The Full Bench has unanimously dismissed an application for leave to file an appeal out of time and for new or fresh evidence to be received.

At first instance

The appellant was employed as a teacher. In 2015, the respondent, the Director-General of the Department of Education, found that the appellant had disobeyed a lawful direction given by the school Principal to not alter his classroom without consulting his line manager and imposed a penalty on him.

Commissioner Emmanuel found that where there was a conflict between the evidence of the Principal and the appellant, she preferred the evidence of the Principal. She also found that it was reasonable and well within the Principal’s rights to direct the appellant not to alter the classroom.

Emmanuel C concluded that, contrary to the appellant’s arguments about the interpretation of the direction and his actions, he disobeyed the lawful order.

The application was dismissed on 19 June 2017.

The decision at first instance can be read here.

Appeal to Full Bench

The appellant said that as a result of a Freedom of Information request, he received documents in 2019 that he did not know existed. His grounds of appeal included that Emmanuel C:

• Erred in law and or fact by finding that his conduct constituted misconduct because she was unaware of fresh evidence that has emerged; and
• Erred in law and or fact in finding that the respondent’s witness, the school Principal, was a credible witness because she was unaware of false statements made by the Principal in respect to an issue that could now be disproven on the basis of fresh evidence that had emerged.

The Full Bench noted that whilst the appellant made submissions about the circumstances relating to the application to file the appeal out of time and to receive fresh evidence, he did not support them with evidence.

The Full Bench found that the length of the delay, which was more than three years, was an inordinate delay. It also noted that there was a lengthy delay in lodging the appeal after the information was discovered.

The Full Bench also found that there was no evidence about why the appellant took a year to utilise fresh evidence and discover their purported significance. It also determined that there was no basis for the argument that if the Principal were wrong, the outcome would be different. The Full Bench found that the findings made by Emmanuel C were correct and that even if the direction was lawful but based on erroneous information, it did not alter the fact that the appellant was obliged to comply but did not.

The Full Bench concluded that, even if the evidence were fresh evidence, its receipt would not change the result. It found that the basis for the appeal was completely undermined.

The Full Bench dismissed the applications to receive new evidence and for the appeal to be received out of time.

The decision can be read here.