TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v DIMOSTHENIS DILLON KOURLAS [2024] SASCA 88

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DEUTER) [2024] SADC 5 Appellant: TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA Counsel: MS A DOECKE KC WITH MS E DENBIGH - Solicitor: CROWN SOLICITOR (SA) Respondent: DIMOSTHENIS DILLON KOURLAS Counsel: MRS M SHAW KC WITH MR W MICKAN - Solicitor: PATSOURIS & ASSOCIATES Hearing Date/s: 24/07/2024 File No/s: CIV-24-002450 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v KOURLAS [2024] SASCA 88 Decision of the Honourable Acting Chief Justice Livesey (ex tempore) 24 July 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS The appellant Board has applied for a stay pending the determination of its appeal. The appeal to this Court is against the decision of the primary judge allowing an appeal against a decision of the Board on 14 June 2022, finding that the respondent was not a fit and proper person to be registered as a teacher pursuant to s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA). The Board took issue with the approach of the primary judge which was critical of the way the Board gathered and relied on evidence which supplemented police investigations into allegations involving the respondent and drug related conduct in 2018. The respondent had been charged with criminal offences but they were eventually withdrawn. The appellant contended that the primary judge’s focus should have been on the proper role of the Board in the regulation of the teaching profession, having regard to the public interest. In addition, the appellant applied to change the name of the appellant. This aspect of the application was not opposed by the respondent. Held (granting a stay of the remittal pending the determination of the appellant’s appeal to this Court): 1. It is well recognised that the “norm” is that there is no stay of a final judgment and, if there is to be a stay, proper cause must be shown by the party seeking the stay. The onus is on the party seeking the stay to justify the favourable exercise of the Court’s discretion. In many cases, the applicant seeking a stay must demonstrate serious issues for determination on appeal, together with the real risk of irreparable prejudice or damage if a stay is not granted and the appeal succeeds. -- 1 of 8 -- 2. Those considerations are neither immutable, nor to be considered in isolation. They are inter-related. Additional considerations operate where a stay is sought in the context of professional regulatory proceedings concerning the public interest, for they are not merely concerned with punishment or personal interests. Those same considerations are relevant to an administrative appeal, as well as appeals to this Court concerning administrative appeals. 3. The Board’s appeal raises serious issues for determination on appeal about the basis upon which it must consider applications for the registration of teachers, including the evidence on which it may consider those applications. 4. It is not in the public interest that a teacher be registered on less than a complete consideration of the evidence available to the Board, if to do so would be contrary to law. The imposition of conditions on registration does not address whether and on what evidence registration should be granted. 5. The public interest takes precedence over the respondent’s personal interests. 6. The name of the appellant will be changed to the Teachers Registration Board of South Australia. 7. The question of costs is reserved. District Court Act 1991 (SA) s 42E; Teachers Registration and Standards Act 2004 (SA) s 21, referred to. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; Cahill v The Law Society of New South Wales Unreported, New South Wales Court of Appeal, 17 December 1987; Craig v Medical Board of South Australia (2001) 79 SASR 545; Davison v Council of the New South Wales Bar Association [2007] NSWCA 227; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289; Kourlas v Teachers Registration Board of South Australia [2024] SADC 5; Kourlas v Teachers Registration Board of South Australia (No 2) [2024] SADC 74; New South Wales Bar Association v Stevens [2003] NSWCA 95; Nikolaidis v Legal Services Commissioner [2007] NSWSC 1491; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, considered. -- 2 of 8 -- TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v KOURLAS [2024] SASCA 88 Court of Appeal – Civil – Application LIVESEY A/CJ (ex tempore): Introduction 1 By an application dated 15 July 2024, the appellant, the Teachers Registration Board of South Australia (the Board) has applied for a stay pending the determination of its appeal. The appeal is listed for hearing before the Court of Appeal on 9 September 2024. 2 The appeal is against orders made by a District Court judge allowing an appeal against a decision of the Board dated 14 June 2022, based on its finding that the respondent was not a fit and proper person to be registered as a teacher pursuant to s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA) (the Act).1 That appeal was heard within the Administrative and Disciplinary division of the District Court and final orders were made under s 42E of the District Court Act 1991 (SA). 3 The Board’s finding was based on evidence obtained by an investigator concerning allegations that the respondent had been engaged in “drug dealing” in 2018. Criminal charges concerning allegations of conduct related to drugs in 2018 had been withdrawn. The primary judge made a number of findings critical of the approach taken by the Board, especially its preparedness to act on the evidence obtained by an investigator which supplemented the evidence available from police. The primary judge concluded:2 On my review of all the material, I find that there are cogent reasons to depart [from] the Board’s decision. The Board’s use of police evidence, as put before it by an unqualified investigator was not a use open to them. They have cherry picked the evidence and as set out by the applicant’s counsel not applied rules of evidence to the material before them. The Board did not give any regard to the applicant’s sworn evidence nor his character evidence. I find on the facts that the decision of the Board, in the face of police withdrawing all charges, was plainly unjust and unreasonable, even taking account of the fundamental objects of the [Act]. I find that the Board have failed to properly exercise their discretion and there are compelling and cogent reasons for the Board’s decision to be rescinded, and the appeal to be allowed. 4 In connection with the order for remittal, the Board was directed that there should be a new panel constituted to consider the respondent’s application, the panel is not to take into account the applicant’s involvement in any incident on 1 The reasons in support of the appeal finding are Kourlas v Teachers Registration Board of South Australia [2024] SADC 5 (Deuter DCJ), and the reasons in support of the remittal are Kourlas v Teachers Registration Board of South Australia (No 2) [2024] SADC 74 (Deuter DCJ). 2 Kourlas v Teachers Registration Board of South Australia [2024] SADC 5, [227]. -- 3 of 8 -- [2024] SASCA 88 Livesey A/CJ 2 Hindley Street on 10 March 2018, and the panel’s deliberations should occur as soon as possible.3 5 It is the Board’s contention that the primary judge proceeded on the false premise that it was confined to the criminal process when considering whether the respondent had been involved in conduct relating to drugs.4 6 In addition, the Board has applied to formally amend the name of the appellant to the Board. The respondent opposes the stay but not the application to amend. For the reasons that follow, a stay of the remittal should be ordered pending the determination of the Board’s appeal. Relevant principles 7 It is well recognised that the “norm” is that there is no stay of a final judgment and, if there is to be a stay, proper cause must be shown by the party seeking the stay. The onus is on the party seeking the stay to justify the favourable exercise of the Court’s discretion.5 8 The discretion to order a stay is not fettered by the use of adjectives such as “special” or “exceptional”. The Court will ordinarily act in the interests of justice, endeavouring to fairly balance the interests of the parties having regard to the balance of convenience. In many cases, the applicant seeking a stay must demonstrate serious issues for determination on appeal, together with the real risk of irreparable prejudice or damage if a stay is not granted and the appeal succeeds.6 9 Whilst it is conventional to address a stay by asking whether the appeal raises serious issues, whether prejudice will be sustained if the stay is not granted, together with the balance of convenience,7 these considerations are neither immutable nor to be considered in isolation. They are inter-dependent.8 An apparently strong appeal may justify a stay even where there is scant evidence of prejudice or the balance of convenience is evenly poised. By contrast, even if there are doubts about appeal prospects a stay may be appropriate where the balance of convenience strongly favours it. 10 Moreover, additional considerations operate where a stay is sought in the context of professional regulatory proceedings which concern the public interest.9 3 Kourlas v Teachers Registration Board of South Australia [2024] SADC 74, [37]-[38]. 4 Kourlas v Teachers Registration Board of South Australia [2024] SADC 5, [214]-[227]. 5 Hackney Tavern Nominees v McLeod (1983) 33 SASR 590, 594 (White J). 6 See generally Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235, [14]-[15] (Livesey J), and the authorities there cited. 7 See Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410, [3], [16]-[18] (Nicholson J); Playford Vineyard v Wishford Nominees (No 2) [2018] SASC 152, [18]-[25] (Stanley J); Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82, [14]–[15] (Doyle J). 8 Cf, Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332, [83]-[84] (French J), citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472 when addressing interlocutory injunctive relief. 9 New South Wales Bar Association v Stevens [2003] NSWCA 95, [89]-[91] (Spigelman CJ, with whom Meagher and Sheller JJA agreed). -- 4 of 8 -- [2024] SASCA 88 Livesey A/CJ 3 The approach to be taken in that class of case is not quite the same as applies where the Court is considering the operation of orders affecting two private litigants.10 The difference in approach is explained by the proposition that because regulatory proceedings concern the public interest and are taken for the protection of the public, they are not merely concerned with punishment or personal interests.11 Those same considerations are relevant to an administrative appeal, as well as to appeals to this Court concerning administrative appeals. 11 In consequence, it is necessary that the Court consider whether a stay should be ordered in the public interest. In many cases that will be addressed by evaluating the need for the protection of the public interest. That evaluation must be made in a context where the District Court judge did not determine whether the respondent is a fit and proper person for the purposes of registration as a teacher under the Act. What was decided was that the process by which a contrary finding was made was flawed. It is the propriety of that process which will be determined on appeal. 12 The Court must approach the exercise of the discretion to grant a stay by taking into account the course which best protects the public interest concerning the registration of teachers under the Act pending the determination of the appeal.12 The submissions of the parties on the application for a stay 13 The first question to consider is whether the Board’s appeal has raised serious issues for determination on appeal. 14 The primary judge was critical of the approach taken by the Board in gathering together and relying on evidence which supplemented the police investigation into allegations that the respondent had been involved in drug dealing during 2018. The Board took issue with this approach, contending that there are well-accepted principles concerning the regulation of professions which have not been heeded. In particular: 1. It is submitted that the same principles apply where a disciplinary body is addressing admission, as apply to cases involving disciplinary proceedings, given the nature of the public interest in the regulation of professions.13 2. The concept of a “fit and proper person” must take its meaning from the statutory context in which those words are used and the activities proposed concerning the putative professional. 10 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306, 309 (Kirby J). 11 Craig v Medical Board of South Australia (2001) 79 SASR 545, [41]-[48] (Doyle CJ, with whom Williams and Martin JJ agreed). 12 Cahill v The Law Society of New South Wales, unreported, New South Wales Court of Appeal, 17 December 1987 (Kirby P) cited with approval in Nikolaidis v Legal Services Commissioner [2007] NSWSC 1491, [19]. 13 Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289, [35] (Giles JA, with whom Beazley JA and Bryson AJA agreed). -- 5 of 8 -- [2024] SASCA 88 Livesey A/CJ 4 3. In the context of the Act, it is contended that it is appropriate to evaluate fitness and propriety by reference to past conduct because that may indicate a public perception as to the likely future conduct when determining the fitness and propriety of an applicant to work closely with children.14 It is appropriate that an administrative body be empowered to determine whether an applicant has engaged in past conduct comprising criminal offending when determining what course it should take in connection with an application for registration as a teacher.15 4. Conduct that amounts to criminal wrongdoing, even where it has been the subject of charges which have been withdrawn, may be taken into account in disciplinary proceedings.16 There is, it is submitted, no reason to distinguish between withdrawn charges or an acquittal, because the focus is on the applicant’s underlying conduct and, as a consequence, fitness and propriety.17 15 Apart from failing to apply these principles to the determination of the matter before her, the Board also contended that the primary judge erred in distinguishing Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd as well as Sobey v Commercial and Private Agents Board,18 based on the outcome of the respondent’s criminal proceedings. 16 The Board contended that the primary judge should have focussed on the proper nature of the Board’s inquiry given its statutory obligations when regulating the profession for the protection of the welfare of children. As a result, the Board contended that it was necessary for it to enquire into the respondent’s underlying conduct, unconstrained by the way in which that was addressed in the criminal court. In these circumstances, the Board contended that the proved involvement of the applicant in drug dealing was conduct which demonstrated a lack of fitness and propriety, regardless whether it resulted in a criminal conviction. 17 For his part, the respondent contended that the appeal does not raise serious issues for determination, submitting that even if the primary judge erred in the manner in which she conceptualised the Board’s function, this did not undermine the conclusion that there were cogent reasons to depart from the Board’s decision. To the contrary, the Board erred by making factual findings regarding “drug dealing” and unfitness that were unreasonable or plainly unjust. The respondent has filed a notice of alternative contention to that effect. 14 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380 (Toohey and Gaudron JJ). 15 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ). 16 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 635-636. 17 Davison v Council of the New South Wales Bar Association [2007] NSWCA 227, [107] (Ipp JA, with whom Beazley JA and Hoeben J agreed). 18 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, [33]; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Kourlas v Teachers Registration Board of South Australia [2024] SADC 5, [136] and [79], respectively. -- 6 of 8 -- [2024] SASCA 88 Livesey A/CJ 5 18 The respondent contended that no complex questions of interpretation are raised and that the prejudice to be suffered by the Board in the event of a successful appeal did not amount to substantial prejudice or injury when balanced against the prejudice likely to be suffered by the respondent. 19 The respondent submitted that he will be very substantially prejudiced by a stay, taking into consideration the very long time which has elapsed between the events in 2018 and the completion of his tertiary education whilst he continues to be precluded from engaging in employment as a teacher. 20 The respondent also submitted that success by the Board on appeal does not automatically lead to a conclusion that the respondent is not a fit and proper person to be registered as a teacher. Mrs Shaw KC gave as an illustration of this argument the approach taken by a bench of four judges in In the Matter of an Application for admission as a Legal Practitioner, where three of the four judges found that the applicant was a fit and proper applicant despite having failed to reveal criminal conduct which was not committed whilst he was a legal practitioner.19 21 The respondent submitted that the Board is empowered to impose conditions on registration and these may serve to protect the public interest, should that be deemed necessary. The determination of the application for a stay 22 The Board’s appeal does raise serious issues for determination on appeal. As for prejudice and the balance of convenience, it is sufficient to observe that because issues of principle are raised by the Board’s appeal, it is undesirable that the remittal proceed until this Court has determined the appeal. 23 I accept that this is not a case where there were convictions or where the alleged wrongdoing occurred after registration as a teacher. Nonetheless, the respondent failed to disclose the fact that charges were laid and withdrawn,20 and to do otherwise risks confusion and uncertainty in connection with the registration process. For example, the remittal requires the Board to ignore the events on Hindley Street on 10 March 2018 but says nothing about whether the circumstantial evidence of drug dealing which was admitted by the Board should also be left out of account. 24 It is not in the public interest that a teacher be registered on less than a complete consideration of the evidence available to the Board if to do so would be contrary to law. The imposition of conditions on registration does not address the anterior questions as to whether and on what evidence registration should be granted. 19 In the Matter of an Application for admission as a Legal Practitioner [2004] SASC 426 (Doyle CJ, with whom Perry and White JJ agreed, Debelle J dissenting). 20 Although no issue was taken with the explanation given by the respondent before the Board. -- 7 of 8 -- [2024] SASCA 88 Livesey A/CJ 6 25 Whilst it may be accepted that the respondent would wish to take advantage of the favourable rulings made by the primary judge as soon as possible, his personal interest must be subordinated to the public interest in determining an appeal which has raised serious issues about the basis upon which the Board must consider applications for registration, including the evidence on which the Board may consider those applications. 26 In my view, this is a case where the public interest must take precedence over the respondent’s personal interests. I express that view without in any way determining whether the appeal should succeed or fail, including on the basis of the respondent’s notice of alternative contention. 27 Finally, I am mindful that the appeal will be heard in around six weeks’ time. Conclusion 28 Orders should be made in accordance with the terms of the application and minutes of order provided by the Board. 29 The name of the appellant will be changed to the Board and there will be a stay of the remittal pending the determination of the Board’s appeal to this Court. 30 The question of costs is reserved. -- 8 of 8 --