Ashman v State of Tasmania

[2001] TASSC 80

[2001] TASSC 80

CITATION:              Ashman v State of Tasmania [2001] TASSC 80

PARTIES:  ASHMAN, Rodney Edwin
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  192/1999
DELIVERED ON:  25 July 2001
DELIVERED AT:  Hobart
HEARING DATES:  12 July 2001
JUDGMENT OF:  Master Holt

CATCHWORDS:

Procedure - Supreme Court - Tasmania - Practice under the Rules of Court - Statement of claim - Particulars - Striking out as being unnecessary.

Supreme Court Rules 2000 (Tas), r258.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
           Plaintiff:  W A Ayliffe
           Defendant:  T J Ellis SC
Solicitors:
           Plaintiff:  Ayliffe & Ayliffe
           Defendant:  Director of Public Prosecutions

Judgment Number:  [2001] TASSC 80
Number of Paragraphs:  8

Serial No 80/2001
File No 192/1999

RODNEY EDWIN ASHMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  MASTER HOLT

25 July 2001

1. The defendant had applied for orders that certain parts of the plaintiff's statement of claim be struck out.  The statement of claim runs to 11 pages.  In summary the allegations are as follows:

·   Since 1973, the plaintiff has been employed by the defendant as a school teacher.

·   The defendant had a contractual and statutory obligation to take reasonable care to protect the plaintiff from risks of injury arising in connection with the employment.

·   In March 1995, the plaintiff and another teacher, in the course of their employment, took about 29 year 10 school children on a five day history excursion visiting various sites in southern Tasmania.

·   The excursion included role playing and re-enactments relating to the penal system.

·   Following the excursion, five female students made allegations that the plaintiff had sexually misbehaved in conducting re-enactments and on other occasions during the excursion.

·   Pursuant to the procedure set out in the Tasmanian State Service Act 1984 ("the Act"), s55, a person was appointed to conduct an inquiry into the charges. 

·   An investigation for the purpose of presenting evidence at the inquiry was undertaken by employees of the defendant.

·   The investigation was negligently conducted and "was unfair to and biased against the plaintiff".  The investigators communicated privately with the inquirer.  Despite the fact that the charges were instituted in August 1995, particulars were not supplied to the plaintiff until June 1996 and witness statements were not provided to the plaintiff until July 1996.  The investigators did not interview all the potential witnesses, such as the bus driver accompanying the excursion group and the education officer at the Port Arthur complex.  The investigators engaged in a "suggestive interview technique with the juvenile complainants" and in other particularised ways acted negligently and unfairly.

·   In prosecuting the complaints at the inquiry, an employee of the defendant acted negligently by acting "unfairly towards and with a bias against the plaintiff".  He communicated privately with the inquirer.  He failed to disclose to the plaintiff or to the inquirer witness statements inconsistent with the allegations and generally acted in an obstructive fashion.  He opposed an application by the plaintiff to be permitted legal representation at the hearing; he opposed an application for an adjournment, despite the short time between the provision of witness statements and the commencement of the hearing; and he opposed the production at the hearing by the plaintiff of relevant documents.

·   The hearing of evidence and submissions by the inquirer concluded on 14 October 1996, but the inquirer did not publish her findings and recommendations until May 1997.  The defendant was negligent in failing to terminate the inquiry "between its conclusion on 14 October 1996 and the decision on 20 May 1997".  (Particulars of this allegation of negligence are not contained in the statement of claim.)

·   The inquirer made findings adverse to the plaintiff.

·   The findings of the inquirer were the result of the defects in the investigation and the conduct of the hearing previously referred to and the consequence of the lengthy delay between the conclusion of the hearing and the publication of the findings.

·   Pursuant to the Act, the matter came before the Commissioner for Review who, in December 1997, "found that the investigations leading to the inquiry and the inquiry had not been conducted in a fair and equitable manner".

·   Following the decision of the Commissioner for Review, employees of the defendant recommended termination of the plaintiff's employment "on the basis that he was a peodophile".  These recommendations were negligent because they "ignored the finding [sic] of the Commissioner of [sic] Review and ignored the fact that the decision of the inquirer and the proceeding [sic] investigation was unsafe and unsound and ought not be relied upon".

·   "As a consequence of the negligent conduct pleaded herein on the part of the defendant and its employees the plaintiff has suffered loss, damage, inconvenience and expense".  In particular, the plaintiff has suffered impairment of mental health.

1. It is not specified in the statement of claim whether it is the fact that the inquirer made findings adverse to the plaintiff which caused, or substantially contributed to, the alleged deterioration in the plaintiff's mental health.  If the content of the findings, as opposed to the manner of investigation and the manner of prosecution of the charges was a substantial causative factor in the plaintiff's alleged illness, the plaintiff, in order to succeed at the trial of the action, may need to prove that the adverse conclusions would not have been reached had it not been for the delay and the specified defects in the conduct of the investigation and prosecution.  Counsel for the plaintiff, without conceding that the content of the inquirer's findings was a material contributing factor, applied to amend the statement of claim by adding the following paragraph:

"The plaintiff committed no improper act in respect of his students during the course of the excursion between 27 March 1995 and 31 March 1995 inclusive".

The application was not opposed and, accordingly, the amendment was made.

1. The defendant's application to strike out par15 was resolved at the hearing.  Paragraph 15 included complaints about the inquirer without there being any facts alleged upon which might be concluded that the defendant was liable for the alleged failures of the inquirer.  At the hearing, an order was made excising from par15, surplusage relating to the inquirer so that that paragraph now simply reads:

"As a consequence of the facts pleaded in paragraphs 9, 12 and 14 the inquirer reached a conclusion adverse to the plaintiff."

1. At the hearing, counsel for the plaintiff conceded that pleadings in pars21, 22 and 23, to the effect that ultimately the plaintiff was not dismissed from his employment, but instead was transferred to another school, ought be struck out as the statement of claim contains no allegations that these events were productive of injury, loss or damage.  Accordingly, there will be an order that these paragraphs be struck out. 

1. With these matters resolved, I was left only to determine the defendant's application to have some particulars struck from the statement of claim.  Under par6, the plaintiff sets out particulars of the "purpose" and "focus" of the excursion and particulars of some activities undertaken during the course of the excursion.  Under par16, particulars, apparently being detailed extracts from the findings of the Commissioner for Review, are set out.  Counsel for the defendant submits that the particulars are unnecessary and ought be removed from the statement of claim.

1. The statement of claim does not contain an allegation that the defendant was negligent, in breach of contract, or in breach of statutory duty by assigning to the plaintiff responsibility for conducting the excursion.  The plaintiff's allegations relate to the way in which the defendant caused or allowed the sexual misconduct complaints arising from the excursion to be dealt with.  As I have said, it is specifically alleged in the statement of claim that some of the allegations of sexual misbehaviour against the plaintiff arose in the course of conducting re-enactments during the excursion.  These re-enactments may have involved contact or communications which, although innocent, were misconstrued.  The defendant's negligence is alleged to include, amongst other things, a failure to promptly provide to the plaintiff particulars of the complaints and the complainants' statements and the obtaining of the statements by a "suggestive interview technique".  In my view, the nature of the excursion activities cannot be excluded as a relevant factor to be considered in assessing the plaintiff's claim.  Counsel for the defendant submits that the incorporation of the information in the statement of claim is unnecessary.  The particulars, if relevant, can be delivered independently, but it does not necessarily follow that an order should be made removing them from the statement of claim.  Counsel said that the action was likely to be tried by jury and if the particulars are not removed, the jury may be given a statement of claim containing unnecessary material.  I do not see this as a matter about which I should concern myself at this stage.  If the trial judge considers that the particulars ought not be placed before the jury, arrangements can be made for any copies of the statement of claim to be distributed to the jurors to be appropriately edited.  I do not consider that leaving those particulars in the statement of claim causes prejudice or inconvenience and so I am not persuaded that an order should be made striking them from the statement of claim.

1. So far as particulars of the findings of the Commissioner for Review are concerned, counsel for the defendant submitted that the reasons for the findings are irrelevant to any issue in the proceedings.  I reject this submission.  It has been pleaded that employees of the defendant were negligent in persisting with attempts to have the plaintiff dismissed following the findings of the Commissioner for Review.  It is a particular of negligence that the employees ignored the findings of the Commissioner for Review.  It is appropriate for the plaintiff to specify the findings which it is asserted ought to have been taken into account but which were ignored.  Although it is not necessary that these particulars form part of the statement of claim, rather than be the subject of delivery in a separate document, for the reasons which  in my discretion I decline to excise from the statement of claim the particulars of the nature of the excursion, I decline to make an order excluding the particulars of the findings of the Commissioner for Review.

1. Accordingly, the only order to be made is an order giving effect to the concession made by counsel for the plaintiff that pars21, 22 and 23 should be struck out.  I will so order.