Robinson v Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand
[2022] NZCA 350
•3 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA139/2022 [2022] NZCA 350 |
| BETWEEN | GREGORY WILLIAM ROBINSON |
| AND | COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA NEW ZEALAND |
| Court: | Brown and Clifford JJ |
Counsel: | G Phipps for Applicant |
Judgment: | 3 August 2022 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
Mr Robinson, a relieving teacher, was the subject of a complaint arising from his attempt to maintain order in the classroom. The Complaints Assessment Committee (Committee) charged him with misconduct and referred the matter to the New Zealand Teachers Disciplinary Tribunal (Tribunal) for determination. The Tribunal found the charge was proved, censured Mr Robinson and imposed conditions on his employment for the following two years.
Mr Robinson’s appeal to the District Court was dismissed.[1] He now applies for leave to bring an appeal to this Court from the District Court’s decision. The respondent opposes the application.
Relevant principles
[1]Robinson v Complaints Assessment Committee [2021] NZDC 24379 [District Court decision], save for a direction remitting back to the Tribunal its decision on costs.
The appeal to the District Court against the decision of the Tribunal was brought under s 409(1) of the Education Act 1989 (the Act).[2] Section 409(4) states that s 356(6) applies to such appeals as if it were a District Court decision under s 356(1). Hence, with the leave of the High Court or this Court, Mr Robinson may appeal to this Court “on a question of law” against any decision made by the District Court on the original appeal. The parties agreed that the application for leave should be made to this Court.
[2]This has now been replaced by the Education and Training Act 2020.
In Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand this Court stated:[3]
Leave to bring a second appeal will only be granted where the proposed appeal raises some question of law or fact capable of bona fide and serious argument where the case involves some public or private interest of such importance as to outweigh the cost and delay of a further appeal.
[3]Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand [2021] NZCA 66, citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
The submissions of Ms Phipps, counsel for Mr Robinson, highlighted the reference in Evans to a question of fact. However, as this Court subsequently observed in Rachelle v Teachers Disciplinary Tribunal, the statutory right to appeal to this Court with leave is confined to a question of law.[4] We agree with the submission of Ms Bishop, counsel for the Committee, that Evans should not be read as suggesting that appeals can extend to questions of fact contrary to the express wording of s 356(6).
Relevant background
[4]Rachelle v Teachers Disciplinary Tribunal [2021] NZCA 376 at [11].
The circumstances leading to the charge are essentially as follows. On 16 October 2019 Mr Robinson was relief teaching a year 10 mathematics class where the students were working on computers. Students A and B were sitting side by side listening to music on student A’s phone by shared headphones of the ear bud variety. They were both moving to the music and student A was bumping and drumming on the table. Student A having declined Mr Robinson’s request to stop, Mr Robinson attempted unsuccessfully to take away the phone. He then removed the ear bud from student A’s ear. In the course of doing so it broke. Student A stood up and a verbal altercation ensued, following which Mr Robinson left the classroom to get another teacher.
In accordance with s 394 of the Act, the school principal sent a mandatory report to the Teaching Council about the incident which made reference to the fact that there was a conflict of evidence about whether Mr Robinson had hit student A. The Teaching Council assigned an investigator to look into the matter. Having completed the investigation the investigator referred the mandatory report and the investigation file to the Committee. The Committee determined that there was insufficient evidence to prove the allegation that Mr Robinson had hit the student. It brought charges against Mr Robinson before the Tribunal confined to (a) removing and breaking student A’s headphones and (b) failing to de-escalate the situation.
The form of the charge is as follows:
TAKE NOTICE that the Complaints Assessment Committee (the CAC) has determined that in accordance with s 401 of the Education Act 1989:
(a)Information received in the mandatory report provided by [school] about the conduct of [the appellant] should be considered by the New Zealand Teachers Disciplinary Tribunal (the Disciplinary Tribunal).
(b)The CAC charges that the teacher has engaged in serious misconduct and/or conduct otherwise entitling the Disciplinary Tribunal to exercise its powers.
Particulars of the charge
1.The CAC charges that [the appellant], registered teacher, of [city], on 16 November 2019 at [school]:
a. Removed and broke a Year 10 student’s [Student A] headphones; and/or
b. Failed to appropriately de-escalate the situation with Student A following the incident in paragraph 1(a).
2.The conduct alleged in paragraph 1, both separately and cumulatively, amounts to serious misconduct pursuant to s 378 of the Education Act 1989 and Rule 9(1)(a) and/or (b) and/or (k) of the Teaching Council Rules 2016 or alternatively amounts to conduct which otherwise entitles the Disciplinary Tribunal to exercise its powers pursuant to s 404 of the Education Act 1989.
Although he denied the charge Mr Robinson’s position was that a hearing was not required. The Committee filed a memorandum suggesting a hearing on the papers would be appropriate in the interests of the reduction of costs. It was agreed in the course of a telephone conference that, although it was not known how the ear bud was broken, it was not done intentionally.
The Tribunal heard the matter on the papers explaining:[5]
In agreeing to consider the matter on the papers, we have taken into account the parties’ desire to reduce stress for student witnesses as well as time and cost for all concerned. There is also little dispute on the first particular. We have reached a decision based on the information before us. That means that we have not been able to make findings on all matters.
[5]Complaints Assessment Committee v Gregory William Robinson NZTDT 2020/39, 30 April 2021 at [9].
It found that Mr Robinson had removed the headphones unexpectedly and recklessly which it considered amounted to serious misconduct because:[6]
(a)It was likely to adversely the student’s well-being.
(b)It reflected adversely on Mr Robinson’s fitness to be a teacher.
(c)It might bring the teaching profession into disrepute.
(d)It was an unreasonable and unjustified use of force.
The Tribunal also found that Mr Robinson failed to de-escalate the situation which amounted to misconduct but not serious misconduct.[7]
The District Court judgment
[6]At [13] and [68]–[75].
[7]At [14] and [76].
Mr Robinson appealed the Tribunal’s decision to the District Court on a variety of grounds including procedural flaws, errors of fact and law, the approach to determination of penalty and costs.
As Judge K D Kelly noted, Mr Robinson’s appeal under s 409 of the Act was by way of rehearing.[8] Consequently the Judge proceeded in accordance with the principles in Austin, Nichols & Co v Stichting Lodestar,[9] but observed:[10]
[66] In the present case, while noting that the Tribunal has technical expertise, the specialist nature of the Tribunal must be balanced against the Tribunal having considered the charge on the papers without the benefit of having assessed the witnesses and their credibility.
[8]District Court decision, above n 1, following Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [36]–[37].
[9]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[10]District Court decision, above n 1.
The appeal was dismissed save on the issue of costs which was remitted back to the Tribunal.[11]
The proposed grounds of appeal
[11]At [202]–[203].
Seven grounds of appeal were particularised in the application for leave to appeal. The District Court was said to have erred in the following respects:
a.In determining that the Tribunal can properly hear charges outside those the appellant was notified of as being the subject of investigation and possible disciplinary action …
b. In determining that it is proper for the Tribunal to proceed on particulars, with a lay litigant, that did not disclose the nature of the offending conduct, causation and or the culpability of that conduct, such as by way of reference to intention or recklessness or reference to a code of conduct. …
c.In determining that the conduct of removing ear buds [simpliciter] was conduct that amounted to serious misconduct, including not requiring proof of intent (to break the earbuds) as initially represented as an element of the charge by the Complaints Assessment Committee …
d.In determining that a Tribunal can properly make findings of fact on the papers where there is:
ino agreed statement of facts on the key matters
ii inconsistency in the evidence of witnesses
iiino sworn or oral evidence or cross examination of witnesses
iv Inadmissible evidence …
v and the charge is denied [by] the Appellant
e. In determining that in making findings of fact the Tribunal did not expressly have to refer to consideration of the burden, probity of the evidence and or standard of proof in its decision and or show that these considerations were applied.
f. In determining that when considering penalty, the Tribunal did not need to show it had expressly considered all relevant factors and or carried out the analysis …
g. In failing to address the miscarriage of justice arising from serious material failures of law …
(Citations omitted.)
Discussion
Ground 1
The thrust of Mr Robinson’s complaint is that he was charged with conduct that was not recorded as comprising the subject of the mandatory report or the subsequent investigation. The submission is made that less than a week before the hearing date, the elements of intent and causation were removed from the charge. Consequently it was contended that the Court was in error in finding that the charge could extend beyond the scope of the referral.
However, as the Judge correctly identified, the charge did not allege intent on the part of the Mr Robinson.[12] It was agreed between the parties at the telephone conference of 25 February 2021 that the headphones were not broken intentionally. It was on this basis that the Tribunal proceeded to determine the charge. We agree with the respondent that this proposed ground rests on a flawed factual premise.
Ground 2
[12]At [152].
Mr Robinson submitted that he was not put on notice of wrong-doing by a charge the form of which merely described an event. It was submitted that the charge as considered by the Tribunal defined the offence as removal of a headphone, which somehow was broken, and failure to de-escalate. It was akin to strict liability conduct. It omitted any reference to applicable codes or standards and there was no preamble setting out the factual matrix relied on. It was submitted that strict adherence to the requirement for sufficient particularisation was essential when the litigant is self‑represented.[13]
[13]Tomasevic v Travaglini [2007] VSC 337, (2007) 17 VR 100 at [89].
In our view the charge was sufficiently particular. We do not consider that the Judge erred in reaching that same conclusion.[14]
Ground 3
[14]District Court decision, above n 1, at [148]–[153].
Mr Robinson’s argument here involves two limbs:
(a)first, that the Tribunal was required to determine the case based on the evidence before it and did not do so; and
(b)secondly, that the Judge erred in determining that the conduct of removing ear buds simpliciter was conduct that amounted to serious misconduct.
As to the first proposition, we agree with the respondent that the findings that Mr Robinson used unreasonable force and that his conduct was likely to adversely affect the students’ wellbeing were conclusions which the Tribunal drew from the evidence, rather than the evidence itself. In any event it was the Tribunal, not the Court, which determined that his conduct amounted to serious misconduct. The Judge was satisfied that the Tribunal had provided reasons for that conclusion and did not find anything inappropriate in its application of the serious misconduct test. We do not consider that there was any error of law on the part of the Judge in doing so.
Ground 4
For Mr Robinson it is submitted that it was inherently unfair to adopt an on the papers procedure, which did not afford the opportunity for the evidential contest to be resolved and was inconsistent with the principles of natural justice. The point was made that the Tribunal was required to comply with the rules of evidence.[15] It was submitted that the “purported consent” of Mr Robinson to the on the papers hearing without knowledge of the implications for the Tribunal’s process was not sufficient to amount to a waiver of compliance with the rules of evidence.
[15]A v A Professional Conduct Committee [2018] NZHC 1623 at [26] and [38].
The respondent makes the point that under r 31 of the Teaching Council Rules 2016 the Tribunal has a broad discretion to receive evidence. The evidence which the Tribunal considered in this case was admitted entirely by consent and was not inadmissible. The respondent submits that part of the reason for dealing with the matter on the papers (aside from Mr Robinson’s repeated insistence that this should be done) was that there was little in dispute on the first particular (concerning the breaking of the headphone) following the parties agreeing the facts of that particular at the 25 February 2021 teleconference.
Given Mr Robinson’s firm position that an oral hearing was unnecessary and the substantial agreement on the facts, we agree with the respondent that it is difficult to see why the Tribunal should have taken any different course of action.
Ground 5
In addressing the burden and standard of proof the Judge stated:[16]
[157] In relation to the burden and standard of proof I am satisfied that the Tribunal understood this matter. The Tribunal’s pre-hearing minute of 12 January 2021 says: “… The CAC has to prove the case against [the appellant]”.
[158] Moreover, the tribunal recognised that it needed to balance the evidence and did so by comparing the evidence between students and the appellant, and identified where there were areas of dispute or areas where they were sceptical of the evidence.
(Footnotes omitted.)
These paragraphs appear to be the focus of the proposed fifth ground of appeal that the District Court determined that the Tribunal did not expressly have to refer to consideration of the burden, probity of the evidence and/or standard of proof in its decision or show that these considerations were applied.
[16]District Court decision, above n 1.
The respondent submits that while the Tribunal did not explicitly refer to the burden or standard of proof, it is demonstrably clear that these tests were applied. The Tribunal stated in its pre-hearing minute of 12 January 2021 that the Committee had to prove the case against the applicant. Furthermore the respondent submitted that the Tribunal’s decision at [52] to [57] demonstrated a clear weighing of the evidence. Both these matters were noted by the Judge in the extract above.
Given this context, we do not consider that there is substance in Mr Robinson’s contention that there was an error of law on the part of the District Court in failing to find an error on the part of the Tribunal by its not addressing the burden and standard of proof requirements in express terms.
Ground 6
For Mr Robinson it is submitted that, following Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, the factors relevant to a consideration of penalty are well-established,[17] and that the absence of any cogent consideration of all those factors will result in a disproportionate penalty and amount to an error of law. In his appeal to the District Court Mr Robinson submitted that the factors that ought to be taken into account were not methodically analysed. However the Judge was satisfied that, although the Tribunal did not expressly refer to the Roberts factors when imposing a penalty, the actual penalty imposed was fair, reasonable and proportionate in relation to Mr Robinson’s conduct.[18]
[17]Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 8.
[18]District Court decision, above n 1, at [176].
An appeal by way of rehearing affords the opportunity for consideration to be given to matters which may have been over-looked at first instance.[19] As the Judge expressly recorded, on his consideration of the Roberts factors the penalty imposed was appropriate in the circumstances.[20] There was no error of law in the way in which the Judge addressed the issue of penalty.
Ground 7
[19]Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 (CA) at 580.
[20]District Court decision, above n 1, at [178].
Finally Mr Robinson contends that the combination of alleged “failings” resulted in a miscarriage of justice and that he was denied a fair hearing. No specific error on the part of the District Court is identified. The respondent submits that this broadly framed ground does not add anything to the previous grounds advanced for Mr Robinson. We agree.
The further criterion
Even if the various grounds relied upon constituted, or could be reformulated as, questions of law capable of bona fide and serious argument, we do not consider that any of them satisfy the further criterion of involving some public or private interest of such importance as to outweigh the cost and delay of a further appeal.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Luke Cunningham Clere, Wellington for Respondent
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