Forbes v Boston

[1999] NSWSC 1217

CITATION:	Forbes v Boston [1999] NSWSC 1217
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	30029 of 1999
HEARING DATE(S):	22, 23, 24, 25 November 1999
JUDGMENT DATE:	14 December 1999
PARTIES :	Ian Forbes (Plaintiff) Kenneth Boston, Director-General of the New South Wales Department of Education and Training (First Defendant) Heather Gray, Director of Personnel Operations, New South Wales Department of Education and Trading (Second Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr M S Jacobs, QC, with him Mr A S Kostopoulos (Plaintiff) Mr P Menzies, QC, with him Ms T Anderson (Defendants)
SOLICITORS:	Greg Walsh & Co (Plaintiff) Adrian Murphy (Defendants)
CATCHWORDS:	ADMINISTRATIVE LAW - claim to set aside Administrative Decision - failure to provide natural justice/procedural fairness - breach of hearing rule - failure to disclose evidence brought against the plaintiff; TORTS - misfeasance in public office - requirements of intention to hurt or recklessness - whether there can be vicarious responsibility; TORTS - negligence in decision making - decision set aside for lack of procedural fairness - damages - causation - no loss if same decision would result from proper determination
ACTS CITED:	Law Reform (Vicarious Liability) Act 1983 Teachers Services Act Regulation 1994 Teaching Services Act 1980
CASES CITED:	Annetts v McCann (1990) 170 CLR 596 Kioa v West (1985) 159 CLR 550 Macksville District Hospital v Mayze (1987) 10 NSWLR 708 Northern Territory v Mengel (1995) 185 CLR 307 Sanders v Snell (1998) 72 ALJR 1508 Stead v State Government Insurance Commission (1986) 161 CLR 141 Wilkinson v Downton [1897] 2 QB 57
DECISION:

23

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

WINDEYER J

TUESDAY 14 DECEMBER 1999

30029/99 IAN FORBES v KENNETH BOSTON AND ANOR

JUDGMENT

General Outline

1    The plaintiff, Mr Ian Forbes, claims that he was denied natural justice or procedural fairness by the New South Wales Department of Education and Training when that Department placed his name on a list of persons not to be employed without reference to the Director of Personnel Relations (the list). He seeks to have that decision set aside. In addition he seeks damages for negligence and for misfeasance in public office. It is conceded that Dr Boston the first defendant, who was substituted as defendant for the State of New South Wales at the request of the Crown Solicitor, is the proper defendant so far as the liability of the State and vicarious liability for the conduct of persons within the Department is concerned. The second defendant is the Director of Personnel Operations in the Department.

Facts

2    Mr Forbes qualified in England as a school teacher. He is forty six years of age. He came to Australia in 1990 and had various teaching positions here. In 1993 he was accepted by the Department as being eligible for casual employment as a teacher in New South Wales. He was never permanently employed by the Department, but the issue of a letter stating that he was eligible for casual employment allowed him to seek such employment from school principals directly, as the production of the letter was sufficient to show that he was qualified and authorised. Many such letters are issued and there is no way to recall them. If the Department wishes to bring such accreditation to an end its method of doing so is to circulate a list to school principals containing names of teachers not to be employed. That list also contains the names of former permanent teachers not to be employed. Mr Forbes was employed by the Department of Education as a casual teacher for periods between 1993 and 1995, and was engaged for at least some of that time as a teacher in a pilot scheme known as the Substitute Care Program which involved teaching young offenders and disturbed children on a one to one basis, but usually within a school environment. It was obviously very difficult work involving constant emotional outbursts and verbal and sometimes, physical abuse. After he left his position with the Department Mr Forbes was employed by the Catholic Education Office as a relief teacher until about December 1996 when he returned to England and obtained work as a teacher with the Suffolk Country Council Education Authority (SCCE). His appointment with that Authority, which commenced in February 1997 was at the Hampden House Hostel, again teaching children outside the mainstream educational system because of behavioural difficulties with the hope of preparing them to return to ordinary schools. This was a part time position and from time to time he had casual work with other SCCE schools. His contract with SCCE was for a term ending on 30 April 1998.

3    It seems that some complaint was received by the SCCE about the behaviour of Mr Forbes, as a result of which that Authority realised that it had not obtained any reference for the plaintiff. At about the same time, there was communication between the New South Wales Department of Community Services and the New South Wales Department of Education about some complaints concerning the relationship between Forbes and one, Jamie Jinette who was one of the students in the Substituted Care Program. Ms Parry Blackadder, who was the chief investigator at the New South Wales Department of School Education informed Mr Stiff, an officer at the Suffolk County Council Authority, that Mr Forbes was the subject of a confidential case management unit investigation "to determine whether or not his casual approval should be withdrawn and his name placed on the New South Wales Department of School Education Not to be Employed list". As a result of this information, it seems that SCCE resolved to suspend Mr Forbes until the New South Wales investigation was completed. By this time Mr Stiff had been in contact with Mr Bonser, who was a Chief Education Officer in the Department's Case Management Unit, with the responsibility of looking into complaints against teachers including complaints involving sexual misconduct. This information as to Mr Bonser's duties may have given the English authorities more concern.

On 19 December 1997 Ms Parry Blackadder wrote a letter to Mr Forbes as follows:


Dear Mr Forbes

An allegation has been made that you engaged in improper conduct, including conduct that could amount to improper conduct of a sexual nature with students. The conduct is alleged to have occurred during the time you were employed by the NSW Department of School Education in the Substitute Care Program at J.J. Cahill High School.

The allegation has been investigated by Mr Phillip Bonser, Case Manager, under the direction of Glenys Parry Blackadder, Chief Investigator of the Case Management Unit.

As a result of the investigation, the following conduct has been identified:


That, during the first half of 1995 while employed as a tutor in the Substitute Care Program at J.J. Cahill HS, you formed an inappropriate relationship with a 14 year old male student (namely Jamie Jinette) in that:

i. during the week of 29 March 1996 you gave him a marijuana "pipe" or "bong";

ii during the week of 29 March you condoned him drinking alcohol at the Paddington Olympic Motel while he was under age;

iii on 5 May 1995 you condoned him drinking alcohol while under age;

iv on 11 May 1995 you gave him keys, a wallet and clothing;

v on 24 May 1995 you permitted him to remain at your home without permission and denied that he was there when asked by a worker from the Department of Community Services (namely David Mezey);

vi on or about 2 June 1995 you assisted him to falsify information on an application for employment with Pizza Hut by altering his birth date to make him 15 years of age, forging references and providing incorrect addresses and telephone numbers for referees; and

vii on 5 June 1995 you condoned him drinking alcohol while under age.


You are directed to provide me with a written response within 28 days of the date of this letter, to show cause why your casual approval should not be withdrawn and your name placed on the department's Not To Be Employed list.

If you require any further information, please contact Mr Phillip Bonser at the Case Management Unit on [phone].

Yours sincerely,

signed

Glenys Parry Blackadder
Chief Investigator
19 December 1997

4 The letter was addressed to Mr Forbes care of his solicitors as they were by that time in correspondence with the Department. The solicitors responded on 12 January stating that Mr Forbes rejected each of the allegations and he was prepared to answer them but as a matter of natural justice he should have the opportunity of seeing the evidence against him. On 3 February 1998 Gillian Shadwick, the assistant director general of the Department, in response to a letter from Mr Forbes' solicitors seeking proper details of the charges and the transcripts of evidence on which they were based, replied stating that the plaintiff's eligibility to teach would be determined under s50 of the Teaching Services Act 1980 but, as he was not currently employed, formal disciplinary proceedings could not be taken against him; that there was no requirement to provide transcripts until charges were laid and the matter the subject of a formal inquiry before a prescribed officer. It is agreed that this was nonsense. In any event, Miss Shadwick was proceeding as if the improper conduct complained of was conduct of a sexual nature, whereas the charges specified no such thing. This appears evident from a letter from Miss Shadwick to the plaintiff's solicitors of 27 March 1998, where she explained that allegations of improper conduct, including conduct which could amount to improper conduct of a sexual nature, were investigated by the case management unit of the Department of Education and Training. Furthermore she stated that this was done in respect of the initial allegation against Mr Forbes, but it was decided that there was insufficient evidence to substantiate an allegation of improper conduct of a sexual nature. She went on to explain that there were other matters relating to Mr Forbes' conduct, specifically his personal relationships with male students which were contrary to proper teacher/student interactions, which required investigation and that these matters would be dealt with by reference to the Industrial Relations Services of the Department of Education and Training, which dealt with conduct in breach of the Department's revised code of conduct. She continued that as Mr Forbes had denied the allegations and provided a number of explanations, these explanations would be referred to the Industrial Relations Unit and that if Mr Forbes were to be charged, and he subsequently denied the charge, the matter would be forwarded to a prescribed officer. All this goes to show considerable confusion in the Department as to what was appropriate action. It should be pointed out that this letter was written after receiving a response from Mr Forbes dated 25 February 1998, written in protest but replying to the allegations made in the letter of 19 December 1997. By this time the solicitors were complaining of the great unfairness to Mr Forbes and the risk of his employment being brought to an end as a precautionary measure as a result of the Department's actions. Some further investigation seems to have been made by Mr Alex Sharp of the Department after Mr Forbes' response was received. It is not necessary explore this in any detail other than to say that Mr Forbes was never aware of the evidence against him or the subsequent investigations, or of what was said. It seems that as a result of investigations made by or on behalf of Mr Alex Sharp, a case manager who reported to Miss Blackadder, it was decided that there was not sufficient evidence to support the allegations of sexual misconduct but there was sufficient evidence of other misconduct to justify investigation, and thus the matter should be transferred to the Industrial Relations Services for disciplinary action. On 4 May 1998, Mr Paul Irving, general manager of personnel at the Department of Education and Training, apparently as a result of what happened in the Industrial Relations Services inquiry, wrote to the plaintiff's solicitors stating that the matter of Mr Forbes had been referred to the Industrial Relations Services, that Mr Forbes had responded to a number of allegations concerning his conduct, and that the allegations and Mr Forbes' response had been carefully reviewed by the Industrial Relations Unit, and that:

sufficient evidence exists to raise grave concern regarding his inappropriate conduct with young students whilst a casual employee of this Department.
It has been determined therefore that Mr Forbes' name will be placed on a confidential list of those teachers who are not to be employed without reference to the Director of Personnel Operations. Mr Forbes may seek a review of this decision by setting out full details to the Director of Personnel Operations.

5    SCCE was made aware of this decision by the plaintiff's solicitors and Mr Forbes' contract of casual employment which expired on 30 April 1998 was not renewed, although by that time Mr Forbes had gained employment outside the SCCE area. SCCE stated that it would await the result of any review before passing the information on to higher authority. The English solicitors in the meantime maintained their complaint that their client had not been afforded procedural fairness in the way in which the decision had been made. The main complaint was the refusal to provide Mr Forbes with the evidence supporting the charges upon which the decision to put his name on the list was made.

6    By letter of 1 July 1998 Mr Forbes asked for the review which he had been told was available to him. The review was conducted by Mr Gardner, a former Assistant Director of Personnel of the Department of School Education. It is not suggested that Mr Gardner was not an appropriate person to carry out the review. It is however claimed that his review was flawed as was the original decision. In his report to the Director of Personnel Operations, Ms Gray (the second defendant), Mr Gardner set out the material which he had considered in making his report. This material included: the correspondence between the Department, Mr Forbes and his solicitors; the allegations of 19 December 1997; the responses of Mr Forbes to those allegations; and the evidence available and procedure followed in determining that Mr Forbes be placed on the … Not To Be Employed List. It is convenient to set out the findings of Mr Gardner in full:

Findings

Initial correspondence to Mr Forbes was from the Chief Investigator of the Department's Case Management Unit, through Bankes Ashton Solicitors on 19 December 1997. The letter dated 12 March 1998, provided Bankes Ashton with conflicting information to that supplied on 3 February 1998. This inconsistency relates to possible disciplinary action.

The file also indicates that deadlines for responses anticipated by Bankes Ashton have not been met by the Department.

The allegations presented to Mr Forbes have been based on information from a range of sources including staff at Dalmar House and others from the Department of Community Services, Mr Forbes' daily record sheets, staff from the Department of Education and Training with responsibility for Substitute Care at the Special Education Directorate and former clients.

Mr Forbes' responses to the allegations have been carefully considered. He has in summary of his response (pages 9 and 10) denied each of the allegations.

In assessing the allegations and Mr Forbes' response to them, it is clear that evidence has been submitted to the Department which conflicts with that provided by Mr Forbes.

In relation to allegation (i) Mr Forbes denies giving Jamie Jinnette [sic] a marihuana [sic] "pipe" or "bong" at any time. There are three reports indicating that Jamie Jinnette had returned to Dalmar House with a "pipe" or "bong" and indicated that Ian Forbes had given it to him. The evidence regarding this allegation is at best inconclusive.

In relation to allegations (ii), (iii) and (vii), Mr Forbes has indicated that he did not condone Jamie Jinnette's drinking alcohol at the Paddington Hotel at any time. There are several reports alleging that Jamie Jinnette had been drinking alcohol in Mr Forbes presence and that he had returned to Dalmar House on 5 June under the influence of alcohol. Jamie Jinnette indicated that "Ian took him to the pub". I am convinced by the evidence that these allegations can be substantiated. It is also my view that Mr Forbes displayed an alarming lack of professional judgment in determining that a hotel was a suitable place to take a fourteen year old student at any time. This would be so even if alcohol was not consumed by the student. I am also convinced that the frequency was more than the one or two occasions referred to in Mr Forbes response.

In relation to allegation (iv), Mr Forbes has agreed that he lent Jamie Jinette a suit and a wallet to attend an employment interview. He expected them to be returned. Whilst I appreciate Mr Forbes was endeavouring to assist Jamie Jinnette to present himself favourably at the interview, his decision to lend the articles never the less was a poor decision and demonstrates a lack of judgement.

While it appears that there is some confusion regarding the date mentioned in allegation (v), it appears that it was more likely to be 2 June 1995. Mr Forbes has agreed that Jamie Jinnette stayed at his house that night. His explanation for the reasons for the student stopping over night indicates a total lack of professional integrity and lack of understanding of the special duty of care of teachers to their students. Teachers hold a position of considerable responsibility and trust and must ensure that their behaviour and conduct towards students is beyond reproach at all times. It is totally inappropriate for teachers to have students stay at their homes overnight and clearly demonstrates Mr Forbes total lack of professional judgement. I find the explanation that he took the student to his flat to phone for a cab and the fact that he was still there at 11:00pm to be implausible and his actions totally irresponsible and again totally lacking in professional judgement.

In relation to allegation (vi), Mr Forbes response is in conflict with previous accounts made by him of his role in Jamie Jinnette's job application. In Mr Forbes daily record sheet of 16 May 1995, he indicates that he "spent two hours in the computer room preparing a CV for him and a list of referees". A senior staff member at Dalmar House has also indicated that Mr Forbes said that, "it was the only way Jamie would get a job", when questioned regarding the application inaccuracies. On the balance of probability, I find that the substance of this allegation is sustained.

Mr Forbes in his response, when questioned regarding his actions related to the job application, appears unaware of the implications of the corrupt conduct involved in dishonestly providing inaccurate information and clearly demonstrates a total lack of professional judgement.

In reviewing all the issues related to the allegations against Mr Forbes, and in particular his responses and justification of his actions in respect of allegations ii), v) and vi), I am convinced that he has a total lack of appreciation of his role as a teacher, understanding of the professional responsibilities of teachers and the integrity required of teachers related to duty of care of all students.

In reviewing the material available in this matter, I note there are a number of other allegations involving Jamie Jinnette and other students that have not been put to Mr Forbes. In view of this I have not considered those allegations being relevant to his review and have disregarded them in making my recommendation.

It is my view, having reviewed the matter and supporting material the decision to place Mr Forbes' name on the statewide list of people who are Not to be Employed in a school in any capacity without the approval of the Director of Personnel Operations was appropriate.

I recommend that Mr Forbes placement on that list be confirmed and maintained.

7    This report was considered by Heather Gray. She wrote to the plaintiff's solicitors on 10 July 1998, stating that she had accepted the recommendation of Mr Gardner that the name of Mr Forbes remain on the list of people who are not to be employed without the approval of the Director of Personnel Operations. She became the second decision maker. She enclosed a copy of the report and the supporting evidence. This was the first time that the supporting evidence had been given to Mr Forbes or his advisers.

8    There was an offer of a further review made on 3 May 1999, after these proceedings had been commenced. This offer was subject to a condition that any documents given to Mr Forbes would not be used other than for the purpose of the review and the New South Wales proceedings and on that basis could not be used in connection with applications for employment in the United Kingdom. The condition was modified on 3 September 1999 to permit use of the material in an employment application made anywhere in the world. The wording of both letters indicates that the review would not be limited to the original charges.

9    The employment of the plaintiff with SCCE automatically terminated on 30 April 1998. Before it came to an end however the plaintiff obtained employment with Stanground College in Peterborough. For some reason, which is not entirely clear, his English solicitors advised him to resign from the post on the basis that if he did not then he was in danger of being put on a black list in England if the fact his name was on the list became known. As a result of that he has not been employed as a teacher since 19 June 1998.

10    Finally, while it is not necessary for the purposes of this matter to examine all of the evidence, it can be noted that there is certainly no conclusive evidence that Mr Forbes supplied alcohol to any of the students in his care at least at the hotel and the statement of the person in charge of the Olympic Hotel in Paddington is against that. Miss Gray said that did not matter because on her consideration of the review report, she would have considered it inappropriate for Mr Forbes to be allowed to remain on the casual teaching list because his conduct in taking a student to the hotel was quite inappropriate, whether or not the student drank alcohol there. That allegation of course was never put to Mr Forbes.

Pleaded claims

11    The claims of Mr Forbes in the document called "further amended points of claim" filed in court before me on 24 November 1999 were:

1. As to procedural fairness:

(a) That in issuing the notice to show cause of 19 December 1997, the Department purported to act under s50 of the Teaching Services (NSW) Act.

(b) That by the failure to divulge to the plaintiff the evidence relied on by the Department, he was unable to answer properly the allegations made against him and was thereby denied procedural fairness.

(c) That in his review of the decision Mr Gardner relied on evidence which was not put to the plaintiff.

2. As to misfeasance in public office

(a) that the Department acted beyond power in maintaining the list and so knew or acted recklessly disregarding the question of power.
(b) the Department, Mr Irving, Mr Gardner and the defendants intended that the plaintiff should be injured, he should be unemployed as a teacher and/or that they were recklessly indifferent thereto.

3. As to negligence that in maintaining the list without power or placing the plaintiff's name on it without affording him procedural fairness, then the defendants acting negligently in breach of a duty of care to the plaintiff causing loss and damage to him

12    The plaintiff seeks declarations that the investigation was beyond power; the keeping of the list with the plaintiff's name on it is beyond power; and that the Department acted in breach of the principles of procedural fairness in placing the plaintiff's name on the list. The plaintiff seeks an order for removal of his name from the list and various consequential orders. In addition the plaintiff claims damages. Nothing was heard during the case about the claim for exemplary damages.

13    The defendants, by way of defence to the claim that the decision was void, say that there was power under the Teaching Services Act 1980 to act as was done and that procedural fairness was afforded to the plaintiff. The misfeasance and negligence claims are resisted and a particular defence is raised that Mr Boston, as representative of the State, could not be vicariously liable for misfeasance in public office of an officer of the Department. In further submissions based particularly on the evidence of Ms Gray, counsel for the defendants said that no order should be made for quashing the decision and for removing the name of the plaintiff from the list. This was because such a decision would be purposeless as even if there were a failure to provide procedural fairness a decision to the same effect from a properly conducted investigation was inevitable.

Power to maintain list

14 The plaintiff's first argument is that there is no statutory authority for the maintaining of the list in question; that because it can have such serious results no power should be inferred; that basic rights should not be taken away without express mandate; that the provisions in the Teaching Services Act 1980 as to punishment for disciplinary breaches are a complete code; that there is no power under the common law to maintain such a list; and that in none of the documents of the defendant is any procedure set out for holding an inquiry in the case of approved casual teachers not currently in employment.

15    The list has been maintained for many years, although this fact has no particular bearing on power other than to show that it appears to have been regarded as a suitable mechanism to exercise some control over the employment of teachers in New South Wales. Under s3 of the Teachers Services Act the Director General is responsible to the Minister for the general conduct and efficient, effective and economical management of the functions and activities of the Education Teaching Service. In exercising those responsibilities the Director General is authorised to take such action as he deems appropriate, provided the action is not inconsistent with any function of the secretary or other specified functions. One of his functions is to maintain lists of officers eligible for appointment to teaching positions in public schools and another is to maintain discipline in the Education Teaching Service. It should be remembered that the list in question is a list of persons not to be employed without prior approval. While there may be other ways of maintaining control over the appointment of teachers I consider it perfectly clear that the powers of the Director General in the conduct of the public education system in New South Wales are wide enough to allow the maintenance of the list in question. According to the evidence of Ms Gray there are about eighteen thousand persons accepted as eligible for casual teaching positions in New South Wales. Rather than constantly updating a list of these persons, it is far easier to furnish principals with a list of persons not to be employed without reference to the Department. In my opinion the maintenance of the list is a reasonable action taken in exercise of responsibility for the general conduct of the teaching service, and particularly so in respect of persons who are not in permanent or casual employment and therefore not amenable to regulatory procedures provided by statute for those in employment.

Procedural Fairness

16    In ordinary circumstances a decision maker in coming to a decision which affects a person's rights, interests or legitimate expectations is required to act in accordance with the rules of natural justice or procedural fairness: Kioa v West (1985) 159 CLR 550 and Annetts v McCann (1990) 170 CLR 596 at 598. The defendant argued that this was not available to the plaintiff. This argument can be briefly stated as being that the action of placing the plaintiff's name on the list did not terminate his employment but merely indicated that he would not be employed in the future without approval. The action merely took away his right to present his letter to a school principal and thereby establish his qualifications for casual employment. In other words, what was argued was that an applicant for employment has no entitlement to be heard before employment is denied and thus there was no legal right or expectation to give rise to the entitlement to procedural fairness. It seems to me that contention is flawed. The Department was prepared to pass on to the inquiring authority in England details of the action being taken in New South Wales and was well aware of the consequences of its doing so. In other words, the decision to place the name of the plaintiff on the list had an effect not only upon his prospects of future employment in New South Wales but on his continued employment in the field of education outside New South Wales. There can be no doubt that the administrative decision affected the vital interests of the plaintiff and this must have been known to the Department.

17    In these circumstances the plaintiff was entitled to procedural fairness in the making of the decision to place his name on the list. Procedural fairness required proper identification of the charges made against the plaintiff and a fair hearing of those charges. It also required proper notification of the penalty which could possibly result from a finding against the plaintiff in respect of the matters with which he was charged. That is basic law. It does not mean that there is any particular order in which people's submissions must be addressed. Nor does it concern the onus of proof or reversal of that onus. What it does concern is fairness. In this case Mr Forbes was advised of the charges. He was not advised of the procedure under which those charges would be investigated and in fact the Department itself seemed to be unsure of the procedure, as Mr Gardner points out. Mr Forbes at one stage was told that he would be furnished with the evidence upon which the charges were based. In a matter such as this which does not involve dismissal there is no requirement for an oral hearing, whatever may be the final conclusion as to rights under Part 3 of the Teachers Services Act Regulation 1994. However, it should be understood that if there is an oral hearing then the person subject to the charges has the opportunity of hearing and testing the evidence brought forward in support of the charges. When there is a written hearing or decision making process then the same opportunity ought to be given because otherwise the person affected by the decision has no opportunity of refuting that evidence, which may well be capable of being refuted. In other words, what happened was that the decision of the Department was based on evidence which it appeared to accept without having put the evidence to the person affected by the decision.

18    This is really the end of the matter so far as the first consideration and first decision of Mr Irving is concerned. So far as the decision after the review by Mr Gardner is concerned, the same problems exist. Mr Gardner considered evidence not available to Mr Forbes: He seemed to find charges proved on the basis of evidence which contradicted the facts alleged in some of the charges. Ms Gray in accepting the report, said that she placed more emphasis on the fact that Mr Forbes had, in her opinion, been guilty of improper conduct quite improper for a teacher in taking a student under his care to an hotel on a number of occasions. While she may have formed that view, it was not a subject of charge or a complaint ever put to Mr Forbes. The result is that the review did not restore fairness to the plaintiff. In fact it is likely it made the position worse.

19    It follows from this that unless there is some discretionary basis upon which the decision ought not to be set aside then it should be set aside, which means that to afford justice to the plaintiff his name should be removed from the list. Of course the defendants' right to the defendants to conduct an inquiry in accordance with the requirements of procedural fairness is preserved.

20    So far as the question of discretion is concerned, a considerable amount of the evidence or cross-examination of Mr Forbes, mostly as to credit, and the evidence of Ms Gray went to this. It is clear from the cross-examination of Mr Forbes and other evidence that there could be some doubts about the suitability of Mr Forbes for employment as a casual teacher, for the most part connected with his consumption of alcohol, of which there is a body of evidence, and his taking Jamie Jinette to the hotel. The point is however that such a charge has not been the subject of any proper investigation, nor has it been put to Mr Forbes. Thus, if such conduct was relevant, it would not necessarily be a question of the existing charges being determined again after providing procedural fairness to Mr Forbes, with a certain result making any declaration or order futile: Stead v State Government Insurance Commission (1986) 161 CLR 141. It may be that new charges will be made against him, requiring a proper opportunity be given to him to answer them. The court does not know what attitude the Department would take and can come to no conclusion on this point. The court cannot conclude that it would be futile to set aside the decision to place the plaintiff's name on the list, although in the light of the evidence in cross-examination of the plaintiff and the evidence of Ms Gray that may be the likely result. Nonetheless it is not certain that setting aside the decision will be a useless act.

21    It was also put that as a matter of discretion the decision or decisions should not be declared void in the light of the further offers of review. I consider that it is too late to repair the lack of natural justice and it is also relevant to repeat that the offers appeared to indicate the likelihood of altered charges, which should be considered on original enquiry rather than on review.

Misfeasance in public office

22    While it is not altogether clear from the document this claim is pleaded in paragraphs 19 and 20 of the further amended points of claim. The claim is that the defendants, Mr Irving, Mr Gardner and officials of the Department acted beyond power in maintaining the list and placing the plaintiff's name on it; that they knew they were acting beyond power or were reckless in their actions in disregarding the question of power; and that in placing the plaintiff's name on the list and in making the decision on review the same persons intended that the plaintiff would be injured or were recklessly indifferent as to whether he was injured or not; and further it is alleged that if the actions were within power then the decision was taken as a result of investigations which lacked procedural fairness.

23    This tort was most recently considered by the High Court of Australia in Sanders v Snell (1998) 72 ALJR 1508. At paragraphs 38 and 42 the following passages appear:

[38] For present purposes it may be accepted that the tort of misfeasance in public office extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness. But to establish that tort, it is not enough to show the knowing commission of an act beyond power and resulting damages. As the majority said in MengelNorthern Territory v Mengel (1995) 185 CLR 307 at 347
:

The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of the public officer, he or she is liable personally and, unless there is de fact authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v DowntonWilkinson v Downton [1897] 2 QB 57, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

For the purposes of deciding Mengel , the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm but noted also that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power.

Misfeasance in public office

[42] Again it must be accepted that the precise limits of this tort are still undefined. It is an intentional tort. As was said in Mengel :

… the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.

24    In addition the court referred in paragraph 46 without any criticism to the judgment of Brennan J in Mengel in which he said that not all actions which found breach of obligations of procedural fairness will constitute misfeasance in public office and that something more is required, namely the absence of an honest attempt to carry out the functions of the office.

25 Insofar as the actions complained of were said to be taken with the intention of causing harm to be plaintiff, the claim must fail. There is no evidence that any of the actors intended to cause harm to Mr Forbes. As the High Court has stated this is a tort involving personal responsibility. Mr Irving and Mr Gardner are not defendants and "the other officials of the Department" are unnamed and must be disregarded. There is no pleading alleging that either Mr Irving or Mr Gardner is a public officer. In fact, on the evidence Mr Gardner is not, but in any event it does not matter as there is no evidence of intention to cause harm. Accepting for the moment that reckless indifference as to whether or not injury was caused to Mr Forbes or not would be sufficient to ground this tort, and that is still not decided, such recklessness is not established. It is true that the English solicitors for Mr Forbes were diligent and persistent in seeking proper information so that Mr Forbes could respond to the allegations made against him; but the fact that the information was not provided as it ought to have been does not mean that there was any absence of an honest attempt to perform functions or that the persons whose conduct is complained of were recklessly indifferent as to the effect on Mr Forbes of their failure to afford procedural fairness to him. In these circumstances it is not necessary to consider further the defendants' arguments as to whether there is only personal liability for this tort, although it appears clear that in New South Wales the position is covered by the Law Reform (Vicarious Liability) Act 1983. On no basis was Mr Boston personally liable; Mr Gardner was not a public officer, Mr Irving probably was; and Ms Gray certainly was.

Negligence

26    The claim of the plaintiff is that he was owed a duty of care by the by the defendants to ensure the Department did not act beyond its powers by maintaining the list or in placing his name on the list without according him procedural fairness. It is the latter claim which is important here. The plaintiff alleges that the defendants acted negligently in making the decision, and that they had a duty of care towards him and were in breach of that duty causing him damage. The damage alleged is set out in paragraph 23 of the further amended points of claim, that paragraph being as follows:

23. As a result of the fact that the Plaintiff's name has been placed on the said "List" the plaintiff:-

(a) has been unable to resume his work as a part time teacher with the Suffolk City Council;

(b) has been unable to obtain work elsewhere as a teacher or part time teacher;

(c) has suffered injury to his good name and reputation;

(d) has lost the opportunity of obtaining advancement in his career as a teacher;

(e) has lost income and a chance of increased income;

(f) has suffered from mental anguish, anxiety and distress;

(g) and has been put to solicitor and client legal costs that he should not have been called upon to bear.

27    For reasons which I will give in the next paragraph it is not necessary to go into these matters in great detail other than to say that it was SCCE which made the decision to suspend the plaintiff and to do so before his name was placed on the list; and the plaintiff had obtained employment elsewhere before that date which he terminated after his name was placed on the list on the advice of his solicitor. Thus it would be difficult to say that the action complained of brought about the economic loss claimed. For the same reasons it is not necessary to discuss pleading deficiencies which could readily be cured or overlooked.

28    There has been a great deal of academic writing on the question of whether or not there is a remedy in damages for wrongful administrative action. Some of this writing is referred to in the judgment of Kirby P in Macksville District Hospital v Mayze (1987) 10 NSWLR 708 at 724. See also article by Barton, "Damages in Administrative Law" in Judicial Review of Administrative Action in the 1980's, Taggart (ed.) p143. There are statements in Mengel in the majority judgment at page 352 and of Deane J at page 373, which would at least give some encouragement to the view that a cause of action in negligence could arise through breach of duty to a person affected by a decision by failing to exercise the decision making power according to law. Accepting for the moment that such an action is available against a public authority the damages said to flow to the plaintiff in this case are said to flow as a result of the wrongful decision to place his name on the list. Thus the appropriate order is that his name be removed from the list. But if the Department or the defendants arrived at the same decision, having afforded the plaintiff natural justice in a new investigation, which it may well do on examination of the charges upon which the original decision was based or upon different charges, then it could not be said the plaintiff has suffered any damage as a result of the denial of procedural fairness or if you like, negligence in the decision making process. If upon reconsideration the Department or defendants, having afforded procedural fairness to the plaintiff, came to a different conclusion then it may well be that the plaintiff would be entitled to some damages. His claim for damages is said to have been caused by or result from the fact that his name has been placed on the list. If it turns out that it was proper to make the same decision, then there is no loss. If it turns out that it was not proper to make that decision then there may be some loss for which damages could be claimed. The point is that damages cannot be claimed in this action but in my view that ought not and would not preclude the possibility of the plaintiff making a claim for damages in another action at a future date. In saying that I am not to be thought to have expressed a view that such a claim would be available to the plaintiff.

29    It follows from this that the plaintiff's claims for damages should be dismissed. The declarations and orders that I propose to make are as follows:

1. Declare that the defendants acted in breach of the principles of procedural fairness in the determinations to place the plaintiff's name on the Not to be Employed List.

2. Order that the name of the plaintiff be removed from that list and not be placed upon it without proper determination.

3. Order that the plaintiff's claim be otherwise dismissed.

I will hear submissions as to costs. The plaintiff would be entitled to the general costs in any event, but there may be some argument as to the costs of the claims in tort.

Last Modified: 06/26/2000