A Smith v K G Boston and 2 Ors - [1999] NSWSC 1116

CITATION: A Smith v K G Boston & 2 Ors [1999] NSWSC 1116

CURRENT JURISDICTION: Administrative Law Division

FILE NUMBER(S): 30028/99

HEARING DATE(S): 26 August 1999

JUDGMENT DATE:
19 November 1999

PARTIES :

(Plaintiff) Andrew Smith
v
(First Defendant) Kenneth George Boston
(Second Defendant) Gillian Shadwick
(Third Defendant) George Green

JUDGMENT OF: Sperling J

COUNSEL : (Plaintiff): C A Porter QC/J Needham
(First, second & third Defendants): Mr P Menzies QC/S Dowling

SOLICITORS: (Plaintiff): MacMahon Associates
(First, second & third Defendants): A Murphy

CATCHWORDS: ADMINISTRATIVE LAW - whether disciplinary proceedings should be stayed for abuse of process as vexatious - whether proceedings sought to litigate anew a case disposed of by earlier proceedings - prior determination necessary - discretionary considerations, including public interest in proceedings going on - prior determination necessary for res judicata, issue estoppel, and Anshun estoppel.

ACTS CITED: Teaching Services Act 1980
Government and Related Employees Appeal Tribunal Act 1980
Industrial Relations Act 1991

CASES CITED: Blair v Curran (1939-1940) 62 CLR 464; D A Christie Pty Ltd v Baker [1996] 2 VR 582; Jago v District Court (NSW) (1989) 168 CLR 23; Maganja v Arthur [1984] 3 NSWLR 561; Walton v Gardiner (1992-1993) 177 CLR 378

DECISION: Summons dismissed; Plaintiff to pay the defendants' costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

SPERLING J
Friday, 19 November 1999
No 30028/99 Andrew Smith v Kenneth George Boston & 2 Ors
JUDGMENT
HIS HONOUR:
1    The plaintiff, Andrew Smith, is a teacher employed by the Department of Education and Training (NSW). A charge has been brought against him pursuant to the Teaching Services Act 1980, s 83, which provides as follows, so far as is relevant: “An officer … who … (f) engages in any disgraceful or improper conduct …is guilty of a breach of discipline.”
2    Section 84 provides (relevantly) that a breach of discipline alleged to have been committed by an officer shall be dealt with by the Director-General of Education or a prescribed officer. Section 85 provides that where a breach of discipline is then found or admitted, the Director-General or prescribed officer may impose a range of penalties. Where the breach is dealt with by the Director-General, the range of penalties includes dismissal or a direction that resignation will be accepted. Where the breach is dealt with by a prescribed officer, the prescribed officer may recommend to the Director-General that the officer be dismissed or that he or she be required or allowed to resign. The Director-General is not bound by such a recommendation and may impose a lesser penalty. A decision by the Director-General has effect subject to the Government and Related Employees Appeal Tribunal Act 1980.
3    Section 87 provides that an officer may be suspended from duty until the charge has been dealt with.
4 On 12 September 1997, Ms G Shadwick, an Assistant Director-General of the department, gave notice of a charge pursuant to s 83 involving a young person. (Pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 1116
Decision Date: 19 November 1999

CaseChat Overview and Summary

In the case of A Smith v K G Boston and 2 Ors, the matter was heard before the court to determine whether disciplinary proceedings should be stayed due to an alleged abuse of process as vexatious. The dispute arose out of disciplinary actions taken against Smith, who was a member of a professional body, and the case involved Smith's challenge to the fairness and legitimacy of these proceedings.

The central legal issues that the court had to address included whether the proceedings were an attempt to litigate a case anew that had already been decided in prior proceedings, and if such a stay was warranted. The court had to consider whether a prior determination was necessary to invoke principles such as res judicata, issue estoppel, and Anshun estoppel, alongside discretionary considerations including the public interest in the proceedings continuing.

The court examined the nature of the prior proceedings and the current dispute, assessing whether there was an abuse of process by re-litigating issues that had already been decided. The court also considered the public interest in ensuring that proceedings do not proceed in a manner that is vexatious or oppressive. The court concluded that there was no abuse of process and found that a prior determination was necessary to avoid re-litigating old issues. The court further held that the public interest in the proceedings continuing outweighed any potential detriment caused by the relitigation of issues already decided.

Ultimately, the court dismissed the application for a stay and allowed the disciplinary proceedings to continue. The decision highlighted the importance of ensuring that proceedings are not vexatious and that there is a necessity for a prior determination to invoke estoppel principles.

Orders