K v THE COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2022] NZHC 307

K v THE COMPLAINTS ASSESSMENT COMMITTEE OF THE TEACHING COUNCIL OF AOTEAROANEW ZEALAND [2022] NZHC 307 [28 February 2022]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE PARTIES LISTED AT [145(a)].ORDER THAT THE COURT FILE IS NOT TO BE SEARCHED WITHOUTTHE LEAVE OF A JUDGE OF THIS COURT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-499[2022] NZHC 307UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF the Education and Training Act 2020BETWEEN KApplicantAND THE COMPLAINTS ASSESSMENTCOMMITTEE OF THE TEACHINGCOUNCIL OF AOTEAROANEW ZEALANDRespondentHearing: 22 November 2021Counsel: S A Barker and O C Gascoigne for the ApplicantV E Casey QC and D P Neild for the RespondentJudgment: 28 February 2022JUDGMENT OF GWYN JSolicitors:Buddle Findlay, WellingtonLuke Cunningham Clere, WellingtonQuigg Partners, WellingtonTABLE OF CONTENTSIntroduction [1]Background [10]Statutory framework [35]Functus officio [44]Submissions for the applicant [47]Submissions for the respondent [52]Discussion [72]Relief [114]Application for permanent suppression orders [118]Submissions for the applicant [120]Submissions for the respondent [123]Discussion [130]Relief [145]Costs [146]Introduction[1] The Teaching Council of Aotearoa New Zealand (the Teaching Council)received a complaint from the parents of a student at a large secondary college (thecomplainants), relating to the alleged conduct of the Principal of the college, Mr K(the applicant). The complaint included an allegation that an illegal or improperprocess had been used to suspend the student from the school.[2] The Teaching Council referred the complaint to the Complaints AssessmentCommittee of the Teaching Council of Aotearoa New Zealand (CAC) and aninvestigator was appointed to inquire into the complaint and report to the CAC.[3] Having considered the report of the investigator and correspondence fromMr K, the CAC determined that it would take no further action on the complaint. Itissued reasons for its decision on 4 December 2020 (the decision).[4] Subsequently, the CAC received further correspondence from the student'sparents and decided that its decision in relation to one of the allegations made in thecomplaint (allegation three) may have been made in error. On 1 April 2021 the CACinvited submissions on whether it should reopen the investigation. Mr K opposed thereopening of the investigation.[5] The CAC decided to reopen the investigation and notified the parties of itsdecision and reasons on 29 July 2021 (the redetermination decision).[6] The substantive question at issue in this proceeding is whether the CAC canrevisit the decision. Mr K argues that the decision had been perfected and could notbe revoked; the CAC was consequently functus officio.1 The CAC therefore has nolawful basis to make the redetermination decision.1 Functus officio means that a judicial, ministerial or administrative actor has performed a functionin circumstances where there is no power to revoke or modify it. It is generally abbreviated to thestatement that someone is "functus": R (on the application of Demetrio) v Independent PoliceComplaints Commission [2015] EWHC 593 (Admin), at [36].[7] Mr K seeks an order declaring the redetermination decision and steps taken infurtherance of it unlawful; an order setting aside the redetermination decision and anorder prohibiting the CAC from reopening the decision or any aspect of the complaint.[8] The CAC in response, says that, in exceptional circumstances such as thoseinvolved here, the CAC can revisit its resolution to take no further action on thecomplaint and reopen its investigation, so that the complaints process can becompleted lawfully and fairly in the manner contemplated by the Education Act 1989.[9] Mr K also seeks permanent suppression orders, which is opposed in part by theCAC.Background[10] While it is not necessary to traverse the full detail of the background events, abrief summary is necessary to understand the context in which the complaint was madeand considered by the CAC.[11] The genesis of the dispute was actions taken by the student on a date in earlyMay 2017 (the first event). There is no dispute between the parties as to theseriousness of the student's conduct at that time and in subsequent events. The Policewere called and a process was set in train involving the student, their parents, staff ofthe college, including a counsellor, Mr K as principal, the Police and staff members ofthe Ministry of Education (MoE).[12] The student did not attend school for approximately seven weeks after the firstevent. Their absence was recorded in school attendance records as being due tomedical reasons. Various things occurred during the student's absence from school.Approximately 10 days after the first event, a meeting was held between Police,representatives from the college, a doctor from Child and Adolescent Mental HealthServices (CAMHS), the student and their parents. As a result of that meeting, thePolice decided not to lay charges against the student and the student, his parents andPolice signed a "contract", which set out various steps to be undertaken by the student.At a meeting between Mr K, the student, the student's parents and a representativefrom the MoE, on 22 May 2017, a programme for the student to return to school wasagreed. A psychologist appointed by the MoE was to provide her report to theprincipal on 18 June 2017, from which point the parties were to discuss and agree areintegration plan. The CAC decision records some disagreement between thecomplainants and the principal as to the requested timing of the report and the fact thatthe student was not attending school in the meantime.[13] On 19 and 20 June there was a series of events involving the student.[14] The psychologist's report was also received on 19 June 2017.2 The reportnoted the psychologist's belief that prolonged periods out of school may becomecounterproductive to the student's positive well-being.[15] The events of 19 and 20 June led the applicant to advise on 21 June 2017 thatthe student would be suspended from the college. The student was formally suspendedon 21 June 2017 at a meeting at the college between the complainants, Mr K, the MoEpsychologist and several college and MoE staff members. A letter of suspension wasemailed to the complainants on 23 June.[16] The student was permitted to return to the college on 30 June 2017, underspecified conditions, but was involved in further events. On 4 July the complainantsmet with Mr K and the deputy principal and were presented with a return to schoolplan. The student returned to school the following day and they and their father signedthe return to school plan.[17] A series of incidents and complaints regarding the college's treatment of thestudent were recorded during July, August and October.[18] On 30 October 2017, Mr K wrote to the student's parents regarding anallegation of a serious nature made against the student by another student. Thestudent's parents complained to the College Board of Trustees about Mr K and,towards the end of 2017, they withdrew the student from the college.2 I assume from the timing the report did not take account of the events of 19 June and plainly itcould not have considered the events of 20 June.[19] In March 2019 the student's parents lodged a complaint against Mr K with theTeaching Council, raising four core allegations against him:(a) Allegation one – concerns with Mr K's protocol/conditions, relating tothe student's return to school on 30 June 2017.(b) Allegation two – causing serious harm to a student.(c) Allegation three – using an illegal or improper process to suspend astudent.(d) Allegation four – being unable to accept advice from healthprofessionals.(the complaint).[20] The Teaching Council appointed the CAC to consider the complaint andallocated the complaint to an investigator, to investigate the allegations against Mr K.The investigator provided a report to the CAC, which it relied on in its considerationof the complaint, which took place on 24 September 2020.[21] On 4 December 2020, the CAC issued a written decision (the decision) inwhich it found that:(a) There was no and/or insufficient evidence to uphold allegation one.(b) There was no evidence to uphold allegations two and the allegationswere too vague and subjective for the CAC to make a finding on.(c) In respect of allegation three, the CAC recorded that the parties hadagreed that the student would not be formally suspended but thatinstead conditions would be imposed until the parties were comfortablethat it was safe for the student to return to school. The CAC said thatit did not consider the time the student was away from school to be a"kiwi suspension",3 as it was a collaborative plan involving thestudent's parents, who had agreed to the plan. "It was an agreedapproach, and nothing was imposed or dictated by Mr K". The CACconcluded that the "reintegration" approach was not a matter thatrequired a disciplinary response.(d) Allegation four was not made out.[22] At the conclusion of the report the CAC said it "has decided to take no furtheraction in relation to the allegations made by [the student's parents]".[23] The decision was conveyed to Mr K and the complainants on or about the dateof the decision.[24] On 11 December 2020, Mr Edgeler, counsel for the complainants, wrote to theTeaching Council taking issue with the decision in connection with what thecomplainants regarded as an unlawful informal suspension (allegation three). Counselasked that "the decision of the CAC be reconsidered in light of the [matters raised inthis letter]".[25] The CAC considered the request and then informed Mr K and the complainantson 1 April 2021 that it was inviting submissions from both parties on whether to revisitthe complaints and the decision. A timetable was set for submissions.[26] Both Mr K and the complainants made submissions to the CAC. Counsel forMr K submitted that the CAC was functus officio following delivery of the decisionin which it had decided to take no further action.[27] On 29 July 2021, the CAC delivered to the parties a written decision recordingthat it had met on 15 July 2021 and had decided to revisit the decision (theredetermination decision). The ground on which it stated it would revisit the decisionwas that "the September CAC decision may have been affected by a material error of3 A "kiwi suspension" is a colloquial term for an informal suspension, outside the requirements ofthe Education Act 1989.law, in that the CAC failed to take into account the unlawfulness of [the student's]suspension."[28] The CAC's reasons are expanded in its first amended statement of defence, inwhich the CAC alleges that the decision:(a) Failed to take into account relevant factors, being that:(i) The school term began on 1 May 2017 and [the student] stoppedattending school on 8 May 2017 (and therefore his absencecould not have included a period of school holidays).(ii) The agreement reached regarding a return to school plan was on22 May 2017 (and [the student's] absence from school up untilthat date could not have been pursuant to that agreement).(iii) The applicant, as a matter of law, did not have the power toinformally exclude a student from school.(b) The CAC made a material error of law, being that it had "failed to takeinto account the unlawfulness of [the student's] suspension".[29] The redetermination decision invited further submissions on the allegedunlawful "kiwi suspension", from the complainants by 9 August 2021 and from Mr Kby 9 September 2021.[30] On 4 August 2021 counsel for Mr K wrote to the members of the CACreiterating the earlier submission that the CAC was functus officio as of4 December 2020 and inviting the CAC to take independent external legal advice.[31] Following an exchange of emails on 21 and 24 August 2021 between the newlyappointed external counsel for the CAC and Mr K, on 25 August 2021 counsel for theCAC informed counsel for Mr K that the CAC was proceeding with its reconsiderationof the suspension-related complaint.[32] Mr K was advised by the Teaching Council's in-house counsel that he had until15 September 2021 to file any reply to the submissions of the complainants, followingwhich the CAC would proceed with its reconsideration.[33] This proceeding, seeking judicial review of the redetermination decision, wasfiled on 30 August 2021.[34] Interim orders providing that the CAC would take no further steps inreconsidering the decision and suppressing the identity and identifying particulars ofstudents, parents, the school and the applicant, pending the outcome of this case, weremade by consent by Ellis J on 1 September 2021.Statutory framework[35] Before I turn to consider the specific issues in this case I set out the relevantstatutory framework.[36] The CAC is a complaints assessment body of the Teaching Council, a statutorybody continued under the Education and Training Act 2020 (2020 Act). The 2020 Actrepealed the Education Act 1989 (Education Act). It is common ground that the effectof the transitional provisions in the 2020 Act is that the provisions of the Education Actshould be applied in this case.4[37] Part 32 of the Education Act provides for the establishment of theTeaching Council. The purpose of the Teaching Council is set out at s 377:5The purpose of the Teaching Council is to ensure safe and high qualityleadership, teaching, and learning for children and young people in earlychildhood, primary, secondary, and senior secondary schooling in Englishmedium and Māori medium settings through raising the status of theprofession.[38] The Education Act did not contain an overarching purpose statement. Thepurpose statement in the 2020 Act provides:64 Education and Training Act 2020 (2020 Act), s 11 and cls 2 and 4 of Sch 1.5 That purpose is replicated at s 478 of the 2020 Act.6 Education and Training Act 2020, s 4.The purpose of this Act is to establish and regulate an educationsystem that—(a) provides New Zealanders and those studying in New Zealandwith the skills, knowledge, and capabilities that they need tofully participate in the labour market, society, and theircommunities; and(b) supports their health, safety, and well-being; and(c) assures the quality of the education provided and theinstitutions and educators that provide and support it; and(d) honours Te Tiriti o Waitangi and supports Māori-Crownrelationships.[39] The disciplinary functions of the Teaching Council are set out in ss 398-409 ofthe Education Act. These provide for the establishment of the Complaints AssessmentCommittee and the Disciplinary Tribunal. A complaint to the Teaching Council maybe referred to the CAC (s 400), which has the powers set out in s 401:401 Powers of Complaints Assessment Committee(1) The Complaints Assessment Committee may investigate anyreport, complaint, or matter referred to it under section 400.(2) Following an investigation, the Complaints AssessmentCommittee may do 1 or more of the following:(a) resolve to take the matter no further:(b) refer the teacher concerned to a competency review:(c) refer the teacher concerned to an impairment process,which may involve either or both of the following:(i) assessment of an impairment:(ii) assistance with an impairment:(d) if there has been made a finding of misconduct that isnot serious misconduct, by agreement with theteacher and the person who made the complaint orreport or referred the matter, do 1 or more of thefollowing:(i) censure the teacher:(ii) impose conditions on the teacher's practisingcertificate or authority, such as (withoutlimitation) requiring the teacher to undergosupervision or professional development:(iii) suspend the teacher's practising certificate orauthority for a specified period, or untilspecified conditions are met:(iv) annotate the register or the list of authorisedpersons in a specified manner:(v) direct the Teaching Council to imposeconditions on any subsequent practisingcertificate issued to the teacher.(3) The Complaints Assessment Committee may, at any time,refer a matter to the Disciplinary Tribunal for a hearing.(4) The Complaints Assessment Committee must refer to theDisciplinary Tribunal any matter that the Committeeconsiders may possibly constitute serious misconduct.(5) When a matter is referred to the Disciplinary Tribunal undersubsection (4), a notice must be sent to the teacher concernedsetting out the charge of misconduct against him or her.(6) Any person authorised by the Complaints AssessmentCommittee may require an employer, a former employer, or agovernment agency to provide information that the personconsiders necessary for the purposes of an investigation underthis section.[40] There is no right of review or appeal against the CAC's exercise of powersunder s 401.[41] The powers of the Disciplinary Tribunal are set out in s 404. They includehearing and determination of a charge of serious misconduct, but also encompasswider powers to consider any matter referred to it by the CAC. The DisciplinaryTribunal's powers include imposing a fine, suspension or cancellation of registrationor practising certificate and imposition of conditions. A decision of the Tribunal maybe appealed to the District Court.7[42] The 2020 Act also preserves the Teaching Council Rules 2016 (Rules), whichgovern the procedures of the CAC.8 This includes provision for the teacher (but notthe complainant) to comment on the investigator's report and for formal notification(to the complainant, the teacher and the teacher's employer) of the CAC's decision.7 Education Act 1989, s 409.8 Teaching Council Rules 2016, Part 5.Information disclosed to, or held by, the CAC in respect of a report or complaint orother matter is confidential.9[43] The relevant Rules provide as follows:Process for investigation of reports and complaints14 Referring reports and complaints to Complaints AssessmentCommittee and allocation to investigator(1) If the chief executive refers a report or complaint to the ComplaintsAssessment Committee, the chief executive may—(a) allocate the report or complaint to an investigator, who mustinvestigate the report or complaint on behalf of theComplaints Assessment Committee and report to theComplaints Assessment Committee for a decision; or(b) refer the report or complaint to the Complaints AssessmentCommittee without first allocating it to an investigator.(2) The chief executive may allocate a report or complaint to aninvestigator who also conducted an initial investigation of the reportor complaint under rule 11.(3) The chief executive has the discretion to decide—(a) which panel of the Complaints Assessment Committee torefer the report or complaint to; and(b) the composition of any particular panel of the ComplaintsAssessment Committee to consider a report or complaint,subject to rule 51.15 Investigator to carry out investigation(1) An investigator to whom a report or complaint has been allocatedunder rule 14 must—(a) carry out an investigation of the report or complaint; and(b) provide an opportunity for the teacher to comment on thereport or complaint or provide evidence; and(c) prepare an investigation report on the report or complaint forthe Complaints Assessment Committee, and the report mayinclude recommendations to the Complaints AssessmentCommittee as to the appropriate outcome.(2) An investigator is appointed by the chief executive to conductinvestigations for the Complaints Assessment Committee and mustnot be a member of the Complaints Assessment Committee.(3) The investigator may require information to be provided to him or herunder sections 496(4) and 497(7) of the Act.16 Teacher's response to investigation report(1) The teacher concerned must be notified before the meeting at whichthe investigation report will be considered.9 Teaching Council Rules, r 64.(2) The teacher must be provided with the investigation report anddocumentation that will be provided to the Complaints AssessmentCommittee.(3) The teacher must be given an opportunity to comment on theinvestigation report before the Complaints Assessment Committeemakes a final decision.Procedure of Complaints Assessment Committee17 Meeting of Complaints Assessment Committee regarding reportor complaint(1) At a meeting of the Complaints Assessment Committee, theComplaints Assessment Committee must consider—(a) the matter that the report or complaint is about; and(b) in the case of a report or complaint that was allocated to aninvestigator, the investigator's report; and(c) the teacher's response, if any.(2) A request for a teacher to be heard in person must not be unreasonablyrefused.(3) Before taking any action available to it under section 497 of the Act,the Complaints Assessment Committee may—(a) adjourn the matter for further consideration; or(b) refer the matter back to the investigator for furtherinvestigation.(4) Meetings of the Complaints Assessment Committee—(a) may be in person, by telephone conference or video link, byexchange of email, or by any other means that are necessary orconvenient; and(b) must proceed as hearings on the papers, unless the ComplaintsAssessment Committee directs otherwise.(5) If the Complaints Assessment Committee decides that it will hearfrom the teacher concerned or the initiator, or another person, it mayhear from him or her by telephone conference or video link, or by anyother means that are necessary or convenient.(6) In the case of a complaint of misconduct that the ComplaintsAssessment Committee is satisfied is not serious misconduct, theComplaints Assessment Committee must use reasonable efforts toreach agreement between the teacher and the initiator on the course ofaction to be taken.Notice of decision and referral to Disciplinary Tribunal19 Referral to Disciplinary Tribunal(1) If the Complaints Assessment Committee refers a report, complaint,or other matter to the Disciplinary Tribunal, the Committee must—(a) prepare, sign, and file the charge; and(b) prosecute the charge before the Disciplinary Tribunal.(2) In proceedings before the Disciplinary Tribunal, the ComplaintsAssessment Committee may be represented by counsel appointed bythe chief executive (who may be an employee of the chief executiveor external counsel engaged by the chief executive).Functus officio[44] The central issue in this case is whether the CAC was functus officio at thetime of the reconsideration decision.[45] Mr K's position is that from the time he was notified that the CAC had resolvedto take no further action in relation to the complaint, the CAC was functus and itsreconsideration decision cannot stand.[46] The CAC's position is that, while the relevant legislation (both the EducationAct and the Rules) is silent on this point, the power to reopen an investigation inlimited circumstances can be properly inferred and is consistent with the publicinterest objectives of the disciplinary regime. The respondent says that the power islimited to exceptional circumstances (in this case, clear error) and must be exercisedreasonably and fairly, with due regard to the interests involved.Submissions for the applicant[47] Mr Barker, counsel for Mr K, started with the general proposition that when apublic body has a statutory power or duty to make a decision that affects a person'srights, once it has reached its decision and performed the function of its office, it willbe functus officio and has no power to revisit that decision.10 That general principlewas explained by McGrath J, for the Court of Appeal, in Goulding v Chief Executive,Ministry of Fisheries:11The common law principle applicable to the present case can accordingly besummarised in this way. A valid administrative decision in the exercise of a statutorypower, which is the outcome of a complete process, but which has not been formallycommunicated to interested parties, has not been perfected. It may be revoked and afresh decision substituted at any time prior to communication of it to affected persons10 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, 2018) at [14.61].11 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].in a manner which indicates intended finality. Once such decision is so communicatedto the persons to whom it relates, in a way that makes it clear the decision is not of apreliminary or provisional kind, it is final. A final decision which is made in theexercise of a power which affects legal rights, including those arising from the grantof a licence, is irrevocable. So is any other decision made under a statutory powerwhere the Act explicitly or implicitly provides that once finally exercised the powerof decision is spent. That is the position under the common law.[48] Mr Barker acknowledges that, despite that overarching principle,administrative decision-makers may be permitted to revisit decisions in somecircumstances. This is reflected in s 16 of the Interpretation Act 1999. However,Mr Barker says s 16 has no application here.[49] First, the power or function of the CAC in question here was not the kind ofpower to which s 16 relates. It is not entirely administrative in nature such that it couldbe exercised from time to time and therefore revisited or varied. Rather, it is one thatcreates or affects rights to which an important interest in finality attaches. That meansthat the principle of functus officio applies. The decision had been perfected, havingbeen formally communicated to the interested parties on 5 December 2020.[50] Second, s 4 of the Interpretation Act 1999 provides that the Act does not applyif the context of the enactment requires a different interpretation.12 Here, the CAC hasno express statutory power, either in the 1989 Act or in the Rules, to correct or revisitits decision. To the contrary, the applicant says the statutory scheme tells against apower for the CAC to reopen its decisions:(a) Section 401 of the Education Act empowers the CAC, as it did in thiscase (following an investigation), to "resolve to take the matter nofurther".13 The applicant cites the Oxford English Dictionary definitionof "resolve" as "the fact of having resolved upon a course of action,stance, etc.; a firm intention"; "a formal decision, determination orexpression of opinion made by or submitted to a deliberative assembly,meeting, etc.". This, the applicant says, imports a sense of finality.12 Interpretation Act 1999, s 4(1)(b).13 Section 401(2)(a).(b) Rule 16 of the Rules expressly refers to the finality of CAC decisions,at (3) where it states: "The teacher must be given an opportunity tocomment on the investigation report before the Complaints AssessmentCommittee makes a final decision."(c) Rule 17 of the Rules provides that before taking any action available toit under s 497 of the 2020 Act, the CAC may adjourn the matter forfurther consideration or refer it for further investigation. This powerwould be unnecessary if the CAC had the ability to revisit its decisions.[51] The redetermination decision was premised on the possible existence of errorsof law in the decision and those errors are now asserted in CAC's amended statementof defence. For the applicant, Mr Barker notes the demise of the absolute theory ofinvalidity, under which an unlawful decision was treated as a nullity. AJ Burr Limitedv Blenheim Borough Council14 established that a decision of an administrativeauthority that is affected by some defect or irregularity and so is susceptible to judicialreview, is recognised as operative unless and until set aside, except perhaps incomparatively rare cases of flagrant invalidity. The decision was not flagrantlyinvalid; the errors alleged by the CAC (if proven) are not so material that theyinvalidate the decision so that no court could ever in the exercise of its discretionwithhold a remedy. The applicant says that the decision is presumptively valid. Oncommunication to the applicant and the complainants, the decision was perfected, andbecame irrevocable.15Submissions for the respondent[52] Ms Casey QC, counsel for the CAC, acknowledges the general principleencapsulated by the Court of Appeal in Goulding, but points to the acceptance by thatCourt of the possibility of exceptional cases.16 Even in the context of a final judicialdecision on an inter partes dispute, there are exceptional circumstances where thecommon law will recognise that the court is not functus officio and the judgment canbe set aside. By way of example, Ms Casey cited Commissioner of Inland Revenue v14 AJ Burr Limited v Blenheim Borough Council [1980] 2 NZLR 1 (CA).15 I record that the respondent does not rely on the absolute theory of invalidity.16 Goulding v Chief Executive, Ministry of Fisheries, above n 11, at [30].Redcliffe Forestry Venture Limited 17 and R v Smith.18 In Redcliffe the Supreme Courtheld that a policy of absolute finality is unsafe and a power to set aside a judgmentaccommodates exceptional situations by allowing final determinations to be revisited,but within prescribed limits. In R v Smith the Court of Appeal affirmed that the Courts'implied power to recall and change a judicial decision in exceptional circumstances isderived from the powers to regulate its proceedings "to maintain its character as acourt of justice" and is not restricted to the inherent powers of the High Court.19[53] Ms Casey points to similar findings in relation to the powers of regulatorybodies. In Fajemisin v the General Dental Council,20 following a hearing before theprofessional conduct committee of the respondent, the General Dental Council,Mr Fajemisin's fitness to practise as a dentist was found to be impaired as a result ofhis misconduct. The PCC directed that his name be removed from the Dentists'Register with immediate effect. The Court found that:21 in addition to cases in which a public body can re-visit a previous decisionunder the equivalent of the slip rule, a public body can re-visit a decisionwhich was made in ignorance of the true facts when the factual basis on whichit had proceeded amounted to a fundamental mistake of fact.[54] The "fundamental mistake of fact" in question was an incorrect statement by astaff member in the General Dental Council's Registry (in the context of an inquiryabout Mr Fajemisin's completion of the requisite continuing professional developmenthours) that the fitness to practise proceedings against Mr Fajemisin had been closedwhen in fact those proceedings were scheduled to resume. The Court went on to say,22" a public body's power to re-visit a decision does not depend on some supposeddistinction between a judicial decision and an administrative one."[55] Ms Casey submits the application of the principle of finality is even lessabsolute in relation to administrative bodies. So, for example in Chandler v Alberta17 Commissioner of Inland Revenue v Redcliffe Forestry Venture Limited [2012] NZSC 94, [2013]1 NZLR 804 at [46].18 R v Smith [2003] 3 NZLR 617 (CA).19 At [36].20 Fajemisin v the General Dental Council [2013] EWHC 3501 at [37] and [40].21 At [37].22 At [40].Associate of Architects, Sopinka J, delivering the judgment of the majority of theSupreme Court of Canada, said:23 there is a sound policy reason for recognizing the finality of proceedingsbefore administrative tribunals. As a general rule, once such a tribunal hasreached a final decision in respect to the matter that is before it in accordancewith its enabling statute, that decision cannot be revisited because the tribunalhas changed its mind, made an error within jurisdiction or because there hasbeen a change of circumstances. It can only do so if authorized by statute orif there has been a slip or error within the exceptions enumerated inPaper Machinery Ltd v J.O. Ross Engineering Corp.To this extent, the principle of functus officio applies. It is based, however, onthe policy ground which favours finality of proceedings rather than the rulewhich was developed with respect to formal judgments of a court whosedecision was subject to a full appeal. For this reason I am of the opinion thatits application must be more flexible and less formalistic in respect to thedecisions of administrative tribunals which are subject to appeal only on apoint of law. Justice may require the reopening of administrative proceedingsin order to provide relief which would otherwise be available on appeal.Accordingly, the principle should not be strictly applied where there areindications in the enabling statute that a decision can be reopened in order toenable the tribunal to discharge the function committed to it by enablinglegislation.[56] To similar effect, the High Court of England and Wales in Chaudhuri v GeneralMedical Council concluded that there was a power for the Medical Council to revisita decision where there had been a fundamental mistake of fact.24[57] Continuing down the spectrum, Ms Casey notes that the principle of finality islimited in the context of investigative processes. So, for example, a criminalinvestigation can be recommenced even after a charge is laid and withdrawn. In thatcontext, until the actual determination of a charge, there has not been a final decisionon the matter at issue.[58] Ms Casey refers to a decision of the Supreme Court of Tasmania in XYZ v LegalProfessional Board of Tasmania.25 In that case the Board had undertaken aninvestigation and resolved to refer the complaint to the Disciplinary Tribunal. Beforeit had laid the charge, it reconsidered its position and resolved instead to reopen its23 Chandler v Alberta Associate of Architects [1989] 2 SCR 848 at 861-862.24 Chaudhuri v General Medical Council [2015] EWHC 6621 (Admin), at [46].25 XYZ v Legal Professional Board of Tasmania [2014] TASFC 13.investigation. The Court rejected the submission that the Board had no power to revisitits decision and reopen its investigation.[59] In Ms Casey's submission, this case is similar to XYZ: there has been no finaldetermination of the complaint in allegation three; the CAC decided that no furtheraction should be taken, but that is not the same as a final determination that there hasor has not been misconduct by the principal. The CAC says that the decision in respectof allegation three is not a favourable finding that conduct did not occur or that it wasnot misconduct. On the contrary, what the CAC said was: the CAC acknowledge that Mr K may have been able to deal with [thestudent's] time away from school in a different way but ultimately couldunderstand why Mr K acted as he did. The CAC considered all the evidenceand found that this allegation did not warrant a disciplinary response; [60] The CAC says that the position might be different if there had been anaffirmative finding that there was no misconduct, but that was not the case. In anyevent, it says that the power under s 401(a) is only investigatory.[61] Ms Casey contrasts XYZ with Kabourakis v Medical Practitioners Board ofVictoria.26 There, the Supreme Court of Victoria — Court of Appeal held that a finaldetermination that a medical practitioner had not engaged in unprofessional conductcould not be set aside for a non-jurisdictional error. In that case, a final decision hadbeen made that the person had not engaged in unprofessional conduct.[62] Similarly, in R (on the application of Demetrio) v Independent PoliceComplaints Commission,27 the Independent Police Complaints Commission hadearlier decided that there was no case to answer but sought to reopen the investigation.Both the High Court and the Court of Appeal rejected the proposition that the principleof functus officio applied in that context, although noting that a decision to reopen issubject to the supervisory jurisdiction of the Court and that there would need to becompelling reason to reopen. The Court said:2826 Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.27 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at[36]-[37] and [58]-[59]; and Commissioner of Police v the Independent Police ComplaintsCommission [2015] EWCA Civ 1248 (CA) at [26], [36]-[37], [39] and [45].28 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at[39].We are not persuaded by the analogy the Commissioner seeks to draw betweenthese sorts of rights and what is said to be the right of PC Harrington to havean irrevocable determination on the question whether he is to face disciplinaryaction for the strangling allegation. A decision whether to initiate disciplinaryproceedings is far removed from determinations of rights of that nature. Wedo not accept that a person against whom there is, or may be, a disciplinarycase to answer can be said to have a right to know once and for all whether hewill be proceeded against.[63] The Court of Appeal upheld the High Court's decision in that case:29Nor do I think that the desirability of finality for the individual officerconcerned can make the decision irrevocable. The officer is the object of thecomplaint, and the IPCC exists, as I have said, to promote public confidencein the complaints and misconduct process.[64] The respondent also relies on Bradley v Governor-General,30 where Wylie Jadopted a similar approach to investigative functions in New Zealand.[65] Ms Casey also points to public reporting which suggests that certain kinds ofinvestigative processes can be reopened where the circumstances warrant it. Thereporting relates to the Independent Police Complaints Authority, the CommerceCommission, WorkSafe, the Transport Accident Investigation Commission and theOmbudsman (in relation to complaints about decisions by the Health and DisabilityCommissioner to take no further action following preliminary investigative stepsunder the Health and Disability Commissioner Act 1994), all as examples ofinvestigative processes being reopened, even where there is no express power to doso. By way of contrast, Ms Casey points to the Coroners Act 2006 which specificallyprovides for and constrains the powers to reopen.31[66] In Ms Casey's submission, the approaches in these regimes may reflect therelative status in terms of conclusiveness and finality of the decisions made, togetherwith consideration of the public interests at stake. In her submission, all of theseexamples support the view that the strength of the common law "finality" principle isstrongly dependent on the "finality of the particular decision at issue, as well as the29 Commissioner of Police v the Independent Police Complaints Commission [2015] EWCA Civ1248, at [41].30 Bradley v Governor-General HC Auckland M1864/89, 28 February 1991, at 7-10 and 14-15.31 Coroners Act 2006, s 64 empowers a Coroner to change their view and open an inquiry after aninitial decision not to, for any reason; s 97 allows a completed inquiry to be reopened, but only onthe direction of the Solicitor-General or the High Court.public interests involved." A decision bringing an investigation to an end withoutformal determination as to whether there has been misconduct or not sits at the lowend of the "finality" spectrum, but the ability to revisit a flawed decision relating topotential teacher misconduct has a high public interest.[67] The respondent submits that Goulding confirms that the principle of finality isstrongest where legal rights are affected, for example in the grant of a licence orpermit. So in Ford v Board of Trustees for Smith Primary School, this was a rightgranted by the school to enrol as an out of zone student.32 The respondent says Mr K'slegal rights are not affected: a resolution by the CAC to "take no further action" on acomplaint does not confer a legal right. Nor does he have any "entitlement" to retainthe benefit of a decision that is flawed.[68] While there is no express power in the Education Act, or in the Rules, for theCAC to revisit a decision or reopen an investigation, the respondent says such a powercan be inferred or implied, as incidental and related to the CAC's functions under theEducation Act.[69] The purpose of the Education Act and the purpose of the Teaching Council(including its administration of the complaints process) is focussed on the safety andwelfare of children and young people in the education system and the quality of theinstitutions and teachers. The complaints process is not focussed on the rights orinterests of the teacher (other than in respect of a fair process), but on the strong publicinterest in ensuring that students and institutions are protected from harm caused byteacher misconduct.[70] In the respondent's submission it is an inherent purpose of the complaintsprocess that, by providing effective supervision of teacher conduct, it enhancesconfidence in the education system overall. To achieve that, the process must be seento be fair and robust. Those purposes are not advanced by an absolute rule that a CACcannot revisit a decision to take no further action on a complaint, when its decision isclearly flawed and acknowledged to be so. That would mean the question of whetherthe teacher had engaged in misconduct was acknowledged to be still open and32 Ford v Board of Trustees for Smith Primary School [2021] NZCA 363.outstanding, but unresolved and effectively unresolvable, other than by way of judicialreview proceedings. The respondent says that the power to revisit the decision that nofurther action will be taken is necessary "in order to enable [the CAC] to discharge thefunction committed to it by enabling legislation".33[71] In summary, the respondent says that the purpose of the Act and its effectiveoperation supports the existence of an inferred or implied power in the CAC to revisita decision of this nature and reopen an investigation, where there are strong orcompelling grounds to do so. There is nothing in the Act or the Rules that indicate tothe contrary and the principle of finality of administrative decisions has a limitedweight here, given:(a) The decision was part of an investigative process only and did notfinally determine whether the teacher had engaged in misconduct ornot.(b) The decision did not affect legal rights.(c) The decision is flawed and unjust.(d) The Act provides for no other mechanism to correct the CAC's error.(e) The public interest in allowing the CAC to properly complete its taskis high.Discussion[72] The starting point is the general principle that once an authority has made itsdecision it has exhausted its jurisdiction and has no power to act further in the matter.An authority becomes functus at the point that its decision is perfected bycommunication in a final form to those affected. 3433 Citing Sopinka J in Chandler v Alberta Association of Architects, above n 23.34 Goulding v Chief Executive, Ministry of Fisheries above, n 11, at [43].[73] The complaint was referred to the CAC under s 400 of the Education Act.Under s 401(1) the CAC may investigate any complaint referred to it. Under subs (2),the CAC may, following an investigation, employ a range of options with a graduatedlevel of seriousness, from resolving to take the matter no further to, where there hasbeen a finding of misconduct that is not serious misconduct, censuring the teacher,imposing conditions on the teacher's practising certificate, suspending the teacher'spractising certificate, annotating the register of authorised persons in a specifiedmanner or directing the Teaching Council to impose conditions on any subsequentpractising certificate issued to the teacher. Each of the options set out at s 401(2)involves a decision or course of action.[74] I agree with the applicant that s 401 distinguishes between the CAC'sinvestigative and adjudicative functions. Subsection (1) provides for investigation ofany report, complaint, or matter referred to it under s 400. Subsection (2) providesthat, following an investigation, the CAC may take one of the courses set out at (a)-(d).[75] This case is different from XYZ,35 where the Legal Profession Board ofTasmania resolved to investigate a complaint relating to the respondent. More than ayear later it resolved that it would make an application to the Disciplinary Tribunal inrespect of the complaint. It did not make such an application and some two years afterits first resolution it resolved to rescind its decision to make such an application, andto resume investigating the complaint, taking the view that the investigation was notcomplete.[76] In distinguishing the XYZ situation from Kabourakis Estcourt J said:36In the present case [XYZ], there has been no determination of the complaintby an adjudicative body. On the contrary, the Board's decision was merelythe signification of an intention to lodge, at some future point in time, anapplication with an adjudicative body for the hearing and determination of acomplaint.35 XYZ v Legal Profession Board of Tasmania, above n 25.36 At [54].[77] That is not the case here. In making the decision, the CAC was not actingmerely in an investigatory capacity. Under s 401(1) it received the investigator'sreport into the complaint. Having received the report it had to make a decision aboutwhat to do next. While the range of options available to it under s 401(2) include thepower to refer the matter to the Disciplinary Tribunal (in some cases, a requirement todo so), the CAC is itself a disciplinary body.37 Its role is not limited to investigationor referral. The CAC has power (by agreement with the teacher and the complainant)to censure, to impose conditions on, or suspend teachers. It must act in accordancewith the principles of natural justice.38[78] In this case there has been both an investigative and an adjudicative phase ofthe CAC's process. I agree with Mr Barker that this case is on all fours withKabourakis, which involved the reopening of an adjudication process after a finaldecision had been made. In Kabourakis, Nettle JA said:39More often than not, the requirements of good administration and the need forpeople affected directly or indirectly by decisions to know where they standmean that finality is the paramount consideration, and the statutory scheme,including the conferring and limitation of rights of review on appeal, will beseen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so muchincline in favour of finality as to permit no other conclusion.[79] Nor is this case in the same category as R (on the application of Demetrio) vIndependent Police Complaints Commission.40 There the Independent PoliceComplaints Commission (IPCC) had investigated events in a police van surroundingthe arrest of Mr Demetrio. There was an allegation that a police constable had put hishands around Mr Demetrio's neck as if to strangle him. The IPCC report concludedthere was no case to answer in respect of that allegation and therefore no disciplinaryaction would ensue.[80] Subsequently the IPCC Commissioner notified her decision to reopen that partof the investigation. The Metropolitan Police Commissioner (MPC) sought judicial37 Education Act 1989, s 398.38 Section 398(7).39 Kabourakis v Medical Practitioners Board of Victoria, above n 26, at [48].40 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1.review to quash that decision and restrain any further investigation, on the basis thatthe IPCC had no power to do so, having become functus officio.[81] The IPCC was created by the Police Reform Act 2002 (the Act). Under thecomplaints provisions of the Act the IPCC is required to determine whether complaintsreferred to it need to be investigated. If it decides an investigation is necessary it mustdecide the form of the investigation. If it considers an investigation is unnecessary itmay refer the matter back to the appropriate authority for local resolution.[82] Here, the IPCC determined that Mr Demetrio's complaint should beinvestigated by the IPCC itself. The Act detailed the actions the IPCC must take inresponse to a report following an investigation. The IPCC must consider whether acriminal offence may have been committed and determine a procedure for informingthe Director of Public Prosecutions and the procedure then to be followed.[83] The MPC argued that the police constable in question had the right to have anirrevocable determination on the question whether he was to face disciplinaryproceedings. The Court said: "A decision whether to initiate disciplinary proceedingsis far removed from the determination of rights of that nature".41 However the Courtwent on to note, "[i]t is important to bear in mind the different roles played by theactors in these investigations. The investigator makes no decision".42 And, "The IPCCdoes not have to agree with the opinion of an investigator on whether there is a caseto answer".43[84] This highlights the significant difference between Demetrio and this case.What the IPCC was required to determine was whether the complaint needed to beinvestigated. In this case, the CAC had received a report from the investigator. It thenhad certain powers under s 401 of the Education Act to act on that investigation report,which it did. Its role was not limited to a filtering or triage role.[85] I accept the submission for Mr K that the CAC had made an adjudicative andfinal decision on the complaint. An investigation report had been prepared and, as41 At [39].42 At [42].43 At [43].required by r 16(3), Mr K had been given an opportunity to comment on the reportbefore the CAC made a "final decision". As provided for in s 401(2)(a) the CAC had,following the investigation, resolved to take the matter no further.[86] As the applicant acknowledges, the CAC could have referred the complaintback for further investigation, before it made a determination under s 401(2), buthaving made a decision under that provision – to take no further steps – its decisionwas final.[87] I also accept that the decision was one which "affected legal rights". Ms Caseysubmitted that a case such as this, where the CAC concluded that it would take thematter no further, can be contrasted with a case where the CAC had made a finding.Her submission is that in the former situation there are no legal consequences, in thelatter there would or may be legal consequences. I do not find that submissionpersuasive. The CAC' s resolution that it would take the matter no further did affectMr K's rights: he was no longer faced with the possibility of a Disciplinary Tribunalprocess or any of the other possibilities prescribed by s 401(2)(b)-(d) and (3)-(6).[88] As Nettle JA said in Kabourakis:44The notion that a favourable finding is without legal effect is facile. It leavesout of account the effect on practitioner's professional standing and theappointments which might be opened or foreclosed to him or her according tohis or her professional standing. If a favourable finding can be replaced witha later unfavourable finding, it means that any practitioner who has undergonea favourable informal hearing is forever tarred with the brush of suspicion thatthe finding may one day be reversed[89] The principle of finality is not absolute. Whether a decision can be revisitedalso depends on the nature of the relevant power or function. First, there is thequestion of s 16 of the Interpretation Act. Section 16 provides:16 Exercise of powers and duties more than once(1) A power conferred by an enactment may be exercised from time totime.44 At [71].(2) A duty or function imposed by an enactment may be performed fromtime to time.[90] Both parties cited Wade and Forsyth's Administrative Law:45In the interpretation of statutory powers and duties there is a rule that, unlessthe contrary intention appears 'the power may be exercised and a duty shallbe performed from time to time as occasion require'. But this gives a highlymisleading view of the law where the power is a power to decide questionsaffecting legal rights. In those cases, the courts are strongly inclined to holdthat the decision, once validly made, is an irrevocable legal act and cannot berecalled or revised. The same arguments which require finality for thedecisions of courts of law apply to the decisions of statutory tribunals,Ministers and other authorities.[91] The power here, under s 401, was not an entirely administrative function suchthat it could be exercised from time to time and therefore revisited or varied. As Wadeand Forsyth go on to say:46An authority which has a duty to maintain highways or a power to take land bycompulsory purchase may clearly act 'from time to time as occasion requires'. But ifin a particular case it has to determine the amount of compensation or fix the pensionof an employee, there are equally clearly reasons for imposing finality. Citizenswhose legal rights are determined administratively are entitled to know where theystand.[92] The power exercised by the CAC when it made the decision was in the lattercategory referred to by Wade and Forsyth. It is a function or power that creates oraffects rights and an important interest in finality attaches.47[93] That conclusion is supported by the statutory wording and context. Section 4of the Interpretation Act provides that the Act does not apply if the context of theenactment requires a different interpretation.48 The CAC has no express statutorypower, under the 1989 Act or the Rules, to correct or revisit its decision. Both the Actand the Rules are silent on the question of whether, having resolved to take the matterno further and communicated that to the parties, the CAC may in some circumstancesreopen its investigation and reconsider that position.45 William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press,Oxford, 2014) at 191.46 At 191.47 See, for example, Pub Charity Inc v Secretary of Internal Affairs [2015] NZHC 195.48 Interpretation Act, s 4(1)(b).[94] However, as Mr K submits,49 the definition of "resolve", which is used ins 401(2)(a) of the Education Act, imports a sense of finality. Clause 16 of the Rulesexpressly refers to the finality of CAC decisions, stating "The teacher must be givenan opportunity to comment on the investigation report before the ComplaintsAssessment Committee makes a final decision." Clause 17(3) provides that beforetaking an action available to it, under s 497 of the 2020 Act the CAC may adjourn thematter for further consideration or refer it for further consideration. As Mr Barkersubmits, this power would be unnecessary if the CAC had the ability to revisit itsdecisions.[95] None of these provisions are decisive, but cumulatively they point toward thedecision being a final one.[96] On the other hand, as Ms Casey submitted, there are some exceptionalcircumstances where, even in the case of judicial decisions, the interests of finality areoutweighed and a public body can revisit a decision made in ignorance of the truefacts. The ability to do so does not depend on a distinction between a judicial decisionand an administrative one.[97] The exceptional circumstances relied on by the respondent are, first, as inFajemisin v the General Dental Council50 and Chaudhuri v General MedicalCouncil,51 that the factual basis on which the CAC proceeded amounted to afundamental mistake of fact. Second, the public interest objectives of the teachers'disciplinary regime mean a power to reopen can be inferred and ought to be exercised.[98] As to factual mistakes in the decision, it is relevant to note that the decisionitself is not directly in issue in these proceedings. As Mr Barker emphasises, the onlyquestion before the Court is whether the CAC is functus. The consequence of that isthat the record of the decision is not before the Court and nor is there a propercontradictor to put forward any argument that the decision was affected by material49 See [50(a)] above.50 Fajemisin v the General Dental Council, above,n 20, at [37].51 Chaudhuri v General Medical Council, above n 24.errors. That is relevant to the extent to which this court can reach conclusions aboutfactual errors.[99] Several of the errors alleged by the respondent do appear to be clear errors: thestudent's seven week absence from school did not include two weeks of holiday as theCAC decision stated; what the CAC found to be an agreed collaborative plan for thestudent's absence from school, did not cover two weeks of that absence. However, theapplicant submits that the student's absence was not solely on the basis of theagreement, but in part pursuant to a Police process and because the student hadunderlying health issues, although the basis of the agreement is also in dispute.I conclude those errors, even if clear, are not sufficiently serious or fundamental tooutweigh the requirement for finality.[100] The redetermination decision relies in particular on the fact that Mr K had nopower to informally exclude a student from the school. While the CAC says it hasacknowledged its own fundamental mistake on this point, that begs the questionwhether Mr K did in fact informally exclude the student in the manner alleged. Mr K'sposition is that he did not at any point direct or ask the student to stay away fromschool; the student's absence was not imposed, dictated or even suggested by Mr K.It follows that the applicant does not suggest that the student's absence was becausehe had been suspended or stood down in accordance with the requirements of ss 14and 15 of the Education Act or the Education (Stand-down, Suspension, Exclusion andExpulsion) Rules 1999.[101] I do not think I can properly conclude that the CAC proceeded on the basis ofa clear, fundamental mistake of fact. The facts of this case can be distinguished fromFajemisin, where the error of fact was plain and uncontested and where, as the Courtsaid, "but for the mistake, the opposite decision would have been reached." 52[102] Similarly, the facts of the Chaudhuri case are very different. Chaudhuri53concerned the application of Rule 4(5) of the General Medical Council (Fitness toPractise) Rules 2004 which set a general rule that no allegation against a medical52 Fajemisin v the General Dental Council, above n 20, at [36].53 Chaudhuri v General Medical Council, above n 24.practitioner could proceed further if at the time it was made more than five years hadelapsed since the most recent events giving rise to the allegation. The AssistantRegistrar's examination of the complaint proceeded on the basis that Dr Chaudhuri'slast consultation with the patient to whom the complaint related occurred within thefive year period, when in fact the last consultation was five years and two monthsbefore the complaint was lodged. Dr Chaudhuri sought to have the General MedicalCouncil (GMC) revisit the Assistant Registrar's decision.[103] The Registrar's role under rule 4 is limited: "It is no part of the Registrar'sfunctions at the Rule 4 stage to decide whether there has been impaired fitness topractise or to establish the facts of the complaint."54 When describing the five stagesof the Fitness to Practise disciplinary process, the Court referred to Stage 1 as the'triage' stage, involving the Registrar's decision on the application of the five-yearrule and referral to the Case Examiners.55 No referral to the Case Examiners had beennotified to Dr Chaudhuri or the Case Examiners at the relevant point.[104] The primary ground on which the Court found that it could intervene was thatthe five-year threshold is an objective matter of precedent or jurisdictional fact and novalue judgement is required to answer it.56 The primary issue raised here by the CAC– that there was no power for the principal to informally "suspend" the student – is notin the same category. What is at issue here is what in fact happened. There is no"jurisdictional fact" as in Chaudhuri.[105] The Court in that case also found that, in the alternative, there was a materialerror of fact amounting to an error of law.57 Accordingly, the Court found that it wouldintervene and quash the original Rule 4(5) decision by the Assistant Registrar andremit the matter for reconsideration.58[106] As I have noted at [104] the material error of fact was of a different nature thanthat alleged here.54 At [22].55 At [25].56 At [30], [36] and [38].57 At [39].58 At [40].[107] As to the public interest objectives of the teachers' disciplinary regime, theEducation Act and the Teaching Council (including its administration of thecomplaints process) is, as the CAC submits, focussed on the safety and welfare ofchildren and young people in the education system and the quality of the institutionsand teachers. I accept that it is an inherent purpose of the complaints process that, byproviding effective supervision of teacher conduct, it enhances confidence in theeducation system overall and it is therefore important that the process be seen to befair and robust.[108] However, I am not persuaded that on the facts of this case, the public interestobjectives compel a reopening of the decision. First, there is the question of lapse oftime. The relevant course of events occurred in 2017. The CAC received thecomplaint about Mr K on 14 March 2019, more than a year and a half after the eventsin question. The CAC communicated the decision to Mr K on 4 December 2020 (oneyear and nine months after the complaint was received and over three years after thestudent had left the school). The reconsideration decision was made on 29 July 2021(almost two and a half years after the complaint was received). It is now well overfour years since the relevant events occurred.[109] I also accept there will be considerable prejudice to Mr K, if the matter wereto be reopened at this juncture. Personal and professional stress is inevitable and thereis also the real risk that relevant participants will be unable to recall events withsufficient clarity.[110] The public interests of the statutory regime do not in this case require that Iinfer a power to reopen the matter.[111] In conclusion, I find that the CAC was functus in relation to the complaint atthe point at which it perfected its decision by conveying it to the applicant and thecomplainants.[112] Finally, for completeness, I record that Mr Barker raised an issue regarding therole of the complainants in this proceeding and the risk of predetermination by theCAC if this court ruled that the decision should be remitted to the CAC forreconsideration.[113] For the reasons outlined above, I have not found it necessary to consider thissubmission in any detail, but I note two things. First, given the narrow ambit of theissue before this Court, the complainants do not have a role. Second, if there were tobe a substantive challenge to the decision – for example, if the complainants were toseek judicial review of the decision – the CAC as the decision-maker would of coursebe obliged to abide the decision of the Court and, as Ms Casey acknowledged, adifferently composed CAC could undertake any reconsideration directed by the Court.Relief[114] Mr K seeks orders declaring the redetermination decision and steps taken infurtherance of it unlawful, an order that the redetermination decision be set aside andan order prohibiting the CAC from reopening the decision or any aspect of thecomplaint.[115] As the High Court said in R (on the application of Demetrio) v IndependentPolice Complaints Commission:59We find it impossible to accept that the IPCC could become functus officio in respectof different individual components of a single complaint by a single complainantarising out of a single incident.[116] Similarly, in this case I conclude that the CAC is functus officio in relation toall aspects of the complaint, not simply that aspect (allegation three) that was thesubject of the redetermination decision.[117] I make the following orders:(a) I declare that the CAC redetermination decision and steps taken infurtherance of that decision are unlawful.59 R (on the application of Demetrio) v Independent Police Complaints Commission, above n 1, at[53].(b) The redetermination decision is set aside.(c) The CAC is prohibited from reopening the decision.Application for permanent suppression orders[118] The applicant also seeks permanent suppression orders, in the following terms:(a) Suppressing the identity of the students, parents, the school, theapplicant or particulars that would lead to the identification of any oneor all of them.(b) Anonymising the names of those involved, to assist in the process ofmaintaining the integrity of the suppression orders whilst allowing thesubsequent availability of the Court's decision in legal publications andprofessional educational circles.(c) Restricting access to the court file without leave of the Court.[119] The CAC consents to the suppression and anonymising of the identity of thestudent and the parents and also consents to restrictions on accessing the Court filewithout leave of the Court. However, the CAC opposes the suppression andanonymising of the identity of the applicant and the school.Submissions for the applicant[120] Mr K's reasons for seeking permanent suppression orders are:(a) The substantive proceeding involves a narrow legal question regardingthe lawfulness of the CAC redetermination decision.(b) The details sought to be suppressed are not central to understanding thenature of the proceeding and what it is the Court has to decide.(c) Absent the need for Mr K to file these proceedings, details of thecomplaint would not otherwise be public, given the restrictions in theRules.60(d) Publication of the proceedings would have potentially adverseconsequences and the prejudice outweighs any public interest in thedisclosure of the names of those involved.[121] As to adverse consequences, Mr K says that the matters underlying thecomplaint that led to the CAC decision and CAC redetermination decision are of asensitive nature and involve vulnerable students. These events occurred some yearsago. Identification of Mr K or the college is likely to lead to identification of thestudents involved. In addition, identification of Mr K or the college would havepotentially damaging effects on the college, including undermining confidence in theapplicant's judgement in managing other disciplinary issues; damage to the confidenceof parents whose children access the school's Special Education Facility and adverseimpact on the school's international student programme.[122] Finally, the applicant notes that the suppression orders sought would notprevent any judgment of the Court being published in legal publications, includingonline services, or the judgment being distributed in a similar way by professionaleducational services. In his submission, the orders sought strike a balance betweenfundamental open justice considerations and the interests of the applicant and partiesinvolved in the complaint.Submissions for the respondent[123] The CAC is opposed to the suppression and anonymising of the identity of theapplicant and the school on the grounds that the college is a large school with over1,000 students and identification of the applicant and the school would not identify thestudent involved.60 Teaching Council Rules, r 64.[124] The respondent also says that Mr K has not met the threshold of demonstratingspecific adverse consequences that would flow from publication of his and the school'sidentities.61 The consequences identified by the applicant are, it says, speculative andinsufficient to warrant an exception to the fundamental principles of open justice.[125] The CAC itself has no powers to order permanent name suppression and hasnot purported to do so in relation to the complaint at issue. Any disciplinary matterthat proceeds to the Disciplinary Tribunal is to be held in public, unless the Tribunalorders otherwise.[126] Ms Casey submits that the Court of Appeal's decision in Ryan v Health andDisability Commissioner62 is directly relevant to this case. In Ryan the applicant forname suppression noted that the Health and Disability Commissioner's investigationswere generally concluded in private and their findings, when published, usually havenames and identities redacted. In that case too in seeking permanent name suppressionthe applicant relied on the fact that the proceeding before the Court was about statutoryinterpretation, not individual conduct.[127] The Court of Appeal, while sympathetic to the applicant's position, was notpersuaded that the factors relied on by the applicant provided a sufficient legal basisto make the suppression orders requested or to distinguish Erceg v Erceg.63 As thecourt said there: "This proceeding is not a continuation of the investigation. It is acivil proceeding under the Judicial Review Procedure Act 2016 and the ordinaryprinciples of open justice apply."64 That statement equally applies in this case.[128] Finally, the respondent submits that permanent suppression orders wouldpotentially impact on the Ombudsman's ability to complete his investigation of acomplaint made to him by the complainants about the same matter.[129] The complainants expressed a wish to be heard on the name suppressionapplication. Although they are not parties to this proceeding, Ms Casey conveyed their61 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.62 Ryan v Health and Disability Commissioner [2021] NZCA 347.63 Erceg v Erceg, above n 61, at [95].64 Ryan v Health and Disability Commissioner, above n 62, at [95].views, which align with the CAC's. They are concerned that the orders sought wouldaffect their ability to talk about their experiences with the school and its principal,contrary to s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).Discussion[130] The principle of open justice was emphasised by the Supreme Court inErceg v Erceg, as one of constitutional importance and "fundamental to the commonlaw system of civil and criminal justice".65 There is a prima facie presumption infavour of openness in reporting.[131] In Commissioner of Police v F (L) C,66 Woodhouse J synthesised the principlesrelevant to applications for non-publication orders in civil proceedings, arising fromthe Supreme Court's decision in Erceg v Erceg and the Court of Appeal's decision inY v Attorney-General,67 in which the judgments were delivered only 10 days apart.Neither judgment refers to the other, but I agree with Woodhouse J that there is noconflict between the statements of principle in each case, and I adopt and endorse hissummary:68[15] The statements of principle may be summarised as follows:(a) The starting point is the principle of open justice. This leadsto a presumption of disclosure of all aspects of civil courtproceedings.69(b) There are, nevertheless, circumstances in which the interestsof justice require that the general rule of open justice bedeparted from, but only to the extent necessary to serve theends of justice.70(c) In proceedings heard in open court, the court may exercise itsinherent power to make non-publication orders binding on thepublic at large.7165 Erceg v Erceg, above n 61, at [2].66 Commissioner of Police v F (L) C [2016] NZHC 2852.67 Y v Attorney-General [2016] NZCA 474.68 Commissioner of Police v F (L) C, above n 66, at [15].69 Erceg v Erceg, above n 61, at [2]; and Y v attorney-General, above n 67, at [25]-[28].70 Erceg v Erceg, above n 61, at [3].71 At [4]-[7]. The Supreme Court in Erceg, at footnote 6, said that it preferred the term "inherentpower" to "inherent jurisdiction".(d) The power to order non-publication is discretionary.72(e) There is no onus on the applicant for the non-publicationorder.73(f) What the party seeking the order must show is specificadverse consequences that are sufficient to justify anexception to the fundamental rule, but the standard, orthreshold, is a high one.74(g) The correct approach requires the court to strike a balancebetween open justice considerations and the interests of theparty who seeks suppression.75[132] I agree with the respondent that the risk of other students of the college beingidentified is relatively low, having regard to the size of the school and the lapse of timesince the events in question. However, notwithstanding the complainants' view, I thinkthere remains a relatively high risk that, if the school and the principal are identified,the student will also be identifiable and the sensitivity and gravity of the conduct atissue become public: their absence from the school was for a significant period in 2017and the evidence for the applicant is that they were the only student who was absentfor a long period during that year. While much of the detail of the case is not essentialto this decision and has been omitted, the timeframes involved are relevant and havebeen retained. That risk alone would lead me to grant the orders sought by theapplicant.[133] I have also gone on to consider whether there is sufficient evidence of specificadverse consequences of publication for Mr K and/or the school if name suppressionis not granted.72 Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) NZTC 23-052 at [5]; and Y vAttorney-General, above n 67, at [23]-[24] and footnote 27.73 Erceg v Erceg, above n 61, at [13]; and Y v Attorney-General, above n 67, at [29], both approvingASB Bank Ltd v AB [2010] 3 NZLR 427 (HC) at [14] (ASB Bank).74 Erceg v Erceg, above n 61, at [13]; Y v Attorney-General, above n 67, at [30].75 Y v Attorney-General, above n 67, at [31]. The Court of Appeal noted: "We have drawn thatpassage from the Supreme Court's judgment in Hart v Standards Committee (No 1) of the NewZealand Law Society [2012] NZSC 4 at [3]. The Supreme Court had earlier supported the samebalancing approach in Rowley v Commissioner of Inland Revenue, above n 72, at [6]-[7]. As thisCourt observed in McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [20], in the contextof this balancing, 'the open justice principle is not an article of faith, never to be departed from'."[134] The concerns relating to the school's Special Education Facility and itsInternational Student Programme are, in my view, too general and speculative toprovide a proper basis for suppression.[135] However, Mr K' own situation is different. While his evidence about possibleadverse effects on him is, at this stage, hypothetical, that is inevitably the case. I cannevertheless properly infer that publication of Mr K's name (or publication of thename of the school which would effectively publish Mr K's name) will cause himpersonal stress and potential damage to his professional reputation and credibility as alongstanding principal, who has worked hard in the educational community. As theauthors of The New Zealand Bill of Rights Act: A Commentary note:76The question needs to be asked what the public interest in the court proceedingsactually is and whether the reporting of all identifying details is necessary. Especiallyin a small society such as New Zealand's, reporting identifying details can easilybecome further punishment not just for the defendant or accused, but for the familyand friends of those involved.[136] Mr K's situation can be distinguished from the examples provided inErceg v Erceg77 of "embarrassment" because, for example, the proceeding reveals thatsomeone is under financial pressure, or "unwelcome", for example because it publiclyairs private family matters.[137] I note too that this case is different from Ryan in one significant respect. Therethe Court noted that the concerns about damage to the applicant's reputation weregeneral and largely speculative and, in any event, "were tempered against the fact thatit will be very apparent to readers of this judgment that Dr Ryan was not in any waypersonally at fault ".78 The situation here is different in that the redeterminationdecision raises questions directly relating to alleged conduct by Mr K. Although therehas not been a finding of fault against him, the reporting would focus on his conduct.[138] I see no reason why any order as to suppression should impede theOmbudsman's inquiry. If it is necessary, I specifically note that the complainants are76 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis) "Chapter 13: Freedom of Expression" at 13.12.17.77 Erceg v Erceg, above n 61, at [13].78 Ryan v Health and Disability Commissioner, above, n 62, at [97].free to advise the Ombudsman of this decision, notwithstanding the suppressionorders.[139] As to the complainants' and the student's rights under the Bill of Rights Act,s 14 does not, as a general rule, prevent the Court from making suppression orders.[140] In Siemer v Solicitor-General, 79 the Supreme Court discussed the impact ofsuppression orders on the rights contained in the Bill of Rights Act, including the rightto freedom of expression.80 It found that a temporary suppression order, made toprotect fair trial rights in criminal proceedings, is consistent with the Bill of RightsAct. Whether a suppression order is a reasonable and justified limitation on thefreedom of expression depends on the circumstances of each particular case.[141] Although the Supreme Court's analysis is aimed at protecting the accused'sfair trial rights in the criminal context, it is equally applicable to other objectives thatmay be engaged in court proceedings, including the protection of fairness in civilproceedings; the protection of the privacy of parties to civil proceedings; and theprotection of the integrity of the judicial process.81[142] Equal treatment between the parties would support the applicant's applicationfor permanent name suppression in the present case. The identities of the student andtheir parents will be suppressed. Disclosure only of the identity of the applicant andthe school may not allow the applicant an opportunity to counter allegations and maynot result in fair and accurate reporting in the public domain.82 This case can bedistinguished from the approach taken by the High Court in Patient A v HealthBoard,83 where the Court allowed a name suppression order to stay in place after trialto protect the privacy interests of the plaintiff (the patient) but the same was notextended to cover the identity of the defendants (the doctor and hospital involved), asthe case against them had failed and the Court did not consider their conduct gave rise79 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441, at [157].80 Siemer, above n 79.81 Butler and Butler, above n 76, Chapter 13: Freedom of Expression" at 13.9.2.82 John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 (NSWCA) at [41], cited inErceg v Erceg, above n 61, at [17].83 Patient A v Health Board HC Blenheim CIV-2003-406-14, 15 March 2005.to an equally "deeply personal element" as compared to the plaintiff.84 Therefore, theargument for suppression based on equal treatment was rejected.[143] Furthermore, legitimate public interest does not extend to knowing the nameof the applicant or identity of the school. These details are not central to understandingthe nature of the proceedings and what it is the court has to decide. The facts of thecase can be reported without identifying details to satisfy public interest.85[144] For the reasons I have detailed at [132]-[143] above, I conclude that there is anappreciable risk that publication of the name of the college and the principal will leadto identification of the student. In addition, there would be adverse consequences forthe applicant if suppression orders are not continued. In this case I conclude thatpermanent suppression orders are appropriate and constitute a justified limitation onthe student and complainants' right to freedom of expression.86Relief[145] Having regard to all the circumstances I exercise my discretion to grant theorders sought by Mr K. Accordingly:(a) The identity of the student, their parents, other students of the school,the applicant and the school, and particulars that might lead to theiridentification, are permanently suppressed.(b) The names of those involved are anonymised in this judgment.(c) Access to the court file is restricted without leave of the Court.Costs[146] I have found for the applicant and, in the normal course, he is entitled to costs.Costs on a 2B basis are appropriate. I expect the parties should be able to agree costsbut if that is not possible the applicant should file submissions within 15 working days84 At [80].85 Y v Attorney-General, above n 67, at [33]-[34].86 New Zealand Bill of Rights Act 1990, s 5.of the issue of this judgment and the respondent should respond within a further15 working days. Submissions should not exceed five pages.Gwyn J