ROBINSON v COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2022] NZCA 350

ROBINSON v COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OFAOTEAROA NEW ZEALAND [2022] NZCA 350 [3 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA139/2022[2022] NZCA 350BETWEEN GREGORY WILLIAM ROBINSONApplicantAND COMPLAINTS ASSESSMENTCOMMITTEE OF THE TEACHINGCOUNCIL OF AOTEAROANEW ZEALANDRespondentCourt: Brown and Clifford JJCounsel: G Phipps for ApplicantS A H Bishop and M A Shaw for RespondentJudgment:(On the papers)3 August 2022 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Robinson, a relieving teacher, was the subject of a complaint arising fromhis attempt to maintain order in the classroom. The Complaints AssessmentCommittee (Committee) charged him with misconduct and referred the matter tothe New Zealand Teachers Disciplinary Tribunal (Tribunal) for determination.The Tribunal found the charge was proved, censured Mr Robinson and imposedconditions on his employment for the following two years.[2] Mr Robinson's appeal to the District Court was dismissed.1 He now appliesfor leave to bring an appeal to this Court from the District Court's decision.The respondent opposes the application.Relevant principles[3] The appeal to the District Court against the decision of the Tribunal wasbrought under s 409(1) of the Education Act 1989 (the Act).2 Section 409(4) statesthat s 356(6) applies to such appeals as if it were a District Court decisionunder s 356(1). Hence, with the leave of the High Court or this Court, Mr Robinsonmay appeal to this Court "on a question of law" against any decision made bythe District Court on the original appeal. The parties agreed that the application forleave should be made to this Court.[4] In Evans v A Complaints Assessment Committee of the Teaching Council ofAotearoa New Zealand this Court stated:3Leave 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.[5] The submissions of Ms Phipps, counsel for Mr Robinson, highlighted thereference in Evans to a question of fact. However, as this Court subsequently observedin Rachelle v Teachers Disciplinary Tribunal, the statutory right to appeal to this Courtwith leave is confined to a question of law.4 We agree with the submission ofMs Bishop, counsel for the Committee, that Evans should not be read as suggestingthat appeals can extend to questions of fact contrary to the express wording of s 356(6).1 Robinson v Complaints Assessment Committee [2021] NZDC 24379 [District Court decision],save for a direction remitting back to the Tribunal its decision on costs.2 This has now been replaced by the Education and Training Act 2020.3 Evans v A Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand[2021] NZCA 66, citing Waller v Hider [1998] 1 NZLR 412 (CA) at 413.4 Rachelle v Teachers Disciplinary Tribunal [2021] NZCA 376 at [11].Relevant background[6] The circumstances leading to the charge are essentially as follows.On 16 October 2019 Mr Robinson was relief teaching a year 10 mathematics classwhere the students were working on computers. Students A and B were sitting sideby side listening to music on student A's phone by shared headphones of the ear budvariety. They were both moving to the music and student A was bumping anddrumming on the table. Student A having declined Mr Robinson's request to stop,Mr Robinson attempted unsuccessfully to take away the phone. He then removed theear bud from student A's ear. In the course of doing so it broke. Student A stood upand a verbal altercation ensued, following which Mr Robinson left the classroom toget another teacher.[7] In accordance with s 394 of the Act, the school principal sent a mandatoryreport to the Teaching Council about the incident which made reference to the fact thatthere was a conflict of evidence about whether Mr Robinson had hit student A.The Teaching Council assigned an investigator to look into the matter. Havingcompleted the investigation the investigator referred the mandatory report and theinvestigation file to the Committee. The Committee determined that there wasinsufficient evidence to prove the allegation that Mr Robinson had hit the student.It brought charges against Mr Robinson before the Tribunal confined to (a) removingand breaking student A's headphones and (b) failing to de-escalate the situation.[8] The form of the charge is as follows:TAKE NOTICE that the Complaints Assessment Committee (the CAC) hasdetermined that in accordance with s 401 of the Education Act 1989:(a) Information received in the mandatory report provided by [school]about the conduct of [the appellant] should be considered by theNew Zealand Teachers Disciplinary Tribunal (the DisciplinaryTribunal).(b) The CAC charges that the teacher has engaged in serious misconductand/or conduct otherwise entitling the Disciplinary Tribunal toexercise its powers.Particulars of the charge1. The CAC charges that [the appellant], registered teacher, of [city], on16 November 2019 at [school]:a. Removed and broke a Year 10 student's [Student A] headphones;and/orb. Failed to appropriately de-escalate the situation with Student Afollowing the incident in paragraph 1(a).2. The conduct alleged in paragraph 1, both separately and cumulatively,amounts to serious misconduct pursuant to s 378 of the Education Act1989 and Rule 9(1)(a) and/or (b) and/or (k) of the Teaching CouncilRules 2016 or alternatively amounts to conduct which otherwiseentitles the Disciplinary Tribunal to exercise its powers pursuant tos 404 of the Education Act 1989.[9] Although he denied the charge Mr Robinson's position was that a hearing wasnot required. The Committee filed a memorandum suggesting a hearing on the paperswould be appropriate in the interests of the reduction of costs. It was agreed in thecourse of a telephone conference that, although it was not known how the ear bud wasbroken, it was not done intentionally.[10] The Tribunal heard the matter on the papers explaining:5In agreeing to consider the matter on the papers, we have taken into accountthe parties' desire to reduce stress for student witnesses as well as time andcost for all concerned. There is also little dispute on the first particular.We have reached a decision based on the information before us. That meansthat we have not been able to make findings on all matters.[11] It found that Mr Robinson had removed the headphones unexpectedly andrecklessly which it considered amounted to serious misconduct because:6(a) It was likely to adversely the student's well-being.(b) It reflected adversely on Mr Robinson's fitness to be a teacher.(c) It might bring the teaching profession into disrepute.(d) It was an unreasonable and unjustified use of force.5 Complaints Assessment Committee v Gregory William Robinson NZTDT 2020/39, 30 April 2021at [9].6 At [13] and [68]–[75].The Tribunal also found that Mr Robinson failed to de-escalate the situation whichamounted to misconduct but not serious misconduct.7The District Court judgment[12] Mr Robinson appealed the Tribunal's decision to the District Court on a varietyof grounds including procedural flaws, errors of fact and law, the approach todetermination of penalty and costs.[13] As Judge K D Kelly noted, Mr Robinson's appeal under s 409 of the Act wasby way of rehearing.8 Consequently the Judge proceeded in accordance with theprinciples in Austin, Nichols & Co v Stichting Lodestar,9 but observed:10[66] In the present case, while noting that the Tribunal has technicalexpertise, the specialist nature of the Tribunal must be balanced againstthe Tribunal having considered the charge on the papers without the benefit ofhaving assessed the witnesses and their credibility.[14] The appeal was dismissed save on the issue of costs which was remitted backto the Tribunal.11The proposed grounds of appeal[15] Seven grounds of appeal were particularised in the application for leaveto appeal. The District Court was said to have erred in the following respects:a. In determining that the Tribunal can properly hear charges outsidethose the appellant was notified of as being the subject of investigationand possible disciplinary action b. In determining that it is proper for the Tribunal to proceed onparticulars, with a lay litigant, that did not disclose the nature of theoffending conduct, causation and or the culpability of that conduct,such as by way of reference to intention or recklessness or referenceto a code of conduct. c. In determining that the conduct of removing ear buds [simpliciter]was conduct that amounted to serious misconduct, including not7 At [14] and [76].8 District Court decision, above n 1, following Roberts v A Professional Conduct Committee of theNursing Council of New Zealand [2012] NZHC 3354 at [36]–[37].9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.10 District Court decision, above n 1.11 At [202]–[203].requiring proof of intent (to break the earbuds) as initially representedas an element of the charge by the Complaints Assessment Committeed. In determining that a Tribunal can properly make findings of fact onthe papers where there is:i no agreed statement of facts on the key mattersii inconsistency in the evidence of witnessesiii no sworn or oral evidence or cross examination ofwitnessesiv Inadmissible evidence v and the charge is denied [by] the Appellante. In determining that in making findings of fact the Tribunal did notexpressly have to refer to consideration of the burden, probity of theevidence and or standard of proof in its decision and or show that theseconsiderations were applied.f. In determining that when considering penalty, the Tribunal did notneed to show it had expressly considered all relevant factors and orcarried out the analysis g. In failing to address the miscarriage of justice arising from seriousmaterial failures of law (Citations omitted.)DiscussionGround 1[16] The thrust of Mr Robinson's complaint is that he was charged with conductthat was not recorded as comprising the subject of the mandatory report or thesubsequent investigation. The submission is made that less than a week before thehearing date, the elements of intent and causation were removed from the charge.Consequently it was contended that the Court was in error in finding that the chargecould extend beyond the scope of the referral.[17] However, as the Judge correctly identified, the charge did not allege intent onthe part of the Mr Robinson.12 It was agreed between the parties at the telephoneconference of 25 February 2021 that the headphones were not broken intentionally.12 At [152].It was on this basis that the Tribunal proceeded to determine the charge. We agreewith the respondent that this proposed ground rests on a flawed factual premise.Ground 2[18] Mr Robinson submitted that he was not put on notice of wrong-doing bya charge the form of which merely described an event. It was submitted that the chargeas considered by the Tribunal defined the offence as removal of a headphone, whichsomehow was broken, and failure to de-escalate. It was akin to strict liability conduct.It omitted any reference to applicable codes or standards and there was no preamblesetting out the factual matrix relied on. It was submitted that strict adherence to therequirement for sufficient particularisation was essential when the litigant isself-represented.13[19] In our view the charge was sufficiently particular. We do not consider thatthe Judge erred in reaching that same conclusion.14Ground 3[20] Mr Robinson's argument here involves two limbs:(a) first, that the Tribunal was required to determine the case based on theevidence before it and did not do so; and(b) secondly, that the Judge erred in determining that the conduct ofremoving ear buds simpliciter was conduct that amounted toserious misconduct.[21] As to the first proposition, we agree with the respondent that the findings thatMr Robinson used unreasonable force and that his conduct was likely to adverselyaffect the students' wellbeing were conclusions which the Tribunal drew from theevidence, rather than the evidence itself. In any event it was the Tribunal, notthe Court, which determined that his conduct amounted to serious misconduct.13 Tomasevic v Travaglini [2007] VSC 337, (2007) 17 VR 100 at [89].14 District Court decision, above n 1, at [148]–[153].The Judge was satisfied that the Tribunal had provided reasons for that conclusion anddid not find anything inappropriate in its application of the serious misconduct test.We do not consider that there was any error of law on the part of the Judge in doing so.Ground 4[22] For Mr Robinson it is submitted that it was inherently unfair to adopt anon the papers procedure, which did not afford the opportunity for the evidential contestto be resolved and was inconsistent with the principles of natural justice. The pointwas made that the Tribunal was required to comply with the rules of evidence.15 It wassubmitted that the "purported consent" of Mr Robinson to the on the papers hearingwithout knowledge of the implications for the Tribunal's process was not sufficient toamount to a waiver of compliance with the rules of evidence.[23] The respondent makes the point that under r 31 of the Teaching Council Rules2016 the Tribunal has a broad discretion to receive evidence. The evidence whichthe Tribunal considered in this case was admitted entirely by consent and was notinadmissible. The respondent submits that part of the reason for dealing with thematter on the papers (aside from Mr Robinson's repeated insistence that this shouldbe done) was that there was little in dispute on the first particular (concerning thebreaking of the headphone) following the parties agreeing the facts of that particularat the 25 February 2021 teleconference.[24] Given Mr Robinson's firm position that an oral hearing was unnecessary andthe substantial agreement on the facts, we agree with the respondent that it is difficultto see why the Tribunal should have taken any different course of action.Ground 5[25] In addressing the burden and standard of proof the Judge stated:16[157] In relation to the burden and standard of proof I am satisfied that theTribunal understood this matter. The Tribunal's pre-hearing minute of12 January 2021 says: " The CAC has to prove the case against[the appellant]".15 A v A Professional Conduct Committee [2018] NZHC 1623 at [26] and [38].16 District Court decision, above n 1.[158] Moreover, the tribunal recognised that it needed to balance theevidence and did so by comparing the evidence between students andthe appellant, and identified where there were areas of dispute or areas wherethey were sceptical of the evidence.(Footnotes omitted.)These paragraphs appear to be the focus of the proposed fifth ground of appeal thatthe District Court determined that the Tribunal did not expressly have to refer toconsideration of the burden, probity of the evidence and/or standard of proof in itsdecision or show that these considerations were applied.[26] The respondent submits that while the Tribunal did not explicitly refer to theburden or standard of proof, it is demonstrably clear that these tests were applied.The Tribunal stated in its pre-hearing minute of 12 January 2021 that the Committeehad to prove the case against the applicant. Furthermore the respondent submitted thatthe Tribunal's decision at [52] to [57] demonstrated a clear weighing of the evidence.Both these matters were noted by the Judge in the extract above.[27] Given this context, we do not consider that there is substance in Mr Robinson'scontention that there was an error of law on the part of the District Court in failing tofind an error on the part of the Tribunal by its not addressing the burden and standardof proof requirements in express terms.Ground 6[28] For Mr Robinson it is submitted that, following Roberts v A ProfessionalConduct Committee of the Nursing Council of New Zealand, the factors relevant to aconsideration of penalty are well-established,17 and that the absence of any cogentconsideration of all those factors will result in a disproportionate penalty and amountto an error of law. In his appeal to the District Court Mr Robinson submitted that thefactors that ought to be taken into account were not methodically analysed. Howeverthe Judge was satisfied that, although the Tribunal did not expressly refer tothe Roberts factors when imposing a penalty, the actual penalty imposed was fair,reasonable and proportionate in relation to Mr Robinson's conduct.1817 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 8.18 District Court decision, above n 1, at [176].[29] An appeal by way of rehearing affords the opportunity for consideration to begiven to matters which may have been over-looked at first instance.19 As the Judgeexpressly recorded, on his consideration of the Roberts factors the penalty imposedwas appropriate in the circumstances.20 There was no error of law in the way in whichthe Judge addressed the issue of penalty.Ground 7[30] Finally Mr Robinson contends that the combination of alleged "failings"resulted in a miscarriage of justice and that he was denied a fair hearing. No specificerror on the part of the District Court is identified. The respondent submits that thisbroadly framed ground does not add anything to the previous grounds advanced forMr Robinson. We agree.The further criterion[31] Even if the various grounds relied upon constituted, or could be reformulatedas, questions of law capable of bona fide and serious argument, we do not considerthat any of them satisfy the further criterion of involving some public or privateinterest of such importance as to outweigh the cost and delay of a further appeal.Result[32] The application for leave to bring a second appeal is declined.Solicitors:Luke Cunningham Clere, Wellington for Respondent19 Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 (CA) at 580.20 District Court decision, above n 1, at [178].