Insights

Helen Brown, Megan Neill & Zoe Caughey
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In K v Complaints Assessment Committee [2022] NZHC 307 the High Court recently considered whether a Complaints Assessment Committee (CAC) of the Teaching Council could revisit a decision it had made on a complaint about a teacher (here a principal). 

In trying to ensure it had all the facts and applied the law correctly, the CAC ran afoul of the common law principle of finality which limits the circumstances in which certain types of decisions can be revisited. The Court found the CAC had made a ‘final’ decision in deciding and communicating to the principal and complainants that it would not take further action on the complaint. It was therefore functus officio at that point and the circumstances were not exceptional enough for the CAC to revisit that final decision.

The background involved a secondary school student who was involved in a serious incident while at school. The school’s disciplinary process was engaged, and the student did not attend school for around seven weeks, and this absence was recorded as being for medical reasons. During the student’s absence from school, meetings were attended by the student’s parents, the principal and others involved in the matter, including to determine a return to school plan for the student.

After returning to school, the student was involved in a series of events that resulted in their formal suspension by the principal. There were a number of other incidents that resulted in the student being withdrawn from the school by their parents, who also complained to the Board of Trustees about the principal.

One of the grounds of the complaint was that the principal had used an illegal or improper process to suspend the student while he was absent for seven weeks. Where a student is excluded from school on an informal basis but the prescribed process for a suspension under the Act  is not followed, this exclusion may be an illegal suspension. This informal (and illegal) suspension is often called a ‘kiwi suspension’.

The Teaching Council appointed a CAC to investigate the complaint. Following an investigation, the CAC has the power under the Act to make various orders including to: refer the teacher to a competency review or impairment process; make a finding of misconduct and attempt to reach an agreed outcome; refer a matter of potential serious misconduct to the Teachers Disciplinary Tribunal; or resolve to take no further action.

The CAC decided to take no further action. Among other reasons, it said that the seven week period in which the student missed school was not a ‘kiwi suspension’. The student’s parents disagreed and requested the CAC reconsider its decision to take no further action. The CAC ultimately decided to revisit the decision on the basis of a material error of law (that it failed to take into account the unlawfulness of the student’s suspension).

The principal sought a judicial review of the CAC’s decision to redetermine the complaint in the High Court.

Both parties acknowledged the common law principle of finality for decision-makers exercising statutory duties or powers applied. Once an authority has made a final decision i.e. formally communicated that decision to the parties, it has exhausted its jurisdiction and has no further power to act, it is functus officio.  This principle applies to decisions that have “affected legal rights”.

Justice Gwyn considered a resolution to take a matter no further did affect the principal’s rights as the decision meant he was no longer facing the possibility for a further process such as referral to the Disciplinary Tribunal.

The CAC argued that, if the principle of finality applied, in exceptional circumstances it would not prevent a decision from being reopened. 

The CAC pointed to cases involving other regulatory bodies where it had been found that a public body can re-visit a decision made in ignorance of the true facts where it has proceeded on a fundamental mistake of fact. The CAC argued the importance of being able to reopen investigations in certain circumstances, and pointed to investigations that authorities have reopened, including WorkSafe and the Independent Police Complaints Authority.

Justice Gwyn acknowledged that the principle of finality is not absolute and, “whether a decision can be revisited also depends on the nature of the relevant power or function”.

The Court examined the CAC’s particular powers and function and considered that the CAC is a disciplinary body in its own right – it is not just a means to filter or triage complaints for the Disciplinary Tribunal. The CAC’s role has both an investigative and an adjudicative function and the decision not to take any further action is part of that adjudicative function. Therefore, when communicated to the principal and complainants, that decision is one to which the principle of finality attaches.

Justice Gwyn acknowledged that a final decision, even a judicial one, can still be revisited in exceptional circumstances – where “the interests of finality are outweighed and a public body can revisit a decision made in ignorance of the true facts.”  However, the Judge was not persuaded that there was enough public interest here to compel a reopening of the CAC’s initial decision, and reopening it four years after the relevant events would cause considerable prejudice to the principal.

Having determined that the CAC was functus officio at the point where it communicated to the parties its decision to take no further action, and that it didn’t have sufficient grounds to revisit the decision, the redetermination decision was found to be unlawful along with all actions taken in furtherance of that decision.

This decision was solely about whether the CAC had the power to reopen an investigation and did not go into detail about the merits of the decision made. Unfortunately for the CAC, it finds itself between a rock and a hard place. Having reached the conclusion that its decision was in error and arguing that position in order to try and fix that, it is possible the complainants could seize on this to launch their own judicial review. As the Court alluded to in this decision, if that does occur, the Court might find that this complaint should ultimately be reconsidered albeit by a different CAC. That would be an ironic consequence of a decision seeking to uphold finality.

This is a significant clarification of the nature of a CAC’s decision-making and the finality of the decisions it makes. It also emphasises the importance of (as far as reasonably possible) establishing all relevant facts for a decision through the preceding investigation process and, where there is uncertainty, considering further investigation before reaching a final decision.

This case will be of particular interest to anyone who is currently the subject of a complaint and may provide comfort to those who have been the subject of a ‘no further action’ decision following a complaint of the value of finality placed on that decision.

This case will also be of interest to investigative and decision-making bodies of other professional regulators in similar positions to the CAC who find themselves thinking there is something they’ve missed, and will no doubt be a benchmark for further cases in the regulatory space where the finality of a decision is questioned.

If you have any questions about a disciplinary matter you are involved in, please contact Helen Brown, Megan Neill, or Zoe Caughey in our Litigation team.
 

[1] The relevant Act is currently the Education and Training Act 2020, at the time of this case, it was the Education Act 1989.

[2] Parties and the Court referred to the leading case of Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA).

[3] At [96]



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