GEORGE ADDERLEY EVANS v A COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2021] NZCA 66

GEORGE ADDERLEY EVANS v A COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHINGCOUNCIL OF AOTEAROA NEW ZEALAND [2021] NZCA 66 [15 March 2021]NOTE: DISTRICT COURT ORDER SUPPRESSING THE NAMES OF THESCHOOLS, STUDENTS AND TEACHING PROFESSIONALS (EXCLUDINGTHE APPLICANT) INVOLVED IN THE MATTER REMAINS IN FORCE.SEE [2020] NZDC 20062 AT [91] AND [94].NOTE: SUPPRESSION ORDER MADE BY THE NEW ZEALANDTEACHERS DISCIPLINARY TRIBUNAL PERMANENTLY SUPPRESSINGTHE NAME AND IDENTIFYING PARTICULARS OF THE STUDENTINVOLVED REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA672/2020[2021] NZCA 66BETWEEN GEORGE ADDERLEY EVANSApplicantAND A COMPLAINTS ASSESSMENTCOMMITTEE OF THE TEACHINGCOUNCIL OF AOTEAROA NEWZEALANDRespondentCourt: French and Courtney JJCounsel: S A Keall for ApplicantRMA McCoubrey for RespondentJudgment:(On the papers)15 March 2021 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Mr Evans, a relief teacher, was the subject of a complaint by a parent about acomment he made in a classroom. The Complaints Assessment Committee chargedMr Evans with misconduct and referred the matter to the New Zealand TeachersDisciplinary Tribunal for determination. The Tribunal held that Mr Evans was guiltyof misconduct.1 It censured him and directed that he undertake a course relating toestablishing and maintaining appropriate teacher-student boundaries.[2] Mr Evans appealed to the District Court, challenging the factual findings as towhat had happened in the classroom and arguing that even if the factual findings werecorrect, the conduct did not amount to misconduct and did not justify the ordersimposed. Judge Barkle dismissed the appeal.2[3] Mr Evans has applied for leave to bring a second appeal.3 He wishes to arguethat the District Court Judge made errors of law in:(a) determining the definition of misconduct for the purposes of theEducation Act 1989; and(b) applying the definition of misconduct to the facts.[4] The application for leave to appeal was filed out of time and an extension issought for its filing. There is no objection from the respondent and we grant theextension. Leave to bring a second appeal will only be granted where the proposedappeal raises some question of law or fact capable of bona fide and serious argumentwhere the case involves some public or private interest of such importance as tooutweigh the cost and delay of a further appeal.41 The Complaints Assessment Committee v Evans NZTDT 2018/43, 29 May 2019 [Tribunaldecision].2 Evans v New Zealand Teachers Disciplinary Tribunal of the Education Council of Aotearoa NewZealand [2020] NZDC 20062 [District Court decision].3 The original appeal to the District Court was under s 409(1) of the Education Act 1989. Section409(4) states that s 356(6) applies to such appeals as if it were a District Court decision unders 356(1).4 Waller v Hider [1998] 1 NZLR 412 at 413.Proposed grounds of appeal[5] The Education Act 1989 did not contain a definition of "misconduct". It did,however, define "serious misconduct" in s 378:5serious misconduct means conduct by a teacher—(a) that—(i) adversely affects, or is likely to adversely affect, the wellbeingor learning of 1 or more students; or(ii) reflects adversely on a teacher's fitness to be a teacher; or(iii) may bring the teaching profession into disrepute; and(b) that is of a character or severity that meets the Teaching Council'scriteria for reporting serious misconduct.[6] Although the charge against Mr Evans was one of misconduct, the Tribunalundertook its inquiry by reference to the definition of "serious misconduct".6The District Court Judge did likewise, accepting the argument made on behalf ofthe Tribunal that if one of the matters in limb (a) of the definition is made out, thequestion whether limb (b) is met determines whether the conduct is "seriousmisconduct" or "misconduct simpliciter".7 In accepting this argument the Judgeconsidered that it was consistent with the scheme of the Education Act (though did notelaborate on that aspect). He cited the decision of Teacher Y v Education Council ofAotearoa New Zealand, in which the same approach had been taken.8[7] Mr Evans wishes to argue that the approach taken by the District Court in boththis case and in Teacher Y is incorrect and that what constitutes misconduct ought notto be determined simply by reference to the first limb of s 378. The argument would5 The Education Act 1989 has since been repealed and replaced with the Education and TrainingAct 2020.6 Tribunal decision, above n 1, at [61].7 District Court decision, above n 2, at [42].8 Teacher Y v Education Council of Aotearoa New Zealand [2018] NZDC 3141. We note that thisdecision was the subject of an unsuccessful appeal, but the definition of misconduct was not inissue because the teacher concerned was facing a charge of serious misconduct: Teacher Y vEducation Council of Aotearoa New Zealand [2019] NZCA 637.be that the test for misconduct should be whether the conduct "falls below the standardreasonably expected of a teacher in the circumstances".9 On that test, there could becases of conduct that is not "condoned" but nevertheless is not misconduct. Implicitly,Mr Evans' conduct would not have amounted to misconduct on such test.[8] Of some significance is the fact that the new Education and Training Act 2020carries through the same definition of serious misconduct and similarly does notprovide any definition of misconduct. Thus, the issue is not one limited to Mr Evans'position but is likely to have ongoing relevance in future cases.Application for leave[9] The approach taken by the Tribunal in this case and in Teacher Y appears tohave been settled and not to have caused any difficulty to date. We are mindful thatthe current legislation has replicated the earlier provisions. It is to be assumed thatParliament did so in the knowledge that the approach to determining what constitutesmisconduct has been settled and has not caused difficulty. We are therefore notsatisfied that a question of law arises that is capable of bona fide and serious argument.[10] In any event, we do not see how the proposed argument could assist Mr Evans.The thresholds created by limb (a) of s 378 are higher than the threshold that Mr Evanscontends for. It follows that the approach taken by the Tribunal and the District Courtwould have made it more difficult to demonstrate misconduct than the approach thatMr Evans says should have applied. In these circumstances we cannot see that a lowerthreshold would not also be met.[11] The application for leave to bring a second appeal is declined.Solicitors:9 This test was suggested by the Tribunal in Complaints Assessment Committee v Teacher S NZTDT2018-5, 21 August 2018 at [24].RSM Law Ltd, Nelson for ApplicantMeredith Connell, Auckland for Respondent