Torosidis v Department of Education and Training

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 00457
S CI 2018 02077

JACK TOROSIDIS	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF EDUCATION AND TRAINING	First Defendant
DISCIPLINARY APPEALS BOARD	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2018
DATE OF JUDGMENT:	22 February 2019
CASE MAY BE CITED AS:	Torosidis v Department of Education and Training
MEDIUM NEUTRAL CITATION:	[2019] VSC 93

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ADMINISTRATIVE LAW – Judicial review – Decision of the Disciplinary Appeals Board established under the Education and Training Reform Act 2006 – Decision to reinstate but demote and reprimand teacher – Whether jurisdictional error committed – Legal unreasonableness - Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 – Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 – Irrelevant considerations.

ADMINISTRATIVE LAW – Judicial review – Subsequent decision of the Disciplinary Appeals Board to not award back pay – Whether jurisdictional error committed – Procedural fairness – Whether Disciplinary Appeals Board was functus officio at time of decision – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 – Kabourakis v Medical Practitioners Board of Victoria (2006) 25 VAR 449.

STATUTES – Operation and Effect of Statutes – Interpretation – Education and Training Reform Act 2006 ss 2.4.60, 2.4.61, 2.4.65, 2.4.66, 2.4.68, 2.4.69, 2.4.80.

STATUTES – Interpretation – Presumption that a statutory power may be exercised from time to time – Interpretation and Legislation Act 1984 s 40(a) – Minister for Indigenous Affairs v MJD Foundation (2017) 250 FCR 31.

EVIDENCE – Weight of evidence in administrative fact-finding – Witnesses – Consideration of the best evidence rule at common law – Omychund v Barker (1744) 1 Atk 21; 26 ER 15 – Commissioner for Railways (NSW) v Young (1962) 106 CLR 535 - Butera v DPP (Vic) (1987) 164 CLR 180 - Semple v Noble (1988) 49 SASR 356 - Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498.

WORDS AND PHRASES – ‘Best evidence available’ – ‘Functus officio’.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Irving QC, Mr P Kelly	Mr M McIver, AEU Victoria
For the Defendant	Ms C Harris QC, Mr M Felman	Corrs Chambers Westgarth

TABLE OF CONTENTS

Summary

Background

Issues for Determination

Does the ETRA s 2.4.80(2)(b), which requires the Board to direct its proceedings by the ‘best evidence available’, oblige the Board to prefer Mr Torosidis’ direct oral evidence over the unsworn written statements of students?

Mr Torosidis’ submissions
The Secretary’s submissions
‘Best evidence rule’ at common law
Common law rule not imported into the ETRA s 2.4.80(2)(b)

Interpretation of ETRA s 2.4.80(2)(b)

Does the ETRA pt 2.4 div 10 allow the Board to consider misconduct allegations against Mr Torosidis that were investigated but not the subject of his appeal?

The October meeting
Mr Torosidis’ submissions
The Secretary’s submissions
Analysis

Was the Board entitled to take into account general deterrence in making the first decision?

Mr Torosidis’ submissions
The Secretary’s submissions
Analysis

Was the first decision legally unreasonable?

Mr Torosidis’ submissions
The Secretary’s submissions
Applicable Principles – Legal Unreasonableness
Analysis

Was the Board functus officio after making the first decision?

Functus officio principles
Consideration of subsequent events
Jurisdictional errors and functus officio
What if the first decision was valid?

Time Extension

Remittal to the Board for re-hearing

HER HONOUR:

Summary

Mr Torosidis, the plaintiff, is a secondary school teacher. His employment was terminated following an investigation into an incident where a student purportedly urinated in a classroom bin. Mr Torosidis appealed to the Disciplinary Appeals Board (‘the Board’), a body established under the Education and Training Reform Act 2006 (‘the ETRA’). He now seeks judicial review of two decisions of the Board. The Board’s first decision was to reinstate his employment but to demote and reprimand him. After receiving this decision, Mr Torosidis requested the Board hear him on the question of back pay for the period between dismissal and reinstatement. The Board’s second decision was not to exercise any discretion to grant back pay.

For the reasons below, Mr Torosidis’ applications for judicial review are successful. Both of the Board’s decisions were affected by jurisdictional error.

Background

Mr Torosidis has been employed in the government teaching service for nearly 30 years. On 25 August 2016, a student in his class purportedly urinated in a bin. On 30 October 2017, following an investigation, Mr Torosidis’ employment was terminated by a delegate of the Secretary to the Department of Education and Training (‘the Secretary’). The Secretary is the first defendant.

Shortly after the decision of the Secretary, Mr Torosidis appealed to the Board, the second defendant. The Board’s factual findings included the following.[1]
[1]Jack Torosidis v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 19–20 February 2018 at Melbourne, 8–10.

On 25 August 2016, while teaching a Year 9 boys’ maths class, Mr Torosidis was asked by a student ‘what is one of the craziest things that has happened to you’. He told the story that in 1989 a male student asked him if he could use the toilet. The request was refused and the student urinated in a bin.

After telling that story, a student in Mr Torosidis’ maths class (‘Student A’) enacted a mock urination in a bin. The other students appeared to spur him on. Mr Torosidis told the class to settle down in a raised voice. There was a dispute as to what happened after. Mr Torosidis claimed Student A returned to his chair and the whole class resumed working with only low level noise. Mr Torosidis began to help another student and on standing up noticed Student A was walking away from the bin. The evidence of some students suggested Student A had at that point urinated in the bin.

Mr Torosidis asked Student A to take the bin out. One student stated that Mr Torosidis had said ‘take the bin out so it doesn’t smell inside the classroom’. Student A took the bin out and returned to class 20 minutes later, after class was over. Mr Torosidis did not report the incident or discipline Student A. The incident came to light at a parent-teacher interview.

While the incident was being investigated Mr Torosidis held a meeting with Student A and six other students (‘the October meeting’). He says he did so as part of the investigation process, to give some names of students to the Principal as witnesses, but the students alleged he told them his job was on the line. The students said to Student A ‘you take the blame’, to which Mr Torosidis did not comment. Mr Torosidis stated he believed Student A urinated in the bin but later recanted that. The Board did not accept his recantation.

On 16 March 2018, the Board made its decision (‘the first decision’). It found the penalty of dismissal too severe and decided Mr Torosidis should be reinstated. However, the Board determined that Mr Torosidis should be demoted from range 2.6 to range 2.1. Mr Torosidis says this will cause him to lose upwards of approximately $80,000 in pay and superannuation contributions over the next five years. The Board also decided that he should be severely reprimanded, and that the reprimand be recorded on his personnel file and personal record. Mr Torosidis commenced proceedings in this Court for judicial review of the first decision (‘the first proceeding’),[2] seeking orders quashing the first decision and remittal to the Board for re-hearing.
[2]Proceeding S CI 2018 02077.

Although Mr Torosidis was reinstated in his employment as a consequence of the first decision, he did not receive any remuneration (back pay) for the period between his dismissal and reinstatement, and says he has consequently lost approximately $75,000 in salary and superannuation. Mr Torosidis did not initially seek back pay before the Board. After the first decision, he requested the Board make orders for it. The Secretary objected to this, saying the Board was functus officio (that is, that the Board had exhausted its functions under the ETRA and could not vary its earlier decision or make any further decisions).

On 23 May 2018, the Board declined to make the orders sought by Mr Torosidis (‘the second decision’). Mr Torosidis commenced another proceeding in this Court for judicial review of the second decision (‘the second proceeding’),[3] seeking orders quashing it and remittal to the Board for reconsideration. Mr Torosidis alternatively sought orders that the Board provide written reasons for the second decision.
[3]Proceeding S ECI 2018 00457.

It is common ground between the parties that if the Board was not functus officio at the time of the second decision, then it failed to accord Mr Torosidis procedural fairness in making that decision.

The Board, although an appropriate defendant to these proceedings, did not make submissions in response to Mr Torosidis’ applications. It says that it will abide by the decision of this Court.[4]
[4]In accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

Issues for Determination

The issues for determination in the two proceedings, which are considered in turn below, are as follows.

(a) Does the ETRA s 2.4.80(2)(b), which requires the Board to direct its proceedings by the ‘best evidence available’, oblige the Board to prefer Mr Torosidis’ direct oral evidence over the unsworn written statements of students?

(b) Does the ETRA pt 2.4 div 10 allow the Board to consider misconduct allegations against Mr Torosidis that were investigated but not the subject of his appeal?

(c) Was the Board entitled to take general deterrence into account in making the first decision?

(d) Was the first decision legally unreasonable?

(e) Was the Board functus officio after making the first decision?

Turning now to the first issue.

Does the ETRA s 2.4.80(2)(b), which requires the Board to direct its proceedings by the ‘best evidence available’, oblige the Board to prefer Mr Torosidis’ direct oral evidence over the unsworn written statements of students?

The ETRA s 2.4.80(2)(b) provides that all proceedings before the Board ’must be directed by the best evidence available, whether or not it is the best evidence that the law in other cases admits, requires or demands’.

Mr Torosidis gave direct oral evidence at the hearing before the Board. There was no oral evidence given by students. However, unsworn written statements of students were before the Board. Mr Torosidis contends the following in ground 1 of the first proceeding:

The [first decision] was affected by the [Board’s] failure to ensure the proceeding was directed by the best evidence available as it was required to do by section 2.4.80 of the [ETRA].
(a)At the hearing there was a factual dispute regarding events that took place in late August 2018. [Mr Torosidis] was a teacher of many years’ experience and no prior disciplinary history. The factual allegations were bizarre. [Mr Torosidis] gave sworn evidence about these events in the form of a witness statement prepared for the purpose of the proceeding as well as oral evidence and was subjected to extensive cross-examination at the hearing. [The Secretary] relied on evidence in the form of short ambiguous unsworn statements taken from students by a school principal, some of which were inconsistent with each other. She did not prepare statements from the students for the purpose of the proceeding and did not call the students as witnesses, resulting in their statements being hearsay and not being tested through cross-examination.
(b)[Mr Torosidis’] evidence was the best evidence available and the [Board] was obliged not to take the [Secretary’s] evidence into account or to give it no weight in deciding a disputed fact. Despite this the [Board] stated that ‘even though there are some differences accepts the veracity of the statements particularly as they were made very shortly after the classroom incident’ and elsewhere in the reasons the [Board] appears to have made findings of fact against [Mr Torosidis] on disputed issues.

Ground 1 gives rise to the question of whether the ETRA s 2.4.80(b) obliged the Board to prefer Mr Torosidis’ direct oral evidence over the unsworn written statements of students.

Mr Torosidis’ submissions

Mr Torosidis says that there are ‘fundamental conflicts’ between his evidence of the classroom incident and that given by some of the students. He says that the Secretary could have called the students to give oral evidence of the incident, but did not.[5]
[5]Plaintiff’s Outline of Submissions dated 11 October 2018, [7].

Mr Torosidis submits that the meaning of ‘best evidence available’ in s 2.4.80(2)(b) is informed by the common law ‘best evidence rule’. In his submission, s 2.4.80(2)(b) ‘restates a core element of the law of evidence — the evidence should be the best that the nature of the case will admit’.[6] Mr Torosidis submits that this principle of evidence has both inclusionary and exclusionary aspects. Its inclusionary aspect is that it permits ‘secondary evidence’ to be tendered when ‘primary evidence’ is unavailable. However, its exclusionary aspect, as applied to the facts of this case, is that written statements are to be excluded as evidence when oral testimony could be given.
[6]Ibid [8], citing Omychund v Barker (1744) 26 ER 15, 33 (Lord Hardwicke); Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498, 500 [4] (Gummow, Callinan and Crennan JJ) (‘Golden Eagle’).

As support of the application of the common law rule, Mr Torosidis cites the following passage from an 1898 text by Professor James Bradley Thayer, Weld Professor of Law at Harvard University:

Let us therefore look at the Best Evidence rule, in its character as a specific rule forbidding substitutionary evidence, i.e., such as shows on its face that there is something directer and better behind it. In this sense it is a phrase which has been thought to group under one name at least three other specific rules, namely: (1) If you would introduce before a jury the statements of a witness, you must produce the witness in person; (2) If you would introduce to a jury the contents of a writing, you must produce the writing itself; (3) If you would prove to a jury the execution of an attested document, you must produce the attesting witnesses. In each case secondary modes of proof are allowed under more or less definite circumstances. In each we have the general notion of primary and secondary evidence.[7]

[7]James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898) 497–8 (emphasis added in Mr Torosidis’ written submissions).

Mr Torosidis accepts that s 2.4.80(2)(b) of the ETRA, as informed by the common law best evidence rule, does not require the students to give evidence in every matter such as this. The rule is subject to the exigencies of litigation.[8] But, in Mr Torosidis’ submission, this provision of the ETRA means that ‘where direct evidence is available then substitute evidence should not be relied on in preference to direct evidence’.[9]
[8]Golden Eagle (2007) 229 CLR 498, 500 [4] (Gummow, Callinan and Crennan JJ).
[9]Plaintiff’s Outline of Reply Submissions dated 8 November 2018, [4].

The Secretary’s submissions

The Secretary refutes the submission that the ETRA s 2.4.80(2)(b) imports a ‘best evidence rule’ at common law.[10] In the Secretary’s submission, it is clear from s 2.4.80(2)(a) — which requires the Board’s proceedings to be conducted without regard to legal formalities — that the rules of evidence are not to apply to hearings of the Board. Furthermore, s 2.4.80(2)(b) only requires the Board to be ‘directed’ by the best evidence available. This does not amount to a statutory compulsion that the Board must accept the best evidence as adjudged by the rules of evidence.[11] And, even if the common law rule is any guide to the content of s 2.4.80(2)(b), it must give way to the particular circumstances of an informal tribunal such as the Board.[12]
[10]Outline of Defendant’s Submissions dated 25 October 2018, [17].
[11]Ibid [18].
[12]Ibid [16].

In the Secretary’s submission, the quality of the evidence presented by the parties before the Board goes to the weight to be attributed to that evidence by the Board. Where there are inconsistencies between the evidence, the Board is not bound to accept certain forms of evidence.[13] In the Secretary’s submission, the statutory requirement that the Board be ‘directed by the best evidence available’ did not preclude it from taking the students’ written statements into account and ultimately accepting their version of events.[14]
[13]Ibid [19].
[14]Ibid [23].

‘Best evidence rule’ at common law

Before turning to the surrounding legislative framework in greater detail, it is first necessary to address the ‘best evidence rule’ at common law. The following statement of Hardwicke LJ in Omychund v Barker[15] (‘Omychund’) is frequently cited as a broad statement of the rule:

The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.[16]

However, as discussed below, the rule has since been so diminished that today it is substantially, with limited exceptions, ‘merely a counsel of prudence’.[17]

[15](1744) 1 Atk 21.

[16]Ibid 49.

[17]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) 104 [1480].

Commissioner for Railways (NSW) v Young[18] (‘Young’), a 1962 decision of the High Court, concerned a claim for damages by a widow and her daughter in relation to the death of her husband. A blood sample was taken from the deceased and placed in a jar which was sealed and a label attached to it. An analyst, who had taken a blood sample which purported to be the blood taken from the body of the deceased, was asked at trial what he had seen written on the jar. The question was disallowed by the trial judge. The High Court majority of Dixon CJ, Taylor, Menzies and Windeyer JJ held that the oral evidence of the analyst had been wrongly rejected by the trial judge. The fifth member of the Court, Kitto J, held that the oral evidence was irrelevant to the question in issue and was therefore inadmissible.
[18](1962) 106 CLR 535.

Each member of the High Court majority considered the best evidence rule’s application and scope. Dixon CJ, after considering Wigmore on Evidence, concluded that ‘[t]he [rule] excluding secondary evidence did not go beyond writing’.[19] Windeyer J likewise took the best evidence rule as not expanding beyond certain forms of words and figures.[20]
[19]Commissioner for Railways (NSW) v Young (1962) 106 CLR 535, 544 (Dixon CJ).
[20]Ibid 557 (Windeyer J).

Butera v Director of Public Prosecutions (DPP) (Vic)[21] (‘Butera’) related to a criminal trial in which a tape recording of a conversation in a foreign language amongst alleged co-conspirators was admitted into evidence at trial. Two interpreters provided written translations of the recording and also gave oral evidence of their translations at trial. The accused was convicted and appealed on the grounds that the transcripts of the tape recordings should not have been accepted into evidence. The accused argued that the transcripts were inadmissible on the basis that they were not the best evidence of the contents of the tapes. The High Court held by majority[22] that the transcripts had properly been admitted into evidence.
[21](1987) 164 CLR 180.
[22]Mason CJ, Brennan, Deane and Dawson JJ; Gaudron J dissenting.

Each judgment in Butera considered the status and application of the best evidence rule in Australia. The joint judgment of Mason CJ, Brennan and Deane JJ considered authorities addressing the specific circumstances in Butera, namely transcripts of tape recordings. Their Honours made some observations on the differences between oral and documentary evidence:

A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses.[23]

And later:

The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person.[24]

[23]Butera (1987) 164 CLR 180, 189 (Mason CJ, Brennan and Deane JJ).

[24]Ibid 190.

Dawson J, writing a separate majority judgment, gave greater consideration to the best evidence rule. The following exposes its limited operation and scope.

If then a tape recording is of a documentary character such that it is discoverable, does that mean that its contents must be proved by the production of the original tape and cannot be proved by means of a copy, either in the form of another tape or in the form of a transcript? Such a rule applies to written documents, namely, that the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rule appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits: Omychund v. Barker. The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of the contents of written documents, and that it is only in that form that it has survived. … Indeed, Dixon C.J. in [Young] appears to have thought that the rule excluding secondary evidence never went beyond writing. … It is clear that in the absence of [statutory] development, documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence …Of course some modes of proof are better than others, but that, save in the case of written documents, goes to the weight rather than admissibility’.[25]

[25]Ibid 194–5 (Dawson J) (citations omitted).

Gaudron J, albeit in dissent on the facts of Butera, likewise considered that the scope of the best evidence rule was limited.[26]
[26]Ibid 202-203 (Gaudron J) (citations otherwise omitted).

In the year following Butera, the Full Court of the Supreme Court of South Australia published Semple v Noble[27] (‘Semple’). It did not refer to Butera and largely confirms the principles in Young. King CJ stated that ‘[t]here is no general rule of law that only the “best” evidence of a fact is admissible’.[28] The Chief Justice considered that probably the ‘sole surviving aspect’ of the best evidence rule is that ‘subject to certain exceptions, secondary evidence is not admissible to prove the contents of a document’.[29] That aspect was likewise referred to by von Doussa J as ‘the most important survival of the best evidence rule’.[30]
[27](1988) 49 SASR 356.
[28]Semple v Noble (1988) 49 SASR 356, 357 (King CJ).
[29]Ibid 358 (King CJ). See also 366 (Legoe J).
[30]Ibid 368 (von Doussa J).

The limited application and scope of the best evidence rule is reflected in relevant commentary. For instance, the current edition of Cross on Evidence expresses that:[31]

[t]he best evidence rule is limited to written documents, and does not now apply to tapes or modern films.[32] It is losing power.[33] In England it has now been said to “have expired”.[34] The Evidence Acts have radically modified it …

[31]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) 105 [1480].

[32]Kajala v Noble (1982) 75 Cr App R 149.

[33]R v Governor of Pentonville Prison; Ex parte Osman (1988) 90 Cr App R 281, 308–9.

[34]Masquerade Music Ltd v Springsteen (2001) 51 IPR 650, [85] per Jonathan Parker LJ, Laws and Waller LJJ concurring.

This last point is demonstrated not least by s 51 of the Evidence Act 2008:

Original document rule abolished
The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.

However, the Evidence Act 2008 does not apply to the Board’s proceedings.[35]
[35]Evidence Act 2008 s 4(1).

Although the Evidence Acts have severely restricted the best evidence rule, its continued (albeit largely dormant) existence was confirmed by three judges of the High Court in Golden Eagle International Trading Pty Ltd v Zhang[36] (‘Golden Eagle’). The case concerned the quantum of damages owing to a passenger injured in a car accident. At issue was whether the New South Wales Court of Appeal was correct to adopt projected rather than historical life expectancy tables in calculating such damages.
[36](2007) 229 CLR 498.

The best evidence rule was referred to in one short paragraph of the majority:

In this Court, two issues remain. The first is whether the Court of Appeal erred in having regard, when assessing the life expectancy of the first respondent, to life expectancy tables that were “projected” rather than “historical”. Upon that issue, we agree with what is said by Kirby and Hayne JJ and would add only this. Despite criticism of it, the “best evidence rule” has not fallen completely into desuetude. Subject to the exigencies of litigation, the circumstances of the parties, and the other settled and statutory rules of evidence, it has vitality. An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available.[37]

[37]Golden Eagle (2007) 229 CLR 498, 500 [4] (Gummow, Callinan and Crennan JJ) (citations omitted and emphasis added).

Kirby and Hayne JJ who, albeit in minority in respect of the result, were in the majority in respect of the Court of Appeal’s use of the prospective life expectancy tables:

There is no reason to doubt that the Court of Appeal was correct in its conclusion that the projected tables published by the Australian Bureau of Statistics were more likely to give an accurate estimate of future life expectancy than the historical tables published by the Bureau. That being so, it follows that the Court of Appeal was right to conclude that, despite the then prevailing practice in the courts of New South Wales, the primary judge should have used the prospective rather than the historical tables.[38]

[38]Ibid 517 [68]-[70] (Kirby and Hayne JJ) (citations omitted).

The purpose of choosing between the tables was to accurately calculate the damages owing to the person injured on the facts of Golden Eagle.[39] This was not a competition between ‘primary’ and ‘secondary’ forms of evidence. Rather, the prospective and historical life expectancy tables were competing materials capable of establishing different factual outcomes. For this reason, the better interpretation of the reference in Golden Eagle to the best evidence rule is that the majority drew upon, by analogy, a principle underlying the best evidence rule rather than applying it. Golden Eagle is not authority for the expansion of the best evidence rule beyond its conception in Young and Butera.

Common law rule not imported into the ETRA s 2.4.80(2)(b)

[39]Zhang v Golden Eagle International Trading Pty Ltd (2006) 45 MVR 365, 374–6 [49]–[55] (Basten JA, Ipp JA agreeing at 365 [1], McColl JA agreeing at 365 [2]).

The authorities and commentary discussed above reveal fundamental difficulties with Mr Torosidis’ argument that the phrase ‘best evidence available’ in s 2.4.80(2)(b) should be read by reference to the common law rule, as presented in the passage by Professor Thayer extracted above at [21].

First, even if the best evidence rule once applied beyond written documents, the importation of that broader concept into the language of modern legislation is problematic. Mr Torosidis seeks to connect the ETRA with earlier conceptions of the common law rule. He says that provisions similar to s 2.4.80(2)(b) had ‘long been found in public service legislation in Victoria’.[40] The example given is of s 125 of the Public Service Act 1890. It provided that the Public Service Board of Victoria ‘shall direct itself … by the best evidence it … can procure or that is laid before it’. The contention is that earlier Parliaments adopted the phrase ‘best evidence’ to invoke the common law rule, and that subsequent Parliaments utilising the same phase, including that which enacted the ETRA in 2006, maintained an intention common to its predecessors. Although there may be circumstances in which the intention of one Parliament can be discerned, at least in part, by reference to the actions of a previous Parliament, there was insufficient legislative analysis and accompanying extrinsic evidence analysis to justify that conclusion in the current case.
[40]Plaintiff’s Outline of Submissions dated 11 October 2018, [8].

Second, to read the ETRA s 2.4.80(2)(b) as supplying a condition of admissibility would be inconsistent with the legislative scheme. The text of the provision, its surrounding statutory context and the purpose of the ETRA instead demonstrate that the provision was to have a much different effect to that contended by Mr Torosidis.

Interpretation of ETRA s 2.4.80(2)(b)

ETRA s 2.4.80(2) provides:

Conduct of proceedings
…
(2) All proceedings before a Disciplinary Appeals Board—
(a) must be conducted without regard to legal formalities; and
(b) must be directed by the best evidence available, whether or not it is the best evidence that the law in other cases admits, requires or demands.

As explained below, certain aspects of the text of s 2.4.80(2)(b), and its sister provision in s 2.4.80(2)(a), reveal its true meaning.

First, s 2.4.80(2) provides that the proceedings of the Board are to be conducted in a certain manner. It does not state that the decision of the Board is to be made upon a certain ground or by regard to certain principles. Section 2.4.80(2) is directed to the operation of procedures governing the receiving of factual evidence and legal argument by the Board, not any method by which the Board is to substantively determine the appeal before it.

Second, s 2.4.80(2)(b) is to be read in harmony with s 2.4.80(2)(a). The terms of s 2.4.80(2)(a) indicate legislative intent that the Board operate in the absence of legal formalities regulating other decision-making bodies. To read s 2.4.80(2)(b) as imposing a rigid pre-condition to the admissibility of a certain class of evidence would undermine that intent.

Third, the meaning of the phrase ‘best evidence available’ in s 2.4.80(2)(b) is revealed by reference to the language of the balance of that paragraph – ‘whether or not it is the best evidence that the law in other cases admits, requires or demands’. The purpose of that language is to free the Board from any rules of evidence that may otherwise apply, rather than restrict the forms of evidence available to the Board in making its decision. The preceding words — that the proceedings of the Board ‘must be directed by the best evidence available’ — are to be read in the same light.

Section 2.4.80(2)(b), read consistently with the analysis above, does not affect the Board’s substantive decision-making. Nor does it prescribe any particular rule of evidence or procedure by which the Board must comply. Rather, adopting the language of Gaudron and Kirby JJ in Minister for Immigration and Multicultural Affairs v Eshetu[41] (‘Eshetu’), s 2.4.80(2) describes the ‘general nature of review proceedings’ before the Board. It requires the Board ‘to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals’.[42]
[41]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 635 [75] (Gaudron and Kirby JJ).
[42]Ibid.

Section 2.4.80(2)(b) does not bind the Board to consider only a certain class of evidence in the course of making its determination. It is rather a guiding principle by which the Board is to conduct its own proceedings. The Board, in accordance with its statutory functions, is to engage in the task of fact-finding, not by reference to any rules of evidence that would otherwise apply, but by reference to the evidence that is best positioned to enable the Board to execute those functions. What is the ‘best’ evidence for these purposes cannot be precisely defined. This principle will engage two chief aspects of the evidence — its quality and availability[43] — although other considerations may be relevant.
[43]See Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) 371 [678], cited in Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) 190 [7.10]–[7.11].

In accordance with the interpretation above, the circumstances in which non-compliance with s 2.4.80(2)(b) would lead to the invalidity of the entirety of the Board’s determination of an appeal are limited. Although s 2.4.80(2)(b), starting with the word ‘must’, reads upon first glance as an obligatory provision, the determination of what is the ‘best evidence available’ is, properly construed, ‘a more or less discretionary judgment’ to be formed by the Board.[44] The exercise of that discretion in bad faith or in a manner that is legally unreasonable are ways in which non-compliance with s 2.4.80(2)(b) could impugn a determination by the Board.[45] However, mere error in applying its terms would not amount to a failure by the Board ‘to comply with a requirement essential to the valid performance of its duty’ under the ETRA.[46]
[44]R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 243 (Rich, Dixon and McTiernan JJ).
[45]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 373 [97] (Gageler J).
[46]Ibid.

To conclude, the ETRA s 2.4.80(2)(b) did not oblige the Board to prefer Mr Torosidis’ direct oral evidence over the unsworn written statements of students. The Board, in conducting the proceedings leading to the first decision, did not breach s 2.4.80(2)(b). Ground 1 of the review raised by Mr Torosidis in the first proceeding is dismissed.

Does the ETRA pt 2.4 div 10 allow the Board to consider misconduct allegations against Mr Torosidis that were investigated but not the subject of his appeal?

The ETRA pt 2.4 div 10 relates to teacher misconduct. Section 2.4.68, contained within div 10A, enables teachers to bring an appeal to the Board, as Mr Torosidis did. The issue here is that the Board considered conduct not alleged by the Secretary to constitute a ground for disciplinary action. The Board reconsidered conduct underlying an allegation concerning a ground that the investigator into Mr Torosidis’ conduct found unsubstantiated. This issue gives rise to grounds 2(a) and 3 of the first proceeding.

Ground 2(a) of the first proceeding is as follows:

In arriving at its decision the Second Defendant took irrelevant considerations into account.
Particulars
a) Meeting with students
i)The proceeding before the Board was an appeal pursuant to section 2.4.68 of the Act against a determination of the First Defendant to take action against the Plaintiff. The First Defendant investigated alleged grounds for action against the Plaintiff and made determinations on those grounds before taking action. The final ground was an allegation about a meeting with students during the investigation and the First Defendant did not find this ground substantiated and did not rely upon it to take action against the Plaintiff.
ii)Further, the First Defendant told the Second Defendant in its Contentions of Fact and Law that it did not allege this meeting constituted grounds for action, such that to make any such finding without informing the Plaintiff of the possibility of doing so would also constitute a denial of natural justice.
iii)Nonetheless, the Second Defendant found that the Plaintiff "has contravened the [ETRA] relating to....his subsequent meeting with students"

Ground 3 of the first proceeding overlaps with ground 2(a) and provides as follows:

In arriving at its decision the Second Defendant failed to accord the Plaintiff natural justice.
Particulars
The plaintiff refers to and repeats paragraph (a)(i)–(iii) of ground 2 above.

The ETRA div 10 of pt 2.4 includes the following relevant provisions:

2.4.60 Grounds for action
(1) The Secretary, after investigation, may take action under this Division against an employee who—
(a)conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise; or

(b) commits an act of misconduct; or
(c)during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine; or
(d)is negligent or incompetent in the discharge of his or her duties; or
(e)contravenes a provision of this Act or a Ministerial Order made for the purposes of this Chapter; or
(f)contravenes a requirement by or under any Act that corporal punishment not be administered to any Government school student; or
(g)without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction; or
(h)without permission and without reasonable excuse, is absent from his or her duties; or
(i)is unfit on account of character or conduct to discharge his or her duties.

(2)In considering the fitness of an employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an employee).
2.4.61 Action against employee
(1)If the Secretary is satisfied on an inquiry under this Division that there are one or more grounds under this Division for taking action against an employee, the Secretary may take one or more of the following actions against the employee—
(a)       a reprimand;
(b)       a fine not exceeding 50 penalty units;
(c)       a reduction in classification;
(d)      termination of employment.

(2) The Secretary, by notice in writing, must advise the employee of—
(a)the determination of the Secretary on the inquiry; and
(b)if the Secretary takes action under subsection (1), the right to appeal to a Disciplinary Appeals Board

2.4.65 Investigation
(1)The Secretary may nominate a person to investigate and report to the Secretary in connection with an inquiry under this Division.
(2)The Secretary or nominated investigator must give to an employee against whom it is alleged there are grounds under this Division for action—
(a) notice in writing of the alleged grounds; and
(b)written particulars of the alleged grounds; and
(c)an opportunity to provide to the Secretary or investigator, as the case may be, a response in writing to the alleged grounds.

(3)The Secretary may request the nominated investigator to conduct further investigation and provide a further report to the Secretary at any time during an inquiry under this Division.

2.4.66 Employee may make submissions
(1)The Secretary must give to an employee against whom it is alleged there are grounds for action notice in writing that the employee may make a submission in writing to the Secretary addressing one or more of the following matters—
(a) the alleged grounds;
(b) any action that may be taken by the Secretary under this Division.

(2)A submission under sub-section (1) must be received by the Secretary not later than 14 days after the date on which the employee is given notice in writing of the right to make a submission or any longer period permitted by the Secretary.
(3)The Secretary must consider any submission made in accordance with this section before determining the issue to which the submission, or that part of the submission, relates.

The ETRA s 2.4.68 provides an employee with a right of appeal against a determination of the Secretary under pt 2.4 div 10:

2.4.68 Appeal
(1)An employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary to take action against the employee under Division 9A or 10.
(2)A notice of appeal must be lodged with the senior chairperson of the Disciplinary Appeals Boards within 14 days after the date on which the employee is given notice in writing of the determination of the Secretary.
(3)A notice of appeal must—
(a) be in writing; and
(b) be in the prescribed form.
(4)A Disciplinary Appeals Board may permit an appeal to be instituted out of time if it considers that special circumstances exist.
(5)An appeal must be conducted as a re-hearing.
(6)A Disciplinary Appeals Board must hear and determine the appeal and may—
(a)allow the appeal in whole or in part and vary the decision of the Secretary; or

(b) dismiss the appeal.

The October meeting

Mr Torosidis’ employment was initially terminated by the delegate to the Secretary after an investigation into the 25 August 2016 classroom incident. The delegate also considered whether an alleged breach of the ETRA by Mr Torosidis was substantiated in relation to the October meeting, held about a month after the classroom incident, between Mr Torosidis and various students present at the classroom incident. The delegate[47] concluded that Mr Torosidis‘ participation in that meeting did not give rise to a ground for action under the ETRA, in particular, the ground of contravening or failing to comply with a lawful direction.[48]
[47]Referred to as ‘the Secretary’ for convenience.
[48]ETRA s 2.4.60(1)(g).

Upon Mr Torosidis’ appeal to the Board, the Secretary did not submit that his participation in the October meeting gave rise to a ground for action under the ETRA. However, it is common ground between the parties that the Board proceeded to take into account the meeting in concluding that there were grounds for action against Mr Torosidis. The Board’s reasons state that the Board formed its view of the facts of the complaint against Mr Torosidis. It outlined each fact, beginning from the classroom incident. The facts it identified included that, while the classroom incident was being investigated, Mr Torosidis had asked certain students to stay behind. The content of that meeting was further described in the facts recited in the first decision. The Board concluded that Mr Torosidis’ conduct, including the classroom incident and the October meeting, gave rise to grounds which had formed the basis of the disciplinary action taken by the Secretary.

Mr Torosidis’ submissions

Mr Torosidis says the Board took into account an irrelevant consideration by asking whether his participation in the October meeting contravened the ETRA. He submits that the Board, by reaching conclusions in respect of the subsequent meeting, identified the wrong issue and asked the wrong question in undertaking its functions under the ETRA. Furthermore, he was denied procedural fairness in circumstances where it was not alleged beforehand that the conduct constituted such grounds. The Board, in Mr Torosidis’ submission, thereby committed a jurisdictional error.

The Secretary’s submissions

The Secretary conversely contends that it was not an irrelevant consideration for the Board to make adverse findings against Mr Torosidis in relation to the October meeting. As an appeal to the Board is conducted as a re-hearing,[49] the Board, in the Secretary’s submission, is placed in the shoes of the original decision-maker and may hear all the evidence afresh, including material that was not before the Secretary. It was therefore open to the Board to consider afresh any matter relevant to a decision of the Secretary pursuant to the ETRA ss 2.4.60 and 2.4.61.
[49]ETRA s 2.4.68(5).

The Secretary accepts that its contentions of facts and law before the Board stated that the Secretary did not propose the Board consider the allegation found unsubstantiated in relation to the October meeting. However, it did contend that Mr Torosidis’ conduct at the October meeting was ‘relevant and before the Board and goes to the question of appropriate action’.[50] As a result, Mr Torosidis’ participation in the subsequent meeting was, in the Secretary’s submission, clearly a matter before the Board in the context of assessing Mr Torosidis’ conduct.
[50]Respondent’s Contentions of Fact and Law, 22 December 2017, [4.4], Exhibit ‘MM-2’ to the first McIver affidavit.

Analysis

The ETRA s 2.4.68 refers to an appeal ‘against a determination of the Secretary to take action’ under divs 9A or 10. The ‘action’ is a reference to disciplinary action. The appeal is therefore against the disciplinary action.

The obligation of the Secretary to notify a teacher of their appeal rights pursuant to the ETRA s 2.4.61(2) only arises if the Secretary decides to take disciplinary action.

Section 2.4.61 of the ETRA sets out the types of disciplinary action the Secretary may take if they are satisfied that there are ‘one or more grounds for taking action’ under div 10.

An appeal to the Board against disciplinary action provides for the Board to revisit (in the nature of a re-hearing) the Secretary’s grounds for disciplinary action. This enables a revisiting of the investigator’s findings in respect of the substantiated allegations that led to the disciplinary action, as well as the Secretary’s decision as to the appropriate disciplinary action. The grounds for action to be considered by the Board on appeal are restricted to the grounds for the Secretary’s disciplinary action against the appellant.

Turning now to the application here. While the grounds for the Secretary’s disciplinary action arose from Mr Torosidis’ conduct during the classroom incident on 25 August 2016, his conduct at the October meeting is relevant. The meeting was a consequence of the classroom incident and dealt with issues arising from it. Accordingly, in assessing Mr Torosidis’ conduct in relation to the classroom incident, the Board was entitled to consider the October meeting. Mr Torosidis’ submission that the October meeting was irrelevant to the appeal must therefore be rejected.

I also reject Mr Torosidis’ submission that the Board’s consideration of the October meeting denied him natural justice. In his written statement to the Board of 19 January 2018, Mr Torosidis addresses the October meeting in some detail.[51] His submissions, prepared by counsel that same day, more cursorily address the meeting. He concedes it was a ‘bad decision’ to hold the meeting but says that he discouraged an improper suggestion made by one of the students at the meeting.[52] The Secretary’s submissions before the Board also address the October meeting:

Whilst the [Secretary] does not propose that the Board consider the fourth allegation in these proceedings, the [Secretary] maintains that the conduct that gave rise to the fourth allegation is relevant and before the Board and goes to the question of appropriate action.[53]

[51]Statement of Jack Torosidis, 19 January 2018, [53]–[58], [75], Exhibit ‘MM-3’ to the affidavit of Michael McIver, sworn on 1 June 2018 (‘the first McIver affidavit’).

[52]Appellant’s Contentions of Fact and Law, 19 January 2018, [21(o)], Exhibit ‘MM-3’ to the first McIver affidavit.

[53]Respondent’s Contentions of Fact and Law, 22 December 2017, [4.4], Exhibit ‘MM-2’ to the first McIver affidavit. The reference to conduct giving rise to the fourth allegation is a reference to the October meeting.

Mr Torosidis was clearly on notice as to the relevance of the October meeting to proceedings before the Board, made written submissions on the October meeting and was given the opportunity to make oral submissions during the hearing.

Further, I do not consider the Board identified the wrong issue and asked the wrong question. As a consequence of the appeal, the Board was tasked with a re-hearing and determination of what, if any, disciplinary action should be taken based on alleged breaches of ss 2.4.60(1)(a), (b) and (d) relating to the 25 August 2016 classroom incident. Given the October meeting related to the classroom incident, the Board, in re-hearing the matter, was entitled to consider it.

The Board’s reasons cite an additional ground for action submitted by the Secretary before the Board which did not form the basis for the disciplinary action taken by the Secretary. This was the ETRA s 2.4.61(i)— the employee is unfit on account of character or conduct to discharge his or her duties. However, I do not consider the submission had a material impact on the Board’s decision. Firstly, it appears the Board is merely reciting the Secretary’s submission. Secondly, given the Board reinstated Mr Torosidis, it was plainly of the view Mr Torosidis was not unfit to discharge his duties. For the Board to have found s 2.4.61(i) made out in these circumstances would be beyond the scope of the appeal power under s 2.4.68 for the above reasons.

Given the analysis above, grounds 2(a) and 3 of review for the first proceeding are dismissed.

Was the Board entitled to take into account general deterrence in making the first decision?

After concluding that Mr Torosidis’ conduct gave rise to grounds for action under the ETRA, the Board’s first decision lists the matters it considered relevant to penalty. One consideration was ‘[t]he general deterrent effect which the penalty should have on other members of the teaching profession by way of notice to the teaching profession generally that conduct of the type which has been admitted by [Mr Torosidis] cannot be accepted or tolerated’.

In support of its consideration of general deterrence, the Board’s reasons extracted the following passage from Giles AJA in the decision of the New South Wales Court of Appeal in Law Society of New South Wales v Foreman,[54] a case which involved professional misconduct by a solicitor:

[T]he object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.[55]

[54](1994) 34 NSWLR 408.

[55]Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 471 (Giles AJA).

The Board’s reasons for the first decision stated that it was the Board’s opinion that the sentiments expressed by Giles AJA also applied to the teaching profession.

Mr Torosidis contends that the Board erred in considering general deterrence in the course of assessing the appropriate penalty. Ground 2(b) of the first proceeding is as follows:

In arriving at its decision the Second Defendant took irrelevant considerations into account.
Particulars
…
b) General deterrence
Further, the [Board] erred by taking general deterrence into account in deciding to demote [Mr Torosidis] in circumstances where the [Board’s] proceedings are held in private and its reasons are not published.

Mr Torosidis’ submissions

Mr Torosidis says that no statutory provision required the Board to take into account general deterrence. And, more fundamentally, Mr Torosidis contends that general deterrence is an irrelevant consideration in circumstances where the Board’s proceedings were conducted in private and its orders and reasons were not public or distributed to the teaching profession.

The Secretary’s submissions

The Secretary accepts that the Board’s proceedings are conducted in private and its decisions are not published. However, the Secretary notes that the Australian Education Union, which represented Mr Torosidis before the Board and in this Court, would be able to convey to its members, in a general manner, the consequences that may result from the type of misconduct that was said to have been committed by Mr Torosidis.

The Secretary further submits that, even if the Board did err in considering general deterrence, this did not amount to a jurisdictional error. The ETRA provides the Board with a wide discretion in assessing penalty which is only limited by the purpose of the legislation. Relevantly, consideration of general deterrence is consistent with the purpose of the ETRA to provide for ‘a high standard of education and training for all Victorians’,[56] including through ‘regulation of the teaching profession and the maintenance of standards of professional practice for that profession’.[57]
[56]ETRA s 1.1.1(1).
[57]Ibid s 1.1.1(2)(f).

Analysis

For a matter to be ‘irrelevant’ in the necessary sense, it must be forbidden from consideration.[58] This was explained by Justice Emerton in the following terms:[59]

A decision-maker will fall into error if he or she fails to take into account a matter that he or she was bound to take into account or takes into account something that he or she was not permitted by the statute to take into account. However, as the learned authors of Judicial Review of Administrative Action[60] note, ‘[m]any Acts are properly construed as allowing their decision-makers to consider all sorts of relevant things, but as requiring them (in the sense that breach will result in invalidity) to consider very few things.’[61] Where the legislation neither obliges nor forbids the decision-maker to take a particular matter or thing into account, no error of law can flow from the fact that the matter or thing was considered or, alternatively, that it was not considered.

[58]See generally Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (Lawbook Co, 6^th ed, 2017) 281-282 [5.30].

[59]Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722, [21].

[60]Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5^th ed, 2013).

[61]Ibid 275.

Adopting this language, the question is whether general deterrence was a matter that the Board ‘was not permitted by the [ETRA] to take into account’ in assessing the penalisation of Mr Torosidis. Does the ETRA prohibit its consideration, either expressly or impliedly?

The ETRA does not expressly prohibit or require the Board take into account general deterrence in determining whether to dismiss or allow an appeal and, if relevant, vary the determination of the Secretary. The Board is granted a wide discretion to determine the appeal in the absence of express legislative instruction on that matter.

In the absence of express statutory terms, forbidden considerations ‘must be determined by implication from the subject-matter, scope and purpose of the Act’.[62] The question, therefore, is whether the ETRA by implication forbids the Board from considering general deterrence in determining the appeal under s 2.4.68(6).
[62]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).

For the reasons below, taking into account general deterrence to penalise Mr Torosidis was inconsistent with the scope of the ETRA. The Board was therefore not permitted to take it into account as a factor materially influencing its determination on penalty. To explain this, it is necessary to consider the limitations on the application of general deterrence under the ETRA pt 2.4.

The ETRA does not establish a mechanism by which the public or teaching profession are to be made aware of disciplinary proceedings or the penalties imposed on employees by the Secretary or Board under pt 2.4. The mere potential for the rumour of disciplinary action by the Board to spread throughout the profession is insufficient to justify the consideration and imposition of general deterrence.

The submission of the Secretary that the Board may take into account general deterrence because Mr Torosidis was represented by a teacher’s union must be firmly rejected. Such a principle, if accepted, would discriminate against teachers seeking representation by their union in proceedings before the Board. It would deter teachers from seeking industrial representation. In short, it would be harmful and discriminatory.[63] Dissemination of disciplinary action to the public in this way is beyond the scope of the regime established by the ETRA pt 2.4.
[63]The parties jointly submitted the enterprise agreement was not relevant to this proceeding. It is thus unnecessary to consider whether such a principle would be inconsistent with the applicable enterprise agreement.

Although a purpose of the ETRA is to maintain standards of professional practice for the teaching profession as a whole,[64] the enforcement of such standards under the ETRA is effected at the level of the individual employee of the government teaching service. Under pt 2.4, where the Secretary is satisfied action should be taken, that action is taken personally against the employee and not made public. In contradistinction to disciplinary action taken by the Victorian Institute of Teaching under the ETRA pt 2.6,[65] there is no public register of actions taken by the Secretary or the Board against employees under pt 2.4. Accordingly, the disciplinary regime under pt 2.4 does not contemplate furtherance of the ETRA’s purpose by enforcing standards through general deterrence.
[64]ETRA s 1.1.1(2)(f).
[65]See ETRA pt 2.6, div 13A.

For these reasons, consideration of general deterrence in disciplinary action under pt 2.4 div 10 lies beyond the scope of the ETRA. Accordingly, it was implicitly forbidden, and therefore irrelevant, for the Board to take it into account in determining the appropriate disciplinary action to be taken against Mr Torosidis. It is clear from the reasons given by the Board that general deterrence was a material motivating factor in its first decision. To take into account general deterrence was a jurisdictional error by the Board.

Given the above, ground 2(b) of Mr Torosidis’ review is allowed.

Was the first decision legally unreasonable?

Under Ground 5 of the first proceeding, Mr Torosidis contends that the first decision ‘was irrational and/or so unreasonable that no reasonable decision maker could have arrived at it’. In support of that contention, ground 5(a) refers back to and repeats the particulars to grounds addressed above. Ground 5(b) contends additionally that the first decision was irrational or unreasonable as the Board erred in:

(i)finding that the facts it had found established “unbecoming” and “disgraceful ” conduct and/or “misconduct” on the part of [Mr Torosidis] within the meaning of sections 2.4.60(1)(a) and (b) of the Act.
(ii)demoting [Mr Torosidis] when it was disproportionate to do so given the facts it found and the evidence as to [Mr Torosidis’] circumstances since termination.

Mr Torosidis’ submissions

As noted in ground 5, Mr Torosidis referred to multiple aspects of the Board’s first decision that were said to have manifested the relevant irrationality or unreasonableness. In summary, these aspects included:

(a) the Board’s acceptance of the evidence of the students over that of Mr Torosidis;[66]
[66]Plaintiff’s Outline of Submissions dated 11 October 2018, [10].

(b) that the facts found by the Board did not establish that Mr Torosidis’ conduct was ‘negligent’,[67] ‘disgraceful’, ‘unbecoming’ or ‘misconduct’ within the meaning of the ETRA;[68]
[67]Mr Torosidis’ originating motion for the first proceeding referred to the Board’s finding of ‘misconduct’ and conduct that was ‘disgraceful’ or ‘unbecoming’, but did not refer to ‘negligent’ conduct. That is because the Board’s first decision did not make a finding of negligent conduct. However, given the allegation of negligence (pursuant to ETRA s 2.4.60(1)(d)) was before the Board, Mr Torosidis raised that ground for action in oral and written submissions: ibid [14]-[15].
[68]Ibid [14]–[15], [17]–[19].

(c) the Board’s approach to general deterrence and penalty, including the Board’s indication that the theory of general deterrence should apply in respect of the conduct admitted by Mr Torosidis, without reference to its application to the conduct not admitted;[69]

(d) the severity of the penalty, particularly that the Board ignored relevant material in relation to the financial impact of the decision of Mr Torosidis;[70] and

(e) the failure of the Board to award back pay between Mr Torosidis’ dismissal and reinstatement.[71]

[69]Ibid [21].

[70]Ibid [22]; Plaintiff’s Outline of Submissions on Compensation dated 11 October 2018, [7].

[71]Plaintiff’s Outline of Submissions dated 11 October 2018, [23].

The Secretary’s submissions

The Secretary submits that no aspect of the Board’s first decision met the high threshold for irrationality or unreasonableness constituting jurisdictional error. The Secretary’s responses to a number of these grounds of alleged unreasonableness have already been outlined above in response to other grounds of review. In addition, the Secretary submits that the Board viewed Mr Torosidis’ conduct holistically in determining whether the grounds were made out and that his conduct should not be dissected into its individual components as argued by Mr Torosidis. The Secretary also argued that the Board had taken into account Mr Torosidis’ personal circumstances in assessing the appropriate penalty. Further, that the Board had not erred by declining to order back pay because Mr Torosidis had not specifically sought such an order.

Turning first to the applicable principles.

Applicable Principles – Legal Unreasonableness

The language adopted in ground 5 of the first proceeding partly invokes the recognised test of ‘Wednesbury unreasonableness’ frequently applied in Australia since its formulation in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[72] (‘Wednesbury’). That test, as rephrased by Brennan J in Attorney-General (NSW) v Quin,[73] provided that the decision of an administrative decision-maker is unreasonable, and therefore liable to quashing, where the decision was ‘so unreasonable that no reasonable repository of the power could have taken the impugned decision or action’.[74]
[72][1948] 1 KB 223, 230 (Lord Greene MR, Somervell LJ agreeing at 234, Singleton J agreeing at 234).
[73](1990) 170 CLR 1.
[74]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).

The unreasonableness of an administrative decision today remains a continuing species of error warranting the quashing of that decision. However, the Wednesbury test for the identification of unreasonableness in administrative decision-making no longer retains its former prominence. The ‘turning point’[75] for its diminished role was the 2013 decision of the High Court in Minister for Immigration and Citizenship v Li[76] (‘Li’). The plurality of Hayne, Kiefel and Bell JJ in Li expressed that the identification of ‘legal unreasonableness’ was not to be confined to the Wednesbury standard:

Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it …[77]

[75]See generally Aronson et al, above n 58, [6.430] 370–2.

[76](2013) 249 CLR 332.

[77]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364 [68] (Hayne, Kiefel and Bell JJ).

Although the plurality judgment in Li ‘has certainly changed things’,[78] the Wednesbury formulation for identifying unreasonableness, albeit not decisive, continues to resonate in Australian administrative law. In Minister for Immigration and Border Protection v SZVFW[79] (‘SZVFW’), Kiefel CJ described the continuing utility of the Wednesbury test:

Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.[80]

[78]Aronson et al, above n 58, [6.450] 375.

[79](2018) 357 ALR 408.

[80]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, 411 [11] (Kiefel CJ) (citations omitted) (emphasis added).

Legal unreasonableness is not to be conceived as a ground of review standing mutually exclusive from the traditional grounds of review established at common law. Rather, legal unreasonableness encompasses and extends beyond such grounds.[81] The Full Federal Court, after reviewing the principles discussed in Li, outlined the point in Minister for Immigration and Border Protection v Singh[82] (‘Singh’):

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”.[83]
[81]‘The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness’: Li (2013) 249 CLR 332, 365 [72] (Hayne, Kiefel and Bell JJ) (citations omitted).
[82](2014) 231 FCR 437.
[83]Singh (2014) 231 FCR 437, 445 [44] (Allsop CJ, Robertson and Mortimer JJ) (emphasis added).

Analysis

Turning now to the particular grounds Mr Torosidis says are legally unreasonable in relation to the first decision.

Various aspects of the first decision impugned by Mr Torosidis do not warrant a finding of legal unreasonableness. The first of these is that the Board accepted the students’ evidence over Mr Torosidis’ sworn evidence. This was discussed above as not constituting a breach of the ETRA s 2.4.80. Neither did it constitute legal unreasonableness. The Board was not compelled to accept sworn evidence over unsworn evidence. And, despite differences between the students’ accounts of the classroom incident, there was sufficient material before the Board to form its factual findings.

Secondly, the Board was not legally unreasonable in concluding that Mr Torosidis’ conduct was ‘disgraceful’, ‘unbecoming’ and ‘misconduct’ within the meaning of the ETRA.

What constitutes conduct that is ‘negligent’, ‘disgraceful’, ‘unbecoming’ and ‘misconduct’ for the purposes of the ETRA s 2.4.60(1) is to a large degree left ‘to the deliberation and good judgment’ of the Board.[84] Although there must be rational limits to the application of statutory criteria to the facts of a case, the expertise[85] of the Board can ordinarily ‘be relied upon to properly characterise those facts’.[86] And, for the purposes of considering the lawfulness of the Board’s application of the statute to the facts, the reasons of the Board ‘are not to be dissected and placed under a microscope … [t]he use of an inapposite word or phrase does not undermine the substance of the [Board’s] reasoning’.[87]
[84]Solimon v University of Technology, Sydney (2012) 207 FCR 277, 286 [31] (Marshall, North and Flick JJ) (‘Solimon’).
[85]See ETRA s 2.4.73(2).
[86]Solimon (2012) 207 FCR 277, 286 [32] (Marshall, North and Flick JJ).
[87]Victorian Institute of Teaching v O’Byrne (2017) 52 VR 225, 245 (Kyrou and Ferguson JJA).

As Mr Torosidis submits, the Board did not make an express finding of negligent conduct. While the Board remarked on Mr Torosidis’ ‘lack of response to [Student A’s] actions’, this does not imply it found he was negligent. That remark was in the context of a finding of unbecoming conduct:

The Board finds that Jack’s conduct, much of which is admitted, was clearly conduct that amounts to conduct unbecoming to the position of teach and that Jack has contravened the [ETRA] relating to telling the initial story to the class and his lack of response to Aaron’s actions and his subsequent meeting with students.[88]

[88]Jack Torosidis v Secretary to the Department of Education and Training, Disciplinary Appeals Board, 19–20 February 2018 at Melbourne, 10.

Given that s 2.4.60(1)(d) was a ground for action under appeal, the Board should have expressly dealt with it in its reasons. This is more a question of the adequacy of the Board’s reasons. I do not find this failure to make an express finding on the ground of negligence rises to legal unreasonableness in the context of the wider decision, where the ground of negligence appears to have been of little to no significance to the Board on its view of the facts. It was reasonable for the Board to consider and focus upon whether the conduct was disgraceful, unbecoming or misconduct, as it did.

The reasons for the Board display an active regard for the proper interpretation of the statutory concepts of ‘disgraceful’, ‘unbecoming’ and ‘misconduct’. For each concept, the Board cited the interpretation of those phrases in dictionaries and case law. The Board considered the established facts as a whole. As the Secretary submits, it was entitled to consider Mr Torosidis’ conduct holistically. It was not legally unreasonable for the Board to conclude that his conduct constituted the relevant grounds for action under s 2.4.60(1).

There are, however, other aspects of the Board’s reasons that justify the conclusion that the first decision was legally unreasonable. The first aspect was the Board’s approach to applying general deterrence to conduct admitted by Mr Torosidis. In this regard, I found above that the Board took into account an irrelevant consideration. Applying the principles in Singh and SZVFW, I find this failure to be a jurisdictional error which also constitutes a form of legal unreasonableness. Given the Board’s decisions are not published and the statutory regime provides no mechanism to bring awareness of pt 2.4 disciplinary action to other employees across the teaching profession, the imposition of a penalty for reasons of general deterrence is legally unreasonable. No reasonable decision-maker would have considered general deterrence in circumstances where the fundamental conditions for its efficacy were plainly absent.

The second aspect of legal unreasonableness also relates to penalty. In determining penalty, the Board did not consider how the termination of Mr Torosidis’ employment had financially impacted him, although such evidence was before it. The ETRA s 2.4.61(1) specifies that the Secretary (and in this case, the Board) may take one or more of the following actions: a reprimand, a fine not exceeding a certain amount, a reduction in classification or termination of employment.

Where the Board finds grounds for action, but also allows an appeal in part where the employee’s employment was terminated by the Secretary, the Board is also required to consider s 2.4.69(1). That provision empowers it to make an order to reinstate and/or compensate the employee:

Reinstatement and payments after allowance of appeal against termination
(1) If an appeal is allowed in respect of an employee whose employment in the teaching service has been terminated, the Disciplinary Appeals Board may—
(a) order that the employee be re-instated in the teaching service; and
(b) order that an employee who is re-instated under this section be paid an amount that the Board considers appropriate in the circumstances to compensate for any loss of salary as a result of the termination; and
(c) in the case of an employee who is not re-instated in the teaching service, order that the employee be paid an amount not exceeding the greater of—
(i) the remuneration received by the employee during the period of 6 months immediately before the termination; or
(ii) the remuneration to which the employee was entitled for the period of 6 months immediately before the termination.

The Board has a duty to consider whether or not to exercise its power under s 2.4.69(1) where the pre-condition to its exercise arises, namely where the Board allows an appeal in respect of an employee whose employment in the teaching service was terminated.[89] The ETRA does not compel the Board to exercise the power in any particular way. However, a reasonable decision-maker, in ordering a significant demotion from grade 2.6 to 2.1 in circumstances where it was not awarding back pay, would have considered the financial impact of the termination of employment in determining whether and how to exercise its powers under s 2.4.69(1).
[89]See, eg, Pyrenees Shire Council v Day (1998) 192 CLR 330, 346-347 [23] (Brennan CJ); North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 154 [7] (Gleeson CJ).

There was evidence before the Board that Mr Torosidis had not worked during the period of his termination from 30 October 2017. Between then and his reinstatement in 16 March 2018, he estimates his loss of salary and superannuation to be around $75,000 at range 2.6.[90]
[90]Plaintiff’s Outline of Submissions, 11 October 2018, S CI 2018 02077, [22].

Whilst a tribunal is not required to summarise all the evidence before it, evidence of the financial impact on Mr Torosidis of the termination of his employment was a material consideration for the outcome of the Board’s first decision. Consideration of the financial impact was of particular significance given the substantial financial effect of the Board’s first decision, being reinstatement without back pay and at a reduced salary.[91] Mr Torosidis estimates the combined impact of termination by the Secretary and the Board’s orders to be a loss of over $150,000.[92] This is approximately one and a half years of salary at range 2.6 and nearly two years at range 2.1.
[91]The reduction in salary from range 2.6 to 2.1 amounts to a loss of around $20,000 per year. The plaintiff estimates that assuming he progresses through the classifications as fast as possible, he will have lost at least $71,974 in salary and a further approximately $10,000 in superannuation contributions by 2023: ibid.
[92]Ibid [3].

I reject the Secretary’s submission that the financial impact was relevantly addressed by the Board in stating: ‘while his previous unblemished record and the personal circumstances described by [Mr Torosidis] may illicit a measure of sympathy, the Board is of the opinion this is no excuse for his conduct’. That is not consideration of the financial impact of the disciplinary action taken by the Secretary. Rather, the Board was considering whether Mr Torosidis’ personal circumstances excused his conduct.

The Board was required to provide an evident and intelligible justification for its orders. It did not when it failed to consider the financial impact of the termination of Mr Torosidis’ employment in circumstances where it reinstated him at a significantly reduced salary without back pay. Both this and the application of general deterrence, together render the first decision legally unreasonable. Ground 5 of Mr Torosidis’ review is allowed.

Was the Board functus officio after making the first decision?

As discussed above, Mr Torosidis requested the Board hear him on the question of back pay for the period between dismissal and reinstatement. The Board’s second decision, communicated on 23 May 2018, was not to exercise any discretion to grant back pay. In the second proceeding, Mr Torosidis alleges that the Board, in making the second decision, committed a jurisdictional error by failing to accord him procedural fairness.

Mr Torosidis submits that there is no suggestion that the Board turned its mind to the question of back pay in the first decision, and says this is confirmed by the subsequent correspondence from the Board in which it sought to reconvene and hear argument in relation to back pay.[93]
[93]Transcript of Proceedings, Torosidis v Secretary to the Department of Education and Training (Supreme Court of Victoria, S ECI 2018 00457, S CI 2018 02077, Ierodiaconou AsJ, 23 November 2018) 49–50 (‘Transcript’).

The Secretary accepts that, if the Board possessed the power to award back pay as at the date of the Second Decision, there was a failure to provide Mr Torosidis procedural fairness. However, the Secretary contends that the communication on 23 May 2018 was not a valid decision because the Board was ‘functus officio’ — that is, its jurisdiction under the ETRA was irrevocably spent — immediately after issuing the first decision on 4 April 2018. The Secretary submits that, although the Board did not expressly refer to back pay in the course of its reasons, it is nonetheless to be construed that the Board did consider the potentiality of back pay in the course of making the first decision when it considered the appropriate penalties flowing from its finding of misconduct against Mr Torosidis.

Functus officio principles

The effect of characterising an administrative decision-maker as functus officio is that ‘there is no further function or act for the person authorised under the statute to perform’.[94] It is ‘a conclusion on the legal authority of a person’.[95] Where a statutory decision-maker, being functus officio, purports to amend or remake an earlier decision, the subsequent action is one taken outside of the decision-maker’s statutory power. This was explained by Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic:[96]

a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel but because his power to do so is spent and the proposed second decision would be ultra vires.[97]

[94]Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, 311 (Goldberg J) (‘Jayasinghe’).

[95]Minister for Indigenous Affairs v MJD Foundation (2017) 250 FCR 31, 67 [155] (Mortimer J). ‘[I]t is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function’: ibid 311 (Goldberg J).

[96](1990) 21 FCR 193.

[97]Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211 (Gummow J) (‘Kurtovic’). This passage was recently cited by the High Court in CRI026 v Republic of Nauru (2018) 355 ALR 216, 232 [60] (Kiefel CJ, Gageler and Nettle JJ).

The concept of functus officio is applicable to bodies exercising administrative power. It reflects the importance of finality in their decision-making.[98] There may however be occasions where ‘a rigid approach to the principle of functus officio is inconsistent with good administration and fairness’.[99] In some situations, the decision communicated by the public body may be of such a character that warrants relaxation of the desire for finality.[100] This approach accepts that there is convenience and flexibility attached to ‘a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened’.[101]
[98]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 603 [8] (Gleeson CJ) (‘Bhardwaj’); Kabourakis v Medical Practitioners Board of Victoria (2006) 25 VAR 449, 463 [48] (Nettle JA, Warren CJ agreeing at 452 [4], Chernov JA agreeing at 453 [6]) (‘Kabourakis’).
[99]Bhardwaj (2002) 209 CLR 597, 603 [8] (Gleeson CJ).
[100]For example, a decision-maker might recall a decision where it has erroneously failed to consider a party’s submissions at all: Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533, 546 (Madgwick J).
[101]Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, 443 (French J) (‘Sloane’).

The determination of whether an administrative decision-maker is functus officio is not, however, dependent on a weighing of finality and administrative fairness. It is rather a matter of statutory construction in light of the surrounding facts.[102] As Nettle JA expressed in Kabourakis v Medical Practitioners Board of Victoria[103] (‘Kabourakis’):

an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. … parliament may give an administrative decision whatever force it wishes. Consequently, … the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.[104]
[102]Kurtovic (1990) 21 FCR 193, 211 (Gummow J); Sloane (1992) 37 FCR 429, 443 (French J); Jayasinghe (1997) 76 FCR 301, 311 (Goldberg J); Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, 410 (Finkelstein J, Beaumont J agreeing at 402); Bhardwaj (2002) 209 CLR 597, 602–3 [3]–[6], 604 [11] (Gleeson CJ).
[103](2006) 25 VAR 449.
[104]Ibid, 463 [48] (Nettle JA, Warren CJ agreeing at 452 [4], Chernov JA agreeing at 453 [6]) (citations omitted).

Consideration of subsequent events

There is an incidental dispute between the parties as to whether or not the Court may take into account subsequent representations of the Board for the purposes of determining whether the Board was functus officio.

The Board communicated to the parties, by way of email from Rohan Jaremenko dated 25 July 2018, that the Chairperson of the Board was of the opinion that the Board should reconvene to hear argument on the question of back pay but that the Department of Education and Training (‘the Department’) did not consent to that course of action. The Department’s objection was confirmed by letter from its solicitors on 31 July 2018.

Mr Torosidis argues that these further events, in particular the expressions by the Board that it wished to hear the back pay question, relevantly inform the question of whether the Board was functus officio after it communicated its first decision on 4 April 2018. The Secretary submits that it is impermissible to take these events in account. In the Secretary’s characterisation, by that time the Board had already discharged its functions under the ETRA. Later events cannot revive the Board’s jurisdiction once it has been exercised.

Representations by an administrative decision-maker subsequent to an exercise of power cannot determine whether that exercise was within jurisdiction or not. An administrative decision-maker cannot bestow his or her decision with the status of legal validity merely by declaring so. And the converse is also true; as expressed by Redlich JA in CMG v The Queen,[105] ‘[s]ubsequent events cannot have a retrospective effect so as to convert statements of fact or law which were correct at the time that they were pronounced into legal errors’.[106] Rather, the question whether a particular administrative action is within the bounds of the decision-maker’s statutory power is a question of law for determination by a court of competent jurisdiction.[107]
[105](2013) 46 VR 728.
[106]CMG v The Queen (2013) 46 VR 728, 756–7 [127] (Redlich JA).
[107]Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 155 [48] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

Mr Torosidis contends that the High Court’s decision in Bhardwaj provided an example of a court considering matters after the date of a decision to inform itself whether or not the decision-maker was functus officio. In Bhardwaj, a delegate of the Minister of Immigration and Multicultural Affairs cancelled the applicant’s student visa. The applicant sought review of the decision in the Immigration Review Tribunal. The applicant’s agent sent a letter to the Tribunal advising that the applicant was unable to attend the scheduled hearing and sought a later hearing date. Erroneously, the letter was not brought to the attention of the relevant Tribunal member. The member proceeded to affirm the Minister’s decision after hearing the matter in the absence of the applicant. But, after the applicant’s agent raised the matter with the Tribunal, the Tribunal conducted a further hearing and made a second decision in favour of the applicant. The High Court held by majority that the Tribunal had power to make the second decision.

There are some similarities between the facts of Bhardwaj and the current case. Bhardwaj involved circumstances where it was acknowledged by the decision-maker (the Immigration Review Tribunal), that its previous decision ‘clearly involved a failure to exercise jurisdiction’.[108] Likewise, in this case, there is evidence that the Board, at least at one point in time, held the belief that it had failed, at least in part, to exercise its statutory jurisdiction.
[108]Bhardwaj (2002) 209 CLR 597, 612 [44] (Gaudron and Gummow JJ).

Notwithstanding those similarities, Bhardwaj does not aid the contention of counsel for Mr Torosidis. There is no suggestion that the High Court in Bhardwaj permitted the subjective opinion of the decision-maker to influence whether the decision-maker was, as a matter of law, entitled to make the second decision. Rather, whether the decision-maker’s earlier decision was void, and therefore whether the decision-maker was entitled to disregard that decision, was a question of statutory interpretation for the court’s determination. [109]
[109]Ibid.

Here, the Board made no representation about the validity of the first decision. Rather, its representations were about whether it had considered the back pay issues. Its initial emails to the parties suggest it had not. The later correspondence declines to consider the issue as the matter is before this Court. I do not consider the Board’s representations advance the issue of whether it was functus officio. As the issue is now before the Court, that is a legal question for it to decide. Central to answering that question is the fact that the Board’s first decision was affected by jurisdictional error.

Jurisdictional errors and functus officio

The principle of functus officio is inapplicable to administrative decisions affected by jurisdictional error. For a court to determine that a statutory decision-maker is functus officio, there must necessarily have existed a prior decision in law which may be said to have exhausted the decision-maker’s jurisdiction. But, as explained by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj[110] (‘Bhardwaj’), ‘[a] decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all’.[111] There is therefore, according to this approach, no decision in law to which the principle of functus officio could attach where a purported decision is affected with jurisdictional error.[112]
[110](2002) 209 CLR 597.
[111]Bhardwaj (2002) 209 CLR 597, 614–15 [51] (Gaudron and Gummow JJ) (citations omitted). See also Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1, 7–8 [24] (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ).
[112]For instance, in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25, Logan J, referring to the jurisdictional error in Bhardwaj, expressed (at 35 [49]) that the error ‘meant that in law there had never been a valid decision on the review by the tribunal and hence nothing which rendered the tribunal functus officio‘.

Where an administrative decision-maker makes a purported decision affected by jurisdictional error, the decision-maker will ordinarily be compelled to exercise its statutory jurisdiction which, in law, it is yet to perform.[113] In accordance with this approach, any subsequent practical exercise of power is not, in law, reconsideration of an earlier decision. For legal purposes, it remains the original exercise of jurisdiction.[114]
[113]Bhardwaj (2002) 209 CLR 597, 616 [53] (Gaudron and Gummow JJ). However, a potential exception to this principle may be where the statutory pre-conditions for the decision no longer exist, for example where a time period for the decision has elapsed.
[114]Leung (1997) 79 FCR 400, 414 (Finkelstein J, Beaumont J agreeing at 402).

Accordingly, given the findings above that the Board’s first decision was affected by jurisdictional error, the Board failed to exercise the jurisdiction committed to it by the ETRA. The Board could not be, and was not, functus officio after the first decision because it had not yet made a legally valid decision.

A jurisdictionally flawed decision by the Board cannot be taken as having any enduring legal effect in respect of Mr Torosidis’ employment in the government teaching service and matters pertaining to his termination. As such, when the Board came to make its second decision, it was, as a matter of law, considering the matter for the first time. At that time, the Board possessed the power to award back pay. But, as accepted by the parties, it failed to provide Mr Torosidis with procedural fairness in determining not to do so. The second decision was therefore affected by jurisdictional error.

What if the first decision was valid?

For completeness, the alternative position is also considered. That is, if, contrary to the conclusion above, the first decision was not affected by jurisdictional error, did the Board have the power to consider and determine the back pay issue after making that first decision? This raises questions of statutory construction.

Prior to consideration of whether an administrative decision-maker is entitled to remake a decision, it is first necessary to characterise the scope and effect of the initial decision. This anterior step was alluded to by Gleeson CJ in Bhardwaj.

The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid [in Ridge v Baldwin [1964] AC 40, 79], reconsider the whole matter afresh?[115]

[115]Bhardwaj (2002) 209 CLR 597, 603–4 [8] (Gleeson CJ) (emphasis added).

It is thus necessary to ask, as a preliminary matter, to what extent the Board in fact discharged its functions under the ETRA in making the first decision. Before turning to the Board’s reasons, it is relevant to consider the legislative history of the provision under which the Board would award back pay.

The language of the ETRA s 2.4.69 differs from the form in which it was initially enacted. At the time of its enactment in 2006, sub-s (1) of s 2.4.69 provided:

Re-instatement or payment instead
(1) If an appeal is allowed in respect of an employee whose employment in the teaching service has been terminated, the Disciplinary Appeals Board may order that the employee—
(a) be re-instated in the teaching service; or
(b) be paid an amount not exceeding the greater of—
(i) the remuneration received by the employee during the period of 6 months immediately before the termination; or
(ii) the remuneration to which the employee was entitled for the period of 6 months immediately before the termination.

Accordingly, the Board, under this earlier form of s 2.4.69(1), only had the power to order either, but not both, reinstatement or a payment to the employee.

The provision was amended in 2008 by the Education and Training Reform Further Amendment Act 2008. One of the purposes of that Act was ‘to broaden and clarify the type of orders concerning salary reimbursement that may be made by the [Board] following a successful appeal to that board against termination of employment’.[116]
[116]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4039 (Bronwyn Pike, Minister for Education).

The amending Act introduced the current form of s 2.4.69(1)(b), which enables the Board to order a payment in addition to reinstatement.[117] The then Minister for Education, in her second reading speech, explained the change as follows:

A separate but related matter involves an amendment to the powers of the [Board] to order reimbursement of salary where it upholds an appeal to it against termination of employment. The current section 2.4.69 permits the [Board] to order either reinstatement or some reimbursement of salary, but not both.
The bill will amend the operation of section 2.4.69 to give the board a wider power where the employee is reinstated. The board may order that the employee is to be paid an amount that it considers appropriate in the circumstances to cover the employee’s loss of salary, provided that the amount is not more than the employee would have earnt had the termination not taken place.[118]

[117]Education and Training Reform Further Amendment Act 2008 (Vic) s 17.

[118]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4041 (Bronwyn Pike, Minister for Education).

As a result of these changes, s 2.4.69(1) now provides the Board with the powers in the form set out at [106].

The Board’s power under s 2.4.69(1) stands beside the Board’s primary power to allow or dismiss an employee’s appeal under s 2.4.68(6), which was set out at above.

The Board may exercise its powers under s 2.4.68(6) and s 2.4.69 at separate points in time. The ETRA does not require the powers be exercised concurrently. For instance, the Board could communicate to the parties that it will allow an appeal (thereby constituting a decision under s 2.4.68(6)(a)), but also communicate that further orders will be forthcoming, which would permit it to later make orders in accordance with s 2.4.69(1). On the other hand, the Board could determine to exercise the two powers concurrently.

Where the Board allows an appeal in respect of an employee whose employment was originally terminated, the Board could likewise adopt a staggered approach in exercising its powers under s 2.4.69(1). That is because an order under s 2.4.69(1)(b) is not mutually exclusive with an order under s 2.4.69(1)(a). Although it would ordinarily be most efficient for the Board to exercise its powers in respect of an appeal concurrently, an order under s 2.4.69(1)(b) for back pay can, as a matter of construction of the ETRA, be made subsequent to, and distinct from, an order under s 2.4.69(1)(a) that the employee be reinstated.

However, notwithstanding that procedural flexibility afforded to the Board, the task of retrospectively determining which approach the Board actually adopted depends on an analysis of its reasons. And, crucially for current purposes, the Board’s first decision included an order that Mr Torosidis be reinstated. That mirrors the language of s 2.4.69(1)(a). The Board is entitled to, as a matter of its own procedure, express that it seeks to consider the matter of back pay subsequent to the matter of reinstatement, but that is not what occurred on the current facts. Properly construed, the reasons provided by the Board on 4 April 2018 constituted their complete and final decision under s 2.4.69(1).

As a matter of statutory interpretation, if the Board’s first decision had not been affected by jurisdictional error, the Board would thus have been functus officio before it made the second decision. That conclusion is not undermined by the application of s 40 of the Interpretation of Legislation Act 1984 (‘ILA’), which provides:

Exercise of powers and performance of duties
Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed—
(a) from time to time as occasion requires…

Mortimer J, with the agreement of Perry J, described the purpose of the Commonwealth equivalent of s 40(a) as

to make clear that the presumptive position is that powers, functions and duties, as conferred by the enabling statute, can be exercised or performed repeatedly — “as occasion requires” — rather than only once. This removes the need for the words “from time to time” to be expressed each time a power, function or duty is conferred by statute. Usually, the repeated exercise or performance will be in respect of different persons, different subject matter, and on different occasions. In some circumstances … there may be a repeated exercise or performance in relation to the same person or subject matter, but that will be a less common implication.[119]

[119]MJD Foundation (2017) 250 FCR 31, 63 [135]-[136] (Mortimer J, Perry J agreeing at 91 [256]).

However, there is an intention evident in the ETRA that the Board would not be entitled to exercise its power under s 2.4.69(1) on multiple occasions in respect of the same employee. The practical effect of the Board’s determinations are not, for example, akin to the transitory conferral of a statutory right. The Board exercises a merits review function under the ETRA. Its function is to finally determine, subject only to judicial review, whether disciplinary action will be taken against an employee. In these circumstances, the Board may have a discretion as to the procedure by which it exercises its decision-making powers under ss 2.4.68(6) and 2.4.69(1), but once it exercises those powers in a consolidated decision in respect of a particular employee, it can only do so once.

Accordingly, if the first decision was not affected with jurisdictional error, the Board would have been correct in its second decision to decline to entertain Mr Torosidis’ application for back pay. But, as explained above, that was not the case.

Time Extension

Rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides that judicial review proceedings must begin within 60 days and time runs from the date of the determination, namely 16 March 2018. The determination was communicated to Mr Torosidis on 4 April 2018. In this case, Mr Torosidis commenced proceedings on 1 June 2018, which was beyond time but within 60 days of the date he was notified of the determination. The defendants, sensibly, did not take this point. Time will be extended to enable the application for judicial review of the first decision.

Remittal to the Board for re-hearing

The first decision of the Board was affected by jurisdictional error. Given this, the Board was not functus officio after the purported first decision. It therefore failed to afford Mr Torosidis procedural fairness and thus committed a jurisdictional error in making its second decision. Both the first decision and the second decision are quashed by an order in the nature of certiorari.

In these circumstances, Mr Torosidis’ appeal against the decision of the Secretary to terminate his employment should be remitted to the Board for reconsideration. That will again provide Mr Torosidis the opportunity to make submissions on why the Board should allow his appeal from the determination of the Secretary to terminate his employment. This will allow Mr Torosidis to make submissions in relation to the appropriate penalty in the event that the Board accepts that there are grounds for action against him. It will also allow him to make submissions in relation to back pay should the Board allow his appeal.

I will hear the parties on the form of orders and on the question of costs.

[2019] VSC 93

22 February 2019