H, a L v Andrews

Case [2006] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

H, A L v ANDREWS & ORS

[2006] SASC 392

Judgment of The Honourable Justice Gray

22 December 2006

ADMINISTRATIVE LAW - JUDICIAL REVIEW

Plaintiff applied for an order restraining the defendants from proceeding with disciplinary action instituted under section 26(2) of the Education Act 1972 (SA) in order to prevent what the plaintiff argued was an abuse of process - whether the court had the jurisdiction to stay the disciplinary proceedings as an abuse of process - whether the disciplinary proceedings constituted an abuse of process on the grounds of delay and oppression - plaintiff's application dismissed.

Education Act 1972 (SA) s 26(2), s 50, referred to.
Clayton v Ralphs (1987) 45 SASR 347; Jago v District Court of NSW (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; New South Wales Bar Assn v Muirhead (1988) 14 NSWLR 173; Singleton v Boston (1999) 97 IR 16; Koh v State of South Australia (1989) 154 LSJS 38; Cava v Marshall (2003) 230 LSJS 34; O’Rourke v Miller (1985) 156 CLR 342; Kioa v West (1985) 159 CLR 550; R v Mohi (2000) 78 SASR 55, considered.

H, A L v ANDREWS & ORS
[2006] SASC 392

Civil

GRAY J:

Introduction

  1. The plaintiff applied to this Court for an order restraining the defendants from continuing with disciplinary action instituted under section 26(2) of the Education Act 1972 (SA), in order to prevent what the plaintiff argues is an abuse of process.

  2. Counsel for the plaintiff submitted that an abuse of process arose on two grounds: first, as a result of delay in instituting the disciplinary action and second, that the proceedings are oppressive.  The plaintiff sought a declaration and injunctive relief in respect of the alleged abuse of process.  The application was said to invoke the inherent jurisdiction of the Court.

  3. The defendants to the within action - Jan Andrews, the current Chief Executive Officer of the Department for Education and Children’s Services (“the Department”), as well as the Minister for Education and Children’s Services and the State of South Australia - contended that the disciplinary action did not constitute an abuse. 

  4. Counsel for the defendants contended that while there is an inherent power in this Court to stay the proceedings of inferior courts or tribunals as an abuse of process, that power is not enlivened in this case as the decision-maker is not a court or a body in the nature of a court.  Even if that was the case, counsel submitted, the proceedings could still not be categorised as abusive such as to warrant a stay of proceedings.

  5. The plaintiff initially sought, by way of alternative, an order in the nature of prohibition.  However, at the hearing of the appeal, the plaintiff abandoned that claim.

  6. It is relevant to record that counsel for the defendants accepted that the Chief Executive of the Department and the Minister were not immune from the scrutiny…

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H, a L v Andrews [2006] SASC 392
Case
[2006] SASC 392
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CaseChat Overview and Summary

The case of H, a L v Andrews involved a plaintiff who was a long-standing employee of the Department of Education in South Australia. The plaintiff sought a judicial review of a decision by the defendants to initiate disciplinary action against him under section 26(2) of the Education Act 1972 (SA). The plaintiff argued that the disciplinary proceedings constituted an abuse of process due to the significant delay in addressing the allegations of misconduct, which dated back to the mid-1990s, and the oppressive nature of the process. The primary legal issue was whether the court had the jurisdiction to stay the disciplinary proceedings and whether the proceedings indeed constituted an abuse of process.

The court found that while the Chief Executive of the Department and the Minister were not immune from judicial scrutiny, the plaintiff's application for judicial review was not appropriate in this case. The court held that the primary remedy sought by the plaintiff was not available as the disciplinary proceedings had already been initiated. The court further examined the grounds for an abuse of process, considering the delay and oppressiveness of the proceedings. However, the court concluded that the delay alone did not justify a stay of the proceedings, and there was no evidence of oppressive conduct by the defendants. The court determined that the plaintiff had not established grounds for the court to interfere with the disciplinary process.

As a result, the plaintiff's application for judicial review was dismissed. The court held that the defendants were entitled to proceed with the disciplinary action as initiated. The court did not grant the relief sought by the plaintiff, and the disciplinary proceedings continued as per the decision of the defendants.

Orders

Orders of the court

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Background

Background to the litigation

It is relevant to record that counsel for the defendants accepted that the Chief Executive of the Department and the Minister were not immune from the scrutiny of this Court. Counsel conceded that the Chief Executive’s actions and the disciplinary process under the Education Act were subject to scrutiny by way of judicial review – in particular, orders in the nature of prohibition and certiorari. In the within proceedings, orders for judicial review of this nature were not pursued. Background The plaintiff joined the Department as a bonded student teacher in 1967. Following graduation in 1971, he joined the teaching service with the Department in a teaching position at Gawler High School. Since 1971, the plaintiff has been a continuous member of the teaching service with the Department. He has held many positions including as a teacher, Senior Master English, Deputy Principal, acting Assistant Principal, and Principal. His substantive position at the present time is Senior Master English. Since 1977, the plaintiff has worked in a variety of roles for the Senior Secondary Assessment Board of South Australia. These include being a member of the English Subject Area Committee, and an exam setter and marker.The Allegations against the Plaintiff The disciplinary action the subject of these proceedings arises from allegations of misconduct that first came to light in the mid-1990s. In 1996, the complainant first complained that he had been sexually abused by the plaintiff between 1974 and 1977. Those allegations can be summarised as follows.-between 1974 and 1976 the plaintiff, whilst a teacher at the Quorn Area School, taught the complainant, then a teenage boy. The plaintiff also befriended the complainant and his family;-periodically, during this time, the plaintiff would, with the assent of the complainant’s parents, take the complainant to Adelaide to stay with the plaintiff’s family. On these occasions, the complainant and the plaintiff would share a room. During these visits the plaintiff masturbated the complainant and invited the complainant to masturbate him. The plaintiff also performed fellatio on the complainant;-between 15 December 1975 and 26 January 1976, the plaintiff, with the assent of the complainant’s parents, took the complainant on a holiday overseas, in the company of two female companions. The plaintiff and the complainant habitually shared a room during this holiday, to the exclusion of the two women. During this holiday, the plaintiff masturbated the complainant and invited the complainant to masturbate him. The plaintiff also performed fellatio on the complainant. At some time during the holiday, the plaintiff attempted to have anal intercourse with the complainant;-during 1977, after the plaintiff moved to Adelaide, the complainant boarded with the plaintiff. During this time, the plaintiff continued the sexual relationship with the complainant;-on 9 August 1995, the plaintiff was found in possession of child pornography in the form of a magazine. The Evidence

Evidence

Evidence Before The Court

The disciplinary action the subject of these proceedings arises from allegations of misconduct that first came to light in the mid-1990s. In 1996, the complainant first complained that he had been sexually abused by the plaintiff between 1974 and 1977. Those allegations can be summarised as follows.-between 1974 and 1976 the plaintiff, whilst a teacher at the Quorn Area School, taught the complainant, then a teenage boy. The plaintiff also befriended the complainant and his family;-periodically, during this time, the plaintiff would, with the assent of the complainant’s parents, take the complainant to Adelaide to stay with the plaintiff’s family. On these occasions, the complainant and the plaintiff would share a room. During these visits the plaintiff masturbated the complainant and invited the complainant to masturbate him. The plaintiff also performed fellatio on the complainant;-between 15 December 1975 and 26 January 1976, the plaintiff, with the assent of the complainant’s parents, took the complainant on a holiday overseas, in the company of two female companions. The plaintiff and the complainant habitually shared a room during this holiday, to the exclusion of the two women. During this holiday, the plaintiff masturbated the complainant and invited the complainant to masturbate him. The plaintiff also performed fellatio on the complainant. At some time during the holiday, the plaintiff attempted to have anal intercourse with the complainant;-during 1977, after the plaintiff moved to Adelaide, the complainant boarded with the plaintiff. During this time, the plaintiff continued the sexual relationship with the complainant;-on 9 August 1995, the plaintiff was found in possession of child pornography in the form of a magazine. The Evidence The primary evidence supporting the allegations is set out in the affidavit of Oggi Stojanovich, an Investigations Officer with the Special Investigations Unit of the Department, dated 22 September 2006. That evidence includes the following:-copy of documents provided by the police, including a police incident report and transcript of interview with the plaintiff in relation to allegations that the plaintiff had sexually assaulted the complainant, provided to the Department on or about 1 July 1996;-copy transcript of interview with the plaintiff conducted by a Government Investigations Officer, who conducted investigations into the allegations on behalf of the Department;-copy letter from the Deputy Registrar of the Adelaide Magistrates Court to the Department, dated 19 September 1995, informing that on 9 August 1995 the plaintiff was found guilty of possession of child pornography, was fined $100, and no conviction recorded. Attached was a copy of the Court Record confirming the result of the proceedings;-copy of notes compiled by an officer of the Department, who met with the plaintiff on 16 June 1995 in relation to the charge of possession of child pornography;-copy letter from the Department to the plaintiff dated 31 October 1995 regarding the Magistrates Court proceedings;-copy letter dated 23 January 1997 from the then Chief Executive of the Department to the plaintiff, informing the plaintiff that the investigation into the allegations made by the complainant had been completed and that the file had been closed;-copy letter dated 2 December 2004 from the Department to the plaintiff, notifying him that he was being reassigned to non-teaching duties pending resolution of the police investigation and a departmental review;-copy letter dated 17 June 2005 from Ms Stojanovich to the plaintiff, advising that the Department would undertake an internal review of the allegations;-copies of documents relevant to the allegations received by Ms Stojanovich from South Australia Police on 26 September 2005, including a transcript of interview with the complainant, a statement made by the complainant, and a number of other witness statements compiled by police;-copy letter dated 2 December 2005 from the Chief Executive of the Department to the plaintiff, informing him that he suspected that he may be liable to disciplinary action and providing him with an opportunity to respond; and-copy letter dated 23 January 2006 from the plaintiff’s solicitors to the Chief Executive of the Department, being the plaintiff’s response to the letter of 2 December 2005.

Decision

Reasons for decision

Soon after the letter of 23 January 1997, the complainant wrote to the plaintiff about the alleged misconduct. The plaintiff did not keep the letter.The Second Police Investigation and DPP Decision On 13 April 2004, the complainant was interviewed again by the police. In the course of this interview, the complainant repeated the earlier allegations of sexual misconduct. In addition, further allegations of attempted and anal intercourse were raised. On 26 October 2004, police informed the plaintiff that they were investigating allegations made by the complainant that the plaintiff had unlawful sexual intercourse with him. On 24 November 2004, the Department reassigned the plaintiff from acting Deputy Principal at a high school to what was described as “working from home”. In 2005, the plaintiff was reassigned to the Inner South District Office. By letter dated 28 April 2005, the Director of Public Prosecutions advised the plaintiff’s solicitors that no criminal charges were to be laid against the plaintiff with respect to the allegations made by the complainant. Further Departmental Review: 2005 By letter from the Department dated 17 June 2005, the plaintiff was advised that the Department was to hold an internal review of the allegations made by the complainant. The plaintiff’s reassignment to Inner South District was to continue. On 19 August 2005, the plaintiff’s solicitors wrote to the Department requesting the opportunity to put a submission to it before any disciplinary proceedings were initiated against the plaintiff in relation to the allegations by the complainant. By letter dated 29 November 2005, the Department advised the plaintiff’s solicitors that it had determined to instigate a disciplinary inquiry into the allegations made by the complainant against the plaintiff. By letter dated 2 December 2005 the then Chief Executive of the Department wrote to the plaintiff advising that he suspected that the plaintiff may be liable to disciplinary action pursuant to section 26 of the Education Act in that he may have been guilty of improper or disgraceful conduct in conducting a sexual relationship with the complainant between 31 December 1973 and 1 January 1978. This letter set out the considerations to which the Chief Executive proposed to have regard. The letter was in the following terms:I, Steve Marshall, Chief Executive, Department of Education and Children’s Services suspect that you may be liable to disciplinary action pursuant to section 26 of the Education Act 1972 (“the Act”) in that you [the plaintiff] have been guilty of improper or disgraceful conduct in that you conducted a sexual relationship with a child, [the complainant], born 6 January 1960, between the 31st day of December 1973 and the 1st day of January 1978.Particulars1.In 1974 you were assigned as a teacher to the Quorn Area School, and you taught there for three years up until the conclusion of the school year in 1976.2.While teaching at Quorn, you met the child, [the complainant], who was your student.3.You formed a friendship with [the complainant], and with both of his parents, who often invited you to their home for meals.4.You took advantage of the trust placed in you by [the complainant] and his parents to start a sexual relationship with [the complainant] between the dates referred to above.5.The sexual relationship involved you, on many occasions, at the home of your mother at 2 Garden Road Westbourne Park, masturbating [the complainant] and inviting him to masturbate you.6.The sexual relationship also involved you fellating [the complainant].7.On or about 15 December 1975, with the consent of his parents, you took [the complainant] with you on a holiday overseas, in company with two female companions, returning to Australia on or about 26 January 1976. During the course of the holiday, you and [the complainant] habitually shared hotel rooms together, whilst your female companions shared a separate room.8.During the course of that holiday, the sexual relationship between you and he continued in the way described above.9.At some time during the course of the holiday referred to above, at some point close in time to when [the complainant] celebrated his 16th birthday, you attempted to have anal intercourse with him.10.After attempting to have anal intercourse with him, you invited him to have anal intercourse with you.11.[The complainant] complied with your invitation and achieved anal penetration of you.12.During 1977 [the complainant] was permitted by his parents to board with you at a house you rented in Parkside, a short distance from where he attended school. [the complainant] boarded with you in the Parkside house until late in 1978.13.On one occasion during the time that [the complainant] boarded with you at the Parkside house, you told him, during the course of an argument arising from him coming home late one evening, that you loved him.I am also informed that on the 4 June 1995, you were reported by the police for being in possession of child pornography in the form of a magazine and were later charged with that offence. On the 9 August 1995 you appeared before Mr Rogers SM in the Magistrates Court at Adelaide and pleaded guilty to that charge. The magistrate appears to have accepted your explanation that you had purchased the magazine, which was a homosexual publication which depicted children under the age of 16 years in sexual positions, some twenty years earlier for a purpose other than its pornographic nature. The magistrate did not record a conviction and fined you $100.00 plus costs. This Department took no action against you for having committed the offence of being in possession of child pornography.Your submission to the Magistrates Court in 1995, that you had purchased the magazine containing child pornography some 20 years earlier, places its purchase by you at around the time that [the complainant] alleges that you had formed a sexual relationship with him.I put you on notice that when assessing the information before me, and subject to what you or your legal counsel may put to me, I may use the fact of your possession of the pornography referred to above to draw a conclusion that, in the 1970s you were the type of person who found young boys sexually attractive, and therefore may have been sexually attracted to [the complainant], thus providing a motive to behave in the way he alleges that you did.When you were interviewed by a government investigator in 1996, when [the complainant] first complained of your alleged conduct, you denied having any form of sexual contact with him. You said in the course of that interview that there were occasions that you took [the complainant] to your mother’s home at Westbourne Park, where you both slept in separate beds in a sleep-out at the rear of the house there. You also admitted that you had taken him on an overseas holiday at the end of 1975, at a time when [the complainant] was not yet 16 years of age.I put you on notice that when I am assessing the information before me, and subject to what you or your legal counsel may put to me, I may use your admitted conduct in befriending a young boy and his family and then taking him to your mother’s home and sleeping in the same sleep-out with him as a relevant factor in assessing the weight I am to give to [the complainant’s] allegations.I put you on notice that when assessing the information before me, and subject to what you or your legal counsel may put to me, I may use your admitted conduct of befriending a young boy and his family and then taking him on a holiday overseas for 6 weeks and away from his family and friends as a relevant factor in assessing the weight I am to give to [the complainant’s] allegations.I advise that I have had regard to the following documents:· Record of interview between [the complainant] and Detective Barry Blundell of 30 June 1996.· Record of interview between [the complainant] and Ms Anderson of 29 August 1996.· Record of interview between [the complainant’s father] and Ms Anderson of 28 August 1996.· Statement of [the complainant] to the police of 27 April 2005.· Report from the Deputy Registrar of the Magistrates Court Mr George Haig to Ms Marilyn Sleath, Director of Personnel of 19 September 1995.· Notes of conversation between Alan Young and [the complainant’s father] of 6 June 1995.Should you wish to access and read these documents, please contact Ms Oggi Stojanovich, Special Investigations … who can negotiate this with you.I request your reply within 21 days of receipt of this letter. If I do not receive any written response from you within that time, I will proceed to determine the matter on the basis of the information already supplied to me. I wish to inform you that should I find the allegations against you proven, and subject to what you or your counsel may put to me, I am considering recommending to the Minister that you be dismissed from the teaching service.It is to be noted that the letter referred to the allegations made in 2004 of attempted and anal intercourse. This allegation had not been made earlier.

Ratio Decidendi

Legal Principle Established

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