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Plaintiff Opposes Suspension Due to Charges of Various Offences

Cuvegen v Secretary to the Department of Education and Training [2021] VSC 524 (26 August 2021)

The plaintiff was charged with serious criminal offences.  Consequently, his registration as a teacher was suspended on the ground that he poses an unacceptable risk of harm to children.  He contests his suspension without pay asserting that the decision was invalid because of legal unreasonableness, irrelevant consideration of community trust, as well as breach of procedural fairness.  The Court relied upon the Education and Training Reform Act 2006 in adjudicating this matter. 

Facts:

The plaintiff, Mr Hakan Cuvegen, is a teacher employed by the defendant or the Department.  In April 2019, Mr Cuvegen was charged with criminal offences.  The alleged offences included threat to inflict serious injury, recklessly causing injury, unlawful assault, assault in company, criminal damage, wilful damage, possessing a dangerous article in a public space and carrying a dangerous article in a public area.  On 28 May 2019 the Department was notified by the Victorian Institute of Teaching (‘VIT’) that Mr Cuvegen’s registration was suspended on an interim basis because the VIT formed the belief that he posed an unacceptable risk of harm to children.

On 29 May 2019, the Department suspended Mr Cuvegen’s employment with pay.  On 2 July 2019, a delegate of the Department, Mr Gniel, suspended Mr Cuvegen’s employment without pay.  Mr Cuvegen seeks an order in the nature of certiorari quashing the decision.  Due to the decision, he was not paid a salary for an entire year and seeks backpay for 2 July 2019 to 29 May 2020. 

He asserts that Mr Gniel's suspension decision was so irrational and/or unreasonable as to constitute jurisdictional error, that the Department took the irrelevant consideration of 'community trust' into account, and that he was denied procedural fairness.  The Department submits that it was reasonable to consider community trust.  The Department concedes that the failure to provide Mr Cuvegen with an opportunity to make submissions about the community trust consideration resulted in a breach of the rules of procedural fairness.  However, it submits that this error was not material and therefore did not constitute jurisdictional error. 

On 23 August 2019, Holding Redlich, on behalf of Mr Cuvegen, sent a letter to the Department stating Mr Cuvegen’s intention to seek judicial review of the decision in this Court unless the decision be rescinded and Mr Cuvegen’s wages reinstated, including backpay for the period since 2 July 2019.  On 3 February 2020 the charges against Mr Cuvegen were withdrawn.  On 12 February 2020 Holding Redlich sent a letter to the VIT, enclosing orders made by the Magistrates’ Court evidencing the withdrawal of charges against Mr Cuvegen. 

Holding Redlich sent a letter to the Department’s solicitors requesting that the delegate within the Department conclude the investigation under Part 10 of the Education and Training Reform Act 2006, remove the suspension without pay, back pay Mr Cuvegen and, on the reinstatement of Mr Cuvegen’s registration, reinstate Mr Cuvegen.  On 12 March 2020, Holding Redlich sent a letter to MinterEllison attaching a letter from VIT dated 10 March 2020 which advised that the suspension had been revoked. 

It was provided therein that while the suspension of Mr Cuvegen’s registration was no longer in force, Mr Cuvegen was not a registered teacher as he had not completed an application to renew his registration.  On 9 July 2020 a delegate of the Secretary other than Mr Gniel determined that as Mr Cuvegen’s registration was no longer suspended, it was no longer appropriate for him to be suspended without pay.  However, the delegate determined that concerns remained regarding Mr Cuvegen’s conduct and that he would continue to be suspended with pay. 

Issues:

I. Whether or not suspension decision invalid on grounds of legal unreasonableness.

II. Whether or not the defendant took into account an irrelevant consideration by having regard to community trust in the Department of Education and Training.

III. Whether or not the failure to afford the plaintiff an opportunity to make a submission on the issue of community trust was a material breach of the rules of procedural fairness.  

Applicable law:

Education and Training Reform Act 2006 ss 1.2.12.4.592.4.642.6.68 - provides a framework governing the regulation of the teaching profession in Victoria and the maintenance of standards of professional practice for the teaching profession. 

Education and Training Reform Act 2006 s 1.2.1 - lists various principles that Parliament has had regard to in enacting the ETR Act, including the values of openness and tolerance, that information concerning the performance of education and training providers should be publicly available, and that a school community has a right to information concerning the performance of its school.

Education and Training Reform Act 2006 s 2.4.3 - provides that the Secretary may, inter alia, suspend employees from duty with pay and do anything else authorised by pt 2.4. 

Education and Training Reform Act 2006 s 2.4.60 - identifies the grounds that warrant the Secretary taking action against an employee. 

Education and Training Reform Act 2006s 2.4.61 -  identifies the type of disciplinary action that can be taken against an employee when the Secretary is satisfied that there are grounds for doing so. It includes a reprimand, a fine, a reduction in classification or termination of employment.

Education and Training Reform Act 2006 s 2.4.65 - entitled ‘Investigation’ and regulates an investigation conducted in connection with an inquiry under div 10. 

Education and Training Reform Act 2006 s 2.4.66 - entitled ‘Employee may make submissions’ and provides that the Secretary must give to an employee against whom it is alleged there are grounds for action notice in writing that they may make submissions in writing to the Secretary addressing the alleged grounds and any action that may be taken.

Education and Training Reform Act 2006 Part 2.2 - establishes the government school system and provides that government schools are established by the Minister.

Education and Training Reform Act 2006 Part 2.4 - entitled ‘Government teaching service’, and regulates the government teaching service. It provides that teachers, persons engaged or employed as teacher aides and other staff are employed by the Secretary on behalf of the Crown in the teaching service.

Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 - provides that whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case.  

Madafferi v Chief Commissioner of Police [2017] VSC 652where the Court held that the inquiry as to whether special circumstances exist is not confined to the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period.

Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426(2009) 26 VR 172where special circumstances were described as of considerable width, generality and flexibility.

Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 159(1989) 23 FCR 536 where it was stated that in the case of some grounds of review if the decision-maker failed to take into account a relevant consideration or took into account an irrelevant consideration it is difficult to see the relevance of material not before the decision-maker. Other grounds of review will generally, lead to the evidence consisting primarily of the material before the decision-maker.

McCormack v Commissioner of Taxation [2001] FCA 1700(2001) 114 FCR 574 it was held that the admissibility of evidence on an application of judicial review of an administrative decision will depend upon the ground of review and the circumstances of the case.

Minister for Immigration v SZMTA  [2019] HCA 3(2019) 264 CLR 421where ‘materiality is put in issue in an application for judicial review ... it is a question of fact in respect of which the applicant for judicial review bears the onus of proof’.

Analysis:

The suspension decision was made pursuant to s 2.4.64 ETR ActIt is an implied condition of the statutory conferral of power that it must be exercised ‘within the bounds of reasonableness’.  A decision will not be unreasonable if it lies within the scope of rational decision-making, ‘if there is room for a logical or rational person to reach the same decision on the material before the decision maker’.  An irrelevant consideration is one which, as a matter of construction of the relevant statute, the decision-maker cannot permissibly take into account. 

The ETR Act  does not implicitly prohibit consideration of community trust.  There is nothing in the subject matter, scope or purpose of the Act which implictly limits or prevents the Secretary from having regard to community trust in the Department being eroded.  Teachers’ salaries are paid from public funds, as such it is implicit that powers conferred by the ETR Act are exercised on behalf of the community.  By necessary implication, concern about community trust and community expectations is valid. 

An error is jurisdictional only if it is material, in the sense that it has deprived the applicant of the realistic possibility of a successful outcome. The Department submits that Mr Gniel’s affidavit is relevant to the question of whether the conceded denial of procedural fairness was material. It submits that the failure to afford Mr Cuvegen with an opportunity to make submissions did not deprive him of the realistic possibility of obtaining a different outcome. 

Conclusion:

The Court concluded that the breach was not material. It was not unreasonable for Mr Gniel to consider whether community trust in the Department would be eroded. Notwithstanding the conceded breach of the rules of procedural fairness, Mr Cuvegen has not discharged the onus of proving that the error was material in the requisite sense. The exercise of statutory power under the ETR Act was not tainted by jurisdictional error and the suspension decision is not invalidated.  Mr Cuvegen is not entitled to an order in the nature of certiorari which would entitle him to backpay for the period between 2 July 2019 to 29 May 2020. The proceeding is dismissed. The Court rejects the three grounds advanced by Mr Cuvegen in support of his application for judicial review. He is not entitled to an order for certiorari quashing the decision nor is he entitled to backpay for the period July 2019 to 29 May 2020. The Court made orders for an extension of time pursuant to r 56.02(3), the dismissal of the proceeding, and the opportunity for the parties to make submissions in respect of the costs of the proceeding. 

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