NSW Education Standards Authority v Thomas [2022] NSWCATAP 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Education Standards Authority v Thomas [2022] NSWCATAP 110 Hearing dates: 1 April 2022 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr R Dubler SC, Senior Member Decision: (1) Appeal is allowed. (2) The orders and decision of the Tribunal dated 27 August 2021 are set aside. (3) Order that the whole of the proceedings be reconsidered by a differently constituted Tribunal, without further evidence, unless with the leave of the Tribunal, in accordance with the Appeal Panel's decision. Catchwords: APPEAL – administrative review – meaning of 'misconduct' in s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) – whether the Tribunal misconstrued the meaning of 'misconduct' – whether the Tribunal erred in determining that conduct alleged to be in breach of NSW Department of Education Code of Conduct could not constitute 'misconduct' – whether the Tribunal erred by determining that non-compliance with the Australian Professional Standards for Teachers approved under s 19(1) of the Education Standards Authority Act 2013 (NSW) could not constitute misconduct – whether the Tribunal erred in its discretion to find in the alternative that the respondent's suspension was disproportionate and not sufficiently serious to warrant such suspension Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 81(2) Education Standards Authority Act 2013 (NSW), s 11(1), s 12(2)(c), s 12(2)(h), s 19(1) Government Sector Employment Act 2013 (NSW), Part 2 Teacher Accreditation Act 2004 (NSW), s 4(1A) s 7(2)(c), s 19(1), s 24, s 24A, s 28, s 30-32 Teaching Service Act 1980 (NSW), s 5A, s 7(1)(c), s 7(1)(e) Cases Cited: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 Dionisatos (for the Estate of the Late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34 House v R (1936) 55 CLR 499 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 Texts Cited: Macquarie Dictionary (8th edition, 2020). Oxford University Press, 2021, online edition at www.oed.com/view/Entry/119350 (item 1b) viewed on 5 April 2022 Category: Principal judgment Parties: NSW Education Standards Authority (Appellant) Michael Thomas (Respondent) Representation: Counsel: D Fuller (Appellant)