Thorne v Teaching Council of Aotearoa New Zealand [2019] NZDC 14828 (31 July 2019)

Last Updated: 22 September 2021

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CIV 2018-044-001278 [2019] NZDC 14828

UNDER	the Education Act 1989
IN THE MATTER	of an Appeal pursuant to Section 409 of the Education Act 1989
BETWEEN	EDWINA GAYE THORNE Appellant
AND	TEACHING COUNCIL OF AOTEAROA NEW ZEALAND Respondent

For distribution to:	The Appellant in person D La Hood and MA Shaw for the Respondent
Judgment (on the papers):	31 July 2019

JUDGMENT OF JUDGE S M HARROP AS TO JURISDICTION FOR APPEAL

Introduction

[1] Ms Thorne was a registered secondary school teacher from April 1994 until April 2017. In a decision dated 22 August 2018 New Zealand Teachers’ Disciplinary Tribunal she was censured by the Tribunal for failing to report to the Education Council her conviction in the District Court in November 2016 on a charge of driving with excess blood alcohol and a third or subsequent occasion and a charge of careless driving. Her registration was also cancelled although by that time Ms Thorne did not

EDWINA GAYE THORNE v TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2019] NZDC 14828 [31 July 2019]

have a current practising certificate and did not intend to seek another one. She did not oppose cancellation of her registration.

[2] Ms Thorne however submitted to the Tribunal that it ought to make a non- publication order under s 405(6)(c) of the Education Act 1989 (“the Act”) prohibiting the publication of her name or any of her particulars. A majority of two of the three members of the Tribunal declined to make such an order and gave quite detailed reasons for that decision. A minority, the Deputy Chair, would have made the non- publication order which Ms Thorne sought.

[3] Ms Thorne requested of the Tribunal, in the event that no order for non- publication of her name or identifying details was made, that it make an interim non- publication order until the conclusion of any appeal. The Tribunal accepted that such an order was appropriate but only until the expiry of the period within which any appeal had to be lodged. After that an application would need to be made to the District Court for an order extending it beyond that time. That interim order was made and by a further Minute dated 4 September 2018 the Tribunal extended the period within which it applied.

The appeal

[4] Ms Thorne duly lodged her appeal to the District Court against the part of the decision to which she objected, namely the refusal of the Tribunal to make a non- publication order.

[5] On 4 December 2018, in the District Court at Auckland, Judge Harrison transferred the file to the Wellington District Court and made an order that the interim order for name suppression granted by the Tribunal would remain in place until the hearing of the appeal.

[6] The respondent opposed the appeal and submitted that there was simply no jurisdiction for the Court to hear an appeal against a refusal to make a non-publication order.

[7] On 6 May 2019 Judge Davidson directed that the issue of jurisdiction would be heard on 26 July 2019 and made directions as to the filing of submissions. I was the judge rostered to hear the arguments about jurisdiction.

[8] About five weeks later, Ms Thorne applied for an adjournment of the 26 July hearing which was opposed by the respondent.

[9] Judge Tuohy dealt with the application on 12 July 2019, after discussion with me. He directed that the hearing on 26 July be vacated so that the application for an adjournment of it was therefore redundant. His Honour considered, and I agreed, that there was no reason why the purely legal issue of jurisdiction could not be dealt with on the basis of written submissions. The respondent had by then filed its submissions and the appellant was directed to do the same, as indeed she had already been directed to do by Judge Davidson.

[10] By a further direction on 16 July 2019 Judge Tuohy extended the time for Ms Thorne to file her written submissions to 26 July. He said that no further extension would be granted and that the Court would deal with the application on the papers after 26 July, on the basis of the submissions filed by that date.

[11] No submissions have been filed by Ms Thorne. Accordingly in this judgment I will consider the question of jurisdiction in light of the submissions made by the respondent to the effect that there is no jurisdiction.

Discussion

[12] If there is a right to appeal against the Tribunal’s refusal to make a non-publication order, it can only be found in the Education Act 1989 which is in effect a code dealing with the jurisdiction of the Tribunal to make orders and setting out rights of appeal from its decisions. There is no other potentially applicable legislation and there is no common law right to appeal any aspect of a Tribunal’s decision.

[13] Section 409 of the Education Act 1989 contains the rights of appeal available to a teacher aggrieved by a Tribunal decision. It provides:

409 Appeals from decisions of disciplinary bodies

(1) The teacher who is the subject of a decision by the Disciplinary Tribunal made under section 402(2) or 404 may appeal against that decision to the District Court.

(2) The Complaints Assessment Committee may, with the leave of the Teaching Council, appeal to the District Court against a decision of the Disciplinary Tribunal made under section 402(2) or 404.

(3) An appeal under this section must be made within 28 days after receipt of written notice of the decision, or any longer period that the court allows.

(4) Section 356(3) to (6) applies to every appeal under this section as if it were an appeal under section 356(1).

[14] As is self-evident from ss (1), it is only a decision made by the Tribunal under either s 402(2) or s 404 which may give rise to an appeal to the District Court.

[15] Section 402 provides:

402 Interim suspension until matter about or involving possible serious misconduct concluded

(1) At any time between when the Complaints Assessment Committee receives a complaint or receives or becomes aware of a report that is about or involves a teacher’s possible serious misconduct and when the matter is concluded (as specified in section 403(6)), the Complaints Assessment Committee may apply to the chairperson of the Disciplinary Tribunal for an interim suspension of the teacher’s practising certificate or authority.

(2) On an application under subsection (1) for an interim suspension, the chairperson of the Disciplinary Tribunal may, having regard primarily to the safety of the children in the school or early childhood education and care service and to the reputation of the teaching profession, either with or without a hearing, suspend the teacher’s practising certificate or authority.

[16] Section 404 provides:

404 Powers of Disciplinary Tribunal

(1) Following a hearing of a charge of serious misconduct, or a hearing into any matter referred to it by the Complaints Assessment Committee, the Disciplinary Tribunal may do 1 or more of the following:

• (a) any of the things that the Complaints Assessment Committee could have done under section 401(2):

• (b) censure the teacher:
  
  • (c) impose conditions on the teacher’s practising certificate or authority for a specified period:
    
  • (d) suspend the teacher’s practising certificate or authority for a specified period, or until specified conditions are met:
    
  • (e) annotate the register or the list of authorised persons in a specified manner:
    
  • (f) impose a fine on the teacher not exceeding $3,000:
    
  • (g) order that the teacher’s registration or authority or practising certificate be cancelled:
    
  • (h) require any party to the hearing to pay costs to any other party:
    
  • (i) require any party to pay a sum to the Teaching Council in respect of the costs of conducting the hearing:
    
  • (j) direct the Teaching Council to impose conditions on any subsequent practising certificate issued to the teacher.
    

(2) Despite subsection (1), following a hearing that arises out of a report under section 397 of the conviction of a teacher, the Disciplinary Tribunal may not do any of the things specified in subsection (1)(f), (h), or (i).

(3) A fine imposed on a teacher under subsection (1)(f), and a sum ordered to be paid to the Teaching Council under subsection (1)(i), are recoverable as debts due to the Teaching Council.

[17] It is clear that both the Tribunal’s decision to censure Ms Thorne and its decision to cancel her registration are within the category of matters which may be appealed. However, there is no reference in either s 402(2) or s 404 to a decision to make or not to make a non-publication order so on the face of it there is no ability to appeal such a decision.

[18] The reason for this becomes obvious on consideration of s 405 which provides:

405 Evidence at Disciplinary Tribunal hearings

(1) The Disciplinary Tribunal may—

• (a) receive evidence on oath (and for that purpose an officer or employee of the Teaching Council may administer an oath); and

• (b) permit a person appearing as a witness before it to give evidence by written statement and verify that statement by oath.
  

(2) A hearing before the Disciplinary Tribunal is a judicial proceeding for the purposes of section 109 of the Crimes Act 1961 (which relates to punishment for perjury).

(3) Except as provided in subsections (4) to (6), every hearing of the Disciplinary Tribunal must be held in public.

(4) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may hold a hearing or part of a hearing in private.

(5) The Disciplinary Tribunal may, in any case, deliberate in private as to its decision or as to any question arising in the course of a hearing.

(6) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

• (a) an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
  
• (b) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
  
• (c) an order prohibiting the publication of the name, or any particulars of the affairs, of the person charged or any other person.
  

[19] Clearly the power to make a non-publication order derives from s 405(6)(c).

[20] Section 409 does not provide within the range of decisions which may lead to an appeal any of the decisions a Tribunal may make under s405.

[21] Accordingly on a plain reading of the legislation Parliament has expressly provided for a right to appeal certain decisions which may be made by a Tribunal but has by clear inference deliberately not provided a right of appeal against other kinds of decisions which may be made.

[22] As the submissions of counsel for the respondent point out, s 405 and s 409 were introduced into the Act at the same time. Parliament therefore introduced new provisions relating to both suppression and appeal but did not extend the new appeal

provision to cover decisions relating to suppression. I accept the respondent’s submission that it cannot be said that the exclusion of an express appeal right in relation to suppression decisions was an oversight. Rather it appears to have been a deliberate policy decision geared towards finality with respect to decisions on suppression (and other procedural decisions made under s405) made by a Tribunal.

[23] I therefore conclude that there is simply no basis on which an appeal may be lodged by a teacher disappointed with a suppression decision made by the Tribunal.

[24] I do not consider it necessary to traverse, though I accept, the further submissions made on behalf of the respondent supporting the contention that there is no common law right to appeal against this kind of decision, nor to discuss the statutory wording in comparable disciplinary contexts. The short point is that the question of jurisdiction must be considered with reference to the particular statute under which the Tribunal made its decisions and under which Parliament has carefully prescribed appeal rights.

[25] I am satisfied that the District Court has no jurisdiction to consider the merits or otherwise of Ms Thorne’s proposed appeal against the Tribunal’s refusal to make a non-publication order and the appeal must accordingly be, and is, dismissed.

[26] The respondent is entitled to costs but its submissions do not say whether costs will be sought in the event of the appeal being dismissed. If it seeks costs submissions are to be filed and served within 21 days of the date of this judgment with Ms Thorne to file submissions in reply within a further 21 days. The file is then to be referred back to me for a decision.

Judge S M Harrop

District Court Judge

Date of authentication: 31/07/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.