Key terms and definitions
Appellant - This is you, as the person who lodged the appeal.
Board - Means a Disciplinary Appeals Board.
Board Book - These are the folders which hold all documents you (and the respondent) will rely on for presenting your case. Board Books are exchanged between parties and provided to the Board prior to the hearing. These should be logically compiled; a clear index and tabs will make it easy for you to refer to when you are presenting your case or responding to questions. If this is done well, it will allow you to present your case efficiently and clearly.
Closing Submissions - Simply put, these are a summary of the key points in your argument and evidence that you would like the Board to focus on. Closing submissions may be presented orally, or by agreement between parties and with the permission of the Board, may be put in writing. They should be clear and succinct.
Contentions of Fact and Law - Documentation that outlines each party’s view (Contentions), and the evidence (Facts) they believe supports this view.
DAB - the Disciplinary Appeals Boards.
De Novo - From Latin, meaning “from the new”. DAB hearings are sometimes referred to as a hearing de novo meaning that your appeal will be heard from the beginning, it is not just a review of evidence already provided but may include new evidence and accept further information.
Determination - This written document sets out the findings of the Board citing reasons for the decision made in your appeal. Each Board will make an independent decision based on the merits of each case.
Directions - You will receive a written copy of the decisions made from the Directions Hearing.
Directions Hearing - Is the initial meeting of the Board with all parties. It establishes a timetable to exchange documents, the number of hearing days and sets the dates. It allows both parties time to organise the presentation of materials and to agree on the location for the hearing.
Lawyer - Is a generic term, which covers both solicitors and barristers.
Respondent - the Department of Education (the Department).
Submissions - Either oral or written information given to the Board on which the Board makes a ruling. For example, a submission from either or both parties may be made to a Board to accept a late appeal application. The Board would rule on these submissions to allow or dismiss a late application.
Witness - A person who can provide additional information to the Board to assist them to reach a decision. Both parties are able to call witnesses. Any witnesses called may be questioned by each party and by the Board. Witnesses are required to swear an Oath or Affirmation.
The Board has three members:
- Chairperson, a lawyer who has been admitted to legal practice in Victoria for not less than 5 years;
- Secretary’s nominee, a person who has knowledge of or experience in education, education administration or public sector administration; and
- Minister’s nominee, a person who is an ongoing employee in the teaching service.
The Department will have legal representation.
When representing yourself the Registrar of the DAB and the administration staff can provide you with assistance to understand the process, however you cannot be provided with legal advice nor an opinion on how best to proceed.
It is important that you can be contacted throughout the process so make sure your contact details, including a current email address and mobile phone number, are provided with your application.
Although you may not have legal representation, you are still entitled to have a support person to assist you to present your case. A support person can be a friend or a family member and their role is to help you before and during the hearing.
A support person is not an active participant in the hearing, however it is useful to have someone who can take notes for you, find documents in the Board Books, someone who can listen and discuss matters with you.
The support person must be respectful to all parties and any attempts to influence the proceeding through behaviours that are distracting or intended to intimidate participants will be immediately challenged. Behaviours of this nature will not be allowed and your support person may be warned by the Chairperson or requested to leave the hearing room. Sharing this document with your support person, prior to a hearing, is advised.
The purpose of the directions hearing (DH) is to arrange timelines for the actions required before a hearing commences and to establish a timetable for conducting the hearing itself. No evidence is taken at the DH. You will not be expected or allowed to present materials at this stage.
The DH takes approximately 1 hour and is normally conducted via video conference. The time and date is arranged by the Registrar and set 2 to 3 weeks from receipt of your application. You will be notified by email of the details.
Decisions made at the DH will include:
- Setting the date for the exchange of documents between parties.
- Identifying the number and details of witnesses to be called.
- Venue for hearing (either metropolitan or regional location).
- Timetable for hearing - dates and days set aside to hear the appeal.
In preparation for the DH you need to consider:
- Your availability - bring along your diary or commitments for next 4 to 6 months.
- Name and details of witnesses you intend to call.
- Any special issues you face in terms of access to people or information to present your case, for example school holidays.
- Will you bring a support person with you, and their details.
You are expected to attend the DH so that you can participate in the arrangements and understand what is required of you. You can provide written authority for another person to attend on your behalf. Failure to attend the DH may lead to orders being made in your absence and this could include the appeal being dismissed.
By the end of the DH you will know:
- Dates, location and times for the hearing to take place.
- The date the Department will provide you with all documents they intend to rely on in the hearing.
- The date you must provide all your documents to the Department and the DAB. You will be required to provide 5 copies.
A copy of the directions will be sent to you as soon as possible after the DH.
If at any point you are unable to reasonably comply with a direction you must immediately contact the Registrar who will seek the consent of all other parties to an alternative arrangement.
Preparing your documentation
Tips for preparing your board books
It is a good idea to use the way the Department presents their documents to you as a guide to preparing your materials for the Board.
Documents should be typed wherever possible and copied on A4 sized paper, either single or double sided, and be collated in folders. Use tabs to separate sections, number paragraphs and pages for easy reference.
Make sure the copies of documents and folders are identical and each contains exactly the same information. This will make presenting your case easier when all parties can find pages or information that is being referred to.
Tips for preparing submissions and closing arguments
Closing arguments can be both oral and written. They should:
- Clearly identify the legal or factual errors in the decision you are appealing.
- Only include information relevant to your appeal. Irrelevant information may be objected to by the respondent and can be ruled inadmissible by the Board.
Preparing for the hearing
It is your responsibility to obtain your witness statements. You may not be able to directly obtain access to Department documents in which case you will need to contact the Registrar, who may be able to facilitate this for you. It is important that you provide a written request outlining the purpose for requiring the information.
It is your responsibility to organise the availability of your witnesses so that they will be available to give evidence. Witnesses only need to be present at the hearing on the day their evidence is to be presented and can leave immediately they have been heard.
Make sure you are familiar with the documents and information provided to you by the Department, for example know the names of the board books and what they contain. You and the Board will be referred to statements, documents and other evidence contained in these and it is much better to know where to look when asked.
Consider bringing a support person with you and make sure they have the same understanding of the folders so they can find information quickly to assist you.
Summons to appear and/or produce documentation
The Board has the power to summon any person whose evidence is considered relevant, to attend the hearing, or to make available relevant documents.
If you need request the Board to take this action on your behalf, you must provide a written submission to the Board, and send a copy to the Respondent, as to why your case will be significantly disadvantaged without access to the required witness or documentation.
If a summons is issued it is your responsibility to serve that summons on the required witness or the holder of the required documentation. It can be delivered personally or by leaving it with a person over the age of 16 at their residence or place of work. A summons can also be served by registered mail. The DAB will not serve summons on your behalf.
On the day of the appeal hearing
All hearings are held in camera which means they are not open to members of the public.
Separate meeting rooms are provided for both parties and there is access to water. The Registrar will assist you if you have any questions regarding the hearing. Our administration staff are also happy to help and answer questions.
At the commencement of the hearing the Chairperson will briefly outline the procedures and invite both parties to put any submissions forward prior to formally commencing the appeal.
Here is a broad outline of how your case will proceed:
- The respondent will be represented by a lawyer who will present evidence and examine witnesses.
- You will be given the opportunity to cross examine the respondent’s witnesses.
- When the lawyer concludes the case, you will then present your case to the Board. If you have witnesses they will be cross examined by the lawyer for the respondent.
- Board members may also question the witnesses.
When all witnesses have been heard, the Board invites the lawyer and then you to make final submissions before adjourning to consider its decision.
Tips for conduct in the hearing
- Be on time, be prepared, be courteous and be respectful.
- Dress professionally.
- Speak clearly.
- Don’t interrupt or argue with the Board.
- Always answer the Chairperson or Board members clearly and concisely and directly.
- Only interrupt to make a legal objection, otherwise let others speak. You will get your turn.
- If you think a witness is lying, do not interrupt. You will get a chance to cross-examine them and then you can ask questions to get to the truth.
- Do not talk to the Board without the other party present. Generally ex parte communication, that is communication without the other party present is prohibited.
The Board’s decision
At the conclusion of the hearing the Board will adjourn to make their decision and you will be advised in writing of the outcome of your appeal within 4 weeks. Where a decision cannot be provided within this time you will be advised immediately this is known, and updated accordingly.
A copy of the Determination will be provided to you and to the Secretary of the Department. The Department may request the Registrar to provide a copy to their legal representative.
Appealing the Board’s decision
Reviewed 05 May 2023