H, a L v Andrews
[2006] SASC 392
•22 December 2006
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 392Civil
GRAY J:
Introduction
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.
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.
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.
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.
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.
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
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.
Ms Stojanovich took a further statement from the complainant concerning the contents of the complainant’s letter to the plaintiff in 1997. On 20 October 2006, after the proceedings within were commenced, Ms Stojanovich took a statement from a social worker about the advice given in respect to, and the purpose of, that letter.
Affidavits from the plaintiff, dated 23 June 2006; Ms Andrews, dated 26 September 2006 and Ms Stojanovich, dated 23 October 2006 were also tendered by consent. The parties did not seek to cross-examine any deponent. The affidavits were received as evidence. Many of the exhibited documents were ordinary business records and were received as such.
The History of the Investigation of the Allegations
The history of the investigation into the allegations, to be summarised later in these reasons, was not in dispute. In 1997, the defendants informed the plaintiff that no action would be taken against him with respect to the allegations of the complainant made in 1996 to the police and to the defendants because there was insufficient evidence.
Upon the complainant renewing a complaint to the police in 2004, following the lifting of the limitation in prosecuting sexual offences occurring prior to 1982, the defendants re-investigated the complaints made by the complainant against the plaintiff.
The Facts
The following are the findings of fact that I make on the balance of probabilities.
The Magazine Prosecution
In June 1995, police attended at the plaintiff’s home and seized a 20-year old pornographic magazine. The plaintiff was prosecuted for one count of possess child pornography. The plaintiff pleaded guilty. According to the Magistrate’s Court record, the plaintiff was not in attendance at the time submissions were made and sentence imposed. The plaintiff was fined $100, without conviction.
The plaintiff has sworn that he borrowed the magazine in the mid-1990s to read a non-pornographic article. The plaintiff tendered a statutory declaration from the person from whom he said he had borrowed the magazine.
On 19 September 1995, in response to a written enquiry from the Department, the Deputy Registrar of the Magistrates Court wrote to the Department regarding the prosecution, informing the Director that at the hearing the plaintiff’s counsel submitted that his client had purchased the magazine, although for a purpose other than pornography.
On 31 October 1995, the Department wrote to the plaintiff regarding the prosecution, advising, inter alia, that the plaintiff’s teaching career would not “be jeopardised by this incident in any way” and acknowledging the plaintiff’s “many years of dedication to teaching children and confirm[ing] that [the plaintiff’s] contribution is valued by both [his] peers and this Department”.
The Complaint and the First Investigation
On 30 June 1996, the complainant made complaint to the police against the plaintiff in respect of conduct between 1973 and 1977.
On 30 June 1996, the complainant was interviewed by the police. In the course of the interview, the complainant provided an account of inappropriate sexual conduct on the part of the plaintiff toward the complainant.
The allegations made by the complainant were brought to the attention of the plaintiff by a letter from the Department dated 5 August 1996. On 28 August 1996, the plaintiff was interviewed by a government investigator about the allegations made by the complainant.
On 23 January 1997, the Chief Executive of the Department wrote to the plaintiff advising, amongst other things, that “[d]ue to the state of the evidence… the department has decided that it is not appropriate to take any further action in relation to this matter. Consequently, the file on this matter has been closed”.
After receiving the letter of 23 January 1997, the plaintiff believed that nothing further would happen with respect to the allegations made by the complainant. The plaintiff has sworn that after receiving the letter of 23 January 1997, he did not gather and keep exculpatory evidence.
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.
Particulars
1.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.
On 23 January 2006, the plaintiff’s solicitors wrote to the acting Chief Executive in response to the 2 December 2005 letter in the following terms:
This letter is by way of response to Steve Marshall’s letter of 2 December 2005 (“the 21 day letter”).
My client seeks your agreement to desist from the course of conduct and decision-making contemplated in the 21 day letter, failing which I am instructed to pursue injunction proceedings.
This request is made in circumstances where my client emphatically denies the allegations made against him.
Preclusion
1.My client’s primary contention is that you are precluded from undertaking the determination and associated disciplinary action contemplated in the 21 day letter because of the decision made by your predecessor and recorded in the letter dated 23 January 1997 (“the decision letter”).
2.That decision was that the behaviour the subject of the allegations could not be substantiated to the requisite degree of proof because of the state of the evidence from the various parties interviewed, including my client. This was a finding that there was not “sufficient cause for disciplinary action” against my client under Section 26 of the Education Act, 1972.
3. In relation to the decision letter, I note:
3.1 The allegations made by [the complainant] (“the student”) in 1996 were viewed by DECS “extremely seriously”. DECS was duty-bound to investigate those allegations.
3.2 When those allegations were made by the student in 1996, the behaviour the subject of the allegations was alleged to have occurred at least 20 years earlier.
3.3 Presumably the extreme seriousness of the allegations caused DECS to conduct a full and detailed investigation.
3.4 The investigation involved my client undergoing a detailed interview with a government investigator appointed by DECS during which he unreservedly denied the allegations of sexual impropriety.
3.5 The decision expressed in the decision letter to close the file must have been made after a careful assessment of all of the evidence obtained in the investigation (which included some investigation by the Police).
3.6 The “state of the evidence” at that time included my client’s unreserved denial.
3.7 There was no suggestion in the decision letter that the DECS investigation remained open or that your decision might be reviewed at a later date.
3.8 You advised my client that “it is not appropriate to take any further action in relation to this matter” (emphasis added).
4. In relation to the 21 day letter, I note:
4.1 The allegations are essentially the same as those made by the student in 1996.
4.2 A further 9 years delay has occurred which is solely the responsibility of DECS.
4.3 There is no suggestion that any conduct by my client has caused any delay in the reiteration of the allegations.
4.4 At the time the allegations were initially made, the ability of my client to defend and refute them was compromised by the passage of time. The further delay has plainly exacerbated that prejudice to my client.
4.5 The issue to be determined in the 21 day letter is the same as that addressed in the decision letter, ie is there sufficient cause for disciplinary action against my client pursuant to section 26 of the Education Act, 1972.
4.6 There has been no change in the circumstances in that the documents referred to on page 3 of the 21 day letter do not disclose any “fresh” evidence ( ie the statement of the student dated 27 April 2005) which could lead to a decision different from that made in the decision letter.
5.In those circumstances my client contends that you are precluded from proceeding to another decision on the basis of essentially the same allegations and material.
Prejudice
6.In addition my client contends that the determination and associated disciplinary action contemplated by the 21 day letter ought not be pursued because it will involve procedural unfairness.
7.As regards the factors giving rise to the requisite procedural unfairness, my client emphasises the following:
7.1 When these allegations were first made in 1997 they were made over 20 years after the alleged events and in circumstances where no real particularity was provided. No doubt it was for these reasons (as well as others) that your predecessor decided that the allegations could not be proved. It is not suggested my client withheld any information or did other than fully co-operate. After your predecessor’s decision, my client was entitled to assume that the matter was at an end. He was entitled to arrange his affairs accordingly. He was given no reason to think that he should investigate, locate, safeguard and preserve relevant, exculpatory evidence. Naturally he did not do so;
7.2 The allegations are now in the order of 30 years old. It is now obviously much more difficult to defend them. In the 9 years since your predecessor’s decision memories have faded, records have been lost and relevant, exculpatory witnesses have died. This is exacerbated by the lack of any particularity associated with the allegations as well as the obvious inconsistency arising in connection with many of the student’s statements;
7.3 Thus in the 9 years since your predecessor’s decision, it is inconceivable that the “state of the evidence” has altered to become more certain or compelling. The “state of the evidence” has, in fact, deteriorated;
7.4 Your letter provides no explanation whatsoever for the delay since 1997. It is not suggested that this inordinate delay is in any way attributable to any conduct of my client;
7.5 The evident unfairness associated with the proposed course of action is exacerbated by your apparent decision to use the following:
7.5.1Aspects associated with the Magistrates Court hearing in 1995, notwithstanding the full disclosure made by my client and the decision made by your predecessor as set out in the letter dated 31 October 1995. This material was available to your predecessor in 1997. My client denies that this “evidence” is of any relevance whatsoever. My client will challenge the implication that this evidence can raise any proper issue concerning propensity. Indeed your letter ignores the explanation my client gave as to how he came into possession of the magazine, notwithstanding that this explanation was accepted by the Court and by your predecessor in the letter dated 31 October 1995 (“nor will your teaching career be jeopodised [sic] by this incident in any way”);
7.5.2The circumstances of my client’s association and friendship with the student and the student’s family including the overseas trip. At best, this can only be equivocal evidence concerning opportunity. Obviously, this evidence was available to your predecessor in 1997;
7.6 Your preparedness to draw inferences from these matters in circumstances where direct evidence is no longer available and where the allegations are unparticularised serves only to underscore the unfairness associated with your contemplated course of action;
8.It is not irrelevant to these matters to emphasise that the DPP, despite having had all of the evidence upon which you apparently rely, declined to prosecute.
9.In all of these circumstances, your 21 day letter involves and foreshadows vexatious and oppressive conduct which, respectfully, ought not be continued.
Service to Education
10.Finally, I understand that there has been no complaint made regarding my client’s conduct as a well-respected member of the teaching profession during the last 35 years.
11.There is no suggestion that my client’s performance as a teacher has been other than commendable and exemplary. Relevantly, since 1997, our client has held positions as Assistant Principal … and Assistant and Deputy Principal … with DECS. He is continuing to provide distinguished service to public education in South Australia as Chief Examiner in English Studies for SSABSA.
Invitation
I invite you to carefully consider this letter and to reconsider the course of conduct and decision-making contemplated in the 21 day letter.
Please advise whether you will desist from continuing, including whether you will desist from making any decision adverse to my client.
Alternatively, if you are intent on proceedings, please advise me before doing so, and in any event within 21 days, as I am instructed to commence injunction proceedings.
Having received the letter from the plaintiff’s solicitors of 23 January 2006, the Chief Executive of the Department made a decision to maintain the disciplinary proceedings to determine whether there was sufficient cause for disciplinary action within the meaning of section 26(2) of the Education Act.
On 29 May 2006, the Chief Executive wrote to the plaintiff, advising that she intended to proceed with the disciplinary inquiry and to determine the complaint. The letter included the following:
I have carefully considered your letter of 23 January 2006 and all other relevant information before me in relation to the allegations against you, as outlined in my letter of 2 December 2005. I advise I intend to proceed with the disciplinary inquiry and to determine the complaint.
It is my understanding that your legal representative Mr Geoff Black will file proceedings in the Supreme Court to judicially review this decision to proceed.
I advise that if I do not receive correspondence to the contrary within 21 days of the date of this letter, I will proceed with my determination.
Yours sincerely
Jan Andrews
ACTING CHIEF EXECUTIVE
On 29 September 2006, after the within proceedings were commenced.
The Application
Abuse of Process - general principles
This Court, in its supervisory jurisdiction, has the authority to stay the proceedings of inferior courts and tribunals if their processes are being used unfairly or if it is necessary to maintain public confidence in the administration of justice.[1]
[1] Clayton v Ralphs (1987) 45 SASR 347 at 362-363.
The grounds on which an order to prevent an abuse of process may be made are not closed. A stay for an abuse of process may be granted on the grounds of delay and oppression.[2] A stay for an abuse of process should only be ordered in an extreme case. It is a remedy of last resort.[3]
[2] Jago v District Court of NSW (1989) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378.
[3] Jago v District Court of NSW (1989) 168 CLR 23 at 34.
Counsel for the plaintiff submitted that, however characterised, the conduct of the Chief Executive in the disciplinary process was subject to the overriding jurisdiction of the Court to supervise that conduct because it was a disciplinary process. Insofar as it was suggested that this included the powers of the Court to grant relief to stay that process as an abuse, the submission should be rejected. However, as earlier observed, the ability of this Court to scrutinise the conduct through judicial review was conceded by the Crown. However, such scrutiny is limited to the proper reach of the judicial review process. Again, as earlier observed, the jurisdiction to seek an order in the nature of prohibition or certiorari was not sought to be invoked in the present proceedings.
Jurisdiction to Stay Proceeding as an Abuse of Process
The Court’s power to prevent abuse of the process of inferior courts and tribunals does not extend to the executive arm of government[4] where that executive arm is not a body in the nature of a court.
[4] Walton v Gardiner (1993) 177 CLR 378 at 405 (Brennan J).
In Walton v Gardiner, Brennan J referred[5] with approval to the reasons of Mahoney JA in the New South Wales Court of Appeal decision under review, where Mahoney JA had observed:[6]
The power invoked in the present proceeding is the general supervisory power which the Supreme Court of New South Wales has in respect of the justice system of this State. That power, in earlier times, was exercised at least primarily through prerogative writs: it is now exercised in a more general and flexible manner: see Herron v McGregor.
It is not exercisable in respect of the executive arm of government as such but it is not limited to bodies which are of their nature courts. The nature of the bodies to which this power of supervision is applicable was discussed by this court in New South Wales Bar Association v Muirhead.
[5] Walton v Gardiner (1993) 177 CLR 378 at 405.
[6] Gill v Walton (1991) 25 NSWLR 201 at 210 (footnotes omitted).
In New South Wales Bar Association v Muirhead,[7] Hope JA discussed the factors to which regard should be had when considering whether a body is properly characterised as a court or tribunal:[8]
The categorisation of a person or body as a "court" is determined, in the end, by the purpose for which the term is used: see X v Amalgamated Television Services Pty Ltd (No 2) (at 601-602). But in determining what is the categorisation of a body for such a purpose it is of assistance to consider two things: the essential nature of the power exercised; and whether, be its nature judicial or otherwise, it is given to a body or individual which is of the nature of a court.
In considering the nature of the power exercised, it is necessary to determine, in relation to the body or person exercising the power, what is the effect of what it does, how it does it and the context in which it does it.
The judicial function has been contrasted with the administrative function. In each, the holder of an office ascertains the facts, applies the law to it, and gives a decision or arrives at a conclusion as to the rights of the citizen concerned. But, it has been suggested, a distinction between the judicial and the administrative function is that, in the sense to which I shall refer, the decision of the judicial officer takes on a life of its own whereas that of the administrative officer does not. If X claims that he is entitled under the law to a periodic payment, the result of both the administrative and the judicial function is that a conclusion is reached as to his entitlement. In the case of the administrative function, X's rights remain, traditionally, what they were: there are no new rights created. But in the case of a judicial decision, that decision itself creates a right which X did not have before. It may be in addition to or take the place of the rights which, previously, he had. It is, of course, possible to instance decisions which are clearly of an administrative nature but which, by the making of them, do create additional rights under particular legislation. Thus, some of the decisions of an administrative taxation body may be of this kind: see generally Shell Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275; (1930) 44 CLR 530. But, in general, it is characteristic of the judicial function that such new rights are created by a decision which in this sense is judicial and, generally, the fact that they are created is of relevance in determining the characterisation of the power and of the body that exercises it. The effect of a judicial decision is ordinarily that it provides, of itself, a basis for further action. This, in a sense, is an incident of what I have said. In the traditional courts, the judgment of the court provides the basis in itself for executive action, or for the enforcement of it, by a sheriff or the like. An executive decision ordinarily does not. And a judicial decision ordinarily has effects by way of estoppel or extinguishment of prior rights. Matters of this kind have been referred to in determining whether what was done involved the exercise of the judicial power of the Commonwealth within Chapter III of the Australian Constitution: see the cases collected in the Australian Digest, 2nd ed, vol 14, "High Court and Federal Judiciary", par 3.
The fact that a decision may be the subject of reconsideration is not, as such, inconsistent with the judicial character of it (see s 116(4)). The Workers' Compensation Commission under the Workers' Compensation Act 1926 was no less a court because, under s 36(2) of the 1926 Act, it had power to reconsider decisions previously given: see also the Landlord and Tenant (Amendment) Act 1948, s 71(1).
The procedure by which a body exercises its function is of relevance in determining whether it is a court. If, in what is does, it is required to follow procedures conventionally adopted by courts and, in particular, to hear both parties and to act objectively, the powers it exercises may be seen as judicial and, depending on the circumstances, the body may be held a court: Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 and R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1.
And, finally, reference has been made to the context of framework in which the powers are exercised. Thus, if what is done is done in the interstices of the organisation of a court it may, though administrative if it stood alone, be treated as part of the functioning of a court: see generally R v Davison (1954) 90 CLR 353 at 365-370, 376, 382-384, 386-390.
[7] New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173.
[8] New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 209-210.
In deciding whether a body is of such a character to be amenable to the supervisory jurisdiction for abuse of process, it is relevant to consider two issues: first, the essential nature of the power exercised and second, regardless of whether the power is judicial or otherwise, whether it is given to a body or individual that is “in the nature of a court”.[9]
[9] New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 209.
Section 26 of the Education Act sets out the circumstances in which disciplinary action may be taken against an “officer” in the teaching service.
(1) If an officer—
(a) contravenes or fails to comply with any provision of this Act; or
(b) contravenes or fails to comply with any lawful direction given to him under this Act; or
(c) is negligent, inefficient or incompetent in the discharge of his duties; or
(d) is absent from duty without proper cause; or
(e) is guilty of any disgraceful or improper conduct,
there shall be sufficient cause for disciplinary action against that officer.
(2)Where the Director-General finds that there is sufficient cause for disciplinary action under this section—
(a) he may, by written determination under his hand—
(i) reprimand the officer; or
(ii)impose a fine upon the officer not exceeding the amount of one weeks salary of the officer; or
(iii) reduce the remuneration of the officer by—
(A)transferring the officer to another position in the teaching service; or
(B)varying the officer's duties and classifying or reclassifying the officer; or
(C) removing an entitlement to an increment of remuneration; or
(iv)suspend the officer from duty (without pay) for a period not exceeding one year; or
(b) he may recommend to the Minister that the officer be dismissed from the teaching service.
(3)The Minister may, upon receipt of a recommendation under subsection (2), dismiss the officer from the teaching service.
The provision of the usual powers of a disciplinary tribunal, are absent. There is no provision for a hearing, no power to summons witnesses, no requirement for the attendance of witnesses, no requirement that a party is entitled to be represented, or to call witnesses or demand that witnesses be called for cross examination.[10] This is in contrast to the very wide powers given to the Teachers Appeal Board in section 50 of the Education Act:
[10] In that respect, the case of Singleton v Boston (1999) 97 IR 16, where the fact finder had the power to call persons to give evidence etc, can be distinguished.
(1)In the exercise of its powers and functions under this Act, or under any other Act that confers jurisdiction on the Appeal Board, the Board may—
(a) by summons signed on behalf of the Board by a member of the Board, require the attendance before the Board of any person; or
(b) by summons signed on behalf of the Board by a member of the Board, require the production of any books, papers or documents; or
(c) inspect any books, papers or documents produced before the Board and retain them for such reasonable period as it thinks fit and make copies of any of them or of any of their contents; or
(d) require any person to make an oath or affirmation that he will truly answer all questions put to him by the Board relating to any matter being inquired into by the Board (which oath or affirmation may be administered by any member of the Board); or
(e) require any person appearing before the Board (including any person whose conduct is subject to inquiry by the Board) to answer any relevant questions put to him by any member of the Board or by any other person appearing before the Board.
(2) Subject to subsection (3), if any person—
(a) who has been served with a summons to attend before the Appeal Board fails without reasonable excuse (proof of which shall lie upon him) to attend in obedience to the summons; or
(b) who has been served with a summons to produce any books, papers or documents fails without reasonable excuse (proof of which shall lie upon him) to comply with the summons; or
(c) misbehaves himself before the Board, wilfully insults the Board or any member of the Board or interrupts the proceedings of the Board; or
(d) refuses to be sworn or to affirm or to answer any relevant question when required to do so by the Board,
he shall be guilty of an offence and liable to a penalty not exceeding five hundred dollars.
(3)A person shall not be obliged to answer a question put to him under this section if the answer to that question would tend to incriminate him, or to produce any books, papers or documents if their contents would tend to incriminate him.
(4) In the course of any proceedings, the Appeal Board may—
(a) receive in evidence any transcript of evidence in proceedings before a court and draw any conclusions of fact from the evidence that it considers proper; or
(b) adopt, as in its discretion it considers proper, any findings, decision or judgment of a court that may be relevant to the proceedings.
Additionally, it is significant that section 26 provides for an appeal to the Teachers Appeal Board against any disciplinary action taken:
(4)An officer may, within fourteen days after he receives notice of a determination under this section or a decision made by the Minister to dismiss him under this section, appeal to the Appeal Board against the determination or decision.
(5)The Appeal Board may, upon the hearing of an appeal under this section, vary or revoke the determination or decision subject to appeal and, if the determination or decision has taken effect, order that the officer be reinstated in the teaching service as if no such determination or decision had been made.
The hearing before the Teachers Appeal Board is a merits review.[11] The Board is able to consider the evidence brought before it and assess that evidence in light of the length of time elapsed since the impugned conduct occurred.
[11] An appeal to the Board is a full appeal de novo on the merits of the case - Koh v State of South Australia (1989) 154 LSJS 38; Cava v Marshall (2003) 230 LSJS 347: SASC 371.
While, in the absence of an indication to the contrary, there is a duty to give a fair hearing[12] to the officer concerned, that is not in itself an indication that the process is of a judicial nature. The common law duty to accord procedural fairness in the making of decisions which affect rights, interests and legitimate expectations is not confined to courts and tribunals, but applies to administrative decisions in general.[13]
[12] Unless the statute provides otherwise, a fair hearing does not require an oral hearing - Koh v State of South Australia (1989) 154 LSJS 38 nor is it required that there be an opportunity to confront and cross examine witnesses: see O’Rourke v Miller (1985) 156 CLR 342.
[13] Kioa v West (1985) 159 CLR 550 at 584.
When properly analysed, section 26 envisages an administrative decision on the part of an employer in relation to an employee. It does not envisage the situation where a third party (a court or tribunal) decides an issue between two other parties, such as occurs in courts and disciplinary tribunals. On the contrary, the Parliament has provided that, subject to the appeal provided by the Act, an issue between the two parties, the employer and the employee, is to be decided by the employer. The procedures envisaged by section 26 cannot be said to be in the nature of a judicial procedure or process.
Counsel for the plaintiff invited the Court to consider the consequences of the submissions advanced by counsel for the defendants. Counsel contended that if the submission that there was no inherent jurisdiction of the Court to stay the proceedings were accepted, it would have the consequence that the plaintiff would not be able to invoke at any time the jurisdiction of the Court to stay an abuse of the process. Counsel argued that the only option to the plaintiff following a finding of guilt under section 26 would be to prosecute an appeal to the Teachers Appeal Board or to pursue an application for judicial review. Counsel said that at this point a damning finding of guilt would have been made when, on the plaintiff’s case, because of delay and oppression, an abuse was occurring
This further submission should be rejected. If the Chief Executive reaches a conclusion of guilt, that conclusion will be made in an administrative capacity, not a judicial or quasi-judicial capacity. An appeal to the Teachers Appeal Board is a hearing de novo. The appeal is a judicial or quasi judicial process. The plaintiff can advance on appeal the evidence of the disadvantages and the prejudices that are said to arise from delay. The oppressive nature of the process can be advanced before that body as relevant to any order that it may make. The appeal process is subject to the overriding jurisdiction of this Court. There is a real protection to the plaintiff.
The function prescribed by section 26 of the Education Act is administrative, not judicial. The above analysis leads to the conclusion that there is no enlivening of the inherent jurisdiction of this Court to intervene on the basis of an abuse of process, as there is no issue of a public interest in seeing that individuals are not subjected to abuse by the use of the processes of courts and tribunals.
Limitations on the Power Conferred by Section 26(2)
The power conferred upon the defendants by section 26(2) of the Education Act is exercisable irrespective of whether there has been significant delay between the impugned conduct of the officer in question and the commencement of the inquiry, and irrespective of whether any inquiry into the same or similar subject matter has been previously held.
There are a number of features of the Act that support this conclusion. First, section 12 provides that it is the duty of the Director-General to remain accountable to the Minister for the maintenance of proper standards of efficiency and competency in the teaching service. Section 26 of the Act is to be understood in the context that it is one of the mechanisms by which the defendants may fulfil that duty.
Second, section 15 confers upon the Minister the power to appoint such teachers to be officers of the teaching service as the Minister thinks fit. Officers appointed on a permanent basis cannot be dismissed or retired from the teaching service except in accordance with the provision of the Act. Section 26(2)(e) of the Act is one of the few provisions in the Act authorising the dismissal of a permanent member of the teaching service.
Third, sections 75 and 76 respectively require that children of or above the age of six but under the age of 16 years be enrolled at schools and attend at schools that are under the direction and control of the Minister. The Minister, the officers of the teaching service and other officers responsible for the provision of education and the administration of the Act therefore have a duty to ensure the safety of children who are required by law to attend at such schools. That duty extends to protecting children from harm inflicted by officers of the teaching service. The mechanism under the Act for the protection of children from disgraceful and improper conduct by an officer of the teaching service is the disciplinary scheme established under Division 5 of Part 3 of the Act.
Fourth, section 26(1) mandates that where an officer of the teaching service has engaged in disgraceful or improper conduct, there shall be cause for disciplinary action against that officer. If the allegations against the plaintiff in the present case are true in fact, Parliament has provided that there is cause for disciplinary action against the plaintiff. The role of the Director General in making a “finding” is therefore a role confined to establishing whether the facts alleged against the officer fulfil any of the statutory criteria set out in section 26(1).
Fifth, having regard to the roles and responsibilities created by the Act, including the requirement of compulsory attendance at school, the Act evinces an intention that the protection of students who are required by law to attend schools regulated by the Act is a paramount consideration. The existence of that consideration is inconsistent with the existence of any implied limitation of the power conferred by section 26(2) of the Act.
The object of the Act of providing a safe, competent and efficient education system would be frustrated if officers of the teaching services were permitted to escape an inquiry into allegations that they have abused the students entrusted in their care on the basis that the allegations made against them are made after considerable delay.
This conclusion is supported by two factors. First, the power conferred by section 26(2) is exercised in the context of a system where complaints against members of the teaching service will invariably be made by or relate to children between the ages of six and 16 years. The power conferred by that provision would be frustrated if a complaint brought by a former student who has subsequently attained adulthood and reflected on the conduct (or recognised the conduct as abusive) could not be determined on the merits for the sole reason that many years have past since the abuse occurred. The protection of children presently required by law to attend schools depends to a large extent on past students reporting disgraceful and improper conduct committed by officers who remain in the teaching service.
Second, the entitlement of a teacher to permanency in the teaching service is subject to section 26(2)(e) of the Act. The Act envisages that a teacher permanently appointed to the teaching service may remain in the service for a number of decades.
Assuming Jurisdiction – Has Abuse of Process Been Established
Delay
The institution of disciplinary proceedings (or indeed criminal proceedings) after an indication has been provided that no such action will be taken is a relevant factor in determining whether the commencement of such proceedings is an abuse.[14]
[14] R v Mohi (2000) 78 SASR 55; Singleton v Boston (1999) 97 IR 16.
In determining whether an abuse of process has occurred in the present case, it is necessary to weigh various factors. These include fairness to the plaintiff, the public interest in ensuring that the Court’s processes are used fairly, and the public interest in ensuring that proper and thorough investigations are undertaken to ensure children are protected from the misconduct of teachers.[15]
[15] Walton v Gardiner (1993) 177 CLR 377 at 395-396.
Counsel for the plaintiff emphasised that 30 years have passed since the events the subject of the disciplinary proceedings. It is almost 10 years since the allegations were first made to, and investigated by, the Chief Executive of the Department in 1995. As earlier observed, by letter dated 23 January 1997, the plaintiff was informed that the Chief Executive considered that it was “not appropriate to take any further action”.
Counsel for the plaintiff submitted that the Chief Executive of the Department has not provided to the plaintiff any reason or explanation to justify the 10-year delay in reactivating the inquiry. Counsel stated that there had been no new evidence brought to light that would justify the reactivation. Rather, counsel contended, a significant amount of evidence had been lost.
The lost evidence identified by the plaintiff can be summarised as follows:
-the plaintiff has sworn that his present memory of the period the subject of the allegations by the complainant has deteriorated since 1997;
-soon after the plaintiff was notified of the decision by the Department in January 1997 not to take any action, the complainant sent a letter to the plaintiff. The plaintiff no longer has a copy of that letter. No copy of that letter can be found;
-in 1997, the complainant attended sessions with a social worker at the Victim Support Service. All records of those sessions have been destroyed;
-the complainant’s father died on 16 June 1996;
-one of the complainant’s sisters died in a motor vehicle accident in 1977;
-the plaintiff’s father died on 27 October 1976;
-the plaintiff’s mother died on 8 May 2003;
-the plaintiff’s mother’s home at Westbourne Park was auctioned in August 2002 and settlement occurred in September 2002. The house was renovated by the new owners shortly thereafter such that its appearance differs from how it appeared during the period the subject of the allegations by the complainant;
-one of the companions of the plaintiff and the complainant on the overseas trip to Europe in the Christmas holidays of 1975-1976 died in 1993.
It was pointed out that the plaintiff bore no responsibility for the length of time that passed between the letter of 23 January 1997 and the decision to hold an internal review of the allegations by the complainant, communicated to him on 17 June 2005.
Counsel for the plaintiff submitted that his client’s capacity to defend the allegations made against him had increasingly diminished since the 1970s when the events are alleged to have occurred; since 1996 when the allegations were first made; and since 1997, when the Department informed the plaintiff that no further action would be taken in respect of the allegations. In his affidavit of 23 June 2006, the plaintiff deposed that after he was so informed by the Department, he did not gather and keep exculpatory evidence, such as the letter from the complainant.
When properly analysed, the factors pointed to by the plaintiff may not be as significant as they might first appear. As emphasised by counsel for the defendants, the only witness of the alleged misconduct is the complainant. The allegations of inappropriate sexual behaviour occurred on occasions when only the plaintiff and the complainant were present. Hence, the evidence of witnesses who have died would have been unlikely to shed further direct light on the allegations. At least two of those witnesses died before the impugned conduct is said to have ceased.
The question whether delay ought to result in a stay of proceedings is a balancing process between the respective interests of the parties and the interests of justice. Delay in the context of criminal proceedings and the various factors that have to be weighed provide an analogy to the present proceedings.
Mason CJ discussed the balancing process that must be undertaken when considering the impact of delay in criminal proceedings in Jago v District Court (NSW), where His Honour observed:[16]
[T]he Australian common law does not recognize the existence of a special right to a speedy trial, or to trial within a reasonable time, which relies for its operation not upon actual prejudice or unfairness but upon a concept of presumptive prejudice. Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton; Sang; Carver v Attorney-General (NSW). At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo; Bell v Director of Public Prosecutions, as explained in Watson, and Gorman v Fitzpatrick. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney.
[16] Jago v District Court of NSW (1989) 168 CLR 23 at 33-34 (Mason CJ) (footnotes omitted).
The prejudice that the plaintiff is said to suffer must be weighed against competing public interest considerations. There is strong public interest in ensuring that students are protected from teachers who may engage in inappropriate sexual behaviour with those students. This public interest is substantial. Parents and children have legal obligations with respect to education. Children must attend school. Trust is reposed in the schools, the Department and critically in the teachers. Public confidence must be maintained in the institution. Proper and thorough investigation of complaints must be undertaken.
Oppression
Counsel for the plaintiff submitted that a continuation of the investigation into whether there is sufficient cause for disciplinary action under section 26 of the Education Act would be so unjustifiably oppressive as to constitute an abuse of the processes entrusted to the Director-General of the Department under that section.
The oppressive nature of the proposed disciplinary proceedings is said to arise from:
-the length of the delay in bringing the proceedings;
-the fact that investigations into the allegations took place some 10 years ago and resulted in the plaintiff being informed that there was no cause for disciplinary action and that the Departmental file in relation to the allegations had been “closed”;
-the Department’s reliance upon matters such as the charge relating to the pornographic magazine when such matters had been dismissed as irrelevant when the matter was investigated in 1996; and
-the fact that no new evidence has come to light and that no explanation has been provided for the Department’s apparent “about face” with respect to the allegations.
No disciplinary action under the Education Act was taken in 1997. At the time the plaintiff was informed that it had been decided not to take any further action, the investigation had been completed. The plaintiff had already participated in a record of interview. The plaintiff was not prejudiced in relation to his role or participation in the investigative process. The plaintiff had been accorded procedural fairness. The circumstances do not give rise to any abuse of process.
Even if this Court had jurisdiction to intervene as sought by the plaintiff, the circumstances said to give rise to oppression and the delay that has occurred do not provide any proper basis for stay on the grounds of abuse of process.
Conclusion
The inquiry upon which the defendants embarked is entirely proper in all of the circumstances and it is manifestly in the public interest that it proceed. No order should be made that would prevent the inquiry reaching its conclusion, and this Court should allow the process envisaged by the relevant legislation, a process which provides the plaintiff with a full appeal de novo on the merits, to run its course.
The plaintiff’s claims are dismissed.
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