Rahman v Riordan [2010] NSWSC 409 (20 April 2010)

Last Updated: 7 May 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Rahman v Riordan [2010] NSWSC 409


JURISDICTION:
Civil

FILE NUMBER(S):
2009/298070

HEARING DATE(S):
19-20 April 2010


EX TEMPORE DATE:
20 April 2010

PARTIES:
Mohammad Tabibar Rahman (Plaintiff)
Peter Riordan (First Defendant)
David McGrath (Second Defendant)

JUDGMENT OF:
McClellan CJatCL

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Plaintiff in person
S B Benson (Defendants)

SOLICITORS:
Plaintiff in person
Chief Legal Officer, Department of Education and Training (Defendants)


CATCHWORDS:
ADMINISTRATIVE LAW
whether Department of Education & Training unlawfully rejected the applicant's employment application for fulltime work with the Department
whether prerogative relief should be granted
whether Department of Education & Training was required to accept the applicant's own evidence from Test of English as a Foreign Language
regulation of admission to teach in NSW public schools by Director-General

LEGISLATION CITED:
Teaching Services Act 1980

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
1. Summons is dismissed.
2. Plaintiff to pay the defendants' costs of the summons.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

McCLELLAN CJ at CL

TUESDAY 20 APRIL 2010

2009/298070 RAHMAN v RIORDAN & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff was born in Bangladesh in 1948. He holds a Bachelor of Science degree from the University of Rajshahi, bank der, and has a Master of Science degree from the University of Peshawar in Pakistan. He taught full-time in secondary government schools in Bangladesh for a period of fifteen years. He then found his way to England and taught in a State primary school in London for almost two years. He also taught part-time in a secondary non-government school near Liverpool for more than two years.

2 The plaintiff came to Australia in 1991 and has been employed for periods of time by the Department of Education & Training (DET) on a temporary basis. I understand that he has taught for a total of approximately 350 school days. The period which he taught was between the years 2001 and 2005. Since coming to Australia the plaintiff has obtained a Diploma in Education from Charles Sturt University.

3 The plaintiff has sought further employment with the DET as a teacher on a full-time basis. Although he has made a number of applications for that employment, each of them has been rejected. His applications have been refused because the departmental officers who have the task of assessing his suitability for teaching are not satisfied that his command of the English language is sufficient for him to be an effective teacher. As I have indicated, the plaintiff was born in Bangladesh where English is not the first language.

4 The employment of teachers in the New South Wales teaching service is controlled by the Teaching Service Act 1980. Section 7 of that Act provides for the functions of the Director General, which include the function in section 7(1)(d) "to determine the qualifications required for appointment to the teaching service". Section 47 of the Act provides that the Director General may appoint persons to positions in the teaching service in the event that such persons have, in the opinion of the Director General, appropriate qualifications to be employed in the teaching service.

5 Evidence of the administrative arrangements which have been made in relation to the employment as teachers of persons who come from a non-English speaking background has been tendered. That evidence discloses that in June 1991 the DET introduced a new policy titled Policy on the Employment of Teachers with Overseas Qualifications. That policy indicates that overseas qualified persons must be competent in the use of the English language before they can teach in New South Wales. This, of course, is not surprising, given that the language in our schools is English.

6 That policy, in a section headed "Competence in English", said:

“It is vital that approval to teach, in whatever area, be given only to applicants who have an appropriate level of English level competence. The assessment of an applicant's proficiency is therefore an essential component of the selection process."

7 Apparently before this policy was introduced in 1991 the competence of an applicant for a teaching position was assessed by an unstructured interview with a departmental officer. The 1991 policy replaced that process and provided for a uniform assessment procedure. Although the policy originally provided for an assessment of a person's proficiency in English by reference to the Australian Second Language Proficiency Ratings, that process was replaced in 1995 by a process referred to as the Professional English Assessment For Teachers, which goes by the acronym PEAT. The Department made arrangements for the PEAT assessment to be administered by the Institute of Languages, which is a wholly owned corporation of the University of New South Wales. The full title of the organisation is the University of New South Wales Institute of Languages.

8 The PEAT assessment covers the four language skills of reading, writing, listening and speaking and, of particular significance for the purposes of the department, is contextualised for teaching at schools. Test items are based on or drawn from current curriculum documentation, school newsletters, policy documents, students' own work and role play situations and listening activities.

9 The procedure of the department provides that when an applicant is being assessed they will be referred by the department to the institute where they will undertake the PEAT assessment. The PEAT assessment provides for the assessment of an individual by reference to the four categories and places them in a band A, B, C or D. Before the Department will accept an applicant as a teacher that person must achieve a band A result in each of the four skills. Although I understand not frequently applied, the Director General of School Education does retain a discretion to allow a person to proceed to employment even if they have not achieved a band A level in all four categories.

10 The evidence before me indicates that on 25 July 1991 the plaintiff submitted an application to the Department for employment as a teacher. The Department responded by indicating that it required further detail from the applicant and that he would have to be interviewed by a senior officer of the department to determine his "personal suitability" to teach in the New South Wales teaching service. There were other requirements. That application was rejected and the plaintiff was advised that he would have to meet the academic requirements of the department before he could be given a position as a teacher. My understanding is that he was then advised that he would be able to meet the academic requirements when he completed the studies which he was then undertaking leading to a Graduate Diploma of Education at the University of Technology Sydney. As it happens, the plaintiff does not have a Diploma of Education from that institution but holds a diploma from Charles Sturt University.

11 On 25 July 2000 the plaintiff submitted a further application for employment as a teacher. That application was again rejected, the plaintiff being assessed as having "difficulty in communicating your ideas on the teaching/learning process and effective class management strategies."

12 The plaintiff was again interviewed by officers of the department on 19 April 2001. There is in evidence before me of the Teacher Recruitment Unit Interview Assessment sheet relative to that interview. The interview was conducted by Mr Brian Harrison who indicated that Mr Rahman had now completed his Diploma of Education at Charles Sturt University. Mr Harrison concluded that the plaintiff was heavily "accented" but added, "communication skills judged in the satisfactory category". He was assessed as positive about teaching but "some words difficult to understand when speaking quickly - very talkative". Mr Harrison's assessment was that the plaintiff was "quite good in all areas" although communication skills in "just satisfactory" category and added "PEAT will determine (okay when he 'slows down')". Mr Harrison's recommendation was that "PEAT indicated".

13 The recommendation was supported by Mr Harrison's superior officers. At that point the plaintiff did not undertake the PEAT assessment but instead on 18 May 2001 he attended an interview in which he sought exemption from having to undertake the PEAT. That interview was conducted by Mr Fahey who came to the view that the plaintiff was proficient in writing and listening in English but not satisfactory in reading and speaking English and he recommended that the plaintiff not be exempted from PEAT.

14 Although the plaintiff made further representations seeking to be exempted from PEAT these were not sympathetically received.

15 On 27 October the plaintiff undertook the PEAT assessment but did not achieve a band A assessment in any of the four skills areas. His results were; Reading, band D; Listening, Band B; Writing, band C; and Speaking, band D. As a consequence of these results the Department of Education wrote to the plaintiff identifying that he had not achieved the required level of English language proficiency to enable the issue of an approval to teach and suggested that he undertake further study to improve his skills in the English language. He was also advised that he would need to undertake PEAT again and obtain band A in the areas in which he had not achieved that result.

16 The plaintiff's response was to seek a remarking of his PEAT test. That was undertaken and the plaintiff received a band C for his skill area of speaking instead of the original band D for that matter. However, he still failed to achieve band A level in any of the four skill areas.

17 Thereafter the plaintiff made a number of further representations to the Department. The constant response of the Department was that the plaintiff would have to satisfactorily complete the PEAT assessment before he could be considered for employment. Although the Department has since offered for the plaintiff to be further assessed under the PEAT arrangement, the plaintiff has declined to do so.

18 On 18 February 2003 the department wrote to the plaintiff granting him eligibility for casual employment as a teacher at Sarah Redfern High School until 4 July 2003. In that letter the plaintiff was informed that an extension of his teaching approval would only be granted upon a successful completion of a Professional English Assessment for Teachers (PEAT) examination prior to 4 July 2003. The plaintiff continued to assert that he did not understand why he had to undertake PEAT and he then brought proceedings in the Administrative Decisions Tribunal.

19 The plaintiff was again interviewed in August 2003 to determine whether he could be issued with an exemption from PEAT. However, the decision was made that he not be exempted. There was further correspondence, and on 26 September 2003 Ms Hollander of the Department of Education and Training wrote explaining that the issue from the department's point of view was that the plaintiff's standard of English language skills, which he had demonstrated in interview, as well as the results of his PEAT assessment indicated that his English language skills were not at the required standard for a teacher. Ms Hollander again confirmed that the plaintiff would need to successfully complete a PEAT assessment before he could gain that approval.

20 Apart from the proceedings in the Administrative Decisions Tribunal the plaintiff also brought proceedings in the Industrial Relations Commission. He failed in those proceedings and pursued an appeal, ultimately making an application for special leave which was refused by the High Court. Along this path there has been various exchanges of correspondence and telephone discussions, which it is unnecessary for me to set out in any detail in these reasons.

21 I previously indicated the statutory provisions relating to the employment of teachers. Under those provisions the DET has adopted a Teachers Handbook, portions of which have been tendered in these proceedings. Section 1.3 relates to the employment and classification of teachers and provides that a person who seeks employment with the department must have appropriate academic and professional qualifications, be found personally suitable for teaching following an interview, have their criminal records checked and also have appropriate national employment status. The policy provides that "Applicants who have qualifications gained overseas and are of non-English speaking backgrounds need to demonstrate appropriate English language speaking skills".

22 Because the plaintiff was born in Bangladesh where the languages are either Bengali or Urdu the plaintiff has been assessed as coming from a non-English speaking background. Furthermore, as I have already indicated his undergraduate degree and his postgraduate degree in science were obtained from universities in Bangladesh and Pakistan. He has of course obtained a Diploma of Education from an Australian university. However, because his professional qualifications in science were obtained overseas and he is from a non-English speaking background the departmental requirement is that he "demonstrate appropriate English language skills".

23 In these proceedings the plaintiff in essence seeks to challenge the decisions made by the defendants who are relevant officers of the Department rejecting his application for employment as a permanent teacher. He claims the following relief in his summons:

“1. An order in the nature of certiorari quashing the Peter RIORDAN, Deputy Director-General; and David McGrath, Manager Teacher, NSW Department of Education and Training's decision made on 1 December 2008 and 12 July 2005 to impinge and infringed the applicant's: Permanent Full-time Teaching Service under s44 & s47 Teaching Service Act and s8.1(b)(d) and S9.1.6(a)(b)(c)(d) & (e) Teacher Employment Priority Scheme; General Conditions of Employment.

2. An order in the nature of a prohibition and/or an injunction restraining the Peter RIORDAN, Deputy Director-General; and David McGRATH, Manager Teacher, NSW Department of Education and Training's from acting upon the impinge and infringed the applicant's: Permanent Full-time Teaching Service under s44 & s47 Teaching Service Act and s8.1(b)(d) and s9.1.6(a)(b)(c)(d) & (e) Teacher Employment Priority Scheme; General Conditions of Employment.

3. An order to grant any relief or remedy or to do any things by the way of mandamus or of any other description restraining the Peter RIORDAN, Deputy Director-General; and David McGRATH, Manager Teacher, NSW Department of Education and Training's from acting upon the impinge and infringed the applicant's: Permanent Full-time Teaching Service under s44 & s47 Teaching Service Act and s8.1(b)(d) and S9.1.6(a)(b)(c)(d) & (e) Teacher Employment Priority Scheme; General Conditions of Employment.

4. An order for the determination of any question or matter which may be determined by the Supreme Court of the applicant's submission.

5. An order for declaration of right.

6. An order for the recovery of damages or other money; and incidental costs as restrained and infringed the applicant's: Permanent Full-time teaching Service under s44 & s47 Teaching Service Act and s8.1(b)(d) and S9.1.6(a)(b)(c)(d) & (e) Teacher Employment Priority Scheme; General Conditions of Employment since 2005 to up to date.

7. To make order 'Summary Judgment' under Reg 13.1(1)(a)(b) & (2) & Reg 36.1 UCPR general Relief as 'Relief claimed in the Summons of Order Item No. 1-7 pursuant the enactments mentioned' as the [First] Defendant: Peter Riordan and [Second] Defendant David McGrath failed to defend under Reg, Reg 6.14(a)(i)(ii), (b) & (c) Notice to defendant in summons to establish justice - Rules of law' and Equities of applicant under s58 Supreme Court Act 1970 and to upheld constitutional sovereignty.”

24 He has provided with his summons detailed written submissions and has made further oral submissions. He has brought proceedings in this court having earlier brought proceedings in the Administrative Decisions Tribunal. He failed in those proceedings and comes to this court to complain that the relevant officers of the Department have acted contrary to law and that he is entitled to relief from this court in the nature of mandamus ordering the Department to employ him as a teacher.

25 The foundation for the plaintiff's complaints are readily apparent. He has, as I have earlier indicated, academic qualifications in science and has taught in schools in Bangladesh, London and New South Wales over a significant number of years. Although he has been unable to satisfy the requirements of the Department of Education and did not achieve satisfactory grades under PEAT he has had his English language skills assessed under the TOEFL, (Test of English as a Foreign Language), procedures provided through an organisation known as the All English Language Services. Under that procedure his English has been assessed as falling into the advanced English class, the only superior class is that of high level English. There are lower classes of intermediate English and basic English.

26 The plaintiff submitted that the Department should accept his assessment under the TOEFL procedures as demonstrating his capacity to master the English language sufficient for him to be employed as a teacher in the New South Wales education system. He submits that the TOEFL assessment is recognised throughout the world and is superior to the PEAT assessment process. Furthermore, he has submitted that because there is not in evidence any contract between the Department and the University of New South Wales Institute of Languages and there has not been tendered the transcript of his assessment by the Institute, the Department is acting illegally in refusing his application for employment. The plaintiff submitted that because he holds relevant academic qualifications including his Diploma of Education and has been assessed at the advanced level of English under the ELS, no more is required of him.

27 It is not difficult to understand the concern which the plaintiff expresses about his situation. It is plain that over a number of years educational institutions in Bangladesh and London have employed him and, presumably, assessed him as competent to teach students in the English language. This would be particularly so of his period of employment in London. He has also, as I have indicated, been employed as a temporary employee in this state.

28 Although he has been in Australia since 1991 he has not been able to gain permanent employment with the Department. He is the father of two children and was widowed when his wife was killed in a motorcar accident.

29 Notwithstanding my sympathy for the circumstances in which he finds himself I am not persuaded he is entitled to any relief from this court. As I have indicated, the structure of the Act provides that the Director General is responsible for the employment of teachers and may employ persons who have appropriate qualifications to be employed. Section 7 provides that it is the Director General who determines the qualifications which are required.

30 The Director General has, as I have indicated, determined through his officers and expressed in the relevant policy that a person in the plaintiff's position must be able to demonstrate appropriate English language skills. For many years the manner in which the presence of those skills is objectively determined in an applicant for employment is by undertaking the PEAT, the assessment process provided through the University of New South Wales, the Institute of Languages. I am not persuaded that by requiring applicants to undertake that process the Department through the Director General is acting contrary to law. There is nothing before me to indicate that the decision which was made by the Department to require the PEAT assessment in the plaintiff's case was made otherwise than in accordance with the procedures adopted by the Department.

31 As I have said the evidence indicates that it has been a longstanding requirement of the Department that such persons demonstrate their proficiency in English by undertaking the PEAT and obtaining a band A in each of the four skill levels. The plaintiff has been treated no differently to hundreds of other persons who have gained their qualifications overseas and are of non-English speaking backgrounds.

32 Accordingly, for these reasons the order which I make is that the summons is dismissed.

33 The defendants seek an order for costs. Nothing has been put before me by the plaintiff to indicate why costs should not follow the event and accordingly I order that the plaintiff pay the defendants’ costs of the summons.

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LAST UPDATED:
7 May 2010