Rachelle v Teachers Disciplinary Tribunal [2021] NZCA 376 (12 August 2021)

Last Updated: 17 August 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA205/2021 [2021] NZCA 376

	BETWEEN	GEORGINA ANNE RACHELLE Applicant
	AND	TEACHERS DISCIPLINARY TRIBUNAL Respondent

Court:	Miller and Cooper JJ
Counsel:	Applicant in person E A M Mok for Respondent
Judgment: (On the papers)	12 August 2021 at 10 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

• [1] Ms Rachelle seeks leave to appeal to this Court under s 356(6) of the Education Act 1989 from a decision of the District Court upholding a decision of the Teachers’ Disciplinary Tribunal (the Tribunal) censuring her and cancelling her registration as a teacher.^[1] The application for leave was filed late but it is appropriate to extend the time for making it as the application is not opposed by the respondent.

Background

• [2] Ms Rachelle had been a registered teacher in Australia and sought to be registered as a teacher in New Zealand in 2017 as provided for under the Trans‑Tasman Mutual Recognition Act 1997.
• [3] On 2 August 2016 she was convicted in the District Court at Alexandra of driving with excess blood alcohol. She was disqualified from driving for eight months and sentenced to 50 hours’ community work and six months’ supervision.^[2]
• [4] On 26 October 2017 she was convicted of driving with excess blood alcohol for a second time. For this offending she was sentenced to 12 months’ intensive supervision, 100 hours’ community work, and disqualified for an indefinite period under s 65 of the Land Transport Act 1998.^[3] An order was made confiscating her vehicle.
• [5] When Ms Rachelle sought registration as a teacher in New Zealand she did not disclose these convictions to the Teaching Council as required by s 397(1) of the Education Act. The convictions came to light as part of the ordinary police vetting process. On 4 February 2019 the Complaints Assessment Committee (the CAC) referred the 2017 conviction to the Teachers’ Disciplinary Tribunal and invited the Tribunal to take into account the 2016 conviction as well.
• [6] On 5 June 2019 the Tribunal held a hearing in Christchurch at which Ms Rachelle appeared in person.^[4] Having heard Ms Rachelle’s submissions and those of the CAC, the Tribunal found that the 2017 conviction amounted to an adverse finding regarding her fitness to teach.^[5] It exercised its powers under s 404 of the Education Act to censure her and cancel her registration as a teacher.^[6]
• [7] From that decision, Ms Rachelle appealed to the District Court. On 11 November 2020, Judge Crosbie dismissed her appeal.^[7] The Judge summarised the Tribunal’s decision, expressing the view that it had applied the correct legal test to the issue before it namely whether the behaviour that had resulted in Ms Rachelle’s conviction reflected adversely on her fitness to practise as a teacher.^[8] He noted that the Tribunal had considered five comparable cases where drink driving convictions had been referred to the Tribunal.^[9] He noted Ms Rachelle’s claim before the Tribunal that the driving which led to her second conviction was in response to an event of domestic violence, an explanation that had been rejected by the Tribunal.^[10] The Judge made his own assessment of the facts. He noted:

[43] ... The appellant provided neither the Tribunal nor the Court with any evidence to support her position. To this end I asked for the appellant’s permission to obtain the sentencing notes and transcripts from her 2016 and 2017 appearances in the District Court at Alexandra. The appellant gave her permission and I obtained transcripts and decisions from 2 August 2016 and 26 October 2017.

[44] This was an unusual step. However, I considered it appropriate and in the interests of justice to do so given the impact the appellant’s claims might have, if true, on the outcome of this proceeding, and having regard to the fact the appellant was self-represented. ...

• [8] He then set out the relevant facts before rejecting Ms Rachelle’s claims. He concluded:

[54] I consider the driving with excess blood alcohol to be of a moderate to high gravity of offending of its kind. Two convictions within a short space of time indicate that she may have a problem with alcohol, particularly given the lack of insight shown. This type of offending sets a very poor example for children. The convictions and her blasé attitude towards them adversely reflect on her fitness as a teacher.

• [9] He expressed himself satisfied that the Tribunal had not made any error in its approach to the case and that the penalty ultimately imposed properly reflected the gravity of the offending, aggravating features and absence of mitigating elements.^[11] He concluded:

[61] Independently of the Tribunal, given: the fact that the appellant failed to disclose the offending to the CAC as required under the [Education] Act; that she maintains there is a lack of relevance between her offending and the classroom; that she displays no remorse or insight (including that her account to me of the offending differed from the record); and for the other reasons set out above, I find that deregistration is the only appropriate outcome.

• [10] Ms Rachelle’s application for leave to appeal responds to various paragraphs in the Judge’s decision. The issues she raises appear to be all matters of factual dispute. In this respect, Ms Rachelle is handicapped by the fact that she had at no stage given evidence, confining herself both before the Tribunal and in the District Court to the making of submissions. Many of her comments are critical of the Judge’s inferences and expressed in intemperate terms. She is equally critical of the Judges who convicted her under the Land Transfer Act. It is not necessary to deal with the issues she raises, because none of them give rise to a question of law.
• [11] The right given by s 356(6) of the Education Act is a right, with leave of the Court, to appeal “on a question of law”. As this Court recently confirmed in Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand:^[12]

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.

• [12] The present application falls well short of that threshold. The significance of Ms Rachelle’s two convictions, proximate in time, for driving with high blood alcohol levels, was a matter to be assessed by the Tribunal, having regard to all the circumstances, including her failure to disclose the convictions, and her evident lack of insight into their significance. The District Court judgment upholding the Tribunal’s assessment discloses no error of law or principle.

Result

• [13] The application for an extension of time is granted.
• [14] The application for leave to appeal is declined.

Solicitors:
Meredith Connell, Auckland for Respondent

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^[1] Rachelle v Teachers Disciplinary Tribunal [2020] NZDC 23118 [District Court decision]; and Complaints Assessment Committee v Rachelle NZTDT 2019/8, 17 July 2019 [Tribunal decision]. The Education Act 1989 has been repealed and replaced by the Education and Training Act 2020. However as the appeal to the District Court was filed on 26 May 2020 and the new Act came into force on 1 August 2020, the Education Act 1989 continues to apply for the purposes of the present application: see Education and Training Act, sch 1(2).

^[2] Police v Rachelle [2016] NZDC 27094.

^[3] Police v Rachelle [2017] NZDC 29927.

^[4] Ms Rachelle claimed to be an “Australian lawyer” as well as being a qualified teacher.

^[5] Tribunal decision, above n 1, at [24].

^[6] At [43] and [57(a) and (b)].

^[7] District Court decision, above n 1.

^[8] At [20], citing Complaints Assessment Committee v S DC Auckland CIV-2008-004-1547, 4 December 2008.

^[9] At [22].

^[10] At [23]–[24], referring to Tribunal decision, above n 1, at [30].

^[11] At [60].

^[12] Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand [2021] NZCA 66 at [4], citing Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413.