Victorian Institute of Teaching v Anthony O'Byrne - [2017] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0113

VICTORIAN INSTITUTE OF TEACHING	Applicant
v
ANTHONY O’BYRNE	Respondent

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JUDGES:	KYROU and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2016
DATE OF JUDGMENT:	9 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 43
JUDGMENT APPEALED FROM:	[2016] VCAT 1093 (Harbison J and Member Harper)

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EDUCATION – Teachers – ‘Misconduct’ – Complaint made against teacher – Failure of principal to communicate clearly and inform complainant of outcome of investigation did not amount to ‘misconduct’.

STATUTES – Interpretation – Meaning of ‘misconduct’ under Education and Training Reform Act 2006 – Conduct of ‘a lesser standard than a member of the public or members of the teaching profession are entitled to expect from a reasonably proficient teacher’ – To be assessed by the standard of an informed member of the public and informed members of the teaching profession – ‘Misconduct’ involves unacceptable, improper or blameworthy behaviour that warrants admonition – Education and Training Reform Act 2006 s 2.6.1 – Parr v Nurses Board of Victoria (1998) 16 VAR 118; Vissenga v Medical Practitioners Board of Victoria (2004) VCAT 1044; Pillai v Messiter (No 2) (1989) 16 NSWLR 197 referred to.

ADMINISTRATIVE LAW – Appeal on error of law from Victorian Civil and Administrative Tribunal – No error of law established – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Dr I Freckelton QC with Mr S McGregor	Victorian Institute of Teaching
For the respondent	Mr J Ruskin QC with Ms T Riddell	Gilchrist Connell

Introduction

Anthony O’Byrne was the principal of Aquinas College in Ringwood. Mr O’Byrne has been accused of misconduct. This proceeding turns on the meaning of ‘misconduct’ under the Education and Training Reform Act 2006 (‘the Act’).

In broad terms, the alleged misconduct concerned how Mr O’Byrne communicated with the parents of a student who complained about the conduct of one of her teachers and how Mr O’Byrne investigated that complaint. This proceeding does not concern whether there was any misconduct on the part of the student’s teacher.

The complaint against Mr O’Byrne was referred to a panel of the Victorian Institute of Teaching (‘the Institute’). The panel found Mr O’Byrne was ‘guilty of misconduct’ and reprimanded him. Mr O’Byrne sought review of that decision by the Victorian Civil Administrative Tribunal (‘the Tribunal’). The Tribunal set aside the panel’s decision.[1] The Institute seeks leave to appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998. An appeal may only be brought on a question of law.[2] Leave may be granted if the proposed appeal has a real prospect of success[3] in the sense that it is not fanciful.[4]
[1]A Vice President having been one of the members of the Tribunal.
[2]Victorian Civil and Administrative Tribunal Act 1998 s 148(1).
[3]Supreme Court Act 1958 s 14C; Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [68].
[4]Kennedy v Shire of Campaspe [2015] VSCA 47 [13].

For the reasons…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Victorian Institute of Teaching v Anthony O'Byrne

Details

AGLC: Victorian Institute of Teaching v Anthony O'Byrne [2017] VSCA 43
Case: [2017] VSCA 43
Decision Date: 9 March 2017

CaseChat Overview and Summary

The Victorian Institute of Teaching brought an appeal against Anthony O'Byrne, a teacher, to the Supreme Court of Victoria. The dispute centred on whether Mr O'Byrne's conduct constituted 'misconduct' under the Education and Training Reform Act 2006. The tribunal had dismissed the complaint made against Mr O'Byrne, finding that the principal's failure to communicate clearly and inform him of the outcome of the investigation did not amount to misconduct. The Institute argued that the tribunal had erred in its interpretation of the term 'misconduct' and in its application of the relevant statutory provisions.

The court was tasked with determining the correct interpretation of 'misconduct' in the context of the Education and Training Reform Act 2006. The key issue was whether the principal's failure to communicate clearly and inform the complainant of the outcome of the investigation could be considered conduct of a lesser standard than what a reasonably proficient teacher should be expected to uphold. Additionally, the court had to assess whether the tribunal's interpretation of the term 'misconduct' was in line with the statutory definition and relevant case law.

The court found that the tribunal's interpretation of 'misconduct' was consistent with the statutory definition and the relevant case law. The court held that misconduct involves unacceptable, improper or blameworthy behaviour that warrants admonition. In this case, the principal's failure to communicate clearly and inform Mr O'Byrne of the outcome of the investigation did not meet the threshold of misconduct. The court also noted that the conduct should be assessed by the standard of an informed member of the public and informed members of the teaching profession. The Supreme Court found no error of law in the tribunal's decision and dismissed the appeal.

As a result of the court's decision, the appeal was dismissed, and the tribunal's decision stood. Mr O'Byrne's conduct was not considered to be misconduct under the Education and Training Reform Act 2006. The court's ruling reinforces the importance of clear communication and proper procedure in the handling of complaints against teachers.

Orders