RACHELLE v TEACHERS DISCIPLINARY TRIBUNAL [2021] NZCA 376

RACHELLE v TEACHERS DISCIPLINARY TRIBUNAL [2021] NZCA 376 [12 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA205/2021[2021] NZCA 376BETWEEN GEORGINA ANNE RACHELLEApplicantAND TEACHERS DISCIPLINARY TRIBUNALRespondentCourt: Miller and Cooper JJCounsel: Applicant in personE A M Mok for RespondentJudgment:(On the papers)12 August 2021 at 10 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] Ms Rachelle seeks leave to appeal to this Court under s 356(6) of theEducation Act 1989 from a decision of the District Court upholding a decision of theTeachers' Disciplinary Tribunal (the Tribunal) censuring her and cancelling herregistration as a teacher.1 The application for leave was filed late but it is appropriateto extend the time for making it as the application is not opposed by the respondent.1 Rachelle v Teachers Disciplinary Tribunal [2020] NZDC 23118 [District Court decision]; andComplaints Assessment Committee v Rachelle NZTDT 2019/8, 17 July 2019 [Tribunal decision].The Education Act 1989 has been repealed and replaced by the Education and Training Act 2020.Background[2] Ms Rachelle had been a registered teacher in Australia and sought to beregistered as a teacher in New Zealand in 2017 as provided for under the Trans-TasmanMutual Recognition Act 1997.[3] On 2 August 2016 she was convicted in the District Court at Alexandra ofdriving with excess blood alcohol. She was disqualified from driving for eight monthsand sentenced to 50 hours' community work and six months' supervision.2[4] On 26 October 2017 she was convicted of driving with excess blood alcoholfor a second time. For this offending she was sentenced to 12 months' intensivesupervision, 100 hours' community work, and disqualified for an indefinite periodunder s 65 of the Land Transport Act 1998.3 An order was made confiscating hervehicle.[5] When Ms Rachelle sought registration as a teacher in New Zealand she did notdisclose these convictions to the Teaching Council as required by s 397(1) of theEducation Act. The convictions came to light as part of the ordinary police vettingprocess. On 4 February 2019 the Complaints Assessment Committee (the CAC)referred the 2017 conviction to the Teachers' Disciplinary Tribunal and invited theTribunal to take into account the 2016 conviction as well.[6] On 5 June 2019 the Tribunal held a hearing in Christchurch at whichMs Rachelle appeared in person.4 Having heard Ms Rachelle's submissions and thoseof the CAC, the Tribunal found that the 2017 conviction amounted to an adversefinding regarding her fitness to teach.5 It exercised its powers under s 404 of theEducation Act to censure her and cancel her registration as a teacher.6However as the appeal to the District Court was filed on 26 May 2020 and the new Act came intoforce on 1 August 2020, the Education Act 1989 continues to apply for the purposes of the presentapplication: see Education and Training Act, sch 1(2).2 Police v Rachelle [2016] NZDC 27094.3 Police v Rachelle [2017] NZDC 29927.4 Ms Rachelle claimed to be an "Australian lawyer" as well as being a qualified teacher.5 Tribunal decision, above n 1, at [24].6 At [43] and [57(a) and (b)].[7] From that decision, Ms Rachelle appealed to the District Court.On 11 November 2020, Judge Crosbie dismissed her appeal.7 The Judge summarisedthe Tribunal's decision, expressing the view that it had applied the correct legal test tothe issue before it namely whether the behaviour that had resulted in Ms Rachelle'sconviction reflected adversely on her fitness to practise as a teacher.8 He noted thatthe Tribunal had considered five comparable cases where drink driving convictionshad been referred to the Tribunal.9 He noted Ms Rachelle's claim before the Tribunalthat the driving which led to her second conviction was in response to an event ofdomestic violence, an explanation that had been rejected by the Tribunal.10 The Judgemade his own assessment of the facts. He noted:[43] The appellant provided neither the Tribunal nor the Court with anyevidence to support her position. To this end I asked for the appellant'spermission to obtain the sentencing notes and transcripts from her 2016 and2017 appearances in the District Court at Alexandra. The appellant gave herpermission and I obtained transcripts and decisions from 2 August 2016 and26 October 2017.[44] This was an unusual step. However, I considered it appropriate andin the interests of justice to do so given the impact the appellant's claims mighthave, if true, on the outcome of this proceeding, and having regard to the factthe appellant was self-represented. [8] He then set out the relevant facts before rejecting Ms Rachelle's claims.He concluded:[54] I consider the driving with excess blood alcohol to be of a moderateto high gravity of offending of its kind. Two convictions within a short spaceof time indicate that she may have a problem with alcohol, particularly giventhe lack of insight shown. This type of offending sets a very poor example forchildren. The convictions and her blasé attitude towards them adverselyreflect on her fitness as a teacher.[9] He expressed himself satisfied that the Tribunal had not made any error in itsapproach to the case and that the penalty ultimately imposed properly reflected thegravity of the offending, aggravating features and absence of mitigating elements.11He concluded:7 District Court decision, above n 1.8 At [20], citing Complaints Assessment Committee v S DC Auckland CIV-2008-004-1547,4 December 2008.9 At [22].10 At [23]–[24], referring to Tribunal decision, above n 1, at [30].11 At [60].[61] Independently of the Tribunal, given: the fact that the appellant failedto disclose the offending to the CAC as required under the [Education] Act;that she maintains there is a lack of relevance between her offending and theclassroom; that she displays no remorse or insight (including that her accountto me of the offending differed from the record); and for the other reasons setout above, I find that deregistration is the only appropriate outcome.[10] Ms Rachelle's application for leave to appeal responds to various paragraphsin the Judge's decision. The issues she raises appear to be all matters of factual dispute.In this respect, Ms Rachelle is handicapped by the fact that she had at no stage givenevidence, confining herself both before the Tribunal and in the District Court to themaking of submissions. Many of her comments are critical of the Judge's inferencesand expressed in intemperate terms. She is equally critical of the Judges whoconvicted her under the Land Transfer Act. It is not necessary to deal with the issuesshe raises, because none of them give rise to a question of law.[11] The right given by s 356(6) of the Education Act is a right, with leave of theCourt, to appeal "on a question of law". As this Court recently confirmed inEvans v A Complaints Assessment Committee of the Teaching Council of AotearoaNew Zealand:12Leave to bring a second appeal will only be granted where the proposed appealraises some question of law or fact capable of bona fide and serious argumentwhere the case involves some public or private interest of such importance asto outweigh the cost and delay of a further appeal.[12] The present application falls well short of that threshold. The significance ofMs Rachelle's two convictions, proximate in time, for driving with high blood alcohollevels, was a matter to be assessed by the Tribunal, having regard to all thecircumstances, including her failure to disclose the convictions, and her evident lackof insight into their significance. The District Court judgment upholding theTribunal's assessment discloses no error of law or principle.Result[13] The application for an extension of time is granted.12 Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand[2021] NZCA 66 at [4], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.[14] The application for leave to appeal is declined.Solicitors:Meredith Connell, Auckland for Respondent