notably in knowledge of subject matter, curriculum and the philosophy of music education. Strength is also apparent in organisation and Miss Chong's understanding of the importance of staff/staff and staff/parent contacts. However, we regretfully come to the conclusion that these strengths, notable though they are, do not of themselves indicate readiness. We feel that the problems that are apparent in classroom management, general discipline and rapport with students are sufficiently great to cast doubt on Miss Chong's ability to carry out some of the duties of a Band 2 Officer, particularly those relating to discipline and assistance to inexperienced teachers. . . . Consequently, the Committee recommends that Miss Chong be deemed ineligible at present to apply for promotion."The appellant was supplied with a copy of this letter on 18 November 1976.On 23 July 1976 the Commissioner of the Commonwealth Teaching Service wrote to the appellant advising her that he confirmed the recommendation of the Eligibility Committee and that he deemed her "ineligible at present to apply for promotion". The appellant requested, as she was entitled to do, that the Eligibility Committee review its decision; and she supplied lengthy additional evidence in support of her request.
On 27 August 1976 the Commissioner again wrote to the appellant advising her that the Eligibility Committee had reviewed her professional performance as described in the original report and in the additional evidence she had furnished but was not prepared to alter its original recommendation. The Commissioner confirmed the original recommendation namely, that she was deemed "ineligible at present to apply for promotion".
On 12 November 1976 the principal of Holder High School wrote a letter to the Chief Education Officer, Interim A.C.T. Schools Authority, in which he set out a number of specific and some general complaints as to the appellant's competence as a music teacher. He concluded his letter as follows:- "In my opinion the situation is completely hopeless. Miss Chong seems unwilling to recognize that the problem exists and is either unable or unwilling to use the techniques which have been suggested to her. I believe that Miss Chong should no longer be teaching in this school and unless she is replaced I will be forced to take the drastic step of removing Music from the curriculum."
By letter dated 1 December 1976 the Commissioner advised the appellant as follows:-
"I refer to the report dated 12 November 1976, forwarded to the Chief Education Officer of the Interim ACT Schools Authority by the Principal of Holder High School, Mr L. J. Harris. I also refer to the discussions that I had with you on Friday 26 November 1976, and again on Wednesday 1 December 1976. On the basis of the evidence supplied to me, and of the discussions I have held with you, I have come to the conclusion that you are inefficient and incapable of discharging your duties as a member of the Commonwealth Teaching Service, and I have therefore retired you from the Service with effect from the close of business on 31 January 1977. Under the provisions of Section 36 of the Commonwealth Teaching Service Act 1972/1976 you may appeal against my decision to the Disciplinary Appeal Board. Such appeal should be made in writing, and lodged with me no later than seven days from the date on which you received this notification."The foregoing matters are not strictly essential to the resolution of the questions we have to decide in this appeal. They constitute a summary of the information contained in an affidavit sworn by the appellant and supplied to the learned trial judge by way of background to what followed.
Pursuant to s.36 of the Commonwealth Teaching Service Act 1972 the appellant appealed to the Disciplinary Appeal Board which consisted of a chairman, who was a retired stipendiary magistrate, a teacher nominated by the Commissioner and another teacher elected, as prescribed, by the officers of the Service. On 9, 10 and 11 February 1977 the appeal was heard. The appellant was represented by counsel. It was expressly said during the hearing before us by Mr. Higgins on behalf of the appellant that no complaint was made that the Board failed to give a fair hearing in the sense that it failed to apply the standards of natural justice in relation either to the audi alteram partem rule or in relation to any bias or interest.
On 14 February 1977 the respondents promulgated their decision in the following terms:-
"The Board unanimously holds that to be an efficient officer in the Commonwealth Teaching Service, an officer must be able to teach any class to which he or she is assigned. In this case the evidence sufficiently discloses that the appellant is inefficient in that she is unable to control many classes and is unable to impart knowledge to many classes within her subject area. This Board confirms the decision of the Commonwealth Teaching Service Commissioner against which this appeal was made."Before us it was urged that the learned trial judge was in error in a number of respects. It was said that the learned trial judge mistakenly treated the decision of the respondents as if each paragraph could be severed from the other and looked at separately; that this approach led the learned trial judge into the error of disregarding the essential connection between the first and second paragraphs of the decision of the respondents; that he mistakenly approached the matter on the footing that the onus of showing that the error as to inefficiency affected the decision was on the appellant; whereas, once an error was demonstrated which may have affected the result, the onus should have been on the respondents to show that the error in the first paragraph did not taint the findings set out in the second paragraph; that it did not appear that the first paragraph contained mere dicta and it should be treated as part of the Board's reasons.It was conceded, and in our opinion correctly, that there was evidence upon which the Board could have found that the appellant was inefficient in that she was unable to control many classes and was unable to impart knowledge to many classes within her subject area. It was also conceded that the appellant's classes which were the subject of the report considered by the Board were music classes only.
The order nisi was granted on the grounds that the decision of the respondents was a consequence of and based upon an error on the face of the record in -
(a) holding that to be an efficient officer in the Commonwealth Teaching Service, an officer must be able to teach any class to which he or she is assigned;
(b) holding that the prosecutor was inefficient in that she was unable to control many classes and unable to impart knowledge to many classes within her subject area;
(c) failing to take account of the fact that the many classes which the prosecutor was unable to control and/or impart knowledge to were mainly large classes not suited to or interested in the subject area taught by the prosecutor and for whom the subject was compulsory;
(d) failing to give any or any proper weight to favourable assessment on the overall performance of the prosecutor as a teacher.Before the learned trial judge it was argued principally that the first paragraph of the respondents' reasons for decision was plainly wrong in law because it set a standard which was impossibly high and consequently had the effect that the respondents proceeded on an altogether erroneous meaning of the term "inefficient" as it appears in s.34 of the Act. Consequently, it was said, that this error vitiated the whole decision in such a manner that it should be quashed because of this manifest error of law on the face of the record.
In his reasons for judgment the learned trial judge stated, inter alia:- "The Court's ultimate task in these proceedings is to decide whether the order, or decision, of the Board was erroneous, not whether its statements of law are correct. True, it may be material that the Board made an erroneous statement of law, but only if it appears that the Board acted upon such erroneous statement in such a way as to make an erroneous decision. I assume, at least for the purpose of the argument, and in the prosecutrix's favour, that paragraph 1 of the Board's decision was erroneous as a definition, or partial definition, of "efficiency" for the purposes of the Act. Without such an assumption, the argument for the prosecutrix fails in limine. It is not difficult to make the assumption; it is difficult to attribute to the legislature the intention that a teacher who is unable to teach to a class to which he has been assigned, a subject of which he has never had, or professed, any knowledge whatever, is necessarily inefficient. The assumption is therefore that paragraph 1 of the Board's determination is erroneous in that it is too widely stated. Paragraph 2 gives the reason for the Board's decision that the prosecutrix be retired. If that reason was an application of the principle of paragraph 1, taken in the sense which renders it too wide, then the Board's decision was erroneous, and the Court must quash it. But did the Board apply that principle in that way? I am not persuaded that it did so. There is ample authority to show that a non-curial tribunal is not required to express itself with the highest precision. In my opinion the Board's determination, though it lacks a degree of elegance which greater verbal precision would have bestowed on it, is transparently clear. The Board decided that the prosecutrix should be retired because she was unable to control or impart knowledge to some of the classes which she should have been able to control, or to which she should have been able to impart knowledge. Whether that judgment was a sound one is not the question before the Court. Counsel for the prosecutrix contended that this interpretion of the Board's decision was ruled out because the demonstrable error in paragraph 1 logically entailed that the decision, the reason for which was expressed in paragraph 2 in terms which are linked to those of paragraph 1, was erroneous. This contention does not, in my view, succeed, because of the nature of the error in paragraph 1. That error lies in the excessive breadth of the proposition which the paragraph states; it implies a category of "inefficiency" including some cases which ought not to be included. But non constat that the prosecutrix's case was one of those improperly included in the category. My conclusion is therefore that error is not shown on the face of this record, and the order nisi must be discharged."
We turn to consider the first paragraph of the decision of the Board. It reads:-
"The Board unanimously holds that to be an efficient officer in the Commonwealth Teaching Service, an officer must be able to teach any class to which he or she is assigned."Taken in isolation and interpreted literally it plainly states the test for efficiency far too widely. It would mean that a specialist physical education teacher in order to be efficient must be able to teach a foreign language of which he had no knowledge. Two members of the Board were themselves teachers and we would not readily attribute such a proposition to them. The statement must plainly be read down in some respects. For instance the expression "any class" must mean any class which is being taught in a subject on a properly authorised curriculum at the particular school. It must be borne in mind that the statement in the first paragraph of the respondents' reasons was made at the end of the Board's consideration of a case dealing with a music teacher whose only classes under review were music classes. We are disposed to think that when the Board used the expression "any class to which he or she is assigned" it understood and assumed that the assignment was a fair and proper one. It may be that what appears to lawyers to be a lamentably loose expression would be seen in teaching circles as no more than a short statement of principle which, in the interests of brevity, does not spell out a number of things which were well understood. It is not at all clear to us that there is an error of law, as distinct from a looseness of expression, contained in the first paragraph of the Board's reasons.
In any event, we think, as did the learned trial judge, that the matter is made clear by the wording of the second paragraph which we think plainly particularises the grounds of the appellant's inefficiency namely that "she is unable to control many classes and is unable to impart knowledge to many classes within her subject area". We find it difficult to add anything to the clearly expressed reasons of the learned trial judge in the passage we have cited above. We do not consider that the learned trial judge has fallen into any of the errors contended for by the appellant. His Honour was satisfied that even on the footing that the first paragraph contained an error of law it did not, in the light of the second paragraph, have any effect on the result. We agree with this conclusion.
We therefore dismiss the appeal and order that the respondents' costs of the appeal be taxed and paid by the appellant.
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