D'ARCY v DIRECTOR-GENERAL OF SCHOOL EDUCATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and POWELL JJA 1 November 1994, 11 November 1994 [1994] NSWCA 76 JUDICIAL REVIEW OF ORDERS MADE BY GREAT JUDICIAL REVIEW OF ORDERS MADE BY GREAT — open to Tribunal to make challenged findings — no Wednesbury unreasonableness — orders within power and appropriate. The appellant sought judicial review of orders made by the Government and Related Employment Appeals Tribunal which included an order that she undergo a medical examination. Held: (1) on the evidence before the Tribunal it was open to the Tribunal to make the findings it did and there was no Wednesbury unreasonableness; (2) the orders made by the Tribunal were within power and appropriate and sensibly directed to an effort to obtain a better understanding of the appellant's behaviour. ORDER Proceedings dismissed with costs. Priestley JA In these proceedings Ms M. D'Arcy has sought judicial review of orders made by the Government and Related Employees Appeal Tribunal (the Tribunal) when deciding an appeal she had taken to the Tribunal against the decision of the Director-General of the Department of School Education to dismiss her from employment as a maths teacher at Bankstown Senior College. Ms D'Arcy, while employed at the college, was on 6 May 1993 charged with breaches of discipline and suspended. Ms D'Arcy denied the charges and a formal Disciplinary Inquiry was held. Oral evidence was taken at the Inquiry from a number of teachers at the college and from Ms D'Arcy herself. The Prescribed Officer who conducted the Inquiry found the charges proved. He recommended to the Director-General that Ms D' Arcy be allowed to resign. The Director-General accepted that recommendation and directed Ms D' Arcy's resignation. She did not comply with the direction and was dismissed on 1 November 1993. Ms D'Arcy did not have any legal representation at the Inquiry. Some features of her behaviour and assertions at the Inquiry led to suggestions being made that she should obtain medical assessment or assistance. She did not agree to these suggestions. She appealed to the Tribunal against her dismissal. Again she had no assistance in the conduct of her case. Oral evidence was given by the same teachers as at the Inquiry and Ms D' Arcy again gave evidence. The materials from the Inquiry were all received in evidence by the Tribunal. The Tribunal considered the evidence and concluded that all the charges had been established. The Tribunal added however that it suspected a mental condition was responsible for the behaviour comprising the breaches and might be the main reason for Ms D'Arcy's failure to meet requisite standards. Because of that, the Tribunal expressed the view that Ms D'Arcy should be medically examined to 2 UNREPORTED JUDGMENTS determine her fitness as a teacher. To enable that to happen, the Tribunal made orders: 1. setting aside the dismissal; 2. saying Ms D'Arcy should be regarded as on leave without pay from the date of her dismissal; 3. directing the Director-General to make arrangements for an examination of Ms D' Arcy by the appropriate medical agency for determining her fitness for teaching duties; 4. directing Ms D' Arcy to attend the medical appointment made pursuant to O.3; 5. saying that if the medical agency determined Ms D' Arcy was medically unfit she should be retired from the Education Teaching Service on medical grounds; 6. providing that if Ms D'Arcy failed to attend the medical examination as directed she should "be regarded as having been dismissed on and from I November 1993"; and 7. providing that if the medical agency thought she was medically fit, that finding was to be made available to the Tribunal's Registrar so that the Tribunal could give further consideration to the appeal. Ms D'Arcy then filed a notice of appeal against the Tribunal's orders. However, it was out of time. The appeal permitted by the Government and Related Employees Appeal Tribunal Act (the Act) has a time limit which cannot be extended: Patterson and James v The Public Service Board of NSW [1984] 1 NSWLR 237. The respondent to the appeal raised this point by notice of motion and the appeal was dismissed: D' Arcy v Department Of School Education (Court of Appeal, unreported, 9 May 1994). Ms D'Arcy then filed a number of documents designed, primarily, to challenge the orders of the Tribunal, but also raising a great many other matters some with some relevance to the proceedings before the Tribunal and some with no apparent relevance, but in regard to all of which she was seeking relief of one kind or another. However, when the proceedings came on for hearing on I November 1994, after some preliminary discussion Ms D'Arcy said she wished to proceed on the summons she had filed dated 8 June 1994. This summons sought relief only in regard to the Tribunal's orders. This narrowing of her case by Ms D'Arcy was sensible, because so far as I could see, the only arguable point available to her related to the orders of the Tribunal. The evidentiary material Ms D' Arcy relied on was contained in affidavits of 27 April 1994, 27 July 1994 and 10 October 1994. She also requested that certain exhibits referred to by the Tribunal in its reasons should be before the court. There was no dispute about this, as the exhibits were exhibited to affidavits upon which the Director-General proposed to rely as evidence in the proceedings. Ms D'Arcy also sought leave to read an affidavit sworn on 31 October 1994 which had annexed to it many hundreds of pages. The contents of this affidavit were objected to as irrelevant. The court deferred ruling upon the admissibility of the contents of the affidavit until it became clear what Ms D'Arcy's arguments were to be in support of the orders she was seeking. The Director-General relied on two affidavits, sworn on 10 August 1994 and 31 August 1994. Exhibited to these affidavits were the documents Ms D' Arcy had earlier requested should be in evidence. Ms D'Arcy then made submissions to the court under four heads. Under the first head she submitted that there was no factual evidence to support the findings of the Tribunal because evidence relied on by the Tribunal was not on affidavit. However, there had been both oral and documentary evidence before the Tribunal upon which it was open to the Tribunal to make the findings that it did. There was no legal basis for Ms D' Arcy's first submission. URJ D'ARCY v DIRECTOR-GENERAL OF SCHOOL EDUCATION (Priestley JA) 3 Under the second head of her submissions she relied upon what she called Wednesbury unreasonableness. That is, she was relying upon the principle stated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. To support this submission she asserted numerous inconsistencies in the evidence of the witnesses against her as well as contradictions. This however is not enough to demonstrate Wednesbury unreasonableness, unless perhaps in the most extreme of cases, and there is no sign in the materials in the present case of anything of that kind. Under the third head of her submissions Ms D'Arcy said that there was an error of law on the face of the record demonstrated by the Tribunal's arriving at conclusions not supported by the evidence. This submission was based on the same arguments concerning inconsistencies and contradictions as the submission concerning Wednesbury unreasonableness. It fails for the same reason as the submission did. It was reasonably open to the Tribunal on the materials before it to act upon the factual conclusions which it did. The fourth head of Ms D' Arcy submissions, and to my mind the only arguable one, was that the Tribunal acted beyond its powers in making O.3 and O.4. The relevant head of the Tribunal's power, and the only one relied upon by the Director-General in support of the orders made by the Tribunal, was s48(2) of the Act: "The Tribunal, in relation to an appeal under s24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit." In Clisdell v Commissioner of Police (1993) 31 NSWLR 555 this court had to consider whether a recommendation made by the Tribunal was within the power conferred by s48(2). The court did not embark upon a definitive examination of the power, but contented itself with saying: "For present purposes it is sufficient to say that [s48(2)] does not enable the tribunal to make a decision, including a decision to make a formal recommendation, with respect to a matter not raised by the appeal..." (at 561) I think for the purposes of the present proceedings it is appropriate for the count to adopt the same approach. In light of the materials which had been before both the Disciplinary Inquiry and the Tribunal it seems to me it was quite proper for the Tribunal to take the view that it was relevant for the Tribunal to have expert opinion on the state of Ms D'Arcy's health as an aid to deciding which of the available orders (see s23(1) of the Act) would be appropriate if it considered the breaches of discipline proved. The intent of the Tribunal's orders seems to me to be plain: O.1 and O.2 were to stand until either the results of a medical assessment were available in which case either O.5 or O.7 would apply according to the result of the assessment or, if the Tribunal did not have the benefit of the medical assessment, Ms D' Arcy's dismissal was to be effective on and from 1 November 1993. In the particular circumstances of the case, orders of this kind appear to me to have been both within power and appropriate and to have been sensibly directed to an effort to obtain a better understanding of Ms D' Arcy's behaviour; to this end the medical assessment was proposed, which could have resulted in a better outcome for Ms D'Arcy than that which followed her non compliance with O.4. In the absence of information from the medical assessment, it is difficult to see what the Tribunal could have done, in light of its view of the facts, other than to order Ms D'Arcy's dismissal. 4 UNREPORTED JUDGMENTS In view of the way the argument proceeded it is not necessary to rule on the admissibility of the material in Ms D'Arcy's affidavit of 31 October 1994. In my opinion Ms D'Arcy's proceedings should be dismissed with costs. Meagher JA I agree that Miss D'Arcy must fail for the reasons given by Priestley JA, and she must pay the respondent's costs. Powell JA I agree with Priestley JA. Proceedings dismissed with costs.The claimant appeared in person. Counsel for the opponent: S BENSON 15 Solicitors for the opponent: HK ROBERTS