K v Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand

[2022] NZHC 307

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES LISTED AT [145(a)].

ORDER THAT THE COURT FILE IS NOT TO BE SEARCHED WITHOUT THE LEAVE OF A JUDGE OF THIS COURT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-499

[2022] NZHC 307

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

the Education and Training Act 2020

BETWEEN

K

Applicant

AND

THE COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA

NEW ZEALAND

Respondent

Hearing:	22 November 2021
Counsel:	S A Barker and O C Gascoigne for the Applicant V E Casey QC and D P Neild for the Respondent
Judgment:	28 February 2022

JUDGMENT OF GWYN J

Solicitors:

Buddle Findlay, Wellington

Luke Cunningham Clere, Wellington Quigg Partners, Wellington

K v THE COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2022] NZHC 307 [28 February 2022]

TABLE OF CONTENTS

Introduction  [1]

Background  [10]

Statutory framework  [35]

Functus officio  [44]

Submissions for the applicant  [47]

Submissions for the respondent  [52]

Discussion  [72]

Relief  [114]

Application for permanent suppression orders  [118]

Submissions for the applicant  [120]

Submissions for the respondent  [123]

Discussion  [130]

Relief  [145]

Costs  [146]

Introduction

[1]                  The Teaching Council of Aotearoa New Zealand (the Teaching Council) received a complaint from the parents of a student at a large secondary college (the complainants), relating to the alleged conduct of the Principal of the college, Mr K (the applicant). The complaint included an allegation that an illegal or improper process had been used to suspend the student from the school.

[2]                  The Teaching Council referred the complaint to the Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand (CAC) and an investigator was appointed to inquire into the complaint and report to the CAC.

[3]                  Having considered the report of the investigator and correspondence from  Mr K, the CAC determined that it would take no further action on the complaint. It issued reasons for its decision on 4 December 2020 (the decision).

[4]                  Subsequently, the CAC received further correspondence from the student’s parents and decided that its decision in relation to one of the allegations made in the complaint (allegation three) may have been made in error. On 1 April 2021 the CAC invited submissions on whether it should reopen the investigation. Mr K opposed the reopening of the investigation.

[5]                  The CAC decided to reopen the investigation and notified the parties of its decision and reasons on 29 July 2021 (the redetermination decision).

[6]                  The substantive question at issue in this proceeding is whether the CAC can revisit the decision. Mr K argues that the decision had been perfected and could not be revoked; the CAC was consequently functus officio.1 The CAC therefore has no lawful basis to make the redetermination decision.

1      Functus officio means that a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it. It is generally abbreviated to the statement that someone is “functus”: R (on the application of Demetrio) v Independent Police Complaints Commission [2015] EWHC 593 (Admin), at [36].

[7]                  Mr K seeks an order declaring the redetermination decision and steps taken in furtherance of it unlawful; an order setting aside the redetermination decision and an order prohibiting the CAC from reopening the decision or any aspect of the complaint.

[8]                  The CAC in response, says that, in exceptional circumstances such as those involved here, the CAC can revisit its resolution to take no further action on the complaint and reopen its investigation, so that the complaints process can be completed lawfully and fairly in the manner contemplated by the Education Act 1989.

[9]                  Mr K also seeks permanent suppression orders, which is opposed in part by the CAC.

Background

[10]              While it is not necessary to traverse the full detail of the background events, a brief summary is necessary to understand the context in which the complaint was made and considered by the CAC.

[11]              The genesis of the dispute was actions taken by the student on a date in early May 2017 (the first event). There is no dispute between the parties as to the seriousness of the student’s conduct at that time and in subsequent events. The Police were called and a process was set in train involving the student, their parents, staff of the college, including a counsellor, Mr K as principal, the Police and staff members of the Ministry of Education (MoE).

[12]              The student did not attend school for approximately seven weeks after the first event. Their absence was recorded in school attendance records as being due to medical reasons. Various things occurred during the student’s absence from school. Approximately 10 days after the first event, a meeting was held between Police, representatives from the college, a doctor from Child and Adolescent Mental Health Services (CAMHS), the student and their parents. As a result of that meeting, the Police decided not to lay charges against the student and the student, his parents and Police signed a “contract”, which set out various steps to be undertaken by the student. At a meeting between Mr K, the student, the student’s parents and a representative from the MoE, on 22 May 2017, a programme for the student to return to school was

agreed. A psychologist appointed by the MoE was to provide her report to the principal on 18 June 2017, from which point the parties were to discuss and agree a reintegration plan. The CAC decision records some disagreement between the complainants and the principal as to the requested timing of the report and the fact that the student was not attending school in the meantime.

[13]On 19 and 20 June there was a series of events involving the student.

[14]              The psychologist’s report was also received on 19 June 2017.2 The report noted the psychologist’s belief that prolonged periods out of school may become counterproductive to the student’s positive well-being.

[15]              The events of 19 and 20 June led the applicant to advise on 21 June 2017 that the student would be suspended from the college. The student was formally suspended on 21 June 2017 at a meeting at the college between the complainants, Mr K, the MoE psychologist and several college and MoE staff members. A letter of suspension was emailed to the complainants on 23 June.

[16]              The student was permitted to return to the college on 30 June 2017, under specified conditions, but was involved in further events. On 4 July the complainants met with Mr K and the deputy principal and were presented with a return to school plan. The student returned to school the following day and they and their father signed the return to school plan.

[17]              A series of incidents and complaints regarding the college’s treatment of the student were recorded during July, August and October.

[18]              On 30 October 2017, Mr K wrote to the student’s parents regarding an allegation of a serious nature made against the student by another student. The student’s parents complained to the College Board of Trustees about Mr K and, towards the end of 2017, they withdrew the student from the college.

2      I assume from the timing the report did not take account of the events of 19 June and plainly it could not have considered the events of 20 June.

[19]              In March 2019 the student’s parents lodged a complaint against Mr K with the Teaching Council, raising four core allegations against him:

(a)Allegation one – concerns with Mr K’s protocol/conditions, relating to the student’s return to school on 30 June 2017.

(b)Allegation two – causing serious harm to a student.

(c)Allegation three – using an illegal or improper process to suspend a student.

(d)Allegation four – being unable to accept advice from health professionals.

(the complaint).

[20]              The Teaching Council appointed the CAC to consider the complaint and allocated the complaint to an investigator, to investigate the allegations against Mr K. The investigator provided a report to the CAC, which it relied on in its consideration of the complaint, which took place on 24 September 2020.

[21]              On 4 December 2020, the CAC issued a written decision (the decision) in which it found that:

(a)There was no and/or insufficient evidence to uphold allegation one.

(b)There was no evidence to uphold allegations two and the allegations were too vague and subjective for the CAC to make a finding on.

(c)In respect of allegation three, the CAC recorded that the parties had agreed that the student would not be formally suspended but that instead conditions would be imposed until the parties were comfortable that it was safe for the student to return to school. The CAC said that it did not consider the time the student was away from school to be a

“kiwi suspension”,3 as it was a collaborative plan involving the student’s parents, who had agreed to the plan. “It was an agreed approach, and nothing was imposed or dictated by Mr K”. The CAC concluded that the “reintegration” approach was not a matter that required a disciplinary response.

(d)Allegation four was not made out.

[22]              At the conclusion of the report the CAC said it “has decided to take no further action in relation to the allegations made by [the student’s parents]”.

[23]              The decision was conveyed to Mr K and the complainants on or about the date of the decision.

[24]              On 11 December 2020, Mr Edgeler, counsel for the complainants, wrote to the Teaching Council taking issue with the decision in connection with what the complainants regarded as an unlawful informal suspension (allegation three). Counsel asked that “the decision of the CAC be reconsidered in light of the [matters raised in this letter]”.

[25]              The CAC considered the request and then informed Mr K and the complainants on 1 April 2021 that it was inviting submissions from both parties on whether to revisit the complaints and the decision. A timetable was set for submissions.

[26]              Both Mr K and the complainants made submissions to the CAC. Counsel for Mr K submitted that the CAC was functus officio following delivery of the decision in which it had decided to take no further action.

[27]              On 29 July 2021, the CAC delivered to the parties a written decision recording that it had met on 15 July 2021 and had decided to revisit the decision (the redetermination decision). The ground on which it stated it would revisit the decision was that “the September CAC decision may have been affected by a material error of

3      A “kiwi suspension” is a colloquial term for an informal suspension, outside the requirements of the Education Act 1989.

law, in that the CAC failed to take into account the unlawfulness of [the student’s] suspension.”

[28]              The CAC’s reasons are expanded in its first amended statement of defence, in which the CAC alleges that the decision:

(a)Failed to take into account relevant factors, being that:

(i)The school term began on 1 May 2017 and [the student] stopped attending school on 8 May 2017 (and therefore his absence could not have included a period of school holidays).

(ii)The agreement reached regarding a return to school plan was on 22 May 2017 (and [the student’s] absence from school up until that date could not have been pursuant to that agreement).

(iii)The applicant, as a matter of law, did not have the power to informally exclude a student from school.

(b)The CAC made a material error of law, being that it had “failed to take into account the unlawfulness of [the student’s] suspension”.

[29]              The redetermination decision invited further submissions on the alleged unlawful “kiwi suspension”, from the complainants by 9 August 2021 and from Mr K by 9 September 2021.

[30]              On 4 August 2021 counsel for Mr K wrote to the members of the CAC reiterating  the   earlier   submission  that  the  CAC  was   functus   officio   as  of    4 December 2020 and inviting the CAC to take independent external legal advice.

[31]              Following an exchange of emails on 21 and 24 August 2021 between the newly appointed external counsel for the CAC and Mr K, on 25 August 2021 counsel for the CAC informed counsel for Mr K that the CAC was proceeding with its reconsideration of the suspension-related complaint.

[32]              Mr K was advised by the Teaching Council’s in-house counsel that he had until 15 September 2021 to file any reply to the submissions of the complainants, following which the CAC would proceed with its reconsideration.

[33]              This proceeding, seeking judicial review of the redetermination decision, was filed on 30 August 2021.

[34]              Interim orders providing that the CAC would take no further steps in reconsidering the decision and suppressing the identity and identifying particulars of students, parents, the school and the applicant, pending the outcome of this case, were made by consent by Ellis J on 1 September 2021.

Statutory framework

[35]              Before I turn to consider the specific issues in this case I set out the relevant statutory framework.

[36]              The CAC is a complaints assessment body of the Teaching Council, a statutory body continued under the Education and Training Act 2020 (2020 Act). The 2020 Act repealed the Education Act 1989 (Education Act). It is common ground that the effect of the transitional provisions in the 2020 Act is that the provisions of the Education Act should be applied in this case.4

[37]              Part 32 of the Education Act provides for  the  establishment  of  the  Teaching Council. The purpose of the Teaching Council is set out at s 377:5

The purpose of the Teaching Council is to ensure safe and high quality leadership, teaching, and learning for children and young people in early childhood, primary, secondary, and senior secondary schooling in English medium and Māori medium settings through raising the status of the profession.

[38]              The Education Act did not contain an overarching purpose statement. The purpose statement in the 2020 Act provides:6

4      Education and Training Act 2020 (2020 Act), s 11 and cls 2 and 4 of Sch 1.

5      That purpose is replicated at s 478 of the 2020 Act.

6 Education and Training Act 2020, s 4.

The purpose of this Act is to establish and regulate an education system that—

(a)provides New Zealanders and those studying in New Zealand with the skills, knowledge, and capabilities that they need to fully participate in the labour market, society, and their communities; and

(b)supports their health, safety, and well-being; and

(c)assures the quality of the education provided and the institutions and educators that provide and support it; and

(d)honours Te Tiriti o Waitangi and supports Māori-Crown relationships.

[39]              The disciplinary functions of the Teaching Council are set out in ss 398-409 of the Education Act. These provide for the establishment of the Complaints Assessment Committee and the Disciplinary Tribunal. A complaint to the Teaching Council may be referred to the CAC (s 400), which has the powers set out in s 401:

401     Powers of Complaints Assessment Committee

(1)The Complaints Assessment Committee may investigate any report, complaint, or matter referred to it under section 400.

(2)Following an investigation, the Complaints Assessment Committee may do 1 or more of the following:

(a)resolve to take the matter no further:

(b)refer the teacher concerned to a competency review:

(c)refer the teacher concerned to an impairment process, which may involve either or both of the following:

(i)assessment of an impairment:

(ii)assistance with an impairment:

(d)if there has been made a finding of misconduct that is not serious misconduct, by agreement with the teacher and the person who made the complaint or report or referred the matter, do 1 or more of the following:

(i)censure the teacher:

(ii)impose conditions on the teacher’s practising certificate or authority, such as (without limitation) requiring the teacher to undergo supervision or professional development:

(iii)suspend the teacher’s practising certificate or authority for a specified period, or until specified conditions are met:

(iv)annotate the register or the list of authorised persons in a specified manner:

(v)direct the Teaching Council to impose conditions on any subsequent practising certificate issued to the teacher.

(3)The Complaints Assessment Committee may, at any time, refer a matter to the Disciplinary Tribunal for a hearing.

(4)The Complaints Assessment Committee must refer to the Disciplinary Tribunal any matter that the Committee considers may possibly constitute serious misconduct.

(5)When a matter is referred to the Disciplinary Tribunal under subsection (4), a notice must be sent to the teacher concerned setting out the charge of misconduct against him or her.

(6)Any person authorised by the Complaints Assessment Committee may require an employer, a former employer, or a government agency to provide information that the person considers necessary for the purposes of an investigation under this section.

[40]              There is no right of review or appeal against the CAC’s exercise of powers under s 401.

[41]              The powers of the Disciplinary Tribunal are set out in s 404. They include hearing and determination of a charge of serious misconduct, but also encompass wider powers to consider any matter referred to it by the CAC. The Disciplinary Tribunal’s powers include imposing a fine, suspension or cancellation of registration or practising certificate and imposition of conditions. A decision of the Tribunal may be appealed to the District Court.7

[42]              The 2020 Act also preserves the Teaching Council Rules 2016 (Rules), which govern the procedures of the CAC.8 This includes provision for the teacher (but not the complainant) to comment on the investigator’s report and for formal notification (to the complainant, the teacher and the teacher’s employer) of the CAC’s decision.

7      Education Act 1989, s 409.

8      Teaching Council Rules 2016, Part 5.

Information disclosed to, or held by, the CAC in respect of a report or complaint or other matter is confidential.9

[43]The relevant Rules provide as follows:

Process for investigation of reports and complaints

14Referring reports and complaints to Complaints Assessment Committee and allocation to investigator

(1)If the chief executive refers a report or complaint to the Complaints Assessment Committee, the chief executive may—

(a)allocate the report or complaint to an investigator, who must investigate the report or complaint on behalf of the Complaints Assessment Committee and report to the Complaints Assessment Committee for a decision; or

(b)refer the report or complaint to the Complaints Assessment Committee without first allocating it to an investigator.

(2)The chief executive may allocate a report or complaint to an investigator who also conducted an initial investigation of the report or complaint under rule 11.

(3)The chief executive has the discretion to decide—

(a)which panel of the Complaints Assessment Committee to refer the report or complaint to; and

(b)the composition of any particular panel of the Complaints Assessment Committee to consider a report or complaint, subject to rule 51.

15Investigator to carry out investigation

(1)An investigator to whom a report or complaint has been allocated under rule 14 must—

(a)carry out an investigation of the report or complaint; and

(b)provide an opportunity for the teacher to comment on the report or complaint or provide evidence; and

(c)prepare an investigation report on the report or complaint for the Complaints Assessment Committee, and the report may include recommendations to the Complaints Assessment Committee as to the appropriate outcome.

(2)An investigator is appointed by the chief executive to conduct investigations for the Complaints Assessment Committee and must not be a member of the Complaints Assessment Committee.

(3)The investigator may require information to be provided to him or her under sections 496(4) and 497(7) of the Act.

16Teacher’s response to investigation report

(1)The teacher concerned must be notified before the meeting at which the investigation report will be considered.

9      Teaching Council Rules, r 64.

(2)The teacher must be provided with the investigation report and documentation that will be provided to the Complaints Assessment Committee.

(3)The teacher must be given an opportunity to comment on the investigation report before the Complaints Assessment Committee makes a final decision.

Procedure of Complaints Assessment Committee

17Meeting of Complaints Assessment Committee regarding report or complaint

(1)At a meeting of the Complaints Assessment Committee, the Complaints Assessment Committee must consider—

(a)the matter that the report or complaint is about; and

(b)in the case of a report or complaint that was allocated to an investigator, the investigator’s report; and

(c)the teacher’s response, if any.

(2)A request for a teacher to be heard in person must not be unreasonably refused.

(3)Before taking any action available to it under section 497 of the Act, the Complaints Assessment Committee may—

(a)adjourn the matter for further consideration; or

(b)refer the matter back to the investigator for further investigation.

(4)Meetings of the Complaints Assessment Committee—

(a)may be in person, by telephone conference or video link, by exchange of email, or by any other means that are necessary or convenient; and

(b)must proceed as hearings on the papers, unless the Complaints Assessment Committee directs otherwise.

(5)If the Complaints Assessment Committee decides that it will hear from the teacher concerned or the initiator, or another person, it may hear from him or her by telephone conference or video link, or by any other means that are necessary or convenient.

(6)In the case of a complaint of misconduct that the Complaints Assessment Committee is satisfied is not serious misconduct, the Complaints Assessment Committee must use reasonable efforts to reach agreement between the teacher and the initiator on the course of action to be taken.

Notice of decision and referral to Disciplinary Tribunal

…

19       Referral to Disciplinary Tribunal

(1)If the Complaints Assessment Committee refers a report, complaint, or other matter to the Disciplinary Tribunal, the Committee must—

(a)prepare, sign, and file the charge; and

(b)prosecute the charge before the Disciplinary Tribunal.

(2)In proceedings before the Disciplinary Tribunal, the Complaints Assessment Committee may be represented by counsel appointed by the chief executive (who may be an employee of the chief executive or external counsel engaged by the chief executive).

Functus officio

[44]              The central issue in this case is whether the CAC was functus officio at the time of the reconsideration decision.

[45]              Mr K’s position is that from the time he was notified that the CAC had resolved to take no further action in relation to the complaint, the CAC was functus and its reconsideration decision cannot stand.

[46]              The CAC’s position is that, while the relevant legislation (both the Education Act and the Rules) is silent on this point, the power to reopen an investigation in limited circumstances can be properly inferred and is consistent with the public interest objectives of the disciplinary regime. The respondent says that the power is limited to exceptional circumstances (in this case, clear error) and must be exercised reasonably and fairly, with due regard to the interests involved.

Submissions for the applicant

[47]              Mr Barker, counsel for Mr K, started with the general proposition that when a public body has a statutory power or duty to make a decision that affects a person’s rights, once it has reached its decision and performed the function of its office, it will be functus officio and has no power to revisit that decision.10 That general principle was explained by McGrath J, for the Court of Appeal, in Goulding v Chief Executive, Ministry of Fisheries:11

The common law principle applicable to the present case can accordingly be summarised in this way. A valid administrative decision in the exercise of a statutory power, which is the outcome of a complete process, but which has not been formally communicated to interested parties, has not been perfected. It may be revoked and a fresh decision substituted at any time prior to communication of it to affected persons

10     Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, 2018) at [14.61].

11     Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].

in a manner which indicates intended finality. Once such decision is so communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights, including those arising from the grant of a licence, is irrevocable. So is any other decision made under a statutory power where the Act explicitly or implicitly provides that once finally exercised the power of decision is spent. That is the position under the common law.

[48] Mr Barker acknowledges that, despite that overarching principle, administrative decision-makers may be permitted to revisit decisions in some circumstances. This is reflected in s 16 of the Interpretation Act 1999. However, Mr Barker says s 16 has no application here.

[49] First, the power or function of the CAC in question here was not the kind of power to which s 16 relates. It is not entirely administrative in nature such that it could be exercised from time to time and therefore revisited or varied. Rather, it is one that creates or affects rights to which an important interest in finality attaches. That means that the principle of functus officio applies. The decision had been perfected, having been formally communicated to the interested parties on 5 December 2020.

[50] Second, s 4 of the Interpretation Act 1999 provides that the Act does not apply if the context of the enactment requires a different interpretation.12 Here, the CAC has no express statutory power, either in the 1989 Act or in the Rules, to correct or revisit its decision. To the contrary, the applicant says the statutory scheme tells against a power for the CAC to reopen its decisions:

(a)Section 401 of the Education Act empowers the CAC, as it did in this case (following an investigation), to “resolve to take the matter no further”.13 The applicant cites the Oxford English Dictionary definition of “resolve” as “the fact of having resolved upon a course of action, stance, etc.; a firm intention”; “a formal decision, determination or expression of opinion made by or submitted to a deliberative assembly, meeting, etc.”. This, the applicant says, imports a sense of finality.

12 Interpretation Act 1999, s 4(1)(b).

13     Section 401(2)(a).

(b)Rule 16 of the Rules expressly refers to the finality of CAC decisions, at (3) where it states: “The teacher must be given an opportunity to comment on the investigation report before the Complaints Assessment Committee makes a final decision.”

(c)Rule 17 of the Rules provides that before taking any action available to it under s 497 of the 2020 Act, the CAC may adjourn the matter for further consideration or refer it for further investigation. This power would be unnecessary if the CAC had the ability to revisit its decisions.

[51]              The redetermination decision was premised on the possible existence of errors of law in the decision and those errors are now asserted in CAC’s amended statement of defence. For the applicant, Mr Barker notes the demise of the absolute theory of invalidity, under which an unlawful decision was treated as a nullity. AJ Burr Limited v Blenheim Borough Council14 established that a decision of an administrative authority that is affected by some defect or irregularity and so is susceptible to judicial review, is recognised as operative unless and until set aside, except perhaps in comparatively rare cases of flagrant invalidity. The decision was not flagrantly invalid; the errors alleged by the CAC (if proven) are not so material that they invalidate the decision so that no court could ever in the exercise of its discretion withhold a remedy. The applicant says that the decision is presumptively valid. On communication to the applicant and the complainants, the decision was perfected, and became irrevocable.15

Submissions for the respondent

[52]             Ms Casey QC, counsel for the CAC, acknowledges the general principle encapsulated by the Court of Appeal in Goulding, but points to the acceptance by that Court of the possibility of exceptional cases.16 Even in the context of a final judicial decision on an inter partes dispute, there are exceptional circumstances where the common law will recognise that the court is not functus officio and the judgment can be set aside. By way of example, Ms Casey cited Commissioner of Inland Revenue v

14     AJ Burr Limited v Blenheim Borough Council [1980] 2 NZLR 1 (CA).

15     I record that the respondent does not rely on the absolute theory of invalidity.

16     Goulding v Chief Executive, Ministry of Fisheries, above n 11, at [30].

Redcliffe Forestry Venture Limited 17 and R v Smith.18 In Redcliffe the Supreme Court held that a policy of absolute finality is unsafe and a power to set aside a judgment accommodates exceptional situations by allowing final determinations to be revisited, but within prescribed limits. In R v Smith the Court of Appeal affirmed that the Courts’ implied power to recall and change a judicial decision in exceptional circumstances is derived from the powers to regulate its proceedings “to maintain its character as a court of justice” and is not restricted to the inherent powers of the High Court.19

[53]              Ms Casey points to similar findings in relation to the powers of regulatory bodies. In Fajemisin v the General Dental Council,20 following a hearing before the professional conduct committee of the  respondent,  the  General  Dental  Council, Mr Fajemisin’s fitness to practise as a dentist was found to be impaired as a result of his misconduct. The PCC directed that his name be removed from the Dentists’ Register with immediate effect. The Court found that:21

… in addition to cases in which a public body can re-visit a previous decision under the equivalent of the slip rule, a public body can re-visit a decision which was made in ignorance of the true facts when the factual basis on which it had proceeded amounted to a fundamental mistake of fact.

[54]              The “fundamental mistake of fact” in question was an incorrect statement by a staff member in the General Dental Council’s Registry (in the context of an inquiry about Mr Fajemisin’s completion of the requisite continuing professional development hours) that the fitness to practise proceedings against Mr Fajemisin had been closed when in fact those proceedings were scheduled to resume. The Court went on to say,22 “… a public body’s power to re-visit a decision does not depend on some supposed distinction between a judicial decision and an administrative one.”

[55]             Ms Casey submits the application of the principle of finality is even less absolute in relation to administrative bodies. So, for example in Chandler v Alberta

17     Commissioner of Inland Revenue v Redcliffe Forestry Venture Limited [2012] NZSC 94, [2013] 1 NZLR 804 at [46].

18     R v Smith [2003] 3 NZLR 617 (CA).

19 At [36].

20     Fajemisin v the General Dental Council [2013] EWHC 3501 at [37] and [40].

21 At [37].

22 At [40].

Associate of Architects, Sopinka J, delivering the judgment of the majority of the Supreme Court of Canada, said:23

… there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error  within  the  exceptions  enumerated  in  Paper Machinery Ltd v J.O. Ross Engineering Corp.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

[56]              To similar effect, the High Court of England and Wales in Chaudhuri v General Medical Council concluded that there was a power for the Medical Council to revisit a decision where there had been a fundamental mistake of fact.24

[57]              Continuing down the spectrum, Ms Casey notes that the principle of finality is limited in the context of investigative processes. So, for example, a criminal investigation can be recommenced even after a charge is laid and withdrawn. In that context, until the actual determination of a charge, there has not been a final decision on the matter at issue.

[58]              Ms Casey refers to a decision of the Supreme Court of Tasmania in XYZ v Legal Professional Board of Tasmania.25 In that case the Board had undertaken an investigation and resolved to refer the complaint to the Disciplinary Tribunal. Before it had laid the charge, it reconsidered its position and resolved instead to reopen its

23     Chandler v Alberta Associate of Architects [1989] 2 SCR 848 at 861-862.

24     Chaudhuri v General Medical Council [2015] EWHC 6621 (Admin), at [46].

25     XYZ v Legal Professional Board of Tasmania [2014] TASFC 13.

investigation. The Court rejected the submission that the Board had no power to revisit its decision and reopen its investigation.

[59]              In Ms Casey’s submission, this case is similar to XYZ: there has been no final determination of the complaint in allegation three; the CAC decided that no further action should be taken, but that is not the same as a final determination that there has or has not been misconduct by the principal. The CAC says that the decision in respect of allegation three is not a favourable finding that conduct did not occur or that it was not misconduct. On the contrary, what the CAC said was:

… the CAC acknowledge that Mr K may have been able to deal with [the student’s] time away from school in a different way but ultimately could understand why Mr K acted as he did. The CAC considered all the evidence and found that this allegation did not warrant a disciplinary response; …

[60]              The CAC says that the position might be different if there had been an affirmative finding that there was no misconduct, but that was not the case. In any event, it says that the power under s 401(a) is only investigatory.

[61]              Ms Casey contrasts XYZ with Kabourakis v Medical Practitioners Board of Victoria.26 There, the Supreme Court of Victoria — Court of Appeal held that a final determination that a medical practitioner had not engaged in unprofessional conduct could not be set aside for a non-jurisdictional error. In that case, a final decision had been made that the person had not engaged in unprofessional conduct.

[62]              Similarly, in R (on the application of Demetrio) v Independent Police Complaints Commission,27 the Independent Police Complaints Commission had earlier decided that there was no case to answer but sought to reopen the investigation. Both the High Court and the Court of Appeal rejected the proposition that the principle of functus officio applied in that context, although noting that a decision to reopen is subject to the supervisory jurisdiction of the Court and that there would need to be compelling reason to reopen. The Court said:28

26 Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

27 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at [36]-[37] and [58]-[59]; and Commissioner of Police v the Independent Police Complaints Commission [2015] EWCA Civ 1248 (CA) at [26], [36]-[37], [39] and [45].

28 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at [39].

We are not persuaded by the analogy the Commissioner seeks to draw between these sorts of rights and what is said to be the right of PC Harrington to have an irrevocable determination on the question whether he is to face disciplinary action for the strangling allegation. A decision whether to initiate disciplinary proceedings is far removed from determinations of rights of that nature. We do not accept that a person against whom there is, or may be, a disciplinary case to answer can be said to have a right to know once and for all whether he will be proceeded against.

[63]The Court of Appeal upheld the High Court’s decision in that case:29

Nor do I think that the desirability of finality for the individual officer concerned can make the decision irrevocable. The officer is the object of the complaint, and the IPCC exists, as I have said, to promote public confidence in the complaints and misconduct process.

[64]              The respondent also relies on Bradley v Governor-General,30 where Wylie J adopted a similar approach to investigative functions in New Zealand.

[65]              Ms Casey also points to public reporting which suggests that certain kinds of investigative processes can be reopened where the circumstances warrant it. The reporting relates to the Independent Police Complaints Authority, the Commerce Commission, WorkSafe, the Transport Accident Investigation Commission and the Ombudsman (in relation to complaints about decisions by the Health and Disability Commissioner to take no further action following preliminary investigative steps under the Health and Disability Commissioner Act 1994), all as examples of investigative processes being reopened, even where there is no express power to do so. By way of contrast, Ms Casey points to the Coroners Act 2006 which specifically provides for and constrains the powers to reopen.31

[66]              In Ms Casey’s submission, the approaches in these regimes may reflect the relative status in terms of conclusiveness and finality of the decisions made, together with consideration of the public interests at stake. In her submission, all of these examples support the view that the strength of the common law “finality” principle is strongly dependent on the “finality of the particular decision at issue, as well as the

29 Commissioner of Police v the Independent Police Complaints Commission [2015] EWCA Civ  1248, at [41].

30 Bradley v Governor-General HC Auckland M1864/89, 28 February 1991, at 7-10 and 14-15.

31 Coroners Act 2006, s 64 empowers a Coroner to change their view and open an inquiry after an initial decision not to, for any reason; s 97 allows a completed inquiry to be reopened, but only on the direction of the Solicitor-General or the High Court.

public interests involved.” A decision bringing an investigation to an end without formal determination as to whether there has been misconduct or not sits at the low end of the “finality” spectrum, but the ability to revisit a flawed decision relating to potential teacher misconduct has a high public interest.

[67]              The respondent submits that Goulding confirms that the principle of finality is strongest where legal rights are affected, for example in the grant of a licence or permit. So in Ford v Board of Trustees for Smith Primary School, this was a right granted by the school to enrol as an out of zone student.32 The respondent says Mr K’s legal rights are not affected: a resolution by the CAC to “take no further action” on a complaint does not confer a legal right. Nor does he have any “entitlement” to retain the benefit of a decision that is flawed.

[68]              While there is no express power in the Education Act, or in the Rules, for the CAC to revisit a decision or reopen an investigation, the respondent says such a power can be inferred or implied, as incidental and related to the CAC’s functions under the Education Act.

[69]              The purpose of the Education Act and the purpose of the Teaching Council (including its administration of the complaints process) is focussed on the safety and welfare of children and young people in the education system and the quality of the institutions and teachers. The complaints process is not focussed on the rights or interests of the teacher (other than in respect of a fair process), but on the strong public interest in ensuring that students and institutions are protected from harm caused by teacher misconduct.

[70]              In the respondent’s submission it is an inherent purpose of the complaints process that, by providing effective supervision of teacher conduct, it enhances confidence in the education system overall. To achieve that, the process must be seen to be fair and robust. Those purposes are not advanced by an absolute rule that a CAC cannot revisit a decision to take no further action on a complaint, when its decision is clearly flawed and acknowledged to be so. That would mean the question of whether the teacher had engaged in misconduct was acknowledged to be still open and

32     Ford v Board of Trustees for Smith Primary School [2021] NZCA 363.

outstanding, but unresolved and effectively unresolvable, other than by way of judicial review proceedings. The respondent says that the power to revisit the decision that no further action will be taken is necessary “in order to enable [the CAC] to discharge the function committed to it by enabling legislation”.33

[71]              In summary, the respondent says that the purpose of the Act and its effective operation supports the existence of an inferred or implied power in the CAC to revisit a decision of this nature and reopen an investigation, where there are strong or compelling grounds to do so. There is nothing in the Act or the Rules that indicate to the contrary and the principle of finality of administrative decisions has a limited weight here, given:

(a)The decision was part of an investigative process only and did not finally determine whether the teacher had engaged in misconduct or not.

(b)The decision did not affect legal rights.

(c)The decision is flawed and unjust.

(d)The Act provides for no other mechanism to correct the CAC’s error.

(e)The public interest in allowing the CAC to properly complete its task is high.

Discussion

[72]              The starting point is the general principle that once an authority has made its decision it has exhausted its jurisdiction and has no power to act further in the matter. An authority becomes functus at the point that its decision is perfected by communication in a final form to those affected. 34

33     Citing Sopinka J in Chandler v Alberta Association of Architects, above n 23.

34     Goulding v Chief Executive, Ministry of Fisheries above, n 11, at [43].

[73]              The complaint was referred to the CAC under s 400 of the Education Act. Under s 401(1) the CAC may investigate any complaint referred to it. Under subs (2), the CAC may, following an investigation, employ a range of options with a graduated level of seriousness, from resolving to take the matter no further to, where there has been a finding of misconduct that is not serious misconduct, censuring the teacher, imposing conditions on the teacher’s practising certificate, suspending the teacher’s practising certificate, annotating the register of authorised persons in a specified manner or directing the Teaching Council to impose conditions on any subsequent practising certificate issued to the teacher. Each of the options set out at s 401(2) involves a decision or course of action.

[74]              I agree with the applicant that s 401 distinguishes between the CAC’s investigative and adjudicative functions. Subsection (1) provides for investigation of any report, complaint, or matter referred to it under s 400. Subsection (2) provides that, following an investigation, the CAC may take one of the courses set out at (a)- (d).

[75]              This case is different from XYZ,35 where the Legal Profession Board of Tasmania resolved to investigate a complaint relating to the respondent. More than a year later it resolved that it would make an application to the Disciplinary Tribunal in respect of the complaint. It did not make such an application and some two years after its first resolution it resolved to rescind its decision to make such an application, and to resume investigating the complaint, taking the view that the investigation was not complete.

[76]In distinguishing the XYZ situation from Kabourakis Estcourt J said:36

In the present case [XYZ], there has been no determination of the complaint by an adjudicative body. On the contrary, the Board’s decision was merely the signification of an intention to lodge, at some future point in time, an application with an adjudicative body for the hearing and determination of a complaint.

35     XYZ v Legal Profession Board of Tasmania, above n 25.

36 At [54].

[77]              That is not the case here. In making the decision, the CAC was not acting merely in an investigatory capacity. Under s 401(1) it received the investigator’s report into the complaint. Having received the report it had to make a decision about what to do next. While the range of options available to it under s 401(2) include the power to refer the matter to the Disciplinary Tribunal (in some cases, a requirement to do so), the CAC is itself a disciplinary body.37 Its role is not limited to investigation or referral. The CAC has power (by agreement with the teacher and the complainant) to censure, to impose conditions on, or suspend teachers. It must act in accordance with the principles of natural justice.38

[78]              In this case there has been both an investigative and an adjudicative phase of the CAC’s process. I agree with Mr Barker that this case is on all fours with Kabourakis, which involved the reopening of an adjudication process after a final decision had been made. In Kabourakis, Nettle JA said:39

More often than not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non- jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit no other conclusion.

[79]               Nor is this case in the same category as R (on the application of Demetrio) v Independent Police Complaints Commission.40 There the Independent Police Complaints Commission (IPCC) had investigated events in a police van surrounding the arrest of Mr Demetrio. There was an allegation that a police constable had put his hands around Mr Demetrio’s neck as if to strangle him. The IPCC report concluded there was no case to answer in respect of that allegation and therefore no disciplinary action would ensue.

[80]              Subsequently the IPCC Commissioner notified her decision to reopen that part of the investigation. The Metropolitan Police Commissioner (MPC) sought judicial

37     Education Act 1989, s 398.

38     Section 398(7).

39     Kabourakis v Medical Practitioners Board of Victoria, above n 26, at [48].

40     R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1.

review to quash that decision and restrain any further investigation, on the basis that the IPCC had no power to do so, having become functus officio.

[81]              The IPCC was created by the Police Reform Act 2002 (the Act). Under the complaints provisions of the Act the IPCC is required to determine whether complaints referred to it need to be investigated. If it decides an investigation is necessary it must decide the form of the investigation. If it considers an investigation is unnecessary it may refer the matter back to the appropriate authority for local resolution.

[82]              Here, the IPCC determined that Mr Demetrio’s complaint should be investigated by the IPCC itself. The Act detailed the actions the IPCC must take in response to a report following an investigation. The IPCC must consider whether a criminal offence may have been committed and determine a procedure for informing the Director of Public Prosecutions and the procedure then to be followed.

[83]              The MPC argued that the police constable in question had the right to have an irrevocable determination on the question whether he was to face disciplinary proceedings. The Court said: “A decision whether to initiate disciplinary proceedings is far removed from the determination of rights of that nature”.41 However the Court went on to note, “[i]t is important to bear in mind the different roles played by the actors in these investigations. The investigator makes no decision”.42  And, “The IPCC does not have to agree with the opinion of an investigator on whether there is a case to answer”.43

[84]              This highlights the significant difference between Demetrio and this case. What the IPCC was required to determine was whether the complaint needed to be investigated. In this case, the CAC had received a report from the investigator. It then had certain powers under s 401 of the Education Act to act on that investigation report, which it did. Its role was not limited to a filtering or triage role.

[85]              I accept the submission for Mr K that the CAC had made an adjudicative and final decision on the complaint. An investigation report had been prepared and, as

41 At [39].

42 At [42].

43 At [43].

required by r 16(3), Mr K had been given an opportunity to comment on the report before the CAC made a “final decision”. As provided for in s 401(2)(a) the CAC had, following the investigation, resolved to take the matter no further.

[86]              As the applicant acknowledges, the CAC could have referred the complaint back for further investigation, before it made a determination under s 401(2), but having made a decision under that provision – to take no further steps – its decision was final.

[87]              I also accept that the decision was one which “affected legal rights”. Ms Casey submitted that a case such as this, where the CAC concluded that it would take the matter no further, can be contrasted with a case where the CAC had made a finding. Her submission is that in the former situation there are no legal consequences, in the latter there would or may be legal consequences. I do not find that submission persuasive. The CAC’ s resolution that it would take the matter no further did affect Mr K’s rights: he was no longer faced with the possibility of a Disciplinary Tribunal process or any of the other possibilities prescribed by s 401(2)(b)-(d) and (3)-(6).

[88]As Nettle JA said in Kabourakis:44

The notion that a favourable finding is without legal effect is facile. It leaves out of account the effect on practitioner’s professional standing and the appointments which might be opened or foreclosed to him or her according to his or her professional standing. If a favourable finding can be replaced with a later unfavourable finding, it means that any practitioner who has undergone a favourable informal hearing is forever tarred with the brush of suspicion that the finding may one day be reversed…

[89] The principle of finality is not absolute. Whether a decision can be revisited also depends on the nature of the relevant power or function. First, there is the question of s 16 of the Interpretation Act. Section 16 provides:

16       Exercise of powers and duties more than once

(1)A power conferred by an enactment may be exercised from time to time.

44 At [71].

(2)A duty or function imposed by an enactment may be performed from time to time.

[90]Both parties cited Wade and Forsyth’s Administrative Law:45

In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears ‘the power may be exercised and a duty shall be performed from time to time as occasion require’. But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases, the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, Ministers and other authorities.

[91]              The power here, under s 401, was not an entirely administrative function such that it could be exercised from time to time and therefore revisited or varied. As Wade and Forsyth go on to say:46

An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act ‘from time to time as occasion requires’. But if in a particular case it has to determine the amount of compensation or fix the pension of an employee, there are equally clearly reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand.

[92]              The power exercised by the CAC when it made the decision was in the latter category referred to by Wade and Forsyth. It is a function or power that creates or affects rights and an important interest in finality attaches.47

[93] That conclusion is supported by the statutory wording and context. Section 4 of the Interpretation Act provides that the Act does not apply if the context of the enactment requires a different interpretation.48 The CAC has no express statutory power, under the 1989 Act or the Rules, to correct or revisit its decision. Both the Act and the Rules are silent on the question of whether, having resolved to take the matter no further and communicated that to the parties, the CAC may in some circumstances reopen its investigation and reconsider that position.

45     William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press, Oxford, 2014) at 191.

46     At 191.

47     See, for example, Pub Charity Inc v Secretary of Internal Affairs [2015] NZHC 195.

48 Interpretation Act, s 4(1)(b).

[94]              However, as Mr K submits,49  the definition of “resolve”, which is used in     s 401(2)(a) of the Education Act, imports a sense of finality. Clause 16 of the Rules expressly refers to the finality of CAC decisions, stating “The teacher must be given an opportunity to comment on the investigation report before the Complaints Assessment Committee makes a final decision.” Clause 17(3) provides that before taking an action available to it, under s 497 of the 2020 Act the CAC may adjourn the matter for further consideration or refer it for further consideration. As Mr Barker submits, this power would be unnecessary if the CAC had the ability to revisit its decisions.

[95]              None of these provisions are decisive, but cumulatively they point toward the decision being a final one.

[96]              On the other hand, as Ms Casey submitted, there are some exceptional circumstances where, even in the case of judicial decisions, the interests of finality are outweighed and a public body can revisit a decision made in ignorance of the true facts. The ability to do so does not depend on a distinction between a judicial decision and an administrative one.

[97]              The exceptional circumstances relied on by the respondent are, first, as in Fajemisin v the General Dental Council50 and Chaudhuri v General Medical Council,51 that the factual basis on which the CAC proceeded amounted to a fundamental mistake of fact. Second, the public interest objectives of the teachers’ disciplinary regime mean a power to reopen can be inferred and ought to be exercised.

[98]              As to factual mistakes in the decision, it is relevant to note that the decision itself is not directly in issue in these proceedings. As Mr Barker emphasises, the only question before the Court is whether the CAC is functus. The consequence of that is that the record of the decision is not before the Court and nor is there a proper contradictor to put forward any argument that the decision was affected by material

49     See [50(a)] above.

50     Fajemisin v the General Dental Council, above,n 20, at [37].

51     Chaudhuri v General Medical Council, above n 24.

errors. That is relevant to the extent to which this court can reach conclusions about factual errors.

[99]              Several of the errors alleged by the respondent do appear to be clear errors: the student’s seven week absence from school did not include two weeks of holiday as the CAC decision stated; what the CAC found to be an agreed collaborative plan for the student’s absence from school, did not cover two weeks of that absence. However, the applicant submits that the student’s absence was not solely on the basis of the agreement, but in part pursuant to a Police process and because the student had underlying health issues, although the basis  of the agreement  is  also  in dispute.     I conclude those errors, even if clear, are not sufficiently serious or fundamental to outweigh the requirement for finality.

[100]          The redetermination decision relies in particular on the fact that Mr K had no power to informally exclude a student from the school. While the CAC says it has acknowledged its own fundamental mistake on this point, that begs the question whether Mr K did in fact informally exclude the student in the manner alleged. Mr K’s position is that he did not at any point direct or ask the student to stay away from school; the student’s absence was not imposed, dictated or even suggested by Mr K. It follows that the applicant does not suggest that the student’s absence was because he had been suspended or stood down in accordance with the requirements of ss 14 and 15 of the Education Act or the Education (Stand-down, Suspension, Exclusion and Expulsion) Rules 1999.

[101]          I do not think I can properly conclude that the CAC proceeded on the basis of a clear, fundamental mistake of fact. The facts of this case can be distinguished from Fajemisin, where the error of fact was plain and uncontested and where, as the Court said, “…but for the mistake, the opposite decision would have been reached.” 52

[102]            Similarly, the facts of the Chaudhuri case are very different. Chaudhuri53 concerned the application of Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 which set a general rule that no allegation against a medical

52     Fajemisin v the General Dental Council, above n 20, at [36].

53     Chaudhuri v General Medical Council, above n 24.

practitioner could proceed further if at the time it was made more than five years had elapsed since the most recent events giving rise to the allegation. The Assistant Registrar’s examination of the complaint proceeded on the basis that Dr Chaudhuri’s last consultation with the patient to whom the complaint related occurred within the five year period, when in fact the last consultation was five years and two months before the complaint was lodged. Dr Chaudhuri sought to have the General Medical Council (GMC) revisit the Assistant Registrar’s decision.

[103]            The Registrar’s role under rule 4 is limited: “It is no part of the Registrar’s functions at the Rule 4 stage to decide whether there has been impaired fitness to practise or to establish the facts of the complaint.”54 When describing the five stages of the Fitness to Practise disciplinary process, the Court referred to Stage 1 as the ‘triage’ stage, involving the Registrar’s decision on the application of the five-year rule and referral to the Case Examiners.55 No referral to the Case Examiners had been notified to Dr Chaudhuri or the Case Examiners at the relevant point.

[104]          The primary ground on which the Court found that it could intervene was that the five-year threshold is an objective matter of precedent or jurisdictional fact and no value judgement is required to answer it.56 The primary issue raised here by the CAC

– that there was no power for the principal to informally “suspend” the student – is not in the same category. What is at issue here is what in fact happened. There is no “jurisdictional fact” as in Chaudhuri.

[105]          The Court in that case also found that, in the alternative, there was a material error of fact amounting to an error of law.57 Accordingly, the Court found that it would intervene and quash the original Rule 4(5) decision by the Assistant Registrar and remit the matter for reconsideration.58

[106]          As I have noted at [104] the material error of fact was of a different nature than that alleged here.

54 At [22].

55 At [25].

56     At [30], [36] and [38].

57 At [39].

58 At [40].

[107]          As to the public interest objectives of the teachers’ disciplinary regime, the Education Act and the Teaching Council (including its administration of the complaints process) is, as the CAC submits, focussed on the safety and welfare of children and young people in the education system and the quality of the institutions and teachers. I accept that it is an inherent purpose of the complaints process that, by providing effective supervision of teacher conduct, it enhances confidence in the education system overall and it is therefore important that the process be seen to be fair and robust.

[108]          However, I am not persuaded that on the facts of this case, the public interest objectives compel a reopening of the decision. First, there is the question of lapse of time. The relevant course of events occurred in 2017. The CAC received the complaint about Mr K on 14 March 2019, more than a year and a half after the events in question. The CAC communicated the decision to Mr K on 4 December 2020 (one year and nine months after the complaint was received and over three years after the student had left the school). The reconsideration decision was made on 29 July 2021 (almost two and a half years after the complaint was received). It is now well over four years since the relevant events occurred.

[109]          I also accept there will be considerable prejudice to Mr K, if the matter were to be reopened at this juncture. Personal and professional stress is inevitable and there is also the real risk that relevant participants will be unable to recall events with sufficient clarity.

[110]          The public interests of the statutory regime do not in this case require that I infer a power to reopen the matter.

[111]          In conclusion, I find that the CAC was functus in relation to the complaint at the point at which it perfected its decision by conveying it to the applicant and the complainants.

[112]          Finally, for completeness, I record that Mr Barker raised an issue regarding the role of the complainants in this proceeding and the risk of predetermination by the

CAC if this court ruled that the decision should be remitted to the CAC for reconsideration.

[113]          For the reasons outlined above, I have not found it necessary to consider this submission in any detail, but I note two things. First, given the narrow ambit of the issue before this Court, the complainants do not have a role. Second, if there were to be a substantive challenge to the decision – for example, if the complainants were to seek judicial review of the decision – the CAC as the decision-maker would of course be obliged to abide the decision of the Court and, as Ms Casey acknowledged, a differently composed CAC could undertake any reconsideration directed by the Court.

Relief

[114]          Mr K seeks orders declaring the redetermination decision and steps taken in furtherance of it unlawful, an order that the redetermination decision be set aside and an order prohibiting the CAC from reopening the decision or any aspect of the complaint.

[115]          As the High Court said in R (on the application of Demetrio) v Independent Police Complaints Commission:59

We find it impossible to accept that the IPCC could become functus officio in respect of different individual components of a single complaint by a single complainant arising out of a single incident.

[116]          Similarly, in this case I conclude that the CAC is functus officio in relation to all aspects of the complaint, not simply that aspect (allegation three) that was the subject of the redetermination decision.

[117]I make the following orders:

(a)I declare that the CAC redetermination decision and steps taken in furtherance of that decision are unlawful.

59     R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at [53].

(b)The redetermination decision is set aside.

(c)The CAC is prohibited from reopening the decision.

Application for permanent suppression orders

[118]The applicant also seeks permanent suppression orders, in the following terms:

(a)Suppressing the identity of the students, parents, the school, the applicant or particulars that would lead to the identification of any one or all of them.

(b)Anonymising the names of those involved, to assist in the process of maintaining the integrity of the suppression orders whilst allowing the subsequent availability of the Court's decision in legal publications and professional educational circles.

(c)Restricting access to the court file without leave of the Court.

[119]          The CAC consents to the suppression and anonymising of the identity of the student and the parents and also consents to restrictions on accessing the Court file without leave of the Court. However, the CAC opposes the suppression and anonymising of the identity of the applicant and the school.

Submissions for the applicant

[120]Mr K’s reasons for seeking permanent suppression orders are:

(a)The substantive proceeding involves a narrow legal question regarding the lawfulness of the CAC redetermination decision.

(b)The details sought to be suppressed are not central to understanding the nature of the proceeding and what it is the Court has to decide.

(c)Absent the need for Mr K to file these proceedings, details of the complaint would not otherwise be public, given the restrictions in the Rules.60

(d)Publication of the proceedings would have potentially adverse consequences and the prejudice outweighs any public interest in the disclosure of the names of those involved.

[121]          As to adverse consequences, Mr K says that the matters underlying the complaint that led to the CAC decision and CAC redetermination decision are of a sensitive nature and involve vulnerable students. These events occurred some years ago. Identification of Mr K or the college is likely to lead to identification of the students involved. In addition, identification of Mr K or the college would have potentially damaging effects on the college, including undermining confidence in the applicant’s judgement in managing other disciplinary issues; damage to the confidence of parents whose children access the school’s Special Education Facility and adverse impact on the school’s international student programme.

[122]          Finally, the applicant notes that the suppression orders sought would not prevent any judgment of the Court being published in legal publications, including online services, or the judgment being distributed in a similar way by professional educational services. In his submission, the orders sought strike a balance between fundamental open justice considerations and the interests of the applicant and parties involved in the complaint.

Submissions for the respondent

[123]          The CAC is opposed to the suppression and anonymising of the identity of the applicant and the school on the grounds that the college is a large school with over 1,000 students and identification of the applicant and the school would not identify the student involved.

60     Teaching Council Rules, r 64.

[124]          The respondent also says that Mr K has not met the threshold of demonstrating specific adverse consequences that would flow from publication of his and the school’s identities.61 The consequences identified by the applicant are, it says, speculative and insufficient to warrant an exception to the fundamental principles of open justice.

[125]          The CAC itself has no powers to order permanent name suppression and has not purported to do so in relation to the complaint at issue. Any disciplinary matter that proceeds to the Disciplinary Tribunal is to be held in public, unless the Tribunal orders otherwise.

[126]          Ms Casey submits that the Court of Appeal’s decision in Ryan v Health and Disability Commissioner62 is directly relevant to this case. In Ryan the applicant for name suppression noted that the Health and Disability Commissioner’s investigations were generally concluded in private and their findings, when published, usually have names and identities redacted. In that case too in seeking permanent name suppression the applicant relied on the fact that the proceeding before the Court was about statutory interpretation, not individual conduct.

[127]          The Court of Appeal, while sympathetic to the applicant’s position, was not persuaded that the factors relied on by the applicant provided a sufficient legal basis to make the suppression orders requested or to distinguish Erceg v Erceg.63 As the court said there: “This proceeding is not a continuation of the investigation. It is a civil proceeding under the Judicial Review Procedure Act 2016 and the ordinary principles of open justice apply.”64 That statement equally applies in this case.

[128]          Finally, the respondent submits that permanent suppression orders would potentially impact on the Ombudsman’s ability to complete his investigation of a complaint made to him by the complainants about the same matter.

[129]          The complainants expressed a wish to be heard on the name suppression application. Although they are not parties to this proceeding, Ms Casey conveyed their

61     Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.

62     Ryan v Health and Disability Commissioner [2021] NZCA 347.

63     Erceg v Erceg, above n 61, at [95].

64     Ryan v Health and Disability Commissioner, above n 62, at [95].

views, which align with the CAC’s. They are concerned that the orders sought would affect their ability to talk about their experiences with the school and its principal, contrary to s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).

Discussion

[130]          The principle of open justice was emphasised by the Supreme  Court  in Erceg v Erceg, as one of constitutional importance and “fundamental to the common law system of civil and criminal justice”.65 There is a prima facie presumption in favour of openness in reporting.

[131]          In Commissioner of Police v F (L) C,66 Woodhouse J synthesised the principles relevant to applications for non-publication orders in civil proceedings, arising from the Supreme Court’s decision in Erceg v Erceg and the Court of Appeal’s decision in Y v Attorney-General,67 in which the judgments were delivered only 10 days apart. Neither judgment refers to the other, but I agree with Woodhouse J that there is no conflict between the statements of principle in each case, and I adopt and endorse his summary:68

[15]The statements of principle may be summarised as follows:

(a)The starting point is the principle of open justice. This leads to a presumption of disclosure of all aspects of civil court proceedings.69

(b)There are, nevertheless, circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice.70

(c)In proceedings heard in open court, the court may exercise its inherent power to make non-publication orders binding on the public at large.71

65     Erceg v Erceg, above n 61, at [2].

66     Commissioner of Police v F (L) C [2016] NZHC 2852.

67     Y v Attorney-General [2016] NZCA 474.

68     Commissioner of Police v F (L) C, above n 66, at [15].

69     Erceg v Erceg, above n 61, at [2]; and Y v attorney-General, above n 67, at [25]-[28].

70     Erceg v Erceg, above n 61, at [3].

71     At [4]-[7]. The Supreme Court in Erceg, at footnote 6, said that it preferred the term “inherent power” to “inherent jurisdiction”.

(d)The power to order non-publication is discretionary.72

(e)There is no onus on the applicant for the non-publication order.73

(f)What the party seeking the order must show is specific adverse consequences that are sufficient to justify an exception to the fundamental rule, but the standard, or threshold, is a high one.74

(g)The correct approach requires the court to strike a balance between open justice considerations and the interests of the party who seeks suppression.75

[132]          I agree with the respondent that the risk of other students of the college being identified is relatively low, having regard to the size of the school and the lapse of time since the events in question. However, notwithstanding the complainants’ view, I think there remains a relatively high risk that, if the school and the principal are identified, the student will also be identifiable and the sensitivity and gravity of the conduct at issue become public: their absence from the school was for a significant period in 2017 and the evidence for the applicant is that they were the only student who was absent for a long period during that year. While much of the detail of the case is not essential to this decision and has been omitted, the timeframes involved are relevant and have been retained. That risk alone would lead me to grant the orders sought by the applicant.

[133]          I have also gone on to consider whether there is sufficient evidence of specific adverse consequences of publication for Mr K and/or the school if name suppression is not granted.

72 Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) NZTC 23-052 at [5]; and Y v Attorney-General, above n 67, at [23]-[24] and footnote 27.

73 Erceg v Erceg, above n 61, at [13]; and Y v Attorney-General, above n 67, at [29], both approving

ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC) at [14] (ASB Bank).

74 Erceg v Erceg, above n 61, at [13]; Y v Attorney-General, above n 67, at [30].

75 Y v Attorney-General, above n 67, at [31]. The Court of Appeal noted: “We have drawn that  passage from the Supreme Court’s judgment in Hart v Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4 at [3]. The Supreme Court had earlier supported the same balancing approach in Rowley v Commissioner of Inland Revenue, above n 72, at [6]-[7]. As this Court observed in McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [20], in the context of this balancing, ‘the open justice principle is not an article of faith, never to be departed from’.”

[134]          The concerns relating to the school’s Special Education Facility and its International Student Programme are, in my view, too general and speculative to provide a proper basis for suppression.

[135]          However, Mr K’ own situation is different. While his evidence about possible adverse effects on him is, at this stage, hypothetical, that is inevitably the case. I can nevertheless properly infer that publication of Mr K’s name (or publication of the name of the school which would effectively publish Mr K’s name) will cause him personal stress and potential damage to his professional reputation and credibility as a longstanding principal, who has worked hard in the educational community. As the authors of The New Zealand Bill of Rights Act: A Commentary note:76

The question needs to be asked what the public interest in the court proceedings actually is and whether the reporting of all identifying details is necessary. Especially in a small society such as New Zealand’s, reporting identifying details can easily become further punishment not just for the defendant or accused, but for the family and friends of those involved.

[136]          Mr K’s situation can be distinguished from  the  examples  provided  in  Erceg v Erceg77 of “embarrassment” because, for example, the proceeding reveals that someone is under financial pressure, or “unwelcome”, for example because it publicly airs private family matters.

[137]          I note too that this case is different from Ryan in one significant respect. There the Court noted that the concerns about damage to the applicant’s reputation were general and largely speculative and, in any event, “were tempered against the fact that it will be very apparent to readers of this judgment that Dr Ryan was not in any way personally at fault …”.78 The situation here is different in that the redetermination decision raises questions directly relating to alleged conduct by Mr K. Although there has not been a finding of fault against him, the reporting would focus on his conduct.

[138]          I see no reason why any order as to suppression should impede the Ombudsman’s inquiry.  If it is necessary, I specifically note that the complainants are

76     Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis) “Chapter 13: Freedom of Expression” at 13.12.17.

77     Erceg v Erceg, above n 61, at [13].

78     Ryan v Health and Disability Commissioner, above, n 62, at [97].

free to advise the Ombudsman of this decision, notwithstanding the suppression orders.

[139]          As to the complainants’ and the student’s rights under the Bill of Rights Act,  s 14 does not, as a general rule, prevent the Court from making suppression orders.

[140]          In Siemer v Solicitor-General, 79 the Supreme Court discussed the impact of suppression orders on the rights contained in the Bill of Rights Act, including the right to freedom of expression.80 It found that a temporary suppression order, made to protect fair trial rights in criminal proceedings, is consistent with the Bill of Rights Act. Whether a suppression order is a reasonable and justified limitation on the freedom of expression depends on the circumstances of each particular case.

[141]          Although the Supreme Court’s analysis is aimed at protecting the accused’s fair trial rights in the criminal context, it is equally applicable to other objectives that may be engaged in court proceedings, including the protection of fairness in civil proceedings; the protection of the privacy of parties to civil proceedings; and the protection of the integrity of the judicial process.81

[142]          Equal treatment between the parties would support the applicant’s application for permanent name suppression in the present case. The identities of the student and their parents will be suppressed. Disclosure only of the identity of the applicant and the school may not allow the applicant an opportunity to counter allegations and may not result in fair and accurate reporting in the public domain.82 This case can be distinguished from the approach taken by the High Court in Patient A v Health Board,83 where the Court allowed a name suppression order to stay in place after trial to protect the privacy interests of the plaintiff (the patient) but the same was not extended to cover the identity of the defendants (the doctor and hospital involved), as the case against them had failed and the Court did not consider their conduct gave rise

79     Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441, at [157].

80     Siemer, above n 79.

81     Butler and Butler, above n 76, Chapter 13: Freedom of Expression” at 13.9.2.

82     John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 (NSWCA) at [41], cited in

Erceg v Erceg, above n 61, at [17].

83     Patient A v Health Board HC Blenheim CIV-2003-406-14, 15 March 2005.

to an equally “deeply personal element” as compared to the plaintiff.84 Therefore, the argument for suppression based on equal treatment was rejected.

[143]          Furthermore, legitimate public interest does not extend to knowing the name of the applicant or identity of the school. These details are not central to understanding the nature of the proceedings and what it is the court has to decide. The facts of the case can be reported without identifying details to satisfy public interest.85

[144] For the reasons I have detailed at [132]-[143] above, I conclude that there is an appreciable risk that publication of the name of the college and the principal will lead to identification of the student. In addition, there would be adverse consequences for the applicant if suppression orders are not continued. In this case I conclude that permanent suppression orders are appropriate and constitute a justified limitation on the student and complainants’ right to freedom of expression.86

Relief

[145]          Having regard to all the circumstances I exercise my discretion to grant the orders sought by Mr K. Accordingly:

(a)The identity of the student, their parents, other students of the school, the applicant and the school, and particulars that might lead to their identification, are permanently suppressed.

(b)The names of those involved are anonymised in this judgment.

(c)Access to the court file is restricted without leave of the Court.

Costs

[146]          I have found for the applicant and, in the normal course, he is entitled to costs. Costs on a 2B basis are appropriate. I expect the parties should be able to agree costs but if that is not possible the applicant should file submissions within 15 working days

84 At [80].

85     Y v Attorney-General, above n 67, at [33]-[34].

86     New Zealand Bill of Rights Act 1990, s 5.

of the issue of this judgment and the respondent  should respond within a further    15 working days. Submissions should not exceed five pages.

Gwyn J