S v New Zealand Teachers Council [2014] NZHC 2881; [2015] 3 NZLR 39 (19 November 2014)

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NOTE: PURSUANT TO THE COURT'S INHERENT JURISDICTION THE ORDER NOTED IN [135] IS MADE.

UNDER	the Judicature Act 1972
IN THE MATTER OF	New Zealand Teachers Council's conduct in respect to application made for the renewal of a teacher's practising certificate
BETWEEN	S Applicant
AND	THE NEW ZEALAND TEACHERS COUNCIL _Respondent

Hearing:	28 April 2014 (further submissions received 29 April, 2 May and 18 November 2014)
Counsel:	R Moodie for the Applicant M McClelland for the Respondent
_Judgment:	_{19 November 2014}

Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [6] Registration .................................................................................................................................... [7] Practising certificates................................................................................................................... [11] Police vetting ................................................................................................................................ [15] Appeals ......................................................................................................................................... [17] Employment .................................................................................................................................. [18] Disciplinary proceedings.............................................................................................................. [20] The facts ........................................................................................................................................... [29] The United Kingdom .................................................................................................................... [29] New Zealand registration ............................................................................................................. [30] Events prior to renewal application ............................................................................................. [32]

2010 renewal application ............................................................................................................. [46] Events between the renewal application and the practising certificate expiry date ..................... [49] Subsequent events ......................................................................................................................... [64] Summary ....................................................................................................................................... [86]

This proceeding ............................................................................................................................... [87] Did the Council’s process comply with the legislative scheme? .................................................. [89] The position as at 1 April 2010 .................................................................................................... [89] The position as at 25 September 2010 .......................................................................................... [93] The position subsequently............................................................................................................. [96] Natural justice .............................................................................................................................. [97] End result of unfair process .........................................................................................................[110] Illegality ......................................................................................................................................[112] Conclusion on the Council’s process .......................................................................................... [121] Relief............................................................................................................................................... [122] Would a correct process have made any difference? .................................................................. [122] Delay ........................................................................................................................................... [125] Declaration................................................................................................................................. [128] Costs ........................................................................................................................................... [130] Postscript........................................................................................................................................ [131]

[1] The issue in this case is whether the Teachers Council (the Council) is required to make a decision on a teacher’s application to renew his practising certificate, rather than to allow the certificate to expire while awaiting the outcome of court and disciplinary proceedings.

[2] The teacher involved is S. He is a UK resident. He obtained registration to teach in New Zealand and was issued a practising certificate. He was employed as a teacher at a secondary school in Wellington and granted a work permit on that basis. His practising certificate was due to expire on 25 September 2010 if not renewed. In anticipation of that, S applied for a renewal of the certificate on 1 April 2010. The Council became aware of issues potentially bearing upon whether the certificate should be renewed. Those issues had not been resolved by the time his certificate was due to expire. As a result the Council did not make a decision on whether to renew S’s practising certificate by the expiry date. Without a practising certificate S was not able to be employed as a teacher. His employment was terminated. As a result of that termination he was no longer entitled to remain in New Zealand. He was accordingly deported.

(a) renewed his certificate and, if necessary, suspended it pending the completion of the inquiry into the matters which gave it concern; or

[4] In either case this would have enabled S to appeal the Council’s decision. Instead the Council never made a decision on his renewal application even though, S contends, the issues which delayed its decision were ultimately not made out.

[5] The Council contends that it was entitled not to renew S’s practising certificate because it could not be satisfied that he met the criteria for renewal until the issues were resolved. It says that even now it is not in a position to renew S’s certificate because further issues would require investigation.

[6] A teacher must be registered and hold a valid practising certificate to teach in a school under the general education system in New Zealand.¹

[7] Any person can apply for registration.²The application is made to the Council, a Crown entity established by the Education Act 1998 (the Act),³on a form that it provides.⁴The Council is required to register an applicant if four requirements are met, as set out in s 122 of the Act:

[8] If the first three requirements are met but the last requirement is not met, there is the potential for provisional registration. Once the teacher has gained

satisfactory recent teaching experience the registration can be confirmed.⁵Similarly, if the first three requirements are met but the last is not, but the person is an experienced teacher, there is the potential for registration subject to confirmation. That registration can then be confirmed after a period of time if the Council is satisfied that the teacher is familiar with the current curricula, relevant procedures, and is a satisfactory teacher.⁶

[9] There are provisions that concern how the Council is to determine whether or not training is satisfactory,⁷whether or not employment has been satisfactorily completed,⁸and whether a person is of good character and fit to be a teacher.⁹The last of these is at issue in this proceeding. It provides:

(1) For the purpose of determining whether a person is of good character and fit to be a teacher, the Teachers Council must obtain a police vet of the person.

(2) Subsection (1) does not limit any other matters that the Teachers Council may take into account in determining character and fitness to be a teacher.

[10] Registration can expire. In the present case the relevant ground on which that can occur is “on the fifth anniversary of the expiry of the practising certificate most recently issued to the teacher.”¹⁰Registration can also be cancelled. The grounds on which the Council must cancel registration include where the teacher no longer meets the requirements of s 122¹¹or where the Disciplinary Tribunal has ordered, under s 139AW(1)(g), that registration be cancelled.¹²Before registration is cancelled the teacher must be given notice of the proposed cancellation and an opportunity to be heard.¹³The fact that a teacher’s registration is cancelled does not

[11] A person can apply to the Council for a practising certificate.¹⁵The application is made on a form provided by the Council.¹⁶A certificate must be issued to every applicant who is registered as a teacher and who has had a satisfactory Police vet within the past three years.¹⁷

[12] A person can also apply for renewal of his or her practising certificate. Section 130(6) of the Act provides that:

(6) If a teacher applies to renew his or her practising certificate, the Teachers Council may issue a renewed practising certificate only if it is satisfied that the teacher—

(d) has completed satisfactory professional development during the past 3 years.

[13] Section 130(7) and (8) concern when a practising certificate is suspended. They provide as follows:

(7) This subsection applies to a renewed practising certificate issued to a person if—

(a) the practising certificate he or she already holds when the renewed certificate is issued is suspended under section

(b) he or she does not already hold a practising certificate when the renewed certificate is issued; but—

(i) the practising certificate he or she last held was suspended under section 139AU when it expired; and

(ii) its suspension was not due to expire until a time after the issue of the renewed certificate.

(8) A renewed practising certificate to which subsection (7) applies must be treated as being suspended under section 139AU; and its

suspension expires when the suspension of the previous practising certificate held by its holder would have expired.

[14] A practising certificate is issued for three years.¹⁸It expires when its holder’s

[15] The Council is required to make rules providing for the “procedures relating to Police vets, and in particular the rights of persons who are vetted”.²⁰The Council is also required to establish a system for co-ordinating police vetting in relation to teacher registration and the issue of practising certificates.²¹The Council may not take adverse action in relation to a person who is the subject of a police vet until the person has validated the information or has been given a reasonable opportunity to do so.²²

[16] The Council has advised through counsel that there are in fact no rules in place relating to Police vets. The application form for renewal of a practising certificate required a teacher to consent to the Council disclosing information in that form to the police and to the Council obtaining information from the police relevant to the renewal application. The Council has advised through counsel that this requirement, together with a service agreement between the Council and the police pursuant to which the Council requested information, constituted the Council’s system for obtaining police vets at the relevant time.

[17] There is an appeal right from certain decisions of the Council, including decisions under ss 122 and 130, as follows:

130 of this Act (whether a decision to act or a decision to refuse to act) may, within 28 days of receiving notice of the decision from the Teachers Council or any longer period the Court, on application made before or after the end of the period, allows, appeal to a District Court against the decision.

(3) The Court shall hear the appeal as soon as is practicable, and may confirm, reverse, or modify the decision concerned, or may refer the matter back to the Teachers Council in accordance with rules of Court, or may give any decision that the Teachers Council could have given.

(5) Subject to any order of the Court, every decision of the Teachers Council continues in force and has effect pending the determination of an appeal against it.

(7) The Teachers Council or the appellant may, with the leave of the High Court or the Court of Appeal, appeal to the Court of Appeal against any decision on a question of law made by the District Court on an appeal under this section.

120A of the Act provided that an employer “must not appoint to a teaching position

... any person ... whose registration has been cancelled” and “no employer shall permanently appoint to any teaching position any person who does not hold a practising certificate.”²³From 21 December 2010 s 120A(1)(b) further provided that an employer “must not appoint to a teaching position ... any person whose practising certificate is suspended under section 139AU or 139AW(1)(d)”.

[19] There are also restrictions on the continued employment of teachers. An employer cannot continue to employ a teacher if registration is cancelled or suspended.²⁴If a teacher does not have a practising certificate, no employer can

_{continue to employ them unless they are under the general supervision of
a person}

who holds a practising certificate,²⁵and such employment cannot exceed 20 half days in any year or “any greater number of half-days the [Council] has allowed in any particular case”.²⁶

[20] The Council has a disciplinary function.²⁷It is assisted in this function by mandatory reporting provisions imposed on an employer of matters that bear upon a teacher’s conduct or competence. These include, under s 139AN, a mandatory reporting obligation on an employer to immediately report where a teacher has not reached a required level of competence. It also includes, under s 139AM, an obligation on an employer to report a belief that a teacher has engaged in serious

(1) The employer of a teacher must immediately report to the Teachers Council if it has reason to believe that the teacher has engaged in serious misconduct.

(b) include a description of the conduct of the teacher that the employer believes to be serious misconduct; and

[21] Failure to comply with this obligation without reasonable justification is an offence punishable by a fine of up to $5,000.²⁹

(i) adversely affects, or is likely to adversely affect, the well- being or learning of 1 or more students; or

(b) is of a character or severity that meets the Teachers Council's criteria for reporting serious misconduct

[23] The Council’s criteria for reporting serious misconduct is set out in r 9 of the New Zealand Teachers Council (Making Reports and Complaints) Rules 2004. That rule covers where “an employer suspects on reasonable grounds” conduct by a teacher involving:

(b) an inappropriate relationship with a student or a person under the age of 16;

(f) viewing pornography while on school premises, or viewing pornography involving children, young persons or animals;

(h) “any other act or omission that could be the subject of a prosecution for an offence punishable by imprisonment for a term of 3 months or more”; or

(i) “any act or omission that brings, or is likely to bring, discredit to the profession.”

[24] A teacher is also subject to a mandatory reporting obligation if he or she is convicted of an offence punishable by imprisonment for three months or more.³¹

Apart from the mandatory obligations on an employer and the teacher, a mandatory obligation is imposed on a former employer to report complaints.³²There is also provision for a person other than an employer to make a complaint to the Council about the conduct of a teacher.³³In the latter case, s 139AR(1) requires that the person first makes the complaint to the teacher’s employer “unless one of the circumstances in subsection (2)(a) to (d) applies.” Section 139AR(2) then provides:

(2) Any person (including a parent, employer, or member of the Teachers Council) may, at any time, make a written complaint to the Teachers Council about the conduct of a teacher—

(a) if the complaint is about a teacher who is not currently employed by an employer; or

(b) if the complainant considers, on reasonable grounds, that the employer will not be able to deal with the complaint effectively because of an actual or perceived conflict of interest; or

(c) if the complaint has been made to the employer, but the complainant is not satisfied with the way in which the complaint is being, or was, dealt with; or

[25] The Council “must refer” a report of serious misconduct under s 139AM to the Complaints Assessment Committee (“the CAC”).³⁴The CAC “may” investigate the report.³⁵Except where the matter involves a conviction of an offence punishable by three months imprisonment or more, the CAC has a range of options as follows:³⁶

(2) Following an investigation, the Complaints Assessment Committee may, in respect of any matter other than a conviction to which section 139AV relates, do any of the following:

(a) dismiss the matter, or resolve to take it no further: (b) refer the teacher concerned to a competency review:

(d) by agreement with the teacher and the person who made the complaint or report, do any of the following:

(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.

[26] The CAC may refer a matter to a Disciplinary Tribunal for a hearing.³⁷It must do so “if it is satisfied on reasonable grounds that ... the teacher has engaged in serious misconduct; and ... the matter should be referred to the Disciplinary Tribunal.”³⁸The CAC may also apply to the chairperson of the Disciplinary Tribunal for an interim suspension of the teacher’s practising certificate.³⁹The Disciplinary Tribunal can make the interim suspension with or without hearing from the teacher.⁴⁰The interim suspension is for a period of up to three months, which can be renewed.⁴¹A teacher can seek a review of an interim suspension.⁴²The

_{teacher may also appeal an interim suspension decision to the District
Court.}⁴³

[27] The CAC “must”, rather than may, investigate any report that a teacher has been convicted of an offence punishable by three or more months imprisonment. It otherwise has the same options available to it as when investigating other

_{complaints. That is, it may dismiss the matter; refer the teacher to a
competency}

review or an impairment process; take other actions with the agreement of the teacher; or refer the matter to the Disciplinary Tribunal.⁴⁴

[28] Following the hearing of a charge of serious misconduct there are a range of powers available to the Tribunal in respect of the conduct. These include suspending the teacher’s practising certificate and ordering that the teacher’s registration is cancelled.⁴⁵A teacher may appeal the Disciplinary Tribunal’s decision to the District Court.⁴⁶

[29] In 1994 S qualified as a teacher in the United Kingdom and taught at several schools over the next five or so years. His teaching was described in inspection reports as satisfactory or good. There was no history of offending or inappropriate behaviour. In the late 1990s S became clinically depressed, had alcohol problems, his marriage broke down and he lost access to his son. In 2000 he was convicted of common assault of an 11 year old, driving without due care and attention and failing to stop after an accident. This offending occurred when he was mentally ill and in the context of aggression from a gang of youths. Following these difficulties, an order prohibiting him from employment with children or young persons was made in

2002. That order was overturned on appeal in 2003 on the basis that the evidence did not show that S posed a real risk of harming pupils in his care.

[30] In 2004 S came to New Zealand. He applied for registration. He was granted provisional registration on 1 October 2004 subject to an undertaking. Pursuant to that undertaking S agreed to disclose his United Kingdom convictions to his employers. He also agreed to conditions directed at monitoring his mental health.

_{These included permitting his doctor to report to the Council any
matters that might}

reflect adversely on his fitness to practice as a teacher, and to submit to a psychiatric assessment if directed to do so by the Council.

[31] S initially worked at a school in Masterton. From February 2006 he was employed at Wellington Girls College (WGC), teaching accounting and economics. In 2007 he applied for full registration and a three year practising certificate. His application was endorsed by WGC in a form it completed in June 2007.⁴⁷

[32] In August and September 2007 S came to the attention of the police. This was for driving without a drivers’ licence, a report of a suicide attempt and complaints from his flatmates. This led to charges of theft of property from a flatmate and common assault of another flatmate on 27 September 2007. It appears that it was around this time that S obtained full registration and a three year practising

[33] On 12 October 2007 the acting principal of WGC (Ms Johnson) wrote to S outlining issues of “major concern”. These covered emotional behaviour by S leading to the necessity to take sick leave from 8 October 2007 until 16 October

2007; inappropriate comments to students about his personal life and inappropriate advice to them about their personal lives which led to complaints from some students and parents; concerns from S’s head of department about his organisation, time management and performance in the classroom; conflict between S and other staff members; sleeping on the school premises; and storing personal property on the school premises. Ms Johnson said that she was “extremely concerned” about S’s inability to cope during times of stress. She proposed that S take extended leave until the end of November 2007 so that he could address his personal issues. S did not take up this offer.

_{“concern” that S’s full registration was granted.
She noted that S had apparently}

⁴⁷The form is not in evidence, but is referred to in later correspondence which is in the evidence

⁴⁸These dates are on the basis of the form S used for his application to renew his certificate.

removed a section on the form because Ms Johnson had written a comment that he disagreed with. She further noted that S had not completed the section which requests notification of previous physical or mental health conditions. She said that although she had endorsed the form, she had noted her concerns about S’s personal attributes. She said that recent concerns had led her to offer S four weeks’ leave, which he had declined. She expressed concern that S had gone to a new doctor for his most recent medical certificate. She explained that the school felt it did not have

evidence to answer “no” to the form signed in June 2007⁴⁹but their opinion at the

[35] On 20 November 2007 Ms Johnson gave S formal advice (in accordance with the Secondary Teachers’ Collective Agreement) that she had “grave concerns about [his] competence” and that she was considering issuing competency proceedings. The concerns covered student complaints about their lack of learning and progress; inappropriate conversations with students; strained relationships with colleagues; and personal issues impacting on S’s work.

[36] On the same date Ms Johnson separately wrote to S seeking his written explanation to “serious issues of conduct”. This concerned a complaint from a parent of a student that S had taken his shirt off in the presence of a student; sleeping on the school premises and storing personal property there during the October school holidays; removing part of the application to the Council with Ms Johnson’s endorsement and commentary; and his ongoing inability to judge what was appropriate to discuss with students. This letter advised S that these matters may represent conduct unbecoming a teacher and an unsatisfactory explanation for them may lead to disciplinary proceedings.

[37] On 11 December 2007 S pleaded guilty to the common assault and theft charges arising from his issues with his flatmates in September 2007.

conduct that had been raised, Ms Johnson advised no action would be taken, although concerns remained. She advised S that he was to apologise to the student

who was embarrassed by him changing his shirt in front of her, and he was to vacate the school premises by 6 pm each night. He was to only be on-site in the weekends between 10 am and 3 pm and to sign the staff book when he entered and exited the school. S was further advised that formal competency proceedings would be initiated. Ms Johnson also said that at this time she was unable to attest that S met the appropriate professional standards.

[39] On 1 February 2008 S was discharged without conviction on the common assault and theft charges.

[40] In June and August 2008 S again came to the attention of the police over disputes with his flatmates and an alleged theft of a Kit Kat bar from a supermarket. No charges were brought about these matters. At this time WGC received orders in respect of S’s unpaid fines.

[41] On 17 September 2008 the principal of WGC (Ms Davidson) wrote to S setting out concerns she had about his use of the school’s computers/laptops. These concerns included installing personal software, storing videos, installing a TV/Sky decoder, and cabling use. S was asked to re-read the school’s IT agreement. Ms Davidson also asked S to keep to the previously agreed hours to avoid staff encountering him when they were on their own and that he needed to work on rebuilding trust with a number of staff.

[42] On 31 October 2008 WGC advised S that it would not be supporting his application for residency or providing him with a reference. It did provide him with a statement of his employment.

[43] In November 2008 the police were called to attend S’s address as a result of a number of disputes between him and his flatmates. The last of these resulted in a charge of wilful damage (S allegedly broke a coffee plunger) on 11 November 2008. This charge was withdrawn on 16 January 2009 (apparently for lack of evidence). This was shortly after a complaint to the police about another incident involving S which did not lead to any charge. In March 2009 S was issued with an infringement notice for exceeding the speed limit and driving without a warrant of fitness.

[44] In June 2009 S was on the school grounds during the weekend, investigating wiring to see if he could connect Sky TV to watch soccer. Formal disciplinary proceedings were initiated. In August 2009 S’s behaviour was found to amount to “misconduct” rather than “serious misconduct”. He was censured and internet restrictions were imposed on him. On 1 September 2009 WGC advised the Council of this action.

[45] In early 2010 the police responded to three incidents involving verbal arguments with his partner. S also received an infringement notice for failing to give way and unsafe changing of lanes in relation to a car accident. On 7 March 2010 S was arrested and charged with disorderly behaviour in relation to an incident at Westpac Stadium. This charge was later withdrawn because a witness was unavailable.

[46] On 1 April 2010 S completed an application to renew his practising certificate. He disclosed his United Kingdom convictions. The application form required an “endorsement” from S’s professional leader. This was completed by Ms Davidson, the principal of Wellington Girls College. The form required the endorser to answer “yes” or “no” to the following:

[47] Ms Davidson answered each of these questions “[y]es” but noted “see attached.” The attachment was a letter to the Council dated 1 April 2010 which stated:⁵⁰

While I am prepared to sign off S’s registration, I do need to alert you to some concerns we have had about him since his last registration was approved (against the school’s wishes) in 2007.

There is no doubt S’s behaviour has improved but I don’t think I would be acting professionally if I didn’t make you aware of problems we have been dealing with. What you do with the information is up to you.

[48] The Council advised S by letter dated 19 April 2010 that the processing time could be four to six weeks or longer if further information was required. It also advised that under s 120B of the Act a teacher could continue to teach without a practising certificate for up to 10 full days or 20 half days in any one year and that, if he required an extension beyond that period, his professional leader would need to make a written request.

Events between the renewal application and the practising certificate expiry date

[49] At the time S applied for renewal of his practising certificate he was living with a partner. His partner had children who lived with them but who also spent time with their father. S’s evidence is that the relationship was not going well. He

⁵⁰Ms Davidson explained to S that “[p]robably I feel 97% happy about you – there have been

complaints to the police that he had assaulted her. He says these complaints were not true.

[50] According to police records, they were called in April 2010 by S’s partner in relation to a verbal argument between them. The police observed a tidy house and no physical injuries. The children were not present (being with their father for the week). On 2 June 2010 the police were again called in relation to an argument between S and his partner. S was charged with common assault and intimidation. He was granted bail. S informed WGC (Ms Davidson) of the arrest.

[51] On 18 June 2010 S allegedly breached bail by contacting his partner. Following further meetings between Ms Davidson and S, S was advised on 28 June

2010 that a formal investigation was being initiated arising out of the charges he faced and that a possible outcome was a finding of serious misconduct. On 30 June

2010 S was arrested for allegedly breaching his bail by contacting his former partner. On 1 July 2010 S was charged with dangerous driving and failing to remain at the scene of an accident (having driven into the back of a stationary vehicle in Willis Street). On 13 July 2010 S’s bail was made subject to a 23 hour curfew.

[52] On 15 July 2010 Mr Mallon (a case manager employed by the Council) met with Detective Rapira-Davies, who was part of the family violence team at Wellington central police. This was presumably pursuant to the police vetting procedures although the evidence does not say how the meeting came about. According to Mr Mallon’s file note of the meeting, the detective expressed concerns about S’s behaviour and that he might potentially pose a risk to others in a teaching environment. The detective also advised Mr Mallon of the police’s involvement with S up to that point, namely: the arrest at the stadium, the call outs from his partner and the resulting charges, the bail breaches, and the driving incident.

[53] On 16 July 2010 Ms Davidson informed S that he was suspended from WGC effective 19 July 2010. He was also advised that, following WGC’s investigation, formal disciplinary procedures would be initiated arising out of the charges he was facing.

[54] Also on 16 July 2010 Mr Mallon telephoned Detective Rapira-Davies for an update on the charges. Mr Mallon says that it was agreed that the Detective would write to the Council advising of the current charges, bail conditions and the dates for court appearances, and that this may be considered under s 139AR of the Act as a complaint of misconduct. The police provided this information to the Council that same day, treating the request as one made pursuant to the Official Information Act

[55] On 23 July 2010 Mr Mallon telephoned Detective Rapira-Davies who confirmed the police wished to be the complainant in relation to S. The Detective also gave Mr Mallon an update on the charges, including that they were next to be called in the District Court on 29 July 2010. Also on 23 July 2010, the Council wrote to S advising of the complaint, that it would be referred to the CAC and that S could respond to the information provided by the police by 7 August 2010. The letter made no mention of S’s application to renew his practising certificate.

[56] On 25 July 2010 S was charged with dangerous driving and failing to stop in response to a police vehicle’s flashing lights and siren in Lower Hutt. He was also charged with a further breach of bail. On 29 July 2010 S pleaded guilty to a charge of careless driving in Willis Street (downgraded from the original dangerous driving charge) and entered no plea to the Lower Hutt charges.

(a) In relation to the misuse of school property (a series of phone calls made from the school to S’s ex-partner), WGC had concluded that this amounted to misconduct and a breach of discipline and penalties would be considered at a later meeting.

(b) In relation to the criminal charges, WGC had decided to await the outcome of the court proceedings, although that outcome was only one of several factors that would be taken into account in determining whether there had been a breach of discipline.

[58] On 20 September 2010 the Council wrote to S. The letter made no mention of S’s application to renew his practising certificate. The letter noted that S had not yet responded to the complaint made by the police.⁵¹It advised that the CAC had decided to defer considering the complaint until 15 October 2010, by which stage it understood defended hearings on the charges in the District Court would have been determined and S would have had a further opportunity to respond to the complaint. The letter noted that S had been voluntarily suspended from teaching at WGC. It went on to say:

The CAC has the power to apply to the Disciplinary Tribunal to suspend a teacher’s practising certificate if there is, on the face of it, serious misconduct and the CAC requires the teacher’s suspension in order to investigate the matter. On the face of it, the allegations that the CAC are considering are serious and it could apply to have your practicing (sic) certificate suspended (Rule 18(1)(f) of the New Zealand Teachers Council Conduct Rules).

Before considering such an application, the CAC would prefer to negotiate with you a voluntary undertaking that you desist from teaching practice until this matter is concluded. The CAC would ask you to consider and agree to the conditions set out in the attached voluntary undertaking pending the conclusion of the CAC’s investigation and any referral or otherwise that may be consequent on that. If you are agreeable to providing a voluntary undertaking on the terms attached, then please sign and date the same and return the voluntary undertaking within fourteen (14) days of receipt of this letter.

[59] The proposed terms of the voluntary undertaking involved an agreement from S that he “will not practice as a teacher pending the conclusion of any referrals or other proceedings that may arise from the investigation by the CAC.” S would further agree that if he breached this undertaking the CAC could take further action, which could include “an application for the suspension of [S’s] practising certificate being made” to the Council.

[60] On 23 September 2010 S appeared in the District Court. A charge of assault and a charge of intimidation were dismissed.

CAC at the Council). He explained that he was not willing to sign the voluntary undertaking. He considered that he had not committed any crime worthy of

deregistration. He advised that the common assault charge was dismissed, that he was discharged without conviction on other traffic matters, and that he was hoping to obtain a further discharge without conviction on the remaining matters. He wanted to be able to resume teaching in two weeks time.

unbecoming a teacher. These matters arose out of the WGC’s principal’s report of 16

August 2010. They included a formal complaint received from a parent of a student at the school that S had sent to the parent intimidating text and email messages and engaged in other behaviour that had made her feel uncomfortable and at times, threatened.⁵²

[63] On 25 September 2010 S’s practising certificate expired. There is no direct evidence from the Council as to how that came about. However WGC’s understanding was that the Council had decided not to process the application pending the CAC’s investigation. WGC was apparently not aware of this until November 2010.⁵³

[64] At a hearing on 28 September 2010 the police withdrew a charge of interfering with a motor vehicle and a second charge of intimidation was dismissed without the defence having to present its case. S telephoned the Council (Mr Mallon) that same day to advise him of these matters. He also sent an email confirming them as well as his wish not to sign the voluntary undertaking. He also advised that he would provide written submissions to the CAC before 15 October

[65] On 4 October 2010 the Council telephoned S. S was informed that nothing further would happen until the October CAC meeting and it was up to the school whether they were prepared to allow him to teach. On 14 October 2010, S’s PPTA

_{representative sent an email to the Council. The email confirmed the
outcome of the}

⁵³This is the position conveyed by WGC to S in a letter dated 7 November 2010.

matters before the District Court on 23 and 28 September 2010 and that the two remaining driving matters were to be heard in November 2010. The email also advised that S was facing disciplinary charges at WGC which were being defended and that in the meantime S was suspended on full pay.

[66] On 29 October 2010 S was advised by the CAC that it had adjourned the matter before it given the disciplinary matter before the WGC and the charges yet to be considered by the Court.

[67] On 1 November 2010, apparently in response to a query from WGC, the Council advised WGC that if it sought an extension for S to continue teaching, it was unlikely to be granted. This was because S was currently being investigated by the CAC. This led WGC to seek information from the Council about the CAC investigation and what was happening with S’s renewal application. On 3 November

2010 the Council informed WGC that the CAC investigation related to the Court charges, that the CAC was likely to defer its decision until December 2010 because the Court hearing was not being heard until 11 November 2010, and reiterated that WGC could apply for an extension of S’s practising certificate but that it was unlikely to be granted.

(a) as he no longer had a practising certificate it was illegal to employ him and that WGC understood (and were seeking confirmation) that this meant it could no longer to continue to pay him either;

(b) the practising certificate issue had arisen independently of WGC’s investigation, which WGC had put on hold while S’s status was determined;

(c) a decision from the CAC in the short term was unlikely because it was waiting for the outcome of the 12 November 2010 hearing and its next meeting after that was 3 December 2010, and it was not clear to WGC

(d) the Council had conveyed that it was unlikely to look favourably on an application to extend S’s practising certificate, that WGC did not intend to seek an extension in the circumstances, that it might still be open to S to seek an extension, and that if an extension were granted then WGC would be in a position to progress and conclude its investigation.

[69] In November 2010 S pleaded guilty to the Lower Hutt driving charges. He was discharged without conviction on the dangerous driving charge, convicted on the charge of failing to stop in response to a police car’s flashing lights and siren, and disqualified from holding a licence. On behalf of S, the New Zealand Post Primary Teachers’ Association (PPTA) then asked the Council and WGC to reconsider their respective positions.

[70] In the meantime, on 15 November 2010 WGC received a response from the police to Official Information Act 1982 requests it had made earlier. This consisted of a spreadsheet of 25 pages outlining all the information the police held in respect of S. On 18 November 2010⁵⁴WGC provided to the Council information from its files about S in response to a request from the CAC.⁵⁵In this letter Ms Davidson advised that she had been concerned about S’s mental health at various times in the

latter part of that year. The letter advised the Council of the spreadsheet it had received from the police which summarised its file on S. Ms Davidson said she was unable to disclose it further but that it had led to a breakdown of trust between WGC and S.⁵⁶On 23 November 2010 WGC advised the Council that the information it provided on 18 November 2010 was a Mandatory Report under the Act.

[71] On 24 November 2010 WGC advised the Council that it had now decided to agree to S’s request for an extension to his practising certificate. The Council replied

⁵⁴The letter purports to be dated 18 November 2011 but this is an error as is indicated by the 22

on 25 November 2010, saying it would only consider an extension request on the basis that WGC was prepared to employ S while the CAC proceedings proceeded. WGC responded on 25 November 2010 saying that, if the extension were granted, it would look to revive its disciplinary proceedings which were currently in abeyance and it would consider whether there were grounds for a further suspension or whether S should be returned to teaching. On 26 November 2010 the Council (Mr Mallon) spoke to the police. The police said that, despite the outcome on the various charges, they still had a number of concerns about S’s conduct and character. The police had received around 50 complaints about S, including several complaints made in the previous 24 hours because he continued to contact his ex-partner. On 30

November 2010 S was informed that the request for an extension had been declined on the basis that there were still a number of matters that the CAC had to resolve. As a result of this, on 1 December 2010 WGC advised that S’s employment had been terminated.

[72] On 15 December 2010 S was served with a deportation notice on the grounds that his employment with WGC had terminated. On 30 December 2010 this decision was affirmed. Immigration New Zealand recommended that he apply for a temporary visa and that he had a right of appeal to the Immigration and Protection Tribunal. S did neither of those things which meant that he was liable to service of a deportation order on 31 January 2011. On 4 February 2011 Immigration New Zealand advised S that, subject to review if the circumstances changed, it did not intend to take action on the deportation notice in light of the outstanding personal grievance with his employer.

[73] Meanwhile, there were further communications between S (or the PPTA on his behalf) and the Council between December 2010 and March 2011. S was informed that the Mandatory Report from WGC would be referred to the CAC for investigation. S expressed concerns about the process and his inability to get a practising certificate while the CAC continued its investigation. He expressed concern that this was the case even though the charges against him were dismissed, and even though WGC had not regarded the matters in its report as amounting to serious misconduct.

[74] On 4 March 2011 the CAC informed S that the concerns in the Mandatory Report, S’s traffic convictions, his record of contact with the police, and the information held by the Council, cumulatively led the CAC to have concerns about his fitness to be a teacher. S was invited to attend a meeting on 18 March 2011. He did so. Following this, the CAC determined that it would refer the matter to the Impairment Committee with a recommendation that S undergo a psychiatric assessment. This referral was made on 14 April 2011. The CAC sought advice on whether S had an impairment that might impact on his ability to teach and what precautions might be necessary so that he could practise competently and safely.

[75] On 18 April 2011 Immigration New Zealand indicated that it would not wait for the employment issue to be resolved because that would not occur until at least September. It was not considered realistic to allow S to remain in New Zealand unlawfully for that length of time.

[76] In early May 2011 S had a number of communications with the Council expressing his concern at the process. He requested that a practising certificate be issued subject to conditions (that he undertake the assessment required by the CAC and that he would advise his employer) so that he could be employed as a teacher. He considered it was wrong for the CAC to withhold a practising certificate for teachers that were under investigation. He noted that he had an appeal right to the District Court. The Council’s response was that its “current policy and practice” was that “any teacher currently before the [CAC], who does not hold a current practising certificate, requires an extension” and that it was “therefore not prepared to approve” S’s application based on the conditions he proposed.

[77] On 19 May 2011 the Council received advice from Detective Rapira-Davies that S was to appear in Court on 19 July 2011 for a defended hearing in respect of criminal harassment charges and on 9 June 2011 for driving while disqualified.

[78] The Impairment Committee reported to the CAC on 31 May 2011. Its view was that “S has no current impairment affecting his practice or conduct”. It noted that there were historic concerns but the Committee were agreed that “it is more likely that S suffers insomnia under stress and has a tendency to become depressed

under pressure.” The Committee did not view this as “a current or ongoing impairment affecting S’s conduct or teaching”. It referred the matter back to the CAC.

The CAC has carefully considered the material before it, and on the basis that the Impairment Committee has found no impairment to your current ability to practise as a teacher, against the background of your previous convictions and the relevant conviction that you now hold, the CAC has determined to take no further action in relation to the mandatory report and the notified conviction.

[80] Mr Mallon’s evidence is that at this stage the CAC could not simply issue S

with a practising certificate. This was because of the information he had received on

19 May 2011 of the further charges S was facing. His evidence is that “if [S] was convicted of these charges these would need to be referred to the CAC for consideration.”

[81] On the morning of 6 July 2011 S advised Immigration New Zealand that the CAC had dismissed the matters before them and that he was pursuing his personal grievance. That same day he was arrested for shoplifting. He was taken into custody pursuant to a deportation order. On 13 July 2011 S’s urgent application for interim orders was heard and dismissed by the High Court. The Court considered that the deportation order was lawful because S was no longer employed as a teacher at WGC and it was on that basis that a work visa had been issued to him. The Court considered that S should have exercised his remedies when he was advised of Immigration New Zealand’s change of stance in April 2011. S was deported to the United Kingdom on 21 July 2011. The police informed the Council of this on 22

July 2011 and noted that, in addition to the recent theft charge, S was to have faced recent charges of criminal harassment, obstructing police, and a charge of driving while disqualified.

[82] S’s evidence is that he emailed the Council on 15 September 2011 and again on 29 January 2012. He has provided a copy of the latter email. In that email he said that he was writing to ask why his practising certificate had not been renewed. He expressed concern at the process and that the absence of a certificate had been

used as a reason to dismiss him. He said that this was causing him acute stress and preventing him from gaining alternative employment. Mr Mallon says that he has checked the Council files and he can find no record of having received these emails.

[83] On 3 May 2012 the Council responded to a letter from solicitors acting for S. In that letter the Council explained that, when a teacher has a matter before the CAC that relates to their conduct or competence, it cannot be satisfied that the teacher fulfils the “good character and fitness to teach” requirements until the CAC investigation is decided. Accordingly their certificate is not approved until the CAC investigation is completed. When the teacher is under investigation, an extension might be granted in exceptional circumstances if an application is made by the professional leader of the school. In exercising the discretion the Council will take into account whether the professional leader is prepared to continue to employ the teacher until the CAC matter is concluded.

[84] In late May 2012 S’s personal grievance claim against WGC was heard. It was dismissed in a decision given on 16 July 2012. It was held that there was no issue as to WGC’s process in dismissing S for failing to hold a practising certificate; his claim in respect of the way WGC investigated the misconduct allegations failed because the investigation was not completed and so his employment was not placed at risk; and WGC was justified in providing all the information it held to the Council in response to its request.

[85] A challenge to this decision was filed in the Employment Court on 13 August

2007 were the subject of formal competency proceedings; further conduct in 2008 led to formal disciplinary proceedings which found that his behaviour amounted to “misconduct” but not “serious misconduct”).

(c) In this period there were also issues that had come to the attention of the police (he was discharged without conviction on charges of theft and common assault; a charge of wilful damage was brought but withdrawn; a charge of disorderly behaviour was brought but withdrawn; an infringement notice for a minor traffic matter was issued; he had unpaid fines; and other complaints were made to the police which did not result in charges).

(d) S’s application for renewal was made in April 2010 with a qualified endorsement from WGC (which included a statement that S’s behaviour had improved).

(e) After making his application, but before his current practising certificate expired, S was charged with a number of offences (common assault, intimidation, two counts of dangerous driving, failing to remain at the scene of an accident, failing to stop in response to a police car’s flashing lights and sirens) and he breached bail on a number of occasions.

(f) These charges were the subject of a complaint from the police to the Council which it referred to the CAC. The CAC decided to await the outcome of the charges before completing its investigation. S was informed of this on 22 September 2010.

(g) These charges were also part of the reason for WGC’s internal disciplinary investigations. Those investigations also concerned an alleged improper use of a school phone. S was informed that these

investigations could lead to a finding of serious misconduct. He had been suspended on full pay. On 27 August 2010 WGC informed S that the use of the phone was “misconduct”, that the penalties for this would be decided at a later meeting, and that it was awaiting the outcome of the criminal charges as this would be relevant to its investigation of the allegations of conduct unbecoming a teacher. On

24 September 2010 WGC informed S of further allegations of conduct unbecoming a teacher which had been made.

(h) Some of the criminal charges were disposed of shortly before S’s practising certificate expired and some were disposed of shortly after it expired. By the time the existing charges had all been dealt with, S had only one relevant conviction: failing to stop in response to a police car’s flashing red and blue lights and siren. At this point WGC made a “Mandatory Report” to the Council which was referred to the CAC. This provided correspondence between WGC and S from October 2007 but was focussed on concerns about his mental health.

(i) The Council would not agree to extend S’s practising certificate on the basis that there remained matters for the CAC to resolve, and as a consequence his employment with WGC was terminated on 1

(j) The CAC eventually concluded that S was not impaired and no further action was necessary. By implication they also concluded that none of the matters amounted to “serious misconduct” because in that event the matter would need to be referred to the Disciplinary Tribunal.

(k) In the meantime further charges were brought against S (criminal harassment and driving while disqualified). These did not proceed to a hearing because S was arrested on a charge of shoplifting which led to his deportation, which in turn occurred because he was no longer employed by WGC (as he had no practising certificate).

(l) The Council never renewed S’s practising certificate nor advised S that it would not be issuing a practising certificate. WGC did not proceed with its own disciplinary proceedings because S’s employment had terminated. In the absence of a practising certificate S’s registration will expire on 25 September 2016.⁵⁷

[87] On 28 September 2012 S filed the present proceeding in the High Court. The claim (as per the first amended statement of claim filed on 24 June 2013) contends that the Council breached natural justice, failed to take into account relevant considerations, failed to exercise a statutory power of decision, acted with an improper purpose, and acted unfairly and unreasonably.

[88] The essential allegation is that the Council was required to make a decision on the application for the renewal of S’s practising certificate, that its failure to do so in effect amounted to a decision to decline to renew his certificate but without reasons, and that as a result S was denied the opportunity to challenge that decision. Various declarations are sought together with an order requiring the Council to issue a practising certificate from 26 September 2010.

[89] Counsel for S submits that S met all the requirements for renewal of his practising certificate at the time he applied for it. As set out above, those requirements were that S:

(a) continues to meet the criteria for registration (namely, that he is of good character and is fit to be a teacher⁵⁸);

⁵⁸The other requirements for registration are that the person is satisfactorily trained to be a teacher and has satisfactory recent teaching experience. There was no issue about the former and the latter is dealt with as part of the other criteria for renewal.

(d) has completed satisfactory professional development during the past three years.

[90] The first issue that arises is whether a police vet was needed. Counsel for S submits that at the time of the application it was not necessary, since S must have had a satisfactory police vet in September 2007 when his practising certificate was granted. However there is no evidence as to the date of the police vet obtained for the purposes of the September 2007 practising certificate. As that in turn needed to be a police vet obtained within three years of the date that certificate was issued,⁵⁹it may have been obtained earlier than April 2007. Depending on the date of the last police vet, the Council needed to obtain a satisfactory police vet before it issued a renewal.⁶⁰

[91] The second issue concerns the endorsement from the principal of WGC as S’s professional leader. She said “yes” to being satisfied in respect of the other requirements. Her “yes” was qualified by comments of which she felt the Council needed to be aware. As she was not prepared to answer “no”, the Council was entitled to conclude that the matters of concern to WGC did not disqualify him from a practising certificate in WGC’s view. The principal of WGC appears to have intended that the Council might look into the matter notwithstanding her endorsement and potentially take a different view. That was possible because the legislative requirement is for the Council to be satisfied that the requirements for a

[92] Therefore, as at 1 April 2010, the Council was not required to renew the certificate. It may have needed to obtain a police vet if it did not have one in the last

_{three years. It was also entitled to seek further information
arising out of the}

⁶⁰As a practising certificate is issued for three years and a police vet must be obtained within the past three years, the intent is that there is to be a current police vet for each practising certificate

⁶¹The endorsement from the teacher’s professional leader will be an important relevant consideration, and in the ordinary course, is likely to be determinative. It will not be the only relevant consideration when the Council receives other information which raises doubt about whether the teacher meets the requirements.

concerns outlined in WGC’s letter if it considered that, despite WGC being prepared to endorse S’s renewal application,⁶²those concerns were relevant to whether it could be satisfied that S was of good character and fit to be a teacher.

[93] Subsequent to WGC endorsing S’s application WGC initiated its own disciplinary proceedings as a result of the criminal charges he faced as well as some other matters which had arisen. As at 25 September 2010 they had not been referred to the Council. They were therefore not a basis on which the Council could have declined to renew S’s practising certificate as at the date it expired.

[94] Through the discussion with Detective Rapira-Davies on 15 July 2010, the Council received information that was relevant to its assessment of whether S was of good character and a fit and proper person to have a practising certificate. That information, which was then formalised into a complaint by the police, led the Council to refer the matter to the CAC for investigation.

[95] The Council’s policy was that if there is a complaint before the CAC which relates to a teacher’s conduct or competence then it cannot be satisfied that the teacher meets the good character and fitness to teach requirements. In accordance with this policy, as the complaint had not been dealt with by 25 September 2010, and was not going to be dealt with until the criminal proceedings were concluded, the practising certificate was not renewed before it expired. In effect S’s application was put on hold. He was not advised on or before 25 September 2010 that his application would not be dealt with before it expired because of the CAC investigation.

[96] From 25 September 2010 S was no longer able to be employed by WGC unless the Council granted him an extension. The Council was not prepared to do so because there were still a number of matters for the CAC to resolve. By this time, this included the matters raised by WGC in its Mandatory Report of 18 November

_{2010. By the time the CAC had decided that no action was necessary in
respect of}

⁶²And, by implication, WGC had not considered those concerns were sufficient to answer “no” to

any of these matters, further charges arose. As a result of these charges the Council considered it still could not be satisfied that S was of good character and a fit and proper person. S was not formally advised of this until 3 May 2012 in response to a letter written by his solicitors.

[97] Counsel for S submits that the Council wrongly mixed its function to issue and renew practising certificates with its role when allegations of serious misconduct are made. He submits that the Council needed to make a decision on whether to renew the practising certificate, and it needed to do so in time to enable him to exercise his statutory right of appeal before he was deprived of his livelihood. He submits that it was not until 3 May 2012 that S was informed why his practising certificate was not renewed. He submits that the procedure adopted by the Council breached natural justice.

[98] Whether to renew a practising certificate is a statutory power of decision which has important consequences for the applicant. If it is not renewed the teacher cannot continue to be employed without supervision and any such employment cannot exceed 20 half days in a calendar year. That period can be extended in the Council’s discretion. If not renewed, and if an extension to permit the continued employment of the teacher is not granted, the teacher’s livelihood is jeopardised. Given these consequences, the Council was required to act fairly in accordance with the principles of natural justice.

[99] As a minimum those principles required that S should have an opportunity to be heard before a decision was made to decline renewal of his practising certificate and that, when a decision was made, he should be informed of the reasons for it. Procedural fairness also required that S should be informed of the status of his renewal application in time for him to preserve any rights he had to seek to continue

to teach.⁶³Those rights were to seek an extension to the period he was permitted to

_{be employed as a teacher pending the Council’s decision on the
renewal, or to}

⁶³As it was put by Richardson J in Birss v Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513 (CA) at 516: “the requirements of natural justice depend on the nature of the power being exercised, the effect which the decision may have on persons affected by it, and the circumstances of the particular case; ... and the precise content of the rules of natural justice and standards of fairness have to be tailored in a realistic way to meet the needs of the particular case.”

exercise his right of appeal if the decision was to not renew the certificate, or to exercise his right of appeal if the decision was to be delayed beyond the expiry date and an extension permitting him to teach was not granted.

[100] Counsel for the Council submits that it was appropriate to refer the matters to the CAC and await the outcome of its investigation. He submits that the CAC was hamstrung because it was appropriate for it to await the outcome of the District Court matters. The school then had mental health concerns which were also appropriately investigated by the CAC. He submits that, by the time these appropriate processes were completed, S had been arrested on further charges and deported. Counsel for the Council says that, but for the arrest at that time, the Council would have made its decision on the renewal and S would have had the opportunity to be heard. Counsel submits that at any time prior to S’s arrest and deportation he could have applied for judicial review requiring the Council to make a decision.

[101] It appears that the information obtained from the police, which then took the form of a complaint, was part of the Council’s police vetting process. It is unclear what the Council would regard as an unsatisfactory police vet. If a person had no convictions and was otherwise not the subject of complaints to the police, police investigations or active charges, they would presumably have a satisfactory police vet. On the other hand a conviction for, say, serious child abuse would constitute an

unsatisfactory police vet.⁶⁴But the position is less clear if there are complaints,

investigations or active charges, but not convictions, relating to matters for which the

[102] Certainly, that information was potentially relevant to the Council’s assessment of whether a practising certificate should be renewed. The Council’s approach was that, irrespective of S’s response to the information provided by Detective Rapira-Davies, it was not able to decline to renew the practising certificate

_{on the basis of that information.}⁶⁵_{Similarly,
its approach was that, irrespective of}

S’s response, it was not in a position to be satisfied that S was of good character and fit to be a teacher without the CAC looking into the matter. It asked the police to make a complaint under s 139AR. As the information became a police complaint to the Council, the Council was required to refer the complaint to the CAC.⁶⁶At that stage the CAC could investigate the complaint, and was required to investigate if the charges resulted in convictions.

[103] The evidence from the Council does not explain why it considered that it was entitled to proceed in this way. A complaint from the police needed to be made to S’s employer first. Of the exceptions to this requirement, the only potentially available one was that there were “any other exceptional circumstances.” The legislative scheme is for the employer to deal with the complaint in the first

instance,⁶⁷and the matter is only reported to the Council if the employer considers it

must be reported (or the employer is unable to deal with it, or does not deal with it properly for some reason).⁶⁸In the present case the police complaint involved charges punishable by imprisonment of three months or more.⁶⁹As such, had the employer received the complaint from the police it was inevitable that it would be referred to the Council.⁷⁰

[104] The Council took the approach that pending the investigation it was not in a position to be satisfied that S met the “good character” and “fit to teach” requirement. According to its 3 May 2012 letter, this was pursuant to a policy rather

_{than a fact specific assessment of S’s application in light of the
matters that were}

⁶⁶Section 139AS(1)(c) requires the Council to refer to the CAC “every complaint received by it under section 139AR.”

⁶⁷In this case WGC was aware of the charges and had initiated its own disciplinary proceedings in respect of them.

⁶⁸This appears to be premised on the idea that the employer is ordinarily best placed to consider a complaint in the context of what they already know about the teacher and to take any appropriate

_{action, which may not necessarily involve reporting the matter to the
Council.}

⁶⁹Common assault carries a maximum penalty of six months imprisonment or a fine not exceeding

$4,000 (Summary Offences Act 1981, s 9); dangerous driving where no injury or death is involved carries a maximum penalty of three months imprisonment or a fine not exceeding

$4,500, plus disqualification for at least six months (Land Transport Act 1998, s 35); failing to stop for blue and red flashing lights carries a maximum penalty of a fine not exceeding $10,000 (Land Transport Act 1998, s 52(1)(c)); intimidation carries a maximum penalty of three months imprisonment or a fine not exceeding $2,000 (Summary Offences Act 1981, s 21).

⁷⁰The employer would suspect on reasonable grounds conduct by the teacher which is an offence punishable by imprisonment for a term of three months or more, which would meet the Council’s criteria for reporting serious misconduct.

referred to the CAC.⁷¹It was not a decision that S was not of good character or was not fit to teach. S was not formally told that no decision would be made on his application until the investigation was completed. He was, however, told that by telephone on 4 October 2010. I consider that this did not meet S’s right to procedural fairness. His ability to continue to teach was adversely affected by the “decision” of the Council to delay making a decision on his renewal application beyond its expiry date.

[105] By 23 July 2010 the Council knew that it would not be making a decision on his practising certificate until the CAC investigation was completed. It presumably knew or ought to have known that it was possible that the CAC would not complete its investigation until the charges were resolved.⁷²A clearer, and therefore a more fair, process would have been for the Council to have informed S of this when it advised him on 23 July 2010 that there was to be a CAC investigation as a result of the police complaint. By 20 September 2010, at which stage further charges had arisen, the Council was aware that the CAC investigation was deferred until after the

defended hearing on the latest charges had taken place. Procedural fairness required the Council to have confirmed to S at this time at the latest that it would not be making a decision on his application for renewal in the meantime, and that his certificate would therefore expire before a decision was made.

[106] Although not necessarily obliged to do so, as a matter of good procedure the Council might also have advised S of the consequences of that. That is, he had the right to appeal under s 126 (which confers a right of appeal in respect of a decision to refuse to act, as well as a decision to act), and he could work no more than 20 half days and only under supervision unless that period was extended by the Council. On the evidence before me the Council did not ever advise S that he had a right of appeal. The first mention in the evidence of a right of appeal is by S in May 2011 when he expressed frustration at the process. It seems that the Council may not have

_{been aware that there was a right of appeal.}⁷³_{Its website set out its process in}

⁷¹I note that the case was not argued on the basis that a decision maker must not abdicate its discretionary powers by adopting a fixed rule of policy.

⁷³That right was introduced by an amendment which took effect on 17 May 2006. Part 10 (Teacher Registration) and Part 10A (New Zealand Teachers Council) of the Education Act 1989 have had many amendments and are not particularly easy to follow.

relation to a teacher’s eligibility for registration. At or around the time of the hearing before me it stated:

The teacher can appeal to the Wellington District Court within 28 days of receiving notice of the decision to decline his or her application for registration. At present, there is no right of appeal when the New Zealand Teachers Council declines an application for practising certificate renewal. If a teacher’s application is declined, he or she may reapply at any time.

[107] Pursuant to that appeal, S could have preserved his right to continue to be employed, for example because the District Court could have ordered the Council to make a decision on his practising certificate or to grant an extension that would permit him to be employed until it was in a position to make a decision.

[108] The Council did provide some information about the potential to continue to teach without a practising certificate. This was on 19 April 2010 soon after the application for the renewal was made. At that time it referred to the possibility of an extension being granted on the written request of a teacher’s professional leader. This, however, was not repeated when the Council became aware that, pursuant to its policy, it would not be considering the renewal application before it expired. Nor did the Council inform S that if an extension were sought it was unlikely to be granted while the CAC investigation was not concluded. WGC learned of this by telephone when it enquired on 1 November 2010 and, in turn, S learned of this from WGC on 3

November 2010. S was also informed by WGC that a decision from the CAC was unlikely in the short term.

[109] When WGC applied for an extension (changing its earlier stance not to seek an extension) the charges against S had all been resolved. The only conviction entered was for failing to stop in response to a police car’s flashing lights and siren. However WGC had by then made a Mandatory Report focussing on concerns about S’s mental health, which the Council treated as a report that there was reason to believe that S had engaged in serious misconduct.⁷⁴In addition the police stated that

_{they continued to have concerns about his character and
conduct.}⁷⁵_{In light of these}

⁷⁴The letter from WGC did not say this. WGC does not say what type of Mandatory Report it was.

⁷⁵Mr Mallon told Dr Lind, who was making the extension decision, that he did not yet have details from the police about all the complaints they had received but it was likely that he would “get the green light from the CAC to request the information this week.”

matters the Council informed WGC (but not S) on 29 November 2010 that because there were a number of matters for the CAC to resolve the extension would not be granted. It separately informed S of the report from WGC and that it was being referred to the CAC for consideration. It did not inform S of the further concerns expressed by the police that were also factors in the Council’s decision not to grant the extension.

[110] The process adopted by the Council was unfair to S. Despite the criminal charges having been disposed of favourably to him, the process before the CAC was able to continue because of concerns raised by WGC and the concerns held by the police. WGC’s concerns had not at that point led to any finding of serious misconduct through its own disciplinary procedures. The police concerns arose out of multiple complaints from S’s former partner but apparently not anything which the police considered at that point should found charges against him. When all these matters were eventually considered by the CAC, it decided that S should be referred to a psychiatrist. When that process was completed the CAC considered no further action was necessary. This was a conclusion in effect that none of the matters amounted to “serious misconduct” such that the matters needed to be referred to the Disciplinary Tribunal.

[111] The end result was that S was, in effect, denied a practising certificate for matters which the CAC considered did not warrant further action. Through the process adopted, the Council did not need to make a decision on S’s renewal application, the CAC did not need to consider whether to seek an order from the Disciplinary Tribunal to suspend S’s practising certificate, and WGC did not have to complete its own disciplinary proceedings. It is possible that, had WGC’s proceedings completed their course, no finding of serious misconduct would have been made (given the outcome of the CAC investigation). In short S was prevented from continuing to teach despite no decision ever being made that he was not of good character and fit to teach. This leads to the next topic.

[112] The unfair process adopted was not in accordance with the legislative scheme. Applications for registration/practising certificates and the disciplinary process are mutually supporting but nevertheless separate processes under the legislation. Each process involves a statutory power of decision which affects the rights of the teacher. One process cannot be used to frustrate the other by enabling the decision maker to avoid exercising the statutory power of decision it is required

[113] The Council erred in its view that it could not renew a practising certificate pending a CAC investigation. Section 130(7) and (8) anticipate that a practising certificate can be renewed even though that teacher’s last issued practising certificate is subject to an interim suspension because of an uncompleted CAC inquiry. That situation would arise if, prior to the expiry of the current practising certificate, the CAC determined that it ought to apply for an interim suspension. If granted by the Disciplinary Tribunal the Council would still need to consider the application for renewal of a practising certificate.

[114] That is reinforced by the different consequences that follow from an interim suspension and those which follow from not having a current practising certificate. In the former situation the school is not prohibited from employing the teacher, but it must ensure that the teacher does not carry out any of the duties of the teaching

position concerned.⁷⁷In contrast, if the teacher’s practising certificate expires and is

not renewed by the time of that expiry, the teacher is unable to continue to teach and unable to be employed, subject to any extension that might be granted.

[115] In the present case, at WGC’s request, S agreed to a voluntary suspension from teaching at the school, but wished to return to teaching as soon as he could.

⁷⁶A decision maker cannot unlawfully abdicate its statutory function by refusing or failing to act: Philip A Joseph Constitutional and Administrative Law in New Zealand (4^thed, Thomson Reuters, Wellington, 2014) at [23.3.5]. An application for judicial review is available in relation to the refusal to exercise a statutory power of decision: Judicature Amendment Act 1972, s 4(5). Moreover s 126 of the Education Act 1989 provides a right of appeal in respect of a refusal to act. A refusal to exercise a power or function might arise not only where there is an express refusal to act but also where there is inordinate delay.

⁷⁷Education Act 1989, s 120C. Compare with s 120B(1)(b) which concerns a suspension ordered by the Disciplinary Tribunal following a finding of serious misconduct.

Although the police complaint was referred to the CAC by 23 July 2010, it was not until 20 September 2010 (that is, five days before the current certificate was due to expire) that the CAC proposed that S agree to a voluntary suspension. This was said to be the CAC’s preference rather than applying to have S’s certificate suspended. S did not agree to this (by this time he believed he ought to be permitted to teach given the outcome of the criminal proceedings). Despite this no CAC application for an interim suspension was made. There is no evidence from the CAC to indicate whether that was because it decided that the conduct at issue did not warrant an interim suspension, or because it was aware that that it would be unnecessary if the Council deferred its renewal decision in accordance with its policy.

[116] Whether or not the CAC considered it necessary to seek an interim suspension the Council still needed to consider whether it was satisfied that S continued to meet the requirements for a renewed practising certificate (the issue being whether he continued to meet the good character and fitness to teach requirements for registration). There were three potentially available options at this point. S would have had the opportunity to be heard in respect of all of them.

[117] First, the Council could have decided to renew the certificate. It might have done so on the basis that as at 25 September 2010 (or earlier) it was not in a position to conclude that S did not meet the requirements. This was a possible outcome because by this stage the criminal charges were largely disposed of and in his favour. Essentially the Council could have taken the same approach as that taken by the principal of WGC when it endorsed the application (that is, although there were some issues, WGC was not able to say S did not meet the requirements). On this approach the Council would leave it to the CAC (and potentially the Disciplinary Tribunal if it got to that stage) and WGC’s internal processes to regulate whether any restrictions needed to be placed on S’s teaching. Under both the CAC and WGC processes S would have the right to be heard before adverse decisions were made against him.

[118] The second option was to decide to decline to renew the certificate on the basis that it was not satisfied that S met the requirements. This would allow S the opportunity to appeal that decision and potentially return to teaching if his appeal

was successful. If there was no appeal (which seems unlikely given that S wanted to return to teaching and believed he should be permitted to do so), or if the appeal was unsuccessful, the Council might then have begun the process of cancelling S’s registration. That would be on the basis that S no longer satisfied the requirements for registration. Under that process S would have the right to be heard.

[119] The third option was to defer its decision to renew the certificate on the basis that it was unsure whether S met the requirements. However, if that was the option to be taken the Council needed to consider whether it was appropriate to extend the period which S could teach without a current certificate pending its determination. Under this option, in considering whether to grant the extension, it was highly relevant that S was being prevented from teaching because the Council was unsure that S met the requirements, not because it had concluded that he did not. Indeed, given the other parallel processes (those of the CAC and WGC) which could ensure that S was not teaching if it was inappropriate for him to do so, an extension was probably the only proper course to take (if the application for the renewed certificate was not to be granted or declined at that point).

[120] The Council erred in its approach to considering whether an extension to the

20 half days limit should be granted. For the reasons already canvassed it was wrong to rely on the uncompleted CAC processes to decline the extension. They were the very reason why the extension was needed. It also erred in requiring WGC’s confirmation that it was content for S to teach if the extension were granted. Whether WGC permitted S to teach was a separate issue. S was employed by WGC and as such WGC owed obligations to him. WGC correctly responded that it would need to complete its disciplinary proceedings and consider whether there were grounds for further suspension or whether S should be permitted to return to teach. The relevant points from the Council’s perspective were that S was not subject to an interim suspension arising out of any of the matters of concern, S would be under the supervision of a person that held a practising certificate, and WGC had processes in hand to address its concerns.

[121] For these reasons S has made out his claim that the process adopted breached his right to natural justice and that the Council failed to exercise its statutory power of decision in accordance with the legislative scheme.

[122] Whether relief is to be ordered on an application for judicial review is discretionary. The Council refers to authority to the effect that a court should be slow to grant relief where it would serve no purpose.⁷⁸It submits that this is such a case. That is because it submits that S could not reasonably conclude that he meets the criteria for renewal.

[123] As to good character and fitness to teach, it is submitted that S’s conduct shows that he has a propensity for theft, intimidation of others, violence (notably towards women and those with whom he has a domestic relationship) serious driving offences, lack of acceptance of responsibility, lying, disregard towards authority and possible mental health issues. I consider that this submission overstates the position because:

(a) The only allegation of physical violence so far as I am aware relates to an alleged push in the context of many verbal arguments with his former partner. The charge was dismissed.

(b) Theft and intimidation charges were either not brought, not pursued or not proven.

(c) One of the two dangerous driving charges was downgraded to a careless driving charge and discharges without conviction were

⁷⁸Turner v Pickering [1976] 1 NZLR 129 (SC); Fowler & Roderique Ltd v Attorney-General

[1987] NZCA 92; [1987] 2 NZLR 56 (CA); Maddever v Umawera School Board [1993] 2 NZLR 478 (HC).

consequences of conviction were out of all proportion to the gravity of the offending).

(d) The mental health issues were investigated and viewed not to impact on his fitness to teach.

(e) It is not clear what the basis is for the other matters but possibly these were the matters still to be investigated by WGC. However all of WGC’s concerns were forwarded to the CAC who, in determining that no further action should be taken after the impairment assessment, must have concluded these matters did not amount to serious misconduct.

(f) Subsequent charges arose, but they were not before the Council at the time it should have dealt with S’s application in the manner discussed. Moreover all that is presently known is that those charges arose at what was likely to have been a time of high stress for S (because he was unable to be employed as a teacher and facing deportation).

[124] There seems little doubt that S caused difficulties for WGC and the police. Those difficulties presented a hurdle for S. However, whether those difficulties were such as to deprive him of his livelihood as a teacher in New Zealand has never been determined by the body responsible for deciding that. A review of decisions

_{suggests that this was not necessarily the inevitable
outcome.}⁷⁹_{I therefore would
not}

⁷⁹Decisions where a teacher was de-registered include New Zealand Teachers Council Complaints Assessment Committee v Thomson NZTDT 2014/57; New Zealand Teachers Council Complaints Assessment Committee v Teddy NZTDT 2014/60; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2014/8; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2014/36; Richardson v Teacher Registration Board [2000] DCR 595; and Mrs C v Teacher Registration Board [2000] DCR 803. Decisions where a teacher was not de-registered include New Zealand Teachers Council Complaints Assessment Committee v Fa’amausili NZTDT 2014/22; New Zealand Teachers Council Complaints Assessment Committee v Potaka-Osborne NZTDT 2014/31; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2013/16; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2013/2; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT

2014/6; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2014/53; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2014/18; New Zealand Teachers Council Complaints Assessment Committee v [suppressed] NZTDT 2014/43.

decline relief on the basis that S did not and would not meet the good character and fit to teach criteria for renewal of his practising certificate.

[125] More problematic is what relief is appropriate now that so much time has passed since the application for renewal was made and other events have taken their course. S should have appealed the Council’s refusal to act a long time ago. He was aware that he had this right in early May 2011 if not before. While he was likely to have been under some considerable stress at the time, matters have since moved on which cannot now be ignored.

[126] S seeks an order in the nature of mandamus requiring the Council to exercise its statutory discretion to renew his practising certificate from 26 September 2010. That order is not appropriate in my view because:

(a) It is for the Council to determine, in the first instance, whether he meets the criteria for renewal. While I could direct the Council to consider his application I consider it is not appropriate that I direct how that discretion is to be exercised.

The Council is aware of the unresolved May 2011 charges and would need to take them into account, after hearing from S, in considering whether it was satisfied that he was of good character and fit to teach. Further, if the practising certificate was renewed as from 26

(c) While I could direct the Council to consider S’s application as at the present date, S’s New Zealand teaching experience is no longer recent. S presumably would need to update the Council on his recent teaching experience and his professional development. S is, in any event, able to apply for a renewal of his practising certificate at any time before his registration expires.

[127] In these circumstances the more appropriate relief is some form of declaratory relief.

[128] I consider that declaratory relief is appropriate to recognise that S has succeeded in establishing that the Council did not comply with natural justice, and did not act in accordance with the legislative scheme, by its ongoing deferral of a decision on his renewal application, while also declining to extend the period he was permitted to teach without a practising certificate and by not informing S of the approach it was taking. Although not worded in quite this way, declarations directed at these matters are sought on S’s behalf.

(a) The Council erred in approaching S’s application for renewal on the basis that, merely because there was a complaint about a teacher before the CAC, it could not renew the practising certificate until that investigation was complete.

(b) The Council erred in deferring a decision on S’s application for renewal of his practising certificate pending the CAC investigation, without informing him that this was the approach it intended to take in sufficient time to enable him to exercise his rights in respect of that decision so as to enable him to seek to preserve his ability to continue to teach.

(c) The Council erred in declining the extension which WGC sought to continue to employ S merely because there were matters before the CAC, in the absence of an interim suspension order from the Disciplinary Tribunal, and in failing to inform S that this was the decision it had reached.

[130] My provisional view is that S is entitled to an order for costs in accordance with the usual rules. Hopefully the parties will be able to reach agreement on this. Otherwise, they may submit memoranda within two months of today’s date (counsel are to advise if that timeframe is insufficient). I direct that the memoranda be brief (no more than five pages) and confined to the issues in dispute.

[131] This judgment was delivered to the parties via the registry in the usual way. The judgment named the applicant because no application for name suppression had been made or foreshadowed. S made immediate contact with the registry by email to ask whether he might be able to seek an order preventing the publication of the judgment on the internet. I issued a minute with directions. That led to an application filed on behalf of S for name suppression.

[132] The application was made in reliance on the Court’s inherent jurisdiction. It was made on the basis that (in summary):

(a) as was necessary, the judgment contains a detailed description of events which is potentially damaging to S personally and professionally;

(b) the allegations made against S, and discussed in the judgment, were largely resolved in S’s favour and would not inevitably have deprived him of his livelihood as a teacher;

(d) given the elapse of time, while the public interest favours the publication of the judgment it does not require that S be named.

[133] A joint memorandum of counsel was subsequently filed. In that memorandum the Court was advised that the parties consented to the name of the applicant in the judgment being replaced with the letter S, that name suppression be granted to S in respect of the publication of the judgment, and that there was no issue as to costs in respect of the application for name suppression.

[134] The starting point is always open justice. Having considered the application for name suppression and the joint memorandum I am, however, prepared to grant the application. I note particularly that the matters that are discussed relate to events that occurred sometime ago and that S is no longer resident in this country. The public interest in naming S is therefore diminished. I also note that this relates only to naming S in this judgment. It does not prevent any prospective employer of S from seeking information from the Council pursuant to whatever usual processes it has in place for providing information to that prospective employer.

[135] Accordingly this judgment does not name S and I make an order suppressing his name in respect of any publication of this judgment. This order applies unless and until any further order is made by the Court.

High Court of New Zealand Decisions

S v New Zealand Teachers Council [2014] NZHC 2881; [2015] 3 NZLR 39 (19 November 2014)