Industrial Court of New South Wales CITATION: New South Wales Teachers' Federation v Director-General of Education and Training (NSW) [2006] NSWIRComm 268 APPELLANT: New South Wales Teachers' Federation PARTIES: RESPONDENT: Director-General of Education and Training (NSW) FILE NUMBER(S): IRC 2967 of 2005 CORAM: Wright J President; Boland J; Backman J APPEAL - Declarations - Declaratory relief under section 154 of the Industrial Relations Act 1996 - Jurisdiction to bring disciplinary proceedings involving allegations of serious misconduct alleged to have occurred prior to the promulgation of the Teaching Service Act 1980 - Leave to appeal granted - appeal upheld - Declaratory relief made in favour of respondent - No order for costs CATCHWORDS: APPEAL - Statutory Interpretation - Construction of s 83 of the Teaching Service Act 1980 - Interpretation of Teaching Service 1970 Act - Interpretation of Interpretation Act 1987 Education Commission Act 1980 Education Legislation Amendment (Staff) Act 2006 Industrial Relations Act 1996 LEGISLATION CITED: Interpretation Act 1987 Miscellaneous Acts (Education Commission) Repeal and Amendment Act 1980 Public Service Act 1979 Teaching Services Act 1970 Teaching Services Act 1980 Attorney-General for the State of Queensland v Australian Industrial Relations Commission and others (2002) 213 CLR 485 Attorney-General (WA) v Marquet (2003) 217 CLR 545 Beaumont v Yeomans (1934) 34 SR (NSW) 562 Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233 Commission for Children and Young People v "A" (2003) 56 NSWLR 486 Commissioner for Children and Young People v "A" (No 2) [2004] NSWIRComm 8 Kartinyeri v Commonwealth (1998) 195 CLR 337 Maxwell v Murphy (1957) 96 CLR 261 CASES CITED: New South Wales Teachers Federation v Managing Director NSW TAFE Commission (2003) 123 IR 384 New South Wales Teachers' Federation v Director-General of Education and Training (NSW) [2005] NSWIRComm 162 New South Wales Teachers' Federation v Director-General of Education and Training (NSW) [2005] NSWIRComm 194 Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 Rodway v The Queen (1990) 169 CLR 515 The Queen v White and others; Ex Parte Byrnes (1963) 109 CLR 665 Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan; Meakes v Dignan (1931) 46 CLR 73 Wright v Hale (1860) 6 H&N 227 HEARING DATES: 22/08/2005 DATE OF JUDGMENT: 08/21/2006 APPELLANT: Mr S Crawshaw SC with Ms P F Lowson of counsel Solicitors: MacMahon Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr A T Britt of counsel Solicitors: NSW Department of Education and Training JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Boland J Backman J Monday 21 August 2006 Matter No IRC 2967 of 2005 NEW SOUTH WALES TEACHERS' FEDERATION v DIRECTOR-GENERAL OF EDUCATION AND TRAINING (NSW) Application by New South Wales Teachers' Federation for leave to appeal and appeal against decisions of Justice Schmidt of 18 May 2005 and 9 June 2005 in Matter No IRC 1774 of 2005 JUDGMENT OF THE COURT [2006] NSWIRComm 268 1 These proceedings involve an application for leave to appeal and appeal under sections 187 and 188 of the Industrial Relations Act 1996 against two judgments of her Honour Justice Schmidt of 18 May 2005 and 9 June 2005: New South Wales Teachers' Federation v Director-General of Education and Training (NSW) [2005] NSWIRComm 162; New South Wales Teachers' Federation v Director-General of Education and Training (NSW) [2005] NSWIRComm 194. 2 The background to the application concerns two sets of three charges brought by the respondent against two teachers under section 83(f) of the Teaching Services Act 1980. The charges each allege breaches of discipline on the ground of improper conduct said to have taken place at various discrete intervals in the period April 1973 to September 1984. The three charges, each entitled "Notice of Charge", are dated 12 November 2002, 10 June 2003 and 7 March 2005 respectively. 3 On 7 April 2005, the appellant filed an application for declaratory relief under s 154 of the Industrial Relations Act. This application was followed by an amended application filed 22 April 2005. The amended application sought two declarations in the following terms: (i) The respondent and prescribed officers of the respondent have no jurisdiction to initiate or continue disciplinary proceedings under section 83 of the Teaching Services Act 1980 ("the 1980 Act") in relation to alleged breaches of discipline where the conduct allegedly constituting the breach pre-dates the promulgation of the 1980 Act. (ii) The respondent and prescribed officers employed under the Teaching Services Act 1980 have no jurisdiction to initiate disciplinary proceedings under section 37(1) of the Teaching Services Act 1970 in relation to alleged breaches of discipline. 4 Section 37(1) of the Teaching Services Act 1970 ("the 1970 Act") was the predecessor section to s 83 of the Teaching Services Act 1980 ("the 1980 Act"). The 1970 Act was repealed in 1980 by Schedule 1 of the Miscellaneous Acts (Education Commission) Repeal and Amendment Act 1980 ("the 1980 Amendment Act"). The 1980 Act, originally entitled the Education Commission Act 1980, commenced immediately on the repeal of the 1970 Act on 20 October 1980. 5 The first judgment of Schmidt J dealt with the declaratory relief sought by the appellant. Her Honour refused the relief sought in relation to the issue of the jurisdiction of the respondent to initiate disciplinary proceedings under the 1970 Act, but made no findings concerning the relief sought in relation to the question of jurisdiction of the respondent under the 1980 Act. 6 In the second judgment dated 9 June 2005, her Honour dealt with the application by the appellant, under the slip rule, to amend part of the earlier judgment to provide for the grant of that part of the relief sought in the amended application for declaratory relief concerning the jurisdiction of the respondent to initiate disciplinary proceedings under the 1980 Act. This application was made, according to the appellant, in order to properly reflect the judgment namely, that no jurisdiction was available under the 1980 Act. That application was also refused. Her Honour was of the view that it was unnecessary to make any findings as to the construction of the 1980 Act given her finding in relation to the 1970 Act, namely that the obligations arising under s 37(1) of the 1970 Act were unaltered, and teachers, therefore, were not relieved of the consequences of any breaches of those obligations under the 1970 Act. Leave to Appeal 7 The appellant seeks leave to appeal on the basis that it is in the interests of the parties and in the public interest that the dispute concerning the respondent's jurisdiction to conduct disciplinary proceedings under the 1980 Act or, in the alternative, the 1970 Act be resolved. The respondent, although initially opposing the grant of leave, later informed the Full Bench during oral submissions that it conceded that the grounds raised by the appellant would justify a grant of leave. A factor which prompted the making of this concession was the tender by the appellant, at the beginning of its oral submissions, of two authorities signed by the two teachers against whom the disciplinary proceedings were initiated, which expressly authorised the appellant to appear on their behalf as agent. By consent the two authorities were admitted into evidence as confidential exhibits. The authorities, insofar as the parties were concerned, effectively resolved one of the respondent's initial grounds opposing leave which was that any orders made by the Full Bench would not raise a res judicata between the subject teachers and the respondent. Grounds of Appeal 8 The appellant relies on the following grounds of appeal: (i) Her Honour erred in the approach taken of the statutory interpretation of the 1970 Act, and in particular in the reliance placed on the Interpretation Act 1987. (ii) Her Honour in (sic) failing to uphold the appellant's application in relation to the 1980 Act (a) in the absence of making express findings that there was jurisdiction under the 1980 Act; (b) when making findings that were consistent with the appellant's submissions; (iii) Her Honour erred in failing to exercise discretion under the slip rule to correct the error referred at (ii) above. 9 Some particularisation of the first and second grounds of appeal appear in the appellant's written submissions, in which it is contended that the trial judge erred in the judgment of 18 May 2005 by: (i) focussing exclusively on the disciplinary procedure provisions of the 1970 and 1980 Acts, without considering the significant changes introduced by the 1980 Act as a whole [19] and [22]; (ii) focussing exclusively on the statutory purpose of the disciplinary procedures without considering the purpose of the statute as a whole; (iii) giving undue influence to the "startling result" that was said to flow from the appellant's contentions, instead of undertaking appropriate statutory interpretation of the 1970 Act, the 1980 Act and the Interpretation Act [15] and [22]; (iv) putting forward a requirement said to be based on the legislation being considered in Attorney General for the State of Queensland v AIRC (2002) 213 CLR 485, that there had to be an express extinction of liabilities under the repealed legislation for a contrary intention to be manifested. Legislative Background 10 Section 37(1) of the 1970 Act relevantly provided that any officer or employee who was guilty of any misconduct or disgraceful or improper conduct was guilty of a breach of discipline which was to be dealt with by the Director-General or a prescribed officer by the imposition of a number of specific punishments which included a caution, reprimand, fine, reduction in salary, demotion or dismissal. The Act contained no definitions of "misconduct", "disgraceful" or "improper conduct". 11 Under s 37(2), the procedure for dealing with breaches of discipline was said to be "... as prescribed". Such a procedure was prescribed in regulation 30 of the 1970 Teaching Services Regulations ("the 1970 Regulations") which came into effect on 1 January 1971. 12 In 1980, the 1970 Act was repealed by Schedule 1 of the 1980 Amendment Act. Schedule 3 of that Act contained savings and transitional provisions, however, none of those provisions preserved any of the breach of discipline provisions which had appeared in s 37(1) of the 1970 Act. 13 In relation to the 1970 Regulations, Clause 15 of Schedule 1 to the 1980 Amendment Act purported to preserve them to apply to conduct under the 1980 Act (including alleged breaches of discipline under s 83) by deeming them to have been made under s 100 of the Education Commission Act 1980 to the extent they could have been made under that Act. The Clause provided: 15. Any regulations in force under section 49 of the Teaching Service Act 1970, immediately before the appointed day, shall, to the extent that they could be made under the Education Commission Act 1980, on or after that day, be deemed to have been made under section 100 of the Education Commission Act 1980. 14 Sections 82 to 85 of the 1980 Act, then entitled the Education Commission Act 1980, replaced s 37 of the 1970 Act in substantially similar terms. Section 37(1) of the 1970 Act and s 83 of the 1980 Act (which has remained unchanged until recently) are reproduced below: 37 (1) Any officer or employee who- (a) commits any breach of any provision of the regulations; (b) is guilty of any misconduct; (c) uses intoxicating beverages or drugs to excess; (d) is guilty of any wilful disobedience or disregard of any lawful order or direction made or given under this Act or the regulations; (e) is negligent, careless, inefficient or incompetent in the discharge of his duties; or (f) is guilty of any disgraceful or improper conduct, is guilty of a breach of discipline. 83 An officer or temporary employee of the Teaching Service who- (a) commits any breach of this Act or the regulations; (b) engages in misconduct; (c) uses intoxicating beverages or drugs to excess; (d) wilfully disobeys, or wilfully disregards, any lawful order made or given by a person having authority to make the order; (e) is negligent, careless inefficient or incompetent in the discharge of his duties; or (f) engages in any disgraceful or improper conduct, is guilty of a breach of discipline. 15 On 1 July 1982, regulations were promulgated under the 1980 Act ("the 1982 Regulations"). Part VIII of those regulations governed the procedure in relation to breaches of discipline. A comparison of Part VIII with regulation 30 of the 1970 regulations discloses that those regulations dealing with breaches of discipline in both sets of regulations are similar. Two sets of regulations replacing the 1982 regulations were promulgated in 1994 and 2001. 16 For the purposes of this appeal, s 5(1) and (2), s 30(1) and s 33 of the Interpretation Act 1987 were also relied upon by the parties. Those provisions, where relevant, provide: 5 Application of Act (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. ... 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. ... 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 17 What emerges from this summary is that following the repeal of the 1970 Act, no savings and transitional provisions with regard to the breaches of discipline provisions contained in s 37 were enacted in respect of the 1970 Act. The issue then arises between the parties as to whether, notwithstanding the repeal of the 1970 Act, and in the absence of any savings and transitional provisions in relation to s 37(1), the respondent could, nevertheless, legitimately have commenced proceedings against the subject teachers under either the 1970 Act or the 1980 Act for alleged breaches of discipline said to have been committed during the 1970's prior to the repeal of the 1970 Act, and before the enactment of the 1980 Act. These issues were the subject of the appellant's application for declaratory relief before Schmidt J as detailed in her Honour's judgment of 18 May 2005. Parties' submissions on the appeal 18 The appellant's submissions addressed, first, the respondent's ability to bring disciplinary proceedings under the 1980 Act, and, secondly, the respondent's power to bring disciplinary proceedings under the 1970 Act. 19 The submissions in relation to the 1980 Act sought to emphasise that in the absence of clear words preserving the respondent's powers to bring charges for the conduct alleged to have occurred prior to the Act's enactment, the presumption against retrospectivity applied with the result that the respondent was prohibited from pursuing the breach of discipline proceedings. Moreover, since the 1980 Act did not make any procedural changes but in fact introduced a new regime for the teaching services, that this tended to confirm its operation as prospective not retrospective. In relation to the latter part of the submission the appellant placed reliance on the following approach taken by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ. in Republic of Costa Rica v. Erlanger (1876) 3 Ch D 62. "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done" (1876) 3 Ch D, at p69. 20 A second and related submission addressed by the appellant in developing its argument that the 1980 Act could not be invoked was that the wording of s 83, being in the present tense, suggested that the Act was intended to apply only to alleged breaches of discipline which were said to have occurred after the enactment of that Act. 21 The appellant also contended that support for its argument as to the non-application of the 1980 Act to the alleged breaches of discipline could be found in her Honour's first judgment (at [24] and [29]). As a result of her Honour's findings, which according to the appellant favoured its argument concerning the 1980 Act, the appellant made further submissions in the second phase of the proceedings at first instance that her Honour should apply the slip rule and find in its favour at least in relation to the first declaration, sought in the amended application. Her Honour's refusal to apply the slip rule in the judgment of 9 June 2005, according to the appellant, involved a failure to properly reflect the true controversy between the parties, which was the fact that the respondent was pursuing disciplinary proceedings under the 1980 Act and not the 1970 Act. The two judgments therefore left unresolved, it was submitted, the issue between the parties as to whether the current disciplinary proceedings brought under the 1980 Act could be maintained. 22 The appellant relied on two contentions in the appeal in support of its primary submission that the respondent also lacked jurisdiction to initiate disciplinary proceedings under the 1970 Act. The first contention was that the 1980 Act evinced a contrary intention to that found in s 30(1) of the Interpretation Act. The second contention was that s 30(1) of the 1970 Act did not apply on the basis that no liability for the breaches of discipline had been incurred. This was because the charges currently laid under the 1980 Act alleged breaches of discipline by reason of having engaged in improper conduct. The comparable provision under s 37(1) alleged a breach of discipline where an officer or employee "is guilty of any ... improper conduct" (see s 37(1)(f)). The same requirement of guilt as a precondition of establishing a breach appears in two other paragraphs of s 37(1). Those paragraphs, therefore, but not the remaining paragraphs to which no such precondition was attached, first required in order for a breach of discipline to be established, a finding of guilt in relation to the impugned conduct. In support of this latter submission the appellant relied on a passage from the judgment of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 584 where his Honour said, in discussing a similar provision to s 30(1)(c) contained in the Acts Interpretation Act 1958 (Vic): But I do not think it is the sense in which it is said that an amending Act does not disturb existing liabilities arising out of past transactions. That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability. According to the appellant, adopting the language of the above passage, there was no liability for a breach of the disciplinary provisions that became complete by past events (the alleged improper conduct) because no finding of guilt was made. Unless such a finding had been made prior to the repeal of the 1970 Act liability could not be incurred. 23 In contending that her Honour fell into error in her finding that s 30(1)(c) preserved the effect of the 1970 Act, the appellant submitted that a contrary intention was to be found in the 1980 Act, and in the 1980 Amendment Act. Particular reliance was placed on the transitional provisions of the 1980 Act. In that regard the trial judge according to the appellant, misconceived the relevance of the decision of the High Court in Attorney-General for the State of Queensland v Australian Industrial Relations Commission and others (2002) 213 CLR 485. In that case the High Court found a contrary intention was demonstrated by the language of the later Act and there was therefore no necessity to rely on the savings and transitional provisions. In this case however resort must be had to the savings and transitional provisions contained in the Schedule 3 to the 1980 Act, which dealt with the situation prior to the repeal of the 1970 Act; particular reliance was placed on the fact that in 1980 there were no savings and transitional provisions on the important and presently relevant issue of disciplinary proceedings. 24 According to the appellant the legislature did not intend, except to the extent provided, to preserve the 1970 Act to apply to liabilities incurred under that Act. This is apparent from the introduction in the 1980 Act of two new teaching services, the Education Teaching Service and the Technical and Further Education Teaching Service. By contrast, the 1970 Act dealt with a single teaching service. Moreover, each teaching service established under the 1980 Act appointed separate Directors-General. Under the 1980 Act only the "appropriate Director-General or a prescribed officer may deal with alleged breaches of s 83", whereas the 1970 Act provided for the Director-General to deal with breaches of discipline, or a prescribed officer. The prescribed officer under the 1970 Act was defined in s 37(8) by reference to an office as well as, "for the purposes of (the) section". The prescribed offices were set out in Clause 30(1) of the 1970 regulation however many of those offices no longer existed. 25 In addition, submitted the appellant, the 1980 Act preserved a number of provisions with regard to disciplinary proceedings such as external appeals to the Crown Employees Appeal Board or the Government and Related Employees Appeal Tribunal ("GREAT") but elected not to preserve the internal disciplinary processes under s 37. Nor were the 1970 regulations preserved under the 1980 Act for application to the disciplinary process under s 37. Clause 15 of Schedule 3 to the 1980 Act only preserved those regulations to the extent they, "could have been made" under the Education Commission Act 1980. Because many of the offices referred to in the 1970 regulations were changed or abolished by the introduction of the 1980 Education Teaching Service they, therefore, "could not have been made" pursuant to the 1980 Act. In any event the 1970 regulations could not have been complied with because the offices referred to in those regulations no longer exist. In those circumstances there was no process by which disciplinary proceedings under the 1970 Act can be conducted. The failure to preserve, or alternatively, the lack of availability of the 1970 regulations evinced a contrary intention under s 5(2) of the Interpretation Act. Further, the preservation of liability under s 30(1)(c) placed restrictions on the ability to update procedures. Here, three different sets of regulations have been promulgated under the 1980 Act. This suggests that the legislature did not intend to preserve liability under the 1970 Act. The only work for the 1970 Act to do is as specified in the transitional provisions. 26 Finally the appellant relied on s 86 of the 1980 Act dealing with offences by officers or temporary employees which it contended allowed the respondent to take action under s 85. Section 85 provided for the imposition of certain punishments once a breach of discipline was established. 27 The respondent commenced its written submissions on the appeal observing that the 1980 legislation contained little by way of the savings and transitional provisions. It did not follow from this however that those provisions were intended to be exhaustive with the consequence that s 30(1) of the Interpretation Act was displaced and the 1970 legislation was no longer available following its repeal to proceed against teachers for alleged breaches of discipline under s 37(1). The alleged conduct the subject of the charges was, according to the respondent, an incurred liability under s 30(1)(c) which therefore may be prosecuted under the 1970 legislation and was, moreover, continued into the current legislative regime. The impugned conduct the subject of the charges, according to the respondent, fell within the term "improper conduct" under the 1980 legislation. This was reinforced by the presence of identical provisions creating liability in the 1970 and 1980 legislative schemes. Nor did the absence of any savings and transitional provisions in the 1980 Act of itself mean that its effect was prospective only. 28 The respondent also advanced the contention that the purpose or object of s 37(1) was for the protection of students from certain conduct by teachers. If it were otherwise the consequence would follow that any act or omission however reprehensible committed before the repeal of the 1970 Act could not amount to a breach of discipline. Such an outcome is manifestly contrary to the legislative intention and purpose underlying the statute. 29 The respondent also disputed the appellant's submission that the trial judge made findings that were consistent with and supportive of the appellant's application in relation to the 1980 Act. All her Honour did, according to the respondent, was express the view that the appellant's legal arguments on the application of the 1980 Act to the subject charges were not obviously hopeless or lacking in merit. Her Honour's comments were, instead, more accurately characterised as a response to the summary of the appellant's arguments in relation to both the 1970 and 1980 Acts, or a response to the appellant's proposition that s 30(1) of the Interpretation Act did not apply to the 1970 Act because in accordance with s 5 of that Act a contrary intention was evinced by the legislature. This latter proposition was in fact expressly rejected by her Honour. The respondent submits that the differences between the 1970 and 1980 Acts which the appellant sought to emphasise by highlighting the introduction of a different teaching services regime and other attendant differences did not show that a contrary intention was evinced since the disciplinary processes under both Acts were relevantly unchanged and the provisions of s 37(1) and s 83 indistinguishable. 30 The respondent's alternative submission, in the event a finding was made on the appeal that the trial judge was in error in not making a finding as to whether the respondent had the requisite jurisdiction to charge for breaches of discipline under the 1980 Act, relied on the proposition that terms such as "improper conduct", in the absence of a definition under the 1980 Act, were broad enough to encompass pre-1980 conduct and such conduct was therefore actionable under the 1980 legislation. This proposition, according to the respondent, was reinforced by the protective nature of the disciplinary provisions contained in the 1980 Act. In order to achieve the beneficial purpose of protecting students, however, the Act penalises conduct engaged in by teachers. The tension between a liberal construction of beneficial legislation and a narrow construction given to legislation which is penal or punitive in nature is resolved by an examination of the dominant purpose of the legislation. The dominant purpose here must be protection of students from improper conduct by teachers. A strict construction which would deprive students of the protection clearly intended by the legislature should be avoided. 31 Moreover, the application of the 1980 Act to the impugned conduct merely takes account of antecedent facts and circumstances as the basis for the proscription of the impugned conduct, and therefore does not operate retrospectively. The 1980 Act does not provide that rights and obligations have been changed with effect prior to the commencement of the Act. The disciplinary provisions in the 1980 Act are identical to those which were enacted in the repealed 1970 Act (s 37(1)). Nor does the present tense used in s 83 support the proposition advanced by the appellant that the provision has no retrospective operation. Conduct "engaged in" falls within s 83 whether or not the offending conduct occurred before or after the 1980 Act came into force. 32 The respondent also submitted in reply to the appellant's submission concerning the interrelationship between s 85 and s 86 that those sections were irrelevant to the present proceedings since the teachers have neither been convicted nor charged with criminal offences. 33 Nor, submitted the respondent, did the differences between the 1970 and 1980 Acts identified by the appellant evince a contrary intention to extinguish teachers' liabilities under the 1970 Act. This is because the disciplinary processes were relevantly unchanged by the 1980 Act and s 37(1) and s 83 are indistinguishable. 34 The respondent also submitted that there was no basis for the appellant's submission that the 1971 regulations cannot be complied with because the offices referred to in those regulations no longer exist. The regulations continue in force by virtue of s 100 of the 1980 Act. 35 In relation to the third ground of the appellant's grounds of appeal which deals with the application of the slip rule in her Honour's second judgment, the respondent contended that the slip rule could have no application. Recourse to the rule is only available to correct clerical errors or accidental omissions or if the orders of the Court did not reflect what the Court decided or intended in its judgment. In relation to this latter point her Honour clearly intended not to make findings in relation to the question of jurisdiction of the respondent under the 1980 Act. Consideration and conclusions 36 We have decided to grant leave in this appeal because of the importance of the issues raised concerning the construction and application of the statutory provisions relating to the significant matter of disciplinary provisions relating to teachers. We have also concluded that the trial judge erred in finding that the respondent's jurisdiction to initiate disciplinary proceedings was under the 1970 rather than the 1980 Act. 37 We should here observe that the issues raised by the appeal have been somewhat difficult to resolve; in part because of the significant technicality of the issues raised in the appeal and in part because of the failure of the legislation made in 1980 to include express savings or transitional provisions on the important issue of disciplinary proceedings concerning members of the teaching service, although such provisions were made as to a number of other matters, some of which might be thought to be somewhat less important than the disciplinary scheme. 38 In the second judgment her Honour did not consider it necessary to come to a final view as to the application of the 1980 Act given her earlier findings that the 1970 Act was available to deal with any disciplinary proceedings which may be brought against the two teachers. At para [5] of the judgment her Honour said: While there were aspects of the Union's argument in relation to the 1980 Act which had a foundation, I concluded at [28], that there was no intention in the 1980 Act, to extinguish teachers' liabilities and obligations under the 1970 Act. Given the controversy between the parties, in light of that conclusion, it was unnecessary to come to any final view as to the other arguments advanced about the proper construction of the 1980 Act - particularly whether such liabilities and obligations, ongoing under the 1970 Act, also fell within the provisions of the 1980 Act. At the time the matter came before her Honour, the respondent had initiated disciplinary proceedings under the 1980 Act not the 1970 Act. Given her Honour's finding that the 1970 Act applied, the failure to make a finding as to the application of the 1980 Act appears to have left open to the respondent the option of proceeding with the 1980 Act charges. It may have left both parties in a state of uncertainty as to whether the charges laid could or should be proceeded with, but that does not mean that legal error thereby occurred. 39 During the hearing of the appeal both parties urged the Full Bench in the event we found error in relation to her Honour's approach at first instance concerning the respondent's jurisdiction to proceed under the 1980 Act, to decide whether s 83 of the Act could be validly invoked. We consider that it is appropriate for us to resolve the uncertainty of the parties in relation to the disciplinary proceedings initiated under the 1980 Act, as well as the respondent's intentions in relation to whether disciplinary proceedings will be initiated under the 1970 Act, on the assumption that Schmidt J's first judgment was correct. 40 In order to ascertain whether the 1980 Act can be applied to lay charges for breaches of discipline by teachers in relation to conduct alleged to have occurred prior to the enactment of the Act, it becomes necessary to identify the purpose or intent of the relevant provisions of the statute (a matter to which we will later return). This well settled approach to statutory construction is expressly recognised in s 33 of the Interpretation Act. That approach also involves the examination of the prevailing context at the time the legislation was enacted. The significance of this is highlighted where general words are used and the problem of ambiguity may be thought to arise. Context may be gauged not only from an examination of the words of an Act but also from certain extrinsic materials such as the relevant Ministerial speeches. Context, when read in the wide sense, also necessitates an examination of the apparently plain words of a provision, read in light of the mischief which the relevant Act or legislation was designed to overcome. These principles of statutory construction were conveniently assembled and considered in the judgment of the Full Bench of this Court in Commission for Children and Young People v "A" (2003) 56 NSWLR 486 at [51] to [54]. 41 In the present circumstances the 1970 Act had been wholly repealed. Whether the 1980 Act, specifically s 83, can have application may depend upon whether the presumption against retrospectivity applies. This presumption, which is rebuttable, arises from the principle that the legislature intends statutes (with some exceptions) to operate prospectively unless the language used or the overall circumstances clearly manifests a contrary intention, expressed or implied. 42 In relation to substantive rights that may have accrued or liabilities that may have been incurred under a repealed Act, such rights and liabilities are preserved in New South Wales under s 30(1) of the Interpretation Act. Similar provisions exist in all Australian jurisdictions. The position prior to the enacting of those provisions was referred to in Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan; Meakes v Dignan (1931) 46 CLR 73 at 105: Before the introduction of the provisions which stand in the Commonwealth statutes as sec. 8 of the Acts Interpretation Act 1901-1930, the repeal of an Act of Parliament put an end to it as a source of liability, whether arising out of acts or omissions, before or after its repeal. "The general rule of law is that a repealed statute cannot be acted upon after its repeal, although all matters that have taken place under it before its repeal are valid and cannot be called in question" (per Lord Campbell CJ, R. v. Inhabitants of Denton at p. 291). "What has been perfected under operation of the statute is not to be disturbed; but if the statute be necessary for any farther step, it must be in force at the time of taking that farther step" (per Coleridge J. ). "I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law" (per Tindal CJ, Kay v. Goodwin , at p. 1405). "It has long been established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" (per Lord Tenterden CJ, Surtees v. Ellison ). Thus a liability to punishment for contravention of a penal statute did not continue after the repeal of the enactment which imposed it unless expressly saved by the repealing statute. 43 By contrast, Acts or provisions of Acts dealing with procedure only are prima facie retrospective: Maxwell v Murphy per Dixon CJ at 271. These issues of incurred liabilities and the effect of procedural provisions will be discussed in further detail later in these reasons. Another important question is whether s 83 of the 1980 Act applies to conduct alleged to have occurred prior to its enactment. 44 Some indication of the legislature's intent or purpose in relation to s 83 may be found in the Second Reading Speech of the 1980 Act. In that Second Reading Speech reference is made to clause 80 of the bill. We were advised by the respondent during oral submissions that clause 80 refers to the current s 83 in the 1980 Act. The relevant extract from the Second Reading Speech is found in Hansard, Legislative Assembly, 28 November 1979 at 4117 where the Minister for Education said: Division 6 is concerned with discipline and conduct. It has been based upon part IV Division 4 of the Teaching Service Act. A change is proposed that honourable members may wish to note. Section 37(1) of the Teaching Service Act provides that any officer who is found guilty of any misconduct is guilty of a breach of discipline. Clause 80 of the bill will make the same provision about an officer who engages in misconduct. The bill will thereby achieve uniformity with the Public Service Act. 45 According to the Second Reading Speech, therefore, the division of the 1980 Act dealing with breaches of discipline (which includes s 83) is based upon the comparable division under the repealed 1970 Act (which included s 37(1)). One purpose therefore of the new division, and of the proposed changes to s 83, was simply to reflect the earlier provisions, and to bring the proposed changes to s 83 into line with the then recent Public Service Act of 1979. The extract from the speech does not however cast any greater light on the issues we are to decide. 46 In her Honour's initial judgment, Schmidt J made the following observations concerning the purpose of both sets of disciplinary provisions: [16] Given the apparent purposes of the disciplinary provisions of both the 1970 and 1980 Acts, that is for the protection of students, as the Department contended, or even as the Union contended, for the additional purposes of protecting the public, maintaining proper standards, protecting the professional reputation of the teaching service and stopping the conduct from occurring ... We agree with these observations. We would also add that other aspects of the purpose of the provisions include the protection of the public interest by, on the one hand, ensuring the proper efficiency and integrity of the teaching service and, on the other hand, providing that teachers, particularly those who are officers and thus permanent employees, have a reasonable degree of security of tenure (since they cannot be disciplined or dismissed without appropriate cause being shown). 47 It remains to determine whether her Honour erred in her approach taken to the construction of the 1970 Act. This entails an examination first of s 37(1) of the 1970 Act to see whether that section potentially affects incurred liabilities, and, therefore whether s 30(1)(c) of the Interpretation Act operates to preserve those incurred liabilities. It may then be necessary to ascertain whether the 1980 Act manifests a contrary intention such that that Act may be construed as altering those liabilities so that they are not preserved, and the operation of the Interpretation Act is displaced. 48 The potential liability under s 37(1) is the liability to punishment for a breach in contravention of any of its paragraphs. The appellant's alternative submission sought to draw a distinction between those paragraphs in s 37(1) which purportedly required first a finding of guilt in relation to the specified conduct (paragraph (b), (d) and (f)) and other paragraphs which did not (paragraphs (a), (c) and (e)). The first category, the appellant contended, referred to liabilities which were not complete because they were in effect contingent upon a future event, namely, a finding of guilt. The second category however referred to completed liabilities, in other words, liabilities that had been incurred, and were therefore amenable to the operation of s 30(1)(c) of the Interpretation Act. 49 An obvious difficulty with that construction of s 37(1), if accepted, is that some conduct within s 37(1) prior to 1980 could be dealt with after 1980 but other conduct within s 37(1) (that which involved reference to the word "guilty") could no longer found a basis for dealing with an alleged breach of discipline. Such a construction urged by the appellant in relation to paragraphs (b), (d) and (f), moreover, would entail a finding that a breach of discipline had been found to have been committed before any relevant enquiry had taken place. This plainly cannot be the intent of the provision. 50 Rather, we are of the view that the use of the word "guilty" in some of the paragraphs but not in the others is not a difference of any substance. Support for this may be found in the decision of the High Court in The Queen v White and others; Ex Parte Byrnes (1963) 109 CLR 665. In that case the applicant Mr Byrnes applied to make absolute an order nisi for a writ of certiorari. He had been charged by the Chief Officer of the Department of the Army with having wilfully disobeyed a lawful order. The charge was laid under s 55 of the Public Service Act 1922-1960 (Cth). Section 55(1) which was found in Division 6 of Part III of that Act provided that an officer who does or omits to do certain things as set out in paragraphs (a) to (h) of that subsection shall be guilty of an offence and shall be liable to punishment. The Court in dismissing the application said (at 670): As has already appeared, we think that Div. 6 of Pt. III of the Act relating to offences is part of the law regulating the relationship between the Commonwealth and its servants; it is a law with very special application. Section 55, in creating so-called "offences" and providing for their "punishment", does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes. The formalities prescribed in ss. 55, sub-ss.(3), (5) and (7), and 57, 58 and 60 (which counsel for the applicant described as "judicial trappings") are directed to safeguarding public servants from possible official injustice in the determinations whether there has been departure from the "code" established by s. 55 (1) and, if so, what punishment should be imposed. The establishment of these safeguards does not indicate that an officer whose conduct is being investigated is being tried for a criminal offence; indeed in the Act a clear distinction is drawn between criminal offences committed by public servants (s. 62) and breaches of the disciplinary code established by s. 55 (1). 51 If the reasoning in the above case is adapted to the circumstances here, the word "guilty" used in s 37(1) therefore has no significance over and above defining the relevant misconduct on the part of a teacher and others to which the section may apply which in turn may warrant disciplinary action on behalf of the teaching service. The Queen v White also shows the undesirability of the repeated use of the word "guilty" in s 37 and this may explain why the 1979 Public Service Act, and the 1980 Act which followed it, were modified to avoid the repetition. 52 We therefore differ from Schmidt J as to her Honour's conclusion that because of the alteration in the language used, the 1980 obligations were somewhat broader than those created by the 1970 Act. We consider that, notwithstanding the change in verbiage, the obligations relevantly imposed were the same under both Acts for all practical and legal purposes. 53 The analysis thus far of the legislative scheme and the relevant principles shows that, at the time the respondent came to consider commencing disciplinary proceedings against the particular teachers, the respondent was confronted with allegations of conduct some of which were alleged to have occurred prior to the 1980 Act coming into force but with apparently different statutory regimes deriving from the 1970 Act and 1980 Act which were, nevertheless in practical terms, identical, notwithstanding some verbal differences. Inevitably, the respondent would have been faced with a quandary as to how to frame the relevant disciplinary "charges", and particularly so as to which statute should be referred to in the "charges". As earlier noted, what occurred in 1980 involved the repeal of the 1970 Act and, most relevantly, the repeal of s 37(1) which related to the basis of disciplinary proceedings until its repeal in 1980. 54 Some assistance in this situation is available from decisions relating to courts being entitled to go behind the words used in situations of apparent repeal or amendment of statutes and the need for the court to determine for itself whether the effect of a provision is to repeal or to amend an existing statute. As Pearce and Geddes observe in the 2006 edition of their Statutory Interpretation in Australia (at p 247), the accepted authority in Australia for many years on the approach to be adopted to resolve this issue has been the judgment of Jordan CJ in Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 569. In that case Jordan CJ said: Whether an Act has been repealed or amended is a matter of substance and not one of form only. One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added ... And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is merely repetition, and prospective so far as it is new: Ex parte Todd (1887) 19 Q.B.D. 186. The approach of Jordan CJ in Beaumont v Yeomans was followed by a majority of the High Court in Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233. 55 Further, the High Court recently observed, in Attorney-General (WA) v Marquet (2003) 217 CLR 545 at 564 - 565, that an analysis of relevant cases (including Beaumont v Yeomans) revealed that the words "amend" and "repeal" can be used in ways in which there appears to be some overlapping in their meanings, citing Kartinyeri v Commonwealth (1998) 195 CLR 337 at 375. The Court also held: But concluding that the words have different meanings is not to say that the distinction between them always depends upon the form in which a particular piece of legislation is cast. The distinction must depend upon considerations of substance not form (the initial emphasis is in the original; the subsequent emphasis has been added). 56 The next question is whether s 37(1) is concerned with liabilities that have been incurred and which are therefore caught by s 30(1)(c) of the Interpretation Act unless a contrary intention may be found in the repealing legislation or other legislation which displaces its operation. 57 We do not agree with the finding of Schmidt J that s 30(1) of the Interpretation Act had the effect of continuing in force s 37 of the 1970 Act in respect of matters which occurred prior to 1980 and which could have been dealt with under s 37(1), but in respect of which proceedings had not actually been commenced prior to the repeal of s 37(1). 58 This conclusion involves an examination of the various potentially relevant aspects of s 30(1) of the Interpretation Act in light of the fact that what was in issue were disciplinary proceedings involving allegations of misconduct. We consider that the only parts of s 30(1) that could be relevant are paragraphs (c) and (e). However, as to paragraph (c), we do not consider the fact that there existed conduct which it was alleged could be later found to be "misconduct", or the fact that proceedings might be commenced in relation to such conduct, could be said to be "a right, privilege, obligation or liability acquired, accrued or incurred under the Act ..." Similarly, it could not be said that such matters were, absent the commencement of proceedings, an "investigation, legal proceeding or remedy" in terms of paragraph (e). 59 The difficulty in finding that s 37(1) is concerned with liabilities that have been incurred is that the provision, at its highest, deals with potential liability. On its proper construction, s 37(1) does not create any liability unless and until proceedings are commenced in respect of an alleged breach of discipline. As Windeyer J observed in Ogden Industries Pty Ltd v Lucas at 584, a provision such as s 30(1) "describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability." 60 We should now return briefly to the presumption against retrospective operation, which was earlier referred to. This matter arises because of the question whether s 83 of the 1980 Act applies to conduct alleged to have occurred prior to its enactment. This question, in turn, raises the question whether s 83 is procedural or creates or affects substantive liabilities. Section 83 of the 1980 Act, as with s 37(1) of the 1970 Act which was discussed in the last paragraph of these reasons, does not create any liability; no liability crystallises until proceedings are commenced in respect of an alleged breach of discipline. 61 As adverted to earlier, procedural provisions do not fall within the application of the presumption against retrospectivity. This well established principle was dealt with in some detail in Maxwell v Murphy. In the passage already quoted (at 267 of the judgment) Dixon CJ observed that the law appointing or regulating the manner in which rights and liabilities are enforced or their enjoyment secured, is not within the application of the presumption. Later in the judgment (at 268) his Honour adopted the following passage from Wright v Hale (1860) 6 H&N 227 at 232: The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with the procedure only, unless the contrary intention is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act. 62 The application and significance of procedural provisions to past events, was examined by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 518 - 521. The Court there held: The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural -- statutes of limitation, for example -- may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations. ... But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy , that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale (1860) 6 H&N 227 (158 ER 94), per Wilde B; Attorney-General v Sillem (1864) 10 HLC 704 (11 ER 1200), per Lord Wensleydale ; Warner v Murdoch (1877) 4 ChD 750, per James LJ, at p752. 63 As those authorities make clear, the difference between substantive law and procedure is often difficult to draw, and as Dixon CJ observed in Maxwell v Murphy (at 267) the presumption against retrospectivity relates to a statute changing the law. Section 83 is a provision essentially definitional in nature and when it is noticed that its enactment did not change the law but rather virtually replicated a provision in force for 10 years, it may be considered either procedural or analogous to a procedural provision. The presumption against retrospectivity therefore does not apply to the operation of s 83 of the 1980 Act. 64 Further, when consideration is given to the practical and legal identity of the obligations imposed by s 37 of the 1970 Act and s 83 of the 1980 Act, there is no reason to conclude that the legislature intended that s 83 of the 1980 Act did not deal with conduct which had occurred prior to 1980. Taking, by way of example, s 83(1)(b) which deals with misconduct, the relevant part of s 83 may be read as follows: "an officer or temporary employee of the Teaching Service who ... engages in any misconduct ... is guilty of a breach in discipline." 65 Although the formulation of the breach of discipline is expressed in the present tense, that does not mean that the misconduct must be alleged to be occurring at the time the breach of discipline is alleged. The present tense is used because, as earlier noted, s 83 is basically definitional in nature and describes the kind of conduct which, if proved, will amount a breach of discipline. In other words, what has to be proved, to make out an allegation that a breach of discipline in terms of s 83(1)(b) has been committed, is that the relevant officer has engaged in "any misconduct" at some time in the past. 66 We consider the statutory situation which relevantly occurred in 1980 is assisted by reference to an analogy drawn from the passage cited earlier from Beaumont v Yeomans and the other cases there discussed. Just as in Beaumont v Yeomans, in deciding whether what had occurred was an amendment or repeal, it was held that consideration should be given to the substance, rather than to the form, of what had occurred, so too, should consideration be given here to the substance of what occurred in 1980. The substitution of s 37(1) by s 83, the terms of which, as we have already observed, were practically and legally identical, did not evince an intention by the legislature to create two different disciplinary regimes, one in respect of matters which were alleged to have occurred between 1970 and 1980, and another dealing with matters alleged to have occurred since 1980. Rather, the intention of the legislature was to set up a disciplinary regime in 1980 expressed in slightly more modern language to deal with allegations of breaches of discipline whenever they were alleged to have occurred. 67 We do not consider that any other construction is reasonably available having regard not only to the language of the provisions and the context of the legislative changes but also to the purpose of the legislative scheme concerning discipline. 68 For the foregoing reasons we are of the view that her Honour erred in finding that the 1970 Act applied to the conduct as alleged and that s 30(1) of the Interpretation Act operated to preserve the liabilities incurred under s 37(1). 69 Further, we have concluded that the respondent was entitled to act on the basis that s 83 of the 1980 Act was available to deal with the relevant breaches of discipline. A declaration framed by reference to those sought by the appellant should therefore be made in favour of the respondent. 70 We noted earlier that s 83 of the 1980 Act had remained unchanged until recently. The recent change relating to that provision was made by a statute which became law since the hearing of this matter, the Education Legislation Amendment (Staff) Act 2006 which came into force on 4 August 2006. This legislation amended various statutes including the 1980 Act. In doing so it repealed s 83 and a number of related provisions (ss 82 to 90 inclusive) and inserted in lieu thereof new Parts 4A and 4B entitled, respectively, "Management of conduct and performance" and "Termination of employment of prohibited persons". Significantly however, the 2006 amending statute also inserted in Schedule 3 of the 1980 Act (the Schedule dealing with savings and transitional provisions) a new Part 4 entitled "Provisions consequent on enactment of Education Legislation Amendment (Staff) Act 2006" which included clauses 18 and 19 in the following terms: 18 Prior conduct Part 4A of this Act extends to conduct occurring before the commencement of that Part 19 Existing disciplinary charges If an officer or temporary employee has been charged with a breach of discipline under Division 6 of Part 4 of this Act that has not been finally determined before the repeal of that Division by the amending Act, the breach of discipline is to continue to be dealt with under the provisions of that Division as if it had not been repealed. 71 In view of the conclusion we have reached as to the meaning of the relevant legislation and the relief which should be granted, it is not necessary to make any further orders arising from the recent coming into force of the new legislation. In any event, the amendments do not affect the relief that should be granted in these proceedings. 72 Finally, in relation to her Honour's failure in the second judgment to invoke the "slip rule", the basis upon which she was asked to do so by the appellant was that the findings made supported the appellant's declaration in relation to the 1980 Act. An examination of the judgment of 18 May 2005 however suggests that her Honour found it unnecessary to come to a final view as to the construction of the 1980 Act. This was the basis upon which her Honour refused to invoke the slip rule in the appellant's favour. The appellant applied to her Honour to invoke the slip rule on the hypothesis that the first judgment was correct. In these circumstances we find that her Honour did not err in her refusal to invoke the rule. 73 Having regard to the nature of the proceedings there should be no order as to the costs of the appeal: see, for example, Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 at [73]; New South Wales Teachers Federation v Managing Director NSW TAFE Commission (2003) 123 IR 384 at [30]; and Commissioner for Children and Young People v "A" (No 2) [2004] NSWIRComm 8 at [26]. Declaration and Orders 74 The Court makes the following orders and declaration: 1. Leave to appeal is granted. 2. The appeal is upheld in respect of the judgment of Schmidt J of 18 May 2005. 3. Declaration that: The respondent and prescribed officers of the respondent do have jurisdiction to initiate and continue disciplinary proceedings under s 83 of the Teaching Services Act 1980 in relation to alleged breaches of discipline where the conduct allegedly constituting the breach or breaches pre-dates the promulgation of that Act. 4. No order for costs. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.