Drabsch v Buckley and anor.

[1999] NSWSC 1226

CITATION:	Drabsch v Buckley & anor. [1999] NSWSC 1226
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	30079/99
HEARING DATE(S):	9 December 1999 10 December 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	David Drabsch Steve Buckley Kenneth Boston
JUDGMENT OF:	Sully J

COUNSEL :	J.B. Bishop/M.A. Marty - Plaintiff P. Menzies QC/S.C. Dowling - Defendant
SOLICITORS:	Macmahon Assoc. - Plaintiff Adrian Murphy - Defendant
CATCHWORDS:
ACTS CITED:	Teaching Services Act 1980 (NSW) Government and Related Employees Appeal Tribunal Act 1980 (NSW) Industrial Relations Act 1996 (NSW) Teaching Services (Education Teaching Service) Regulation 1994
CASES CITED:	Walton v Gardiner & ors (1993) 177 CLR 378
DECISION:	Plaintiff's summons dismissed; Plaintiff to pay the defendant's costs

SUPREME COURT OF
NEW SOUTH WALES
IN ADMINISTRATIVE LAW

SULLY J

15 December 1999

30079/99 - David DRABSCH v Steve BUCKLEY & Kenneth BOSTON

JUDGMENT

1   HIS HONOUR: By a summons filed on 25 October 1999 Mr. David Drabsch, [“the plaintiff”], claims relief as follows:

“1. A declaration that the disciplinary proceedings commenced on 17 November 1998 by the Department of Education and Training against the plaintiff under s.83(f) of the Teaching Services Act 1980 are unfair, oppressive and an abuse of process.
2. An order that the disciplinary proceedings referred to in paragrah 1 above be permanently stayed.
3. An order for costs.”

2   The foregoing claim for relief is pursued against two defendants. The first defendant is Mr. Steve Buckley. The second defendant is Mr. Kenneth Boston. Mr. Boston is the Director-General of the Department of Education and Training. Mr. Buckley is, put simply, the person who will be conducting the disciplinary proceedings if the same are not stayed. 3   The basic principles by reference to which such an application as that of the present plaintiff is to be decided are now well established by, in particular, the majority judgment in the High Court of Australia in Walton v Gardiner & ors. (1993) 177 CLR 378. I take the following propositions to be clear:

1) This Court has a supervisory jurisdiction of such a kind as empowers it to grant, in a proper case, relief of the kind now sought by the plaintiff.

2) The burden of proof rests upon the plaintiff. That is to say, it is for the plaintiff to demonstrate on the probabilities that the proper application of the relevant principles of law to the particular facts, correctly understood, of his case justifies the granting by this Court, whether in whole or in part, of relief of the kind which the plaintiff claims.

3) The power of the Court to stay permanently, and whether in whole or in part, disciplinary proceedings of the kind here in question will be exercised sparingly and with caution, and only in a clear case.

4) The basic guidelines for this Court, when it is considering whether or not it will exercise in a particular case its supervisory jurisdiction to grant a permanent stay of, relevantly, disciplinary proceedings of the kind here in question, are set out clearly and comprehensively in the following extract from the majority judgment of Mason CJ, Deane and Dawson JJ in Walton :

“…………………..(T)he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question of whether disciplinary proceedings in the tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners” [177 CLR, 395,396]


(5) It is of the greatest importance to keep carefully in mind that it is not any part of the present function of this Court to decide whether the breach of discipline now alleged against the plaintiff is true, either in whole or in part. That is the function of a properly constituted and a properly conducted departmental inquiry. The Court will do whatever is proper to be done to the end of ensuring that any such inquiry is conducted justly according to law; but the Court will not usurp the proper rle of such a departmental inquiry.

The Legislative and Procedural Framework of the Current Disciplinary Proceedings against the Plaintiff

4   The plaintiff is currently employed as a teacher by the Department of Education and Training of this State. He is so employed to teach science and photography at Peel Technology High School. Since 30 November 1998 he has been removed from face to face teaching and has been rostered to perform administrative duties of various kinds. 5   The plaintiff, being such a teacher, is amenable to the provisions of the Teaching Services Act 1980 (NSW), [“the Act”]. He is amenable, in particular, to the provisions of Division 6 of the Act, being provisions having to do with matters of discipline and conduct. The scheme of Division 6, so far as is at present relevant, is as follows:

1) A teacher who engages in any disgraceful or improper conduct is guilty of a breach of discipline: s.83(f).

2) Any allegation of such a breach of discipline must be dealt with either by the Director-General of the Department or by a prescribed officer: s.84(1).

3) Authority is conferred for the making of Regulations as to all necessary procedural and other ancillary requirements in connection with the carrying out, either by the Director-General or by a prescribed officer, of the duty imposed by s.84(1): s.84(2).

4) A finding that a teacher has in fact committed a breach of discipline can lead to a range of possible punishments of the teacher. At one end of the range is a caution. At the other end of the range is dismissal. Each of the authorised forms of punishment is, from the particular teacher’s point of view, a very serious matter both in purely personal, and in career, terms.

If an alleged breach of discipline is found upon investigation to have been established, and if a penalty is thereupon imposed, an appeal will lie pursuant to s.23 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) . Any punishment taking the form of termination of employment is subject, as well, to review upon an application to the Industrial Relations Commission, and pursuant to the Industrial Relations Act 1996 (NSW) , for reinstatement on the grounds of wrongful dismissal.

5) Regulations have in fact been made pursuant to the authority conferred in that behalf by s.84(2) of the Act. The Regulations are described as the Teaching Services (Education Teaching Service) Regulation 1994 , [“the Regulations”]. Part 3 of the Regulations deals with breaches of discipline. The scheme for which provision is thus made operates, so far as is relevant for present purposes, as follows:

(a) Any person who holds an appointment as Deputy Director General, as Assistant Director-General, or as a Director, in the Department of Education and Training is a prescribed officer for the purpose of Part 3 of the Regulations.

(b) If it is proposed, either by the Director-General of the Department or by a prescribed officer in the sense described in (a) above, that a teacher may have committed a breach of discipline, the teacher may be charged accordingly: cl. 14(1)

(c) Such a charge may be laid orally or in writing. If it is laid orally, the teacher in question must be furnished with a written copy of the charge, and within a reasonable time: cl. 14(2).

(d) That initial step in the charging of the particular teacher must call upon the teacher to furnish a written reply within a specified time which may not be less than 14 days: cl. 14(3).

(e) Any such reply must either admit or deny the truth of the charge notified; and may give, in addition, any explanation that the particular teacher may wish to make in regard to the charge: cl. 14(4).

(f) If a reply is not received from the particular teacher within the time specified in the relevant portion of the written notification of charge, then the teacher is taken to have denied the truth of the charge as notified: cl. 14(5).

(g) In the event that the particular teacher denies the notified charge, it becomes necessary for the Director General, or a designated prescribed officer, to deal with the charge. That may be done in either of two ways. The first way is by directing the particular teacher to furnish an explanation in writing. Such an explanation must be furnished within the time prescribed by the direction calling for the furnishing of the explanation; but that time must not be less than 14 days. The second permitted approach is the conducting of an inquiry into the charge: cl. 15(1) and (2).

(h) If it is decided to deal with the charge by directing the particular teacher to furnish an explanation in writing, then the person dealing with the charge is authorised to do either of two things. The first thing authorised is the making of a finding “…………. after considering any reports relating to the breach of discipline and any replies or explanations of the member of staff” . Alternatively, the person dealing with the charge is authorised to decide to deal thereafter with the charge by conducting an inquiry: cl. 15(3)

(i) If it is decided, at any stage of dealing with a charge, that there should be an inquiry, then it is required that such an inquiry be conducted in accordance with procedures which are established in that behalf by clause 16 of the Regulations.

(j) Clause 16 is critical in the present case. It is, therefore, useful to set it out in full, and as follows:

“Conduct of inquiries
16. (1) If it is decided to conduct an inquiry, the disciplinary authority must give written notice to the member of staff charged of the time, date and place at which the inquiry is to be conducted.
(2) If the member of staff does not, without reasonable cause, appear at the time, date and place notified, the charge may be inquired into and dealt with in the member’s absence.
(3) For the purposes of an inquiry, a disciplinary authority may call on any person to appear and to give such evidence, and produce such documents, as appear to the authority to be relevant to the inquiry.
(4) A member of staff must not, without reasonable cause:
(a) fail to appear, give evidence or produce documents at an inquiry when called on to do so; or
(b) knowingly give false or misleading evidence at an inquiry.
(5) A member of staff may be represented at an inquiry by a barrister, solicitor or agent employed at the member’s expense.
(6) A disciplinary authority may conduct an inquiry without regard to legal formality, and is not bound by any law or practice as to evidence, but may inform himself or herself of any matter in such manner as he or she thinks fit.
(7) However, a disciplinary authority must not inform himself or herself of, or take into consideration, any matter that has not been disclosed in evidence at a sitting of the inquiry if the matter is one that ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the inquiry.
(8) Nothing in subclause (7) prevents a disciplinary authority:
(a) from informing himself or herself of, or taking into consideration, any matter of which a court would be entitled to take judicial notice; or
(b) when deciding whether or how to punish a member of staff found to have committed a breach of discipline, from taking into consideration any previous breach of discipline that has been found by a disciplinary authority to have been committed by the person charged.”

6   Given the circumstances of the present particular case, it is desirable, I think, to make the following observations about the procedures that are laid down by clause 16 of the Regulations. 7   First, it is clear, in my opinion, that sub-clauses (6) and (7) are intended to be read together in order to make clear that the breadth of the language used in sub-clause (6) is not to be understood as constituting an inquiry conducted pursuant to clause 16 as some kind of peremptory, inquisitorial procedure akin to the procedure of, for example, the old Court of Star Chamber. 8   Secondly, there is, as I read sub-clause (7), some ambiguity about how, exactly, it is contemplated that the sub-clause might operate in a particular case. If the sub-clause had terminated after the words “……..at a sitting of the inquiry”, there would have been, I think, no such ambiguity. The ambiguity which I perceive arises by reason of the addition of the words “………….. if the matter is one that ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the inquiry”. 9   During the course of the oral submissions of counsel, I raised this apparent ambiguity in the wording of sub-clause (7). I pointed out that it seemed to me that the concluding words of the sub-clause could be read in such away as to authorise a person who was conducting a clause 16 inquiry to take into account anything coming to the notice of that person outside “a sitting of the inquiry”; subject only to the wholly subjective view of that person upon the question, which might have very great significance in a particular case, whether “the interests of justice” entailed an opportunity “…………….for challenge or testing by the persons entitled to be present at the inquiry”. 10   In response, learned Senior Counsel appearing for the defendants assured the Court that it is the invariable practice, in the conduct of a clause 16 inquiry, that the person conducting the inquiry absolutely disregards anything falling outside what has been “……….disclosed in evidence at a sitting of the inquiry”. Learned Senior Counsel gave that assurance not only in general terms, but also in terms particular to the case of the present plaintiff. 11   I accept, as of course, what was thus put to the Court by learned Senior Counsel for the defendants. I think, nevertheless, that the ambiguity of which I have been speaking should be brought to the urgent attention of the relevant authorities, to the end of having that ambiguity removed. In the present particular case, I am fortunate to have had that assurance from learned Senior Counsel for the defendants; and to have had the assurance accepted, - or, at least, not actively disputed, - by learned counsel for the plaintiff. Absent those circumstances, I would have thought that the ambiguity of which I have been speaking would have a very real relevance to the carrying out of that weighing exercise of which the High Court speaks in Walton.

The Course to Date of the Current Disciplinary Proceedings against the Plaintiff

12   In 1986 the plaintiff was a school teacher at a particular high school where he taught science and agriculture. One of his students was a young girl who has been referred to in connection with the present proceedings by the pseudonym ‘S’. Miss S alleged, put shortly, that the plaintiff had on two separate occasions in 1996, had consensual sexual intercourse with her. 13   The allegations were referred to the police. The police investigations did not result in any charging of the plaintiff, principally, as I infer from the available evidence, because Miss S, although willing to be interviewed by the police, and although interviewed in fact by them, was not willing to give evidence in Court in support of any charge preferred formally by the police against the plaintiff. 14   I am satisfied that departmental policy at the time was that in such a case, if the police were not prepared to charge the particular school teacher, and if the reason for that was a reluctance on the part of the particular pupil to give the necessary evidence in Court, then the Department itself would take, in effect, no further action of substance. That is what happened in the plaintiff’s particular case. As I have said, there were various departmental investigations. They included a meeting at which Miss S’s natural mother, a lady who was then acting as Miss S’s guardian, and the plaintiff himself were interviewed by departmental officials. Then, and at all other material times, the plaintiff denied absolutely, and has continued to deny absolutely, that he in any way misconducted himself with Miss S, either as she alleges, or at all. 15   In 1986, the police having decided to take no further action against the plaintiff, the departmental file on the allegations was, in effect, closed. 16   By then, the plaintiff had been moved at his own request to another school. Further allegations of professional misconduct were made against him. They involved inappropriate behaviour of various kinds, but it is not necessary to repeat here the fine detail of what was alleged. It is plain from the available evidence that the 1986 matters were present to the minds of the departmental officials who investigated the 1989 allegations. The 1989 allegations were monitored according to then current departmental procedures. The plaintiff was given a fairly strong rebuke about the behaviour which had given rise to the particular complaints. That apart, no further disciplinary action of any kind appears to have been thought necessary. 17   Thereafter, 9 years elapsed; and elapsed, as it would seem from the evidence to hand, without any further untoward events in the plaintiff’s teaching career. 18   In 1997 the 1986 incidents were, however, re-activated. It is that re-activation which has given rise to the disciplinary proceedings in connection with which the plaintiff makes his present application. 19   I am satisfied that the re-activation of the 1986 matters resulted, putting the point in simple terms, from the activities of the Royal Commission presided over by Wood CJ at CL, as his Honour now is, into the NSW Police Service. The course of the hearing conducted by the Royal Commissioner gave rise to a supplementary reference to the Commissioner of certain allegations of paedophilia, being allegations thought to be connected with the allegations of corruption and malpractice which were, otherwise, the principal concerns of the original Terms of Reference of the Royal Commission. The inquiries of the Royal Commissioner into these allegations of paedophilia led in their terms to the appointment of the Honourable John Slattery QC, lately a Judge of this Court and Chief Judge at Common Law, to review a large number of files concerning past allegations of sexual misconduct by school teachers towards their pupils. My impression from what I have read is that the plaintiff’s 1986 file was not referred, in a particular way, to Mr. Slattery QC; and that it was not mentioned by him, in terms, as a file which ought to be re-opened. Be that as it may, I am satisfied that it was the review conducted by Mr. Slattery QC that gave rise to the re-opening in fact of the 1986 allegations that had been made against the plaintiff by Miss S. 20   By a letter dated 27 August 1997, a Mr. John Fox, who appears to have been the Case Manager then in charge of the re-opened investigation, sent a letter to the plaintiff informing him that the Department would be investigating an allegation of conduct “that could amount to improper conduct of a sexual nature with a student”. The letter appears to be in a standardised format. It gives the plaintiff certain peremptory directions; but furnishes absolutely no particulars of the conduct to which it refers. The plaintiff has given evidence, which I accept, that thereafter, and until October 1997, he received no further word from the Department. 21   In due course, and by a letter dated 13 October 1997, the plaintiff was contacted by a Miss (or Mrs.) Blackadder, Chief Investigator of the Case Management Unit within the Department. Save for one additional paragraph which is of no present particular importance, the letter of 13 October was in exactly the same form as the letter of 27 August 1997 that had been written by Mr. Fox. 22   The plaintiff gave evidence, which I accept, that he had thereafter, and until May 1998, no further contact from Miss (or Mrs.) Blackadder. He received, however, in May 1998 a letter dated 6 May. This letter called upon the plaintiff to respond in writing to allegations which were particularised as follows:

“1 That on 5 or 12 June 1986 at the conclusion of a Thursday evening photography class, whilst in the preparation room adjacent to the science laboratory in a demountable building at Manilla Central School you:
a) kissed a Year 10 female student, namely (……Miss S……), on the mouth;

b) fondled the breasts of a Year 10 female student, namely (….Miss S….) through her clothing;

c) pushed up the sports bra top and fondled the naked breasts of a Year 10 female student, namely …..(Miss S)….;
d) removed and dropped on the floor the knickers of a Year 10 female student, namely….. (Miss S) ……;
e) removed your trousers and underpants in the presence of a Year 10 female student, namely ….(Miss S)….;
f) took a condom from the drawer of the desk in the preparation room, removed the condom from its wrapper and placed the condom on your erect penis in the presence of a Year 10 female student, namely …..(Miss S)…….;
g) lay on top of and inserted your penis into the vagina of a Year 10 female student, namely ….(Miss S)…., who was lying on the couch;
h) performed cunnilingus on a Year 10 female student, namely …..(Miss S)….;
i) lay on top of and again inserted your penis into the vagina of a Year 10 female student, namely ….(Miss S)….., and some time later you ejaculated.
2. During July 1986, on a Thursday evening at a photography class in the science laboratory in a demountable building at Manilla Central School you
a) came up behind and, with your hands, fondled the breasts of a Year 10 female student, namely …(Miss S)….;

b) at the conclusion of the photography class, on the couch in the preparation room adjacent to the science laboratory in a demountable building at Manilla Central School you had sexual intercourse with a Year 10 female student, namely ….(Miss S)…..”

23   The plaintiff responded in writing and by a letter dated 8 May 1998. Put simply, the plaintiff denied outright each and every allegation of misconduct that he had been called upon to answer. 24   Once again, several months passed. And then, and by a notice in writing dated 17 November 1998, the plaintiff was formally notified that he was charged with a breach of discipline in that he had engaged in improper conduct. The particulars of the breach thus charged against the plaintiff were the same particulars as those that had been provided in the letter of 6 May 1998. By a letter dated 19 November 1998, the plaintiff denied outright each and every allegation of misconduct charged against him. 25   On 11 January 1999 the first defendant, Mr. Buckley, wrote to the solicitor for the plaintiff advising that he had been appointed to deal, as prescribed officer, with the charges that had been preferred against the plaintiff. Mr. Buckley advised that he had decided to deal with the charges under clause 15(2)(a) of the Regulations. Mr. Buckley advised, further, that he had asked for a report on the matter from the relevant departmental officials, and that he would provide a copy of the report as soon as he had received it. This he did subsequently, and by letter dated 8 February 1999. In that letter Mr. Buckley called upon the plaintiff to furnish an explanation in writing by 19 February 1999. 26   The case thus served upon the plaintiff is Exhibit A in the present proceedings. It is what a lawyer would describe conventionally as a written submission outlining, both as to fact and as to law, the case which it is sought to make against the plaintiff. Attached to that submission is a collection of documents concerning the 1986 allegations. They include file notes and the like documents apparently taken from the relevant departmental files. They include, also, a very detailed statement taken from Miss S on 10 December 1998. 27   On 10 February 1999 the plaintiff’s solicitor wrote to the first defendant asking for an extension of time in which to reply to the submission, Exhibit A. Between 10 February 1999 and 7 June 1999 there was a steady flow of correspondence from the plaintiff’s solicitor. Much of it is addressed to the first defendant and seeks successive extensions of time for the filing of the plaintiff’s submissions in reply to the departmental submission earlier mentioned. Some of the correspondence is directed to a Mr. Whelan, the General Manager of Executive and Legal Services in the Department. It is not necessary, I think, to rehearse for present purposes the fine detail of this correspondence. It is sufficient to understand that there has grown out of it a firm conviction on the part of those representing the plaintiff that they are not being given access to departmental files and the like materials to which they ought to be entitled in aid of the proper preparation of the plaintiff’s case in answer to the charges pending against him. To such an extent did this conviction take root, that a formal dispute notification was lodged with the Industrial Relations Commission. This notification gave rise to proceedings in the Industrial Relations Commission, which proceedings were eventually settled upon a basis that did make available to the plaintiff’s advisers some material additional to that which they had previously been given by the Department and its representatives. 28   One letter in particular, which forms part of the sequence of correspondence written between 10 February 1999 and 7 June 1999, calls for a more particular noting. It is a letter dated 7 May 1999 and written by Miss (or Mrs.) Blackadder, previously herein mentioned, to the plaintiff’s solicitor. The letter says, among other things, this:

“The Department’s position is that the material to be relied upon to support the charge against Mr. Drabsch has already been provided to the Prescribed Officer.”

29   I take this to be a reference to the departmental submission which is Exhibit A in the present proceedings. 30   Eventually, and on 7 June 1999, the plaintiff’s solicitor forwarded to the first defendant, as Prescribed Officer, a detailed written submission in reply to the departmental submission, Exhibit A in the present proceedings. This written submission put in for the plaintiff was admitted as Exhibit B in the present proceedings. Before looking at any of the detail of Exhibit B, two preliminary observations about it are relevant. First, the first defendant allowed, by my reckoning, at least four distinct extensions of time for the lodging by the plaintiff of a submission in reply to the departmental submission, Exhibit A in the present proceedings. Secondly, it does not appear to have occurred to any of the plaintiff’s legal representatives and advisers, as of June 1999, that the plaintiff was by then in so unfairly prejudiced a position as would justify the making to this Court of an application for a permanent stay of the disciplinary proceedings. This is, as I think, a relevant consideration both as to the assertion now made by the plaintiff that he is, in fact, so prejudiced; and as to the discretionary element in relief of the kind now claimed by the plaintiff. 31   As I have said, on 7 June 1998 a detailed written submission in reply was put in by the plaintiff. The submission runs to 25 pages. Attached to it is a schedule of 14 documents, many of them substantial witness statements. The submission itself is closely reasoned and clearly expressed. It contradicts with logic and precision various of the arguments advanced in the departmental submission. 32   The submission deals, among other things, with a number of preliminary issues. At the forefront of them is the issue of the way in which the Prescribed Officer should proceed: that is to say, whether he should proceed under clause 15(2)(a), or by way of a hearing under clause 15(2)(b). A submission is put in the following precise terms:

We submit that you could only form a concluded view on the charge after hearing from witnesses in this matter. This is particularly the case in relation to the two key witnesses: David Drabsch and ..(Miss S)……”

33   Following receipt of the plaintiff’s written submission, and on 19 July 1999, the first defendant wrote to the plaintiff’s solicitor a letter, the relevant parts of which are as follows:

“Having considered the material before me it is quite clear that there is directly conflicting evidence in regard to a number of significant issues which go to the heart of the particulars of the charge.
In these circumstances I have decided to continue dealing with this matter in accordance with Clause 15(3)(b) by holding an inquiry in accordance with Clause 16. The inquiry will supplement evidence already provided in written submission.
I anticipate that the inquiry will be brief and specific in its focus, as I have already considered a substantial volume of written material.
I will also extend an opportunity to Mr. Drabsch to give evidence in person about any other matter of relevance.
For the benefit of all involved in this case and to ensure that this matter is resolved speedily, I would like to meet with you and Mr. Paul X Whelan, General Manager of Executive and Legal Services, Department of Education and Training, to discuss preliminary procedures relating to the conduct of the inquiry. I do not intend to discuss evidence of any kind at this stage.”

34   On 27 July what might be described as a round table conference was held in order to consider various practical aspects of the proposed oral hearing. That conference gave rise to a further letter to the plaintiff’s solicitor from the first defendant. The relevant contents of that letter are as follows:

“As previously advised in my letter of 19 July 1999, due to directly conflicting evidence, I am proceeding to deal with the matter by inquiry. The inquiry will be narrow in focus.
I have before me already a report from the Department of Education and Training in relation to the charges made against Mr. Drabsch on 17 November 1998. Included in that report is Mr. Drabsch’s statement of 1 August 1986. The report also includes an undated record of interview with …….(Miss S) ………and …….(Miss S’s)….. statement of the 3 September 1997 and 10 December 1998. I also have before me your submission of 7 June 1999 on behalf of Mr. Drabsch.
I am working on the assumption that I have before me all that you wish me to have in relation to this matter. If there is any additional evidence you wish to be considered at the inquiry please provide it by Thursday 4 August 1999.
The purpose of the inquiry is to test the evidence of ……(Miss S) …… and Mr. Brabsch.
I will allow 5 days from the conclusion of the hearing (date to be fixed) for the Department of Education and Training to provide me with any further written submission the Department may wish to make. A copy of this will be made available to you with a further period of 5 days allowed for any resulting submission you may wish to make.
Following our discussions of 27 July 1999 if you have any concerns about the procedural fairness of the process I have outlined for conducting the inquiry I invite you to bring those concerns to my attention by 4 August 1999.
It would also be helpful if you could advise me promptly if for any reason you become aware that a person whose evidence I seek to test in this matter is unable to appear at the hearing.”

35   Thereafter, and by letter dated 5 August 1999, the plaintiff’s solicitor wrote to the first defendant concerning, put shortly, ongoing endeavours to obtain additional material which it was thought either was, or ought to be, available from departmental and other sources. The following proposition was put to the first defendant:

“In the circumstances, it is our submission that where there is a conflict of material significance between the evidence of Mr. Drabsch and his assertions in the written submissions and that of the Departmental witness then, in the interest of procedural fairness, that witness should be required for cross-examination. Should they not be made available then, at an appropriate time, we will make submissions as to the relevance of their evidence.”

36   There was some further correspondence as to procedural matters, and as to the provision of additional documentation to the plaintiff and his representatives, but it is not necessary to repeat the detail of that correspondence. 37   In due course the first defendant fixed two days for the proposed oral hearing. Thereafter, and on 15 October last, the solicitor for the plaintiff wrote to the first defendant a letter, the relevant portions of which are as follows:

“We advise that we have instructed Ms Marty of counsel to appear at the proposed oral inquiry. We have today received advice from Ms Marty in the matter.
We refer to paragraph 11 of our Submissions on Behalf of David Drabsch and in particular its reference to a decision to be made by you prior to determining whether an oral inquiry should be held. That decision is whether it is fair for these disciplinary proceedings to continue at all.
We submit that you should decide that it is unfair for this matter to go any further and that in all the circumstances to continue with disciplinary proceedings would constitute an abuse of process. We refer you to the decision of the High Court of Australia in Walton v Gardiner (1992) 177 CLR 178. We rely on paragraphs 31-34 as to porejudice occasioned to Mr. Drabsch and paragraph 26 of our submissions as to the material no longer available, which was in existence at the first Departmental inquiry into this matter. We refer to the letter of Mr. Paul Whelan dated 22 September 1999 advising that police records in this inquiry are no longer in existence. This includes a statement of ..(Miss S).. and records of interviews of Mr. Drabsch.
At the time of preparing written submissions in this matter, we attempted to locate the students said to be in the photography classes at the time. We believe that these students would have been able to confirm that insufficient time had elapsed since the commencement of the photography course for there to have been an opportunity for the two incidents to have taken place six weeks apart as alleged.
We were successful in locating Dione McKnight, who stated that it was too long ago to remember the details of the photography classes she attended. We were unable to trace Michael Todd.
Any documents, including Departmental records, which may have been of assistance in establishing this point are no longer in existence.
An inability to prove these matters is prejudicial and unfair to Mr. Drabsch and further compounds the oppressive nature of the reinstitution of these proceedings after a delay of twelve years.
Should you be unwilling to terminate the proceedings at this stage on the basis that the determination of the proceedings would be an abuse of process, we request that this matter be adjourned pending final determination of the matters of Smith v Boston (currently reserved), and the matter of Singleton v Boston (hearing of which is listed for 4 November 1999) both of which are applications to the Supreme Court for permanent stays on grounds similar to those raised in our submissions. We submit that the continuation of these proceedings on 25 and 26 October 1999, with similar matters pending before the Supreme Court, would constitute a further abuse of process.”

38   The reference in that letter to paragraph 11 of the submission earlier put in on behalf of the plaintiff is a reference to the following paragraph of that submission:

“If you are not minded to dismiss the charge as particularised at this stage, we strongly submit that before you make any determination as to the charge that you conduct an inquiry as outlined in the Regulations.”

39   By letter dated 19 October last the first defendant replied in terms indicating that, having considered carefully what had been put to him, he had “…….. formed the view that I should proceed to deal with this matter by way of the planned inquiry and that it is in Mr. Drabsch’s interest that the matter be concluded as expeditiously as practicable”. 40   It is this decision of the first defendant which has triggered the present application for relief by way of a permanent stay of the current disciplinary proceedings against the plaintiff.

The Merits of the Plaintiff’s Present Claim for Relief

41   The first matter to consider is whether, if the proposed oral hearing is allowed to proceed, it can be expected reasonably that the plaintiff will have a fair chance of defending himself against the charges that have been preferred against him. 42   In that connection, I think that it is worthwhile to make at the outset a point which is obvious, but which is apt to be overlooked in the rather over-heated atmosphere which seems to me to have grown up around the current disciplinary proceedings. The point is, simply, that it is not at all inevitable, as matters stand, that the charges must, or even that they probably will, be found proved. This Court, and for that matter the first defendant, can have at the present time no idea of how Miss S will present as a witness at the proposed hearing. She might be impressive; but then again she might not be. Her evidence seems to be uncorroborated, a circumstance which is, as a matter of common sense to put the point no higher, always a matter of anxious concern in connection with the making of any finding as to whether or not an alleged sexual impropriety has occurred. 43   The plaintiff will have a full opportunity, by counsel, to cross-examine Miss S. It is submitted for the plaintiff that such opportunity is more apparent than real in the sense that it is possible to identify police and other departmental documents which once existed but which no longer appear to exist, and of which it might be supposed that, if available, they would provide the basis for cross-examination of Miss S as to prior inconsistent statements made by her. There are, in my opinion, several answers available, at this stage of proceedings, to that submission. First, in so far as it is possible to identify the previous, but not current, existence of any such documents, it is entirely a matter of speculation as to what they might have proved, upon examination, to contain that is relevant to such a cross-examination of Miss S. Secondly, the material already in the possession of the plaintiff, (some, but as I acknowledge, not all of which I have previously herein summarised), contains material which seems to me to have some real value from the point of view of a potential cross-examination of Miss S. Thirdly, and if I may fall back upon an old saying, the proof of the pudding is in the eating. If in the events which happen at the proposed inquiry, it is demonstrable that the plaintiff, through no fault of his own, was deprived of a fair chance of cross-examining Miss S, upon whose evidence alone the charges against him really depend, then he will have every proper opportunity of seeking appropriate relief, including appropriate relief from this Court. Such an application can be dealt with upon its own merits and in the light of demonstrated facts; whereas the present application invites speculation as to what such facts might prove to be in the future. 44   The plaintiff submits, also, that in a more general sense he is irremediably prejudiced in his proper defence of the charges pending against him, by reason of his having been deprived of documentary material to which he is entitled. I am not satisfied, on the probabilities, that the evidence before me justifies a finding to that effect. Learned Senior Counsel for the defendants put in, in connection with his submissions at the recent hearing, a schedule of documents which have been provided to the plaintiff’s representatives in connection with the 1986 investigations into the relevant allegations of sexual impropriety. I will have that document marked for identification. ‘1’ and kept with the Court file for any necessary future reference. The contents of the document are completely clear and I need not now repeat them. It suffices to say that the contents of that schedule, and what I have seen among the other material put into evidence in connection with the present application, satisfies me, on the probabilities, that the plaintiff is not improperly prejudiced by reason of the demonstrated existence of other documents to which he is entitled and which have not been made available to him upon proper request. Once again, it is worthwhile making the point that if, at the proposed hearing, it emerges in a real and concrete way that there is some documentary hiatus or other which gives rise to incurable prejudice to the plaintiff in his proper defence of the pending charges, then this Court is able, and in a proper case will not hesitate, to give some appropriate relief. 45   Running through the submissions of the plaintiff upon this vexed question of documentary material is, as I followed the submissions, a suggestion that the Department has not made, upon proper request, such full and frank disclosure of relevant documents as might have been expected of a party to litigation, and in particular of a party which is a major Department of State. From what I have seen of the departmental materials, I would say that the departmental files appear to have been, and still to be in some degree, somewhat in disarray. It is the case that various bits and pieces of documentary material have been provided, as it were in dribs and drabs, to the plaintiff and his representatives; and it can be accepted readily and reasonably that the result has been to engender a suspicion that there might be lurking somewhere or other even further documents which, were they only brought to light, would prove to have present utility for the plaintiff. But that is not the same thing as saying that it has been demonstrated on the probabilities that in fact such is the case; and, as earlier indicated, I am not in fact so satisfied. 46   I think that it should be said, in fairness to the first defendant, that his position in the present controversy can only be judged from his correspondence as annexed to the various affidavits read by the parties in support of their respective cases. I think it is only fair to say that a reasonable reading in context of that correspondence does not suggest that there is anything at all untoward in the procedure which the first defendant has indicated he proposes to adopt. As earlier indicated, the first defendant was asked for a succession of extensions of time in which to reply to the charges; and he granted every such extension upon request. The submissions put for the plaintiff to the first defendant asked in terms for an oral hearing rather than for an inquiry based only upon documentary material; and the first defendant, once again, acceded to that request. It is true that the first defendant has placed, at least for the time being, procedural limitations upon the proposed oral hearing; but that is not, of itself, indicative of prejudice or of any other form of procedural unfairness. As I have now said more than once, what is important in terms of procedural fairness is not so much what might happen, but what does in fact happen. 47   As I understand the current state of affairs concerning the proposed oral hearing, the first defendant will have before him documentary material in the form of the competing submissions, Exhibits A and B, in the present application. He will have before him no other documentary material unless it has first been produced by the party intending to rely upon it to the opposing party. He will hear from Miss S; and he will hear separately from the plaintiff. Whoever appears for the Department will have the opportunity of questioning the plaintiff; and the plaintiff will have the opportunity, by counsel, of cross-examining Miss S. The working out, on the ground as it were, of those procedures might, or might not, indicate that it would be required as a matter of procedural fairness or natural justice otherwise, that some additional witness or witnesses, being available to be called, should be called in fact. I do not see any warrant for an anticipatory conclusion that the first defendant, if such a state of affairs arises in fact, either cannot or will not deal with it justly and according to the relevant law. 48   I have not overlooked the very considerable impact which the evidence demonstrates, as I am satisfied it does, to have been caused to the plaintiff by the re-activation of the 1986 matters. The psychological, and indeed the psychiatric consequences, to the plaintiff have been real. I admit to a subjective feeling that there is, on the face of the events which have happened, a harshness about the notion that the plaintiff, having had the 1986 matters investigated without any adverse findings having been made against him, should discover that, through no fault of his own, he has to re-defend himself some 13 years after the events in question. In objective, rather than subjective, terms, that delay is itself a matter of real weight in the plaintiff’s side of the balance which has now to be struck by this Court; and I have given it weight accordingly. 49   It is, however, important that sight not be lost of the countervailing public interest. The Royal Commission to which I earlier referred brought to public notice, and very much to public concern, in a way which I think had not previously obtained, the prevalence of abuse, including sexual abuse, of school pupils by school teachers. What was uncovered by, and in the wake of, the Royal Commission demonstrated, - or, at the very least, has been widely seen as having demonstrated, - administrative slackness in the proper investigation and correction of allegations of such abuse. These are matters of very great public interest; and they, too, must be given a proper, and a properly substantial, weight in the relevant scheme of things. 50   I advert, finally, to the question of delay on the part of the plaintiff in seeking the relief that he now claims. I would not think it fair to take the view that the plaintiff should have moved for a permanent stay as soon as he had received, in November 1998, formal notice of the charges made against him. I do think, however, that by May/June of this year he both could and should have moved for a permanent stay if that is what he wanted to achieve. He chose, instead, - albeit, as I do not doubt, upon professional legal advice, - first, to seek relief in the Industrial Relations Commission; and secondly, to make the written submissions put in for him by his legal representatives on 7 June last. These considerations of delay on the part of the plaintiff must be kept, of course, in a sensible perspective and in a fair context. I do not regard them as being, of themselves, simply determinative of the present application. I do think, however, that they are a real consideration militating against the grant of the present application. 51   Doing the best I can to strike the balance described in the decision, earlier cited, in Walton, I have come to the conclusion that the plaintiff has not made good his claim for relief.

Orders

52   For the whole of the foregoing reasons, I make the following orders:

(1) That the plaintiff’s summons be dismissed.

(2) That the plaintiff pay the defendant’s costs.

(3) That the exhibits remain in Court for a period of 28 days from today. If, within that period, an appeal is lodged against this judgment, then the exhibits are to remain in Court pending further order. If within that period no such appeal is lodged, then the exhibits thereafter may be returned to the persons or bodies respectively entitled to them.

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Last Modified: 12/20/1999