MP v Director General of Education and Training & Ors

[2006] NSWSC 1041

CITATION:	MP v Director General of Education and Training & Ors [2006] NSWSC 1041 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	03/10/06
JUDGMENT DATE :	3 October 2006
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	10/03/2006
DECISION:	Application refused.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Child Welfare other than under Family Law Act 1975 and related Acts - Crimes and offences by and against children - Plaintiff accused of inappropriate behaviour against a child - Plaintiff employed by Department of Education and Training - Injunction sought restraining Director General of Education and Training from notifying any other entity in purported exercise of statutory functions - Whether Director General should be restrained from reporting under the Ombudsman Act 1974, s 25F or the Commission for Children and Young People Act 1998, s 39
LEGISLATION CITED:	Ombudsman Act 1974 Commission for Children and Young People Act 1998
PARTIES:	MP - Plaintiff Director General of Education and Training - 1st Defendant Director General of Department of Community Services - 2nd Defendant Director of NSW Commission for Children and Young People - 3rd Defendant
FILE NUMBER(S):	SC 5133/06
COUNSEL:	Ms P Lowson - Plaintiff
SOLICITORS:	MacMahon Associates Pty Ltd - Plaintiff State Crown Solicitors Office - Ms A Johnson, Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 3 OCTOBER 2006

5133/06 MP v DIRECTOR GENERAL OF EDUCATION AND TRAINING & ORS

EX TEMPORE JUDGMENT

1 The proceedings before the Court are brought by a person whose name has been suppressed for the purposes of these proceedings and is referred to as "MP".

2 A complaint against MP in relation to a child said to have occurred in 1992 came to the attention of the Chief Investigator employed by the Department of Education and Training of which the Director General is the first defendant in these proceedings, in early 2005 and has been the subject of an investigation. MP is an employee of the Department of Education and Training.

3 The relief that is sought is of an injunctive kind to restrict the persons to whom notification of the complaint is made.

4 There is agreement between the parties that an injunction should be granted restraining the Director General of Education and Training from notifying the Catholic Education Office of the Category 1 notification of the plaintiff to the Commission for Children and Young People.

5 The second defendant is the Director General of the Department of Community Services. The third defendant is the Director of the Commission for Children and Young People.

6 What is in dispute is whether a further injunction should be made restraining the Director General of Education and Training and his delegate from notifying or advising any other entity of the investigation into, or notification of, the plaintiff to the Director of the Commission for Children and Young People in the purported exercise of statutory functions, other than as required for the purposes of these proceedings.

7 The first exercise of statutory function that is relevant is that contained in the Ombudsman Act 1974 s 25C(1)(a). For its purposes the Department of Education and Training is a designated government agency. It provides that the head of a designated government or non-government agency must notify the Ombudsman of any reportable allegation against an employee of the agency of which the head of the agency becomes aware. That has already taken place, I am informed.

8 The results of an investigation carried out by such designated government or non-government agency are to be reported to the Ombudsman under the Ombudsman Act 1974, s 25F(2)(a). It requires the head of the agency, as soon as practicable after being satisfied the investigation has been concluded to send to the Ombudsman a copy of any report prepared by or provided to the head of the agency as to the progress or results of the investigation, and copies of all statements taken in the course of the investigation and of all other documents on which the report is based.

9 It is to that form of notification to which the injunction sought is, in part, directed.

10 The Ombudsman Act 1974, s 25G(1) provides that the Ombudsman may conduct an investigation concerning any reportable allegation, or reportable conviction, against an employee or a designated government or non-government agency of which the Ombudsman has been notified or otherwise becomes aware. Thus if the Ombudsman is dissatisfied with the results of an investigation carried out by a designated government agency, a further investigation may be conducted by the Ombudsman.

11 It was submitted that the Ombudsman is already aware of the investigation, and the balance of convenience favours no interference with the statutory steps that are prescribed by the Ombudsman Act 1974, s 25F(2)(a) (2) and, if the Ombudsman were minded to carry out his own investigation, by s 25G(1).

12 The other statutory function to which the additional injunction is, in part, directed is that contained in the Commission for Children and Young People Act 1998. Section 39(1) provides:

“It is the duty of an employer to notify the Commission of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer (other than proceedings in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur)."

Section 39(2) is triggered if the person the subject of a complaint seeks further child-related employment. It provides:

“The employer who notified the Commission of any such information may notify, on request, sufficient details of the proceedings concerned to another employer (or employer-related body), or to the Commission, for the purposes of employment screening by the other employer (or body) or the Commission. The employer is under a duty to notify those details if the regulations so provide."

13 It seems to me that both statutory regimes have placed the interest of a child ahead of the interest of an adult against whom a complaint has been made.

14 The clear intention of the regime under the Commission for Children and Young People Act 1998 is that a prospective employer should be armed with the facts notified by a previous employer to the Commission. And the regime under the Ombudsman Act 1974 ensures that the Ombudsman is notified of complaints against employees of entities dealing with children of inappropriate behaviour towards a child and of the results of any investigation carried out by the employer.

15 In those circumstances, it does not seem to me to be appropriate to grant an injunction restraining either of the statutory functions to which I have referred.

16 The injunction sought extended beyond those two statutory functions to an embargo generally. But counsel for the plaintiff indicated she would be content with an injunction that was limited to the two statutory functions to which I have referred.

17 As I have indicated, I am not prepared to grant an injunction restraining the Director General of Education and Training from providing the information required under either regime.

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23/10/2006 - Adding name for the representation of Defendant - Paragraph(s) Coversheet