Savet v Rosebank College

[2023] NSWSC 1015

Supreme Court

New South Wales

Medium Neutral Citation:

Savet v Rosebank College [2023] NSWSC 1015

Hearing dates:

25 July 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The plaintiff’s amended summons filed on 19 May 2023 is dismissed.

(2)   The plaintiff is to pay the defendants’ costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – jurisdictional error – denial of procedural fairness – actual bias – decision made under the Children’s Guardian Act 2019 (NSW) – whether plaintiff was afforded procedural fairness – whether decision maker affected by actual bias – application dismissed.

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 14, 15(1), 23(1), Sch 1 Item 2.

Children’s Guardian Act 2019 (NSW), ss 3, 6(b), 7, 8(a), 9, 10, 12(a), 13(a), 16, 17(1)(c), 18(1), 20, 22, 23, 27, 34, 35, 36, 37, 40, Pt 4 Div 5.

Cases Cited:

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1: [2003] HCA 6

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Texts Cited:

Office of the Children’s Guardian, Identifying reportable allegations: The NSW Reportable Conduct Scheme – Fact Sheet 1, August 2022

Office of the Children’s Guardian, Heads of entities and reportable conduct responsibilities: The NSW Reportable Conduct Scheme – Fact Sheet 2, August 2023

Office of the Children’s Guardian, Planning and conducting an investigation: The NSW Reportable Conduct Scheme – Fact Sheet 4, August 2022

Office of the Children’s Guardian, Making a Finding of Reportable Conduct: The NSW Reportable Conduct Scheme – Fact Sheet 8, August 2022

Category:

Principal judgment

Parties:

Benjamin Savet (Plaintiff)

Rosebank College (First Defendant)
Iris Nastasi (Second Defendant)

Representation:

Counsel:
I Lathlam (Plaintiff)
D Fuller (Defendant)

Solicitors:
Burke Mangan Lawyers (Plaintiff)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2023/00135784

Publication restriction:

On 25 July 2023, orders were made prohibiting the publication of the names and information tending to identify the complainant and certain other persons involved in these proceedings. These orders apply throughout the Commonwealth of Australia for a period of 50 years or such shorter time as the Court determines.

JUDGMENT

1. By an amended summons filed on 19 May 2023, the plaintiff, Benjamin Savet, seeks orders against the first defendant, Rosebank College, and the second defendant, the Principal of the College, as follows:

“1. A declaration that the Catholic Employee Relations Investigation Report dated 3 February 2023 is void and of no effect.

2. An order that the Second Defendant be restrained by injunction from being the decision maker in relation to any child protection investigation pursuant to the Children’s Guardian Act 2019 (NSW) in relation to the conduct of the Plaintiff between 1 February 2016 and 28 August 2019.

3. Further or other relief.

4. Costs.”

Background

2. The background to the proceedings can be relevantly summarised as set out in the paragraphs which follow.

3. The plaintiff is a secondary school teacher who holds a working with children check clearance (WWC clearance). Prior to his employment with Rosebank College, a co-educational non-government school, the plaintiff was employed as a teacher at a non-government girls school (the other school) during 2016 and in two different boys’ schools during 2017. From the beginning of the 2018 school year, the plaintiff was employed by Rosebank College as a casual, part-time teacher and, on 28 January 2020, he commenced full time, permanent employment with the College.

4. On or around 14 November 2022, the Principal of the College received a report of information relating to alleged conduct by the plaintiff during the years 2016 to 2019 towards a female, the complainant, who had been a student at the other school when the plaintiff taught there. While it is not entirely clear, this was probably information provided by the complainant such as that recorded in the document, which was in evidence and comprised 27 pages, with certain names and details redacted, commencing with the words: “My relationship with Ben Savet started in 2016 when I was fifteen/sixteen”; and, ending with the words: “I can provide evidence to support claims made in this statement including text messages, photos and more” (the Complainant’s 27 page document). This document had no heading, no date and no signature. Although it was written in the first person and appeared to be an account by the complainant, it was not clear whether it was written by the complainant herself or was a transcript of an oral statement made by her or was a document prepared from notes taken by some other person. No complaint was made, however, in relation to the provenance of this document.

5. On 16 November 2022, the Principal of the College sent a private and confidential letter to the plaintiff. That letter stated the College had recently received information relating to alleged conduct of the plaintiff and continued:

“If these allegations are substantiated, they are particularly concerning to Rosebank College, as the conduct is a breach of the expected behaviour you agreed to as a member of the school community at the College and as a teacher.

If they are found to have occurred, your conduct is in direct breach and contravention of:

(a) The Staff Code of Conduct;

(b) Child Safeguarding Policies and;

(c) Your contract of employment

As the information we are in receipt of relates to your alleged conduct towards a person/s under the age of 18 years, the alleged conduct may additionally constitute an allegation of Reportable Conduct pursuant to Part 4 of the Children’s Guardian Act 2019 (NSW). If the conduct does constitute an allegation of Reportable Conduct, as a ‘relevant entity’, the College is required to report this allegation to the Office of the Children’s Guardian (OCG), investigate, and report the findings to the OCG.

The College takes all allegations seriously and is committed to enabling a fair and transparent process for all parties involved (including yourself).

I am not able to provide you with the details of the alleged conduct at this stage, other than to indicate that the alleged concerns are of a serious nature and require the College to take all necessary and immediate action in consideration of the safety and wellbeing of students to whom we owe a duty of care.

Consistent with principles of procedural fairness, the College will now appoint an independent and external investigator to facilitate the investigative process on behalf of the College.

You will be provided with further details by the investigator as soon as it is practicable to do so.

…

At the appropriate time, you will be provided with a fair opportunity to respond to all the concerns raised by the complainant. I wish to confirm that at this stage, no findings have been made in relation to the allegations.

…”.

6. The letter also informed the plaintiff that he had been placed on paid leave and gave him directions designed to avoid his being in contact with students of the College and other relevant persons. It was noted that the plaintiff was required to maintain confidentiality in relation to the process outlined in the letter but that this did not restrict his ability to obtain professional advice or support as needed. The plaintiff was also informed of support that was available to him.

7. The Principal of the College arranged for Catholic Employment Relations Limited (CER) to conduct an investigation into the allegations against the plaintiff.

8. On 28 November 2022, Ms Wittig of CER interviewed the complainant. A written summary of that interview was prepared and dated 10 March 2023. A number of documents and records were provided by the complainant.

9. On 2 December 2022, CER wrote a letter to the Plaintiff which informed him that CER had been engaged by the College to conduct an investigation into allegations that:

1. the plaintiff had engaged in conduct that may constitute reportable conduct within the meaning of s 20 of the Children’s Guardian Act 2019 (NSW) (CG Act);

2. he may also have breached relevant workplace policies and, in so doing, have fallen short of the professional standards expected of teachers.

10. The CER letter gave detailed particulars of the allegations as follows:

“Reportable Conduct Allegations

The following allegations were assessed as conduct that potentially is reportable conduct:

Allegation 1

It is alleged that you engaged in conduct that may be assessed as reportable conduct – sexual misconduct.

1. While employed at [the other school] from February 2016 to your employment terminating, you engaged in conduct towards year 10 student, [the complainant] that crossed the professional boundaries: [detailed particulars (a) to (f) were given].

2. After the termination of your employment with [the other school], from February 2017, you continue to communicate with [the complainant] and you repeatedly appeared at or near [her] home, and continued to engage in behaviour that crossed professional boundaries, including encouraging [the complainant] to keep secret your meetings with her: [detailed particulars (a) to (h) were given].

3. From March 2019, after [the complainant] had turned 18: [detailed particulars (a) to (g) were given of exchanges of messages with the complainant, photographs sent to the complainant, meetings and conversations with the complainant, text messages sent to the complainant and sexual acts engaged in with the complainant on 27 July and 28 August 2019].

4. It is alleged that throughout 2016 to 2018 the alleged crossing of professional boundaries described at points 1 and 2 were of a sexual nature in that they were engaged in by you for the purpose of encouraging [the complainant] to engage in a sexual relationship with you or to engage in sexual acts with you.

Allegation 2

It is alleged that you engaged in conduct that may be assessed as reportable conduct – ill-treatment.

5. The conduct alleged at points 1 and 2 is repeated here and is alleged to be conduct that was unreasonable and seriously inappropriate.

6. In addition, it is alleged that: [detailed particulars (a) to (d) were given which included providing information as to the content of a school test which the complainant was to sit, and often informing the complainant that their interactions were ‘bad’ if known by the wider community].

Professional Misconduct Allegations

Allegations 1 and 2 are repeated.

In addition to allegations of reportable conduct, allegations 1 and 2 full short of professional conduct, if substantiated and points 1 to 5 are repeated here for the removal of doubt.

We note that these allegations are serious. If substantiated, they could result in disciplinary action taken against you, which may include the termination of your employment. If the allegation of reportable conduct – sexual misconduct is substantiated, the findings will be referred to the Working with Children Check Directorate of the Office of the Children’s Guardian.”

11. The CER letter also contained the following:

“Please note that your response will be genuinely considered, and the outcome of this matter has not been pre-determined.

You are invited to attend an interview with the writer and Emily Wittig of CER to respond to the allegations as follows: [on 9 December 2022 at a specified time and location]

You may provide a written response to the allegations for our consideration at or before the meeting and you may speak to your written response.

…

The interview will be conducted by representatives from CER and will be digitally recorded, with your consent. A copy of the transcript of interview will provided to you upon your request. After your response has been obtained and any remaining evidence collected, we will prepare a report for the decisionmaker … [the] Principal of the College.

[The need for confidentiality was emphasised] …

If you believe potential witnesses or others should be spoken to as part of the investigations, this should be discussed with the writer rather than you contacting these individuals directly.

…

If you have any questions about the matters raised in this letter, please contact the writer.”

12. On 8 December 2022, Ms Wittig interviewed two teachers at the other school, who were identified as Witnesses 1 and 2, or W1 and W2. Summaries of the interviews with W1 and W2 were prepared and dated 12 March 2023 and 11 March 2023, respectively.

13. Mr Savet chose not to attend the interview proposed to be held on 9 December 2022.

14. On 14 December 2022, Ms Wittig interviewed another teacher at the other school, who was identified as Witnesses 3, or W3. A summary of the interview with W3 was prepared and dated 11 March 2023.

15. By letter dated 16 December 2022, the Plaintiff responded to the CER letter in writing. In his letter:

1. the plaintiff provided, by way of “context”, information as to his work experience from 2015 to 2022 and his personal circumstances and activities at relevant times;

2. in relation to Allegation 1 particular 1, the plaintiff denied engaging in conduct towards the complainant that crossed professional boundaries, gave information as to the programs with which he was involved and provided detailed responses which, in essence, denied what was alleged in particulars (a) to (f). In relation to particular (b), it was contended that there was insufficient information provided to the plaintiff, such as that he could not properly to address the particular beyond what he had already provided;

3. in relation to Allegation 1 particular 2, the plaintiff explained how he came to interact with the complainant in the area where he lived, including while he was out running, but in substance denied the particular;

4. in relation to Allegation 1 particular 3, the plaintiff generally accepted that the conduct occurred but sought to explain it and put it in context;

5. in relation to Allegation 1 particular 4, the plaintiff denied the particular;

6. in relation to Allegation 2 particular 5, the plaintiff denied what was set out at points 1 and 2 and denied any ill-treatment of the complainant or any other student;

7. in relation to Allegation 2 particular 6, the plaintiff agreed that he attended the Year 10 camp and that he did have a conversation with the complainant on how to approach “the Stage 6 exams” but otherwise denied the particulars;

8. in relation to the Professional Misconduct Allegations the plaintiff denied acting in any manner that constituted professional misconduct; and

9. the plaintiff provided a number of annexures including screenshots from mobile phones and emails.

16. On 10 January 2023, Ms Wittig of CER interviewed another student at the other school who was identified as Witness 6, of W6. A summary of the interview with W6 was prepared and dated 12 March 2023.

17. On 3 February 2023, Ms Wittig of CER provided what was described as a “Preliminary Investigation Report” (the CER Report) to the Principal of the College. In that report, it was stated that the purpose of the investigation was to:

“> Establish whether any particulars of the allegations put to Mr Savet are substantiated on the balance of probabilities

> In the event that any of the particulars are established, determine whether any of the allegations are, as a result, made out

> In the event any of the allegations are made out, determine whether allegations of reportable conduct and/or breach of College policies

> Provide recommendations to the College regarding potential outcomes and associated risks.”

18. In summary, the findings made in the CER Report, based on the evidence and on the balance of probabilities, were as follows:

1. Allegation 1: it is alleged that Mr Savet engaged in conduct that may be assessed as reportable conduct – sexual misconduct: Sustained. In relation to this allegation, the CER Report commented:

“As the alleged conduct is alleged to have occurred from 2016 to 2019, it is important to distinguish the alleged conduct towards [the complainant] as a child and as an adult. Nonetheless, this does not mean that the conduct towards [the complainant] as an adult is not relevant, as, in our view, it indicates a pattern of behaviour by Mr Savet that ultimately resulted in a sexual relationship forming and which supports a finding that Mr Savet’s conduct towards [the complainant] while she was a child did cross professional boundaries and was sexual in nature.”;

2. Allegation 2: it is alleged that Mr Savet engaged in conduct that may be assessed as reportable conduct – ill-treatment: Sustained. In relation to this allegation, the CER Report commented:

“In the context of the current matter, the evidence established that Mr Savet took a personal interest in [the complainant], met with her privately (at a time when he was no longer a teacher at, but she remained a student of, [the other school]), engaged in a sexual relationship with [the complainant] within three years of her leaving [the other school), had conversations with her that appear to condone the use of alcohol during College activities.

Further, as recounted in [the complainant’s] statement, her relationship with Mr Savet caused her to face issues with her mental health and seek counselling and, as a result, helped her to understand her experiences with Mr Savet as grooming.”;

3. Professional Misconduct Allegations – Allegations 1 and 2 fall short of professional conduct: Sustained.

19. These findings reflected the table headed “Analysis of evidence and findings” which apparently accompanied the report. This table identified for each of the particulars and sub particulars given in respect of each allegation, the “Evidence for”, “Evidence against”, and “Analysis”, including a finding as to whether the particular or some particular was “sustained” or “not sustained due to insufficient evidence”. It can be noted here that all of the particulars and sub particulars were found sustained except for Allegation 1 particular 2(g), (h) and (i) and Allegation 2 particular 6(a), (b) and (c).

20. The CER Report then noted that:

“For the purposes of this investigation, the following legislation, policies, and documents have been relied upon:

> Children’s Guardian Act 2019 (NSW)

> Identifying reportable allegations I The NSW Reportable Conduct Scheme – Fact sheet 1

> Making a finding of reportable conduct I The NSW Reportable Conduct Scheme – Fact sheet 8

> [the College] Staff Code of Conduct.”

21. Under the heading “Consideration and Recommendations”, the report included:

“Observations of repeated behaviour

We understand that Mr Savet has attended each year of child protection training. It is apparent that Mr Savet had some awareness that his actions were “taboo” and “dangerous” (his words).

…

Mr Savet’s behaviour towards [the complainant] (that which can be sustained) might, at its lowest, be categorised as an ‘early career teacher who got it wrong’ but is similar to Mr Savet’s conduct that was investigated in 2022. Even though the conduct complained of in 2022 was not sustained, and we have not relied on those allegations or findings in determining the outcome of the present allegations, it suggests that Mr Savet favours and enjoys familiarity with individual female students. Similarly, in [the complainant’s] written statement, she recounts a conversation with an ex-student of [the other school]. According to [the complainant’s] account of the conversation, [redacted] recalled a comment made by Mr Savet when she [redacted] was in year 10. The comments attributed to Mr Savet was innuendo and hinted at sexual impropriety (whether by Mr Savet, [redacted] or another person is not clear). Such a comment was not appropriate in the circumstances.”

22. On 13 and 16 February 2023, CER interviewed two relatives of the complainant, who were identified as Witnesses 4 and 5, or W4 and W5. Summaries of the interviews with W4 and W5 were prepared and both were dated 12 March 2023.

23. On 23 February 2023, the Principal wrote a further private and confidential letter to Mr Savet. After referring to CER’s letter of 2 December 2022 and Mr Savet’s response of 16 December 2022, the letter continued:

“The Investigation has concluded, and the investigation report and findings have been forwarded to the College for a determination. Those findings have been set out in this letter. As the decision-maker, I have reviewed the findings of the Investigation and, after careful consideration, seek your further responses before I consider whether to accept those findings in full or in part.

Allegations

For ease, I have not repeated the particulars as contained in the letter to you dated 1 [sic, should be 2] December 2022, but rather have enclosed a copy of it for your reference. The preliminary findings to each allegation are as follows:

… [the findings of CER were summarised including those particulars which were found to be not sustained due to lack of evidence] ….

Further Opportunity to Respond

It is imperative that the College is confident that you understand the importance of professional boundaries and you always act in a manner that ensures the protection of children in our care and in a way that the public expects of a teacher.

The College must also have confidence we can rely on you to be always frank and honest in your dealings with us. Given the findings that some of your responses appear false or self-serving, I write to provide you with a further opportunity to respond to the allegations before any decisions are made as to either the Findings or a potential outcome.

I must emphasise that these matters are very serious, and the findings of the investigation have the potential to impact your future as a teacher.

You are required to provide further written responses within 7 days of receipt of this letter, that is no later than 2 March at 5pm. Any additional response must be provided to me directly by email. If no further response is received, the outcome will be decided based on the information that you have already provided to date.

…

Please also note that as a mandatory reporter, a report of the investigation is required to be provided to the Office of the Children’s Guardian because we have a preliminary finding of reportable conduct – sexual misconduct.

…”.

24. On 1 March 2023, solicitors acting on behalf of Mr Savet wrote to the Principal. In this letter, the solicitors referred to the College’s letter of 16 November 2022, CER’s letter of 2 December 2022, the plaintiff’s letter of 16 December 2022 and the Principal’s letter of 23 February 2023. In relation to the Principal’s request for a response from Mr Savet by 2 March 2023, the solicitors noted that they had only recently been engaged and would need more time. The letter also noted that “[i]t is our preliminary view that CER has potentially predetermined [Mr Savet] is guilty of reportable conduct, as it has made the conclusionary statement … ”. In addition, the solicitors sought access to the College’s file concerning the reportable allegations including the CER Report in accordance with clause 19 of the NSW Catholic Independent Schools (Teachers – Model B) MEA 2020 which was said to be applicable to the Plaintiff’s employment. The letter continued:

“Until this matter is resolved [Mr Savet] will not be able to provide his further responses, including our office addressing the concerns with the CER Investigation Report. We therefore seek confirmation from you that you will not make a final determination in the Child Protection Matter and any employment relations matter until the above request has been resolved by the parties or an external body (which might include the Fair Work Commission).”

25. On 6 March 2023, the Principal responded to the plaintiff’s solicitors and expressed her view that, from their comments, they might not have the entire letter dated 2 December 2022 from CER to Mr Savet and provided a copy. In addition she rejected the solicitors opinion that the allegations raised with Mr Savet had “a pre-determined outcome”. After addressing other matters, the Principal continued:

“I further note your request to delay any decisions. I am obliged to provide updates and information to the OCG at regular intervals, this matter has been ongoing for several months and cannot be delayed on Mr Savet’s request.

If Mr Savet does not provide a further response, noting that the opportunity to respond is the second opportunity he has been afforded, my findings will be made on the currently available evidence. In this regard, should Mr Savet wish to provide further written responses, this is required no later than Friday, 10 March 2023, at 5 pm.”

26. On 10 March 2023, the plaintiff and the College agreed to resolve a Dispute Notice before the Fair Work Commission on the following terms:

“1. By COB on Monday, 13 March 2023, the [College] will provide the [plaintiff]’s representative with the documents … relevant to the preliminary adverse finding that was made, subject to any necessary redactions.

2. By COB Thursday, 23 March 2023, the [plaintiff] will respond to the letter dated 6 March 2023 sent by the [Principal], and to any correspondence accompanying the documents referred to in paragraph 1 above, including a notice to show cause.

3. The [plaintiff] will remain suspended with pay, and the [College] will take no action to terminate the [plaintiff’s] employment (if necessary), until at least 24 March 2023.”

27. On 13 March 2023, the relevant documentation (including the CER Report, together with the Complainant’s 27 page document, the complainant’s interview summary, and the interview summaries for W1, W2, W3, W4, W5 and W6) was provided to the plaintiff.

28. On 14 March 2023, and as contemplated by par 2 of the agreement to resolve the dispute before the Fair Work Commission, a notice to show cause was provided to the plaintiff by the Principal by way of a letter. That letter was headed “RE: Findings of Investigation and Requirement to Show Cause as to why your employment should not be terminated” and contained a summary of the steps taken to that point. The letter continued:

“In order to properly progress this matter whilst ensuring you have an opportunity to provide all relevant information, I have determined to accept the findings made by CER. I note that this remains subject to any further information or evidence you provide on or before 23 March 2023.

Overall Findings

The particulars of the allegations and preliminary findings were set out in my letter dated 23 February 2023, and I have decided not to reproduce the bulk of that material again, but I have enclosed a copy of the letter for your ease of reference.

In respect to Allegation 1 – reportable conduct – sexual misconduct, I find the allegation sustained.

In respect to Allegation 2 – reportable conduct – ill-treatment, I find the allegation sustained.

In respect to whether or not you engaged in Professional Misconduct, that is, conduct that falls short of what is expected of a teacher; I find the allegation sustained.

Prior Investigation – similar matters

In February 2022, I wrote to you about similar matters regarding professional boundaries at [the College]. After investigating the complaint, I determine that the matters could not be sustained for lack of evidence of wrongdoing.

Whilst no warnings about your behaviour were given at the conclusion of that investigation, and the events of the allegations described in the Findings of this Investigation pre-date this event, it concerns me that this is now the second time this type of behaviour has been reported to me.

I hold serious concerns that you will respect the trusted position of a teacher and act in accordance with the principles of child protection and professional boundaries. Protecting the children in our care is of the utmost importance.

I note that you attended training relevant to child protection and professional boundaries on several occasions, as detailed in the enclosed copy of the CompliSpace Learning Transcript. I note that the training you completed during 2019 is of particular relevance; it was completed during the complaint period (2018 – 2019), and you were subject to [the College’s] policy and procedures that outline when it may be acceptable to commence any sort of relationship with a former student (that is after at least 3 years after graduation). I put it to you that you knew or ought to have known that what you were doing with the complainant was against [the College’s] policy, but for the fact that the complainant attended another school.

Potential termination of your employment

it is imperative that the College and I are confident that you understand the importance of professional boundaries and that you always act in a manner that ensures the protection of children in our care.

Despite clear training and direction from the College, the CER findings suggest you have failed to act in a manner consistent with the College’s policies, exercising your duty to maintain professional boundaries and uphold child protection protocols during your employment at the College.

At this time, I have serious reservations that you could be trusted to do this in the future, given your responses to date.

As such, and subject to your response to the CER findings, I am considering the termination of your employment for the above reasons.

Invitation to show cause why your employment should not be terminated

Considering the information contained in this letter and subject to any further response you might provide on 23 March 2023, I invite you to show cause as to why your employment should not be terminated at a meeting scheduled at [the College at a time specified on 23 March 2023].

You are invited to bring a support person to this meeting; however, they cannot advocate on your behalf. You will be provided with an opportunity to provide your verbal responses to these matters and any mitigating factors you wish the College to take into account at the meeting. In addition, you may submit a written response before the meeting, although this is not compulsory. Should you choose to do so, I require a copy of your written response no later than Wednesday, 22 March 2023, the day before the scheduled meeting.”

29. The letter concluded by reiterating the requirement for confidentiality and the offer of counselling services or employee assistance.

30. On 22 March 2023, the plaintiff’s solicitors wrote to the Principal referring to her letter of 14 March 2023. The letter contained the following:

“We believe that your letter is misconceived as you are seeking to convene a show cause meeting as to why our client’s employment should not be terminated before you have received any response from our client in relation to the CER Investigation Report. You will note that the agreement in the FWC proceedings gave our client until the close of business on 23 March 2023 to provide a response.

If you proceed with the show cause meeting any disciplinary action will be harsh, unjust and/or unreasonable, as our client will be denied procedural fairness.

Regardless of the above, we confirm that there is an issue with you being the decisionmaker and the validity of the CER Investigation Report for reasons set out in our letter of even date. It is submitted that any show cause meeting cannot be convened until the matters raised in our letter of even date are addressed.

We await your urgent confirmation that the show cause meeting is postponed until the issues in our letter of even date are addressed and that our client will continue to receive payment of his salary…”.

31. On 23 March 2023, the proposed show cause meeting did not proceed.

32. On 28 March 2023, CER on behalf of the College wrote to the plaintiff’s solicitors addressing in some detail the issues raised by them and concluding with the following:

“Your client has been provided with significant time to respond to the findings in the CER Investigation Report. However, the College will allow your client until 5pm on Friday, 31 March 2023 to provide any additional information, evidence or response he wishes to be taken into consideration, before a final decision is made. In the event that your client does not provide any further information within the time required, a final decision may be made on the basis of findings in the CER Investigation Report and supporting evidence.

Further, in the event that your client commences proceedings in the Supreme Court of New South Wales as anticipated in your [other] letter of 22 March 2023, this letter and previous correspondence may be used as evidence in relation to any application for costs.”

33. On 5 April 2023, the solicitors for the plaintiff responded by letter to CER’s letter of 28 March 2023. The plaintiff’s solicitors’ letter contained the contention that the CER Report was void “for, among other grounds, failure to afford our client procedural fairness and natural justice”. Furthermore, the plaintiff’s solicitors indicated that they would commence proceedings in the Supreme Court unless a proposal put in their letter was agreed to by 12 noon on 6 April 2023. It appears that this deadline was extended by agreement.

34. On 19 April 2023, the solicitors for the College wrote to the plaintiff’s solicitors and responded to their contentions. Although the College’s solicitors did not accept the plaintiff’s solicitors’ conclusions regarding the CER Report or their views regarding the Principal, they noted that the College was prepared to agree to:

“3.1.1 issue a new letter to your client from the appropriate person with delegated authority in accordance with section 34 of the [Children’s Guardian Act] setting out their preliminary views on the findings while inviting your client to provide a response within seven days of that correspondence; and

3.1.2 communicate our decision as to what, if any, disciplinary action is to be taken within seven days of either receiving a response from your client, or the expiration of the date by which that response is to be provided.”

35. That letter continued:

“As you are aware, this process has been ongoing for a lengthy period of time. Considering this, should your client fail to provide his responses within the stipulated time, our client will proceed to make decisions on the material that is available to it. We confirm that your client will continue to be remunerated at full pay while this process is being undertaken.”

36. On 24 April 2023, the Acting Principal of the College sent a letter to Mr Savet which provided, inter alia, a further opportunity to Mr Savet to respond to the allegations made against him. That letter relevantly contained the following:

“Re: Findings of Investigation

1. As you are aware, an independent investigation into allegations made against you of reportable conduct involving sexual misconduct, ill treatment, and professional misconduct as well as potential breaches of the [College] Policies was conducted by Catholic Employment Relations (CER)

2. I am aware that your legal representatives expressed concerns regarding the independent investigation process. Considering the severity of the allegations that have been made against you and the need to ensure that you are provided with procedural fairness and adequate opportunities to respond, the process was suspended to consider your concerns. While I am satisfied that you have been afforded requisite procedural fairness, the College is agreeable to providing you with a further opportunity to respond to the findings of the independent investigation.

3. Annexed to this letter are the following documents, which I understand have previously been provided to you or your legal representatives:

(a) A letter from CER dated 1 December 2022 which was provided to you on 2 December 2022, setting out the allegations against you…

(b) A partially redacted copy of the independent investigation report that includes…:

(i) The preliminary report provided to the College by CER; and

(ii) Summaries of the statements that were collected by CER, including subsequent statements that were taken after the preliminary report was provided.

4. I understand there were no new allegations that arose from the subsequent statements, nor were those statements used in the analysis of the evidence of the findings enclosed in the Report.

5. I also understand that you provided a written response to the allegations dated 16 December 2022.”

37. The Acting Principal’s letter then referred to applicable legislative provisions, policies and procedures and summarised the allegations and the findings made in the CER Report. The letter then continued:

“Preliminary views on the Report and invitation to provide a further response

15. While I am yet to make a final decision, I am considering accepting the findings made in the Report. However, before I make any decision, I recognise that the allegations made against you are extremely serious, and the findings in the Report, if accepted, may have severe consequences for you.

16. Considering this, I am inviting you to provide a response regarding:

(a) the Allegations;

(b) the findings made in the Report;

(c) any other matters or material in the Report that you wish to address/respond to; and

(d) anything else you consider relevant to the College’s decision-making process.

17. I invite you to attend a meeting [on 3 May 2023 at a specified time and location] for you to provide a response …

18. You are permitted to bring a support person to the meeting; however, you must inform me … as to who that support person is by 2 May 2023 by 5 pm. Please be advised that the role of a support person is to provide you with emotional support and not to act as an advocate or provide responses on your behalf.

19. You may elect to provide a written response in addition to or in new of attending a meeting. If it is your preference to provide a written response in lieu of attending this meeting, this must be done by no later than 2 May 2023 at 5 pm. Please email … to confirm your attendance or to submit your written response.

20. If you do not provide a response by 2 May 2023 at 5 pm, the College will make a decision based on the material that is currently available. In circumstances where this process has been ongoing since 16 November 2022, and you have had the Report in your possession since 13 March 2023, the College considers the timeframe set out above to be reasonable and unlikely to be extended any further. The College encourages you to engage with us and provide any further material you would like us to consider.

Notice of effect of adverse findings

21. While I understand that this has been explained to you in previous correspondence from either the College or the CER, I need to remind you of the potential consequences of an adverse finding against you. If the findings made in the Report are accepted, the nature of the Allegations made against you may:

(a) Amount to reportable conduct pursuant to Part 4 of the CG Act and as explained in Fact Sheet 1 and Fact Sheet 8;

(b) Result in a report of the findings being made to the Office of the Children Guardian in accordance with the provisions of the CG Act as the College is a mandatory reporter;

(c) Amount to a breach of the Code of Conduct up to and including serious misconduct; and

(d) Result in the College taking disciplinary action against you up to and including termination of your employment.”

38. The Acting Principal’s letter concluded with a number of confidentiality and place directions and reiterations of the availability of professional counselling and support.

39. On 27 April 2023, the plaintiff’s solicitors wrote to the College’s solicitors seeking clarification as to the invitation to Mr Savet to provide a response to the matters set out in paragraph 16(a) to (d) of the Acting Principal’s letter of 24 April 2023. In particular, the plaintiff’s solicitors wrote:

“Can you please clarify your clients invitation by providing an urgent response to the following matters:

1. Is our client entitled to put further evidence in addition to any submissions?

2. If our client is entitled to put further evidence, and it is accepted by the decision-maker, will the investigation report and findings be altered?

3. In our letter dated 5 April 2023 to Catholic Employment Relations Limited we requested at point (iii) a list of the documents and records referred to therein. Can you please provide a response to this request. A copy of this letter is attached.

4. Does your client agree that the [complainant] was not, and is not, a student for the purposes of the [College’s] Staff Code of Conduct 2019?

5. If your client’s response to 4 is ‘yes’ does the decision-maker agree that those parts of the investigation report referring to, and relying on, the [College’s] Staff Code of Conduct should be excluded from the investigation report and not considered by the decision-maker.

6. We understand that [the Principal] is returning from leave early next week and will therefore resume her position as the head of agency for the purposes of the Childrens Guardian Act 2019 (NSW). As the head of agency, [the Principal] has no authority to delegate her obligations under this Act to the Assistant Principal. As such, we understand she will be the decision maker. Can you please confirm if our understanding is correct? If not, please provide your comments.”

40. On 28 April 2023, the next day, the College’s solicitors responded to the letter of 27 April 2023 providing clarification as follows:

“1. Paragraph 16(d) of our client’s letter of 24 April 2023 provides that your client may provide ‘anything else (he) consider(s) relevant’ to our client’s decision making. On that basis, your client may put forward further evidence in addition to any submissions if he considers that it may assist our client with its decision making.

2. If the decision maker accepts the further evidence put by your client, while the report and findings will not be altered, the extent to which those findings are accepted by our client may be altered and put to your client.

3. In terms of the of the documents referred to in the report, we understand these to be the text messages, photos and emails which are exerted and referred to in [the complainant’s] statement which is in the redacted report that was provided to your client. We consider that the portions of those materials that were considered have been provided to your client with sufficient particularity to enable your client to respond.

4. Our client considers that while [the complainant] was not a student (past or present) of [the College], she was however, a child for the purposes of section 3 of the Children’s Guardian Act 2019 (NSW) (Act) which our client’s Code of Conduct refers to.

5. Our client will otherwise consider any submission or material that your client makes regarding the applicability of the Code of Conduct and its reliance [on] the Code of Conduct.

6. We confirm that on [the Principal]’s return from leave, she will resume as the delegated decision maker for this process in accordance with the requirements of the Act.”

Judicial Review application

41. On the same day, 28 April 2023, and notwithstanding the College’s solicitors’ letter, the plaintiff’s solicitors filed a form of summons in this Court.

42. On 19 May 2023, an amended summons seeking in substance the same relief was filed. Unlike the original summons, the amended summons included, under the heading “Details of decision”, what appeared to be pleadings, rather than a succinct identification of the decision that was challenged, and a somewhat discursive statement of the “Grounds”.

Grounds

43. The plaintiff relied in essence on two grounds to support the relief sought as follows:

1. denial of procedural fairness, in that the first defendant fell into jurisdictional error by denying the plaintiff procedural fairness in material respects in relation to the CER Report and, as a result, the CER Report should be declared to be “void and of no effect”: par 47(c)-(k) of the amended summons; and

2. actual bias of the second defendant in that the Principal “is biased and must recuse herself from the investigation as she has pre-determined the Plaintiff is guilty of reportable conduct and sustained the findings on the basis of irrelevant information” and, as a result, she should be restrained by injunction “from being the decision maker in relation to any child protection investigation pursuant to the Children’s Guardian Act 2019 (NSW) in relation to the conduct of the Plaintiff between 1 February 2016 and 28 August 2019”: par 47(l)-(m) and prayer 2 of the amended summons.

Identification of the relevant decision

44. Although the decision sought to be challenged was not identified with pellucid clarity in the amended summons, from pars 18 and 21 under the heading “#Details of Decision”, it appeared that the relevant decision was said to be the Principal’s decision, recorded in her 14 March 2023 letter whereby “the [Principal] made final findings”. During oral submissions, the decision was identified in particular as the statement in the Principal’s 14 March 2023 letter that “I have determined to accept the findings made by CER”. ^[1]

    1. Tcpt, 25 July 2023, p 13(42)-(46); see also p 15(22)-(26).

45. This identification of the relevant decision did not appear to be entirely consistent with the declaratory relief sought, namely a declaration that the CER Report was “void and of no effect”. It was submitted that the declaratory relief should be ordered because of alleged failures to afford procedural fairness in the preparation of that report, rather than failure to afford procedural fairness on the part of the Principal in reaching the decision referred to in her 14 March 2023 letter.

46. Thus, it appeared to be relevant also to consider whether the Principal had made the decision alleged by the plaintiff in the 14 March letter and whether she afforded the plaintiff an opportunity to respond to the findings in the CER Report and other material prior to 14 March 2023, or subsequently, so as to cure any previous denial of procedural fairness.

Judicial review and types of relief generally

47. Before dealing with the plaintiff’s two grounds, it can be noted that the plaintiff in effect submitted that the declaratory and injunctive relief sought was available on judicial review in the present case because the relief was in respect of “a decision of the Defendants in relation to a child protection investigation pursuant to the Children’s Guardian Act”. Such an investigation was said to involve the performance of public functions by the defendants with public consequences. Thus, the decision was contended to be amenable to judicial review of this nature because it was made pursuant to the legislatively mandated processes required to be carried out by the second defendant, as “head” of the first defendant, under and in accordance with Pt 4 of the CG Act.

48. The defendants did not dispute that there was an obligation to afford procedural fairness, by way of both the hearing rule and the bias rule, “in a process conducted under Part 4, Division 5 of the CG Act” and accepted that the investigation of the allegations in relation to the plaintiff was such a process. Furthermore, the defendants did not contend that the types of orders sought were not available in these proceedings.

49. Thus, it was common ground that there was a duty to accord procedural fairness, in both its fair hearing limb and its bias limb, in this case in relation to the performance of the duties and functions of the defendants under the relevant provisions of the CG Act. The matters in dispute between the parties were essentially confined to whether the plaintiff had been afforded a reasonable opportunity to be heard, in relation to the steps required to be taken by the defendants under Part 4, Div 5 of the CG Act, and to whether the second defendant was actually biased in performing her functions under that Division of the CG Act. It was also not in dispute that the types of orders sought were available in the present proceedings. Given that the relief sought concerned the performance by the defendants of statutorily mandated processes which attracted a duty to accord procedural fairness, I was of the view that it was appropriate to proceed on the bases agreed between the parties.

Ground 1 - Denial of procedural fairness by the first defendant

Submissions

50. In support of its claim that the CER Report should be declared to be “void and of no effect”, the plaintiff submitted in effect that, in breach of the duty to accord procedural fairness in performing the functions under s 34(1)(a) of the CG Act:

1. the “investigator made findings before completing the investigation” in that the CER Report was dated 3 February 2023 but “it contains statements from witnesses that post-date 3 February 2023” namely W4 and W5 who were interviewed on 13 and 16 February 2023, respectively;

2. the “investigator took into account matters not identified and not provided to the Plaintiff for response” in that in the CER Report it was stated that “[a] number of documents and records were provided by [the complainant] and have been considered in determining findings for each allegation” but these were not further identified in the CER Report, although a number of documents were “attached” to that report. Consequently, it was said that the plaintiff was denied “a genuine opportunity to respond to that evidence before the [CER] Report was completed”;

3. the “investigator … took into account the fact that the Plaintiff had a sexual relationship with the complainant within three years of her leaving [the other school] to reach an apparent conclusion that the Plaintiff was in breach of the [College’s] Staff code of conduct” which was said to have no relevance to the complainant as she had never been a student of the College;

4. the “investigator and the Defendants took into account previous unsubstantiated complaints to support making findings about these complaints” namely that the Principal held “serious concerns that [the plaintiff] will respect the trusted position of a teacher and act in accordance with the principles of child protection and professional boundaries”; and

5. the “Defendants sustained findings that were not sustained by the CER Report” in that the Principal “determined to accept and sustain” allegations 1 and 2 in their entirety whereas the CER Report concluded that Allegation 1 particular 2(g), (h) and (i) and Allegation 2 particular 6(a), (b) and (c) were not sustained.

51. The other criticisms of the investigator who prepared the CER Report which were contained in par 47(c)-(f) and (i) of the amended summons were not the subject of detailed submissions by the plaintiff and were apparently not pressed or were not pressed with any great vigour in oral submissions.

52. The defendants made specific submissions as to the matters raised by the plaintiff. As to the contention that the CER investigator “made findings before completing the investigation” because interviews with W4 and W5 took place on 13 and 16 February 2023 after the CER Report was completed on 3 February 2023, the defendants submitted that:

1. it was not suggested that the evidence of W4 and W5 was taken into account in making any findings in the CER Report or that it affected the substance of the allegations against the plaintiff, to which he responded before the CER Report was completed;

2. the mere existence of the evidence of W4 and W5 does not mean that the CER Report was invalid; and

3. no practical injustice was identified.

53. Concerning the submission that the investigator took into account material provided by the complainant but not identified or provided to the plaintiff, the defendant submitted that this material was identified in the table headed “Analysis of evidence and findings” which accompanied the CER Report and set out material such as quotations from text messages. Further, although copies of the material were not provided to the plaintiff before the CER Report was completed, it was contended that that was unnecessary because the plaintiff had been given the opportunity to respond to the substance of the allegations and thus there was no practical injustice.

54. As to issue of the investigator taking into account the College’s Staff Code of Conduct and previous unsubstantiated allegations against the plaintiff, the defendants submitted:

1. the CER Report did not conclude that the plaintiff had breached the College’s Code of Conduct rather it was relied upon to inform consideration of whether the plaintiff’s conduct could be characterised as unreasonable, inappropriate or improper since it was open to view the Code of Conduct are reflective of professional standards or accepted community standards, which were mandatory considerations under ss 35 and 40(3) of the CG Act. Further, the defendant contended this reasoning was open as some of the alleged conduct occurred while the plaintiff was employed by the College;

2. the previous allegations were expressly stated by the CER Report not to have been relied on “in determining the outcome of the present allegations” and the reference to them in the report cannot invalidate it.

55. As to the other criticisms of the CER Report and the CER investigator referred to in the amended summons, the defendants relied on the material contained in their response to summons filed on 23 May 2023.

56. In addition, the defendants submitted more generally in relation to the CER Report that s 34 of the CG Act should be construed as incorporating a threshold of materiality in the event of non-compliance with any relevant requirements. It was said that, in the context of the present case, there was no realistic possibility that the findings in the CER Report would have been different if the errors for which the plaintiff contended had not occurred. Thus, it was submitted that any error made by CER in the preparation of the CER Report were “not jurisdictional” and did not affect the validity of the investigation for the purposes of s 34.

57. Further, it was submitted that an investigation under s 34 of the CG Act was only the first stage in a multi-stage process and the outcome of the investigation had no force by itself. The next stage was for the “head” of the “relevant entity” to prepare a report for the Children’s Guardian, in accordance with s 36(1) of the CG Act, which may or may not involve accepting the findings of the investigator under s 34. In this situation, it was submitted, procedural fairness afforded by the head of the relevant entity in preparing the s 36 report would cure any denial of procedural fairness in the investigation under s 34. It was contended that the outcome of the s 34 process might be relied upon, subject to any shortcomings in the process being corrected at the stage of preparation of the s 36 report. This was said to be supported by the expedited nature of the process required under Pt 4, Div 5 of the CG Act. Applying that submission to the present case, it was contended that the Principal gave the plaintiff at least three opportunities to make further submissions or provide further evidence after all relevant information had been disclosed to the plaintiff. Thus, it was contended that the plaintiff had been given a full and fair opportunity to be heard in relation to the allegations and consequently: (a) the CER Report and the process under Pt 4 Div 5 were not affected by relevant error; or (b) the declaration should be refused as a matter of discretion.

Consideration

58. In order to assess the significance of what did or did not occur in the present case, it is necessary to review the most relevant provisions of the CG Act and their application in the particular circumstances of the plaintiff and the defendants.

The relevant statutory scheme of the CG Act and its application

59. The CG Act applies in relation to children who ordinarily live in New South Wales, such as the complainant and students at schools such as the College and the other school: CG Act, s 3(a).

60. The main object of the CG Act includes protecting children by providing for the regulation of organisations and persons, such as the first and second defendants, in providing services to children: CG Act, s 6(b). One of the guiding principles to be applied in administering the CG Act is that, in decision-making under this Act and the investigation of persons, the Children’s Guardian must observe the principles of natural justice and ensure procedural fairness: CG Act, s 8(d). To this end, the Children’s Guardian has published Fact Sheets providing guidance as to how decision-making and investigations for the purposes of the CG Act should be carried out by persons such as the second defendant including requiring that procedural fairness be accorded to persons being investigated: see, for example, The NSW Reportable Conduct Scheme – Fact sheet 2 (August 2022) under the heading “Responsibilities of the head of an entity”, Fact sheet 4 (August 2022) under the heading “Ensuring procedural fairness” and Fact sheet 8 (August 2022) under the heading “Principles of procedural fairness”.

61. Part 4 of the CG Act (ss 9-70) relates to “reportable conduct” and contains the provisions which are engaged in the present case. The objects of Pt 4 are set out in s 9 and include the object of the Children’s Guardian protecting children from harm by:

“(a) administering a scheme to report and notify a reportable allegation or a conviction considered to be a reportable conviction to the head of a relevant entity and the Children’s Guardian, and

(b) providing oversight and guidance on an investigation undertaken by the head of a relevant entity, and

…

(d) ensuring appropriate action is taken by a relevant entity.”

62. Relevant definitions are provided in ss 11 to 26. It is sufficient for present purposes to record that:

1. The first defendant, the College, is a company limited by guarantee and a non-government school within the meaning of the Education Act 1990 (NSW) and, thus, a “Schedule 1 entity” and a “relevant entity” within ss 12(a) and 13(a) of the CG Act.

2. The plaintiff is an “employee” of the relevant entity within the definition of that term in s 16(1)(a)(i) of the CG Act in that he is employed by the College as a teacher at the College.

3. As the Principal of the College, the second defendant is the “head” of the relevant entity, because she is either “the chief executive officer of the entity, however described” or “if there is no chief executive officer, the principal officer of the entity, however described”, within s 17(1)(c)(i) or (ii) of the CG Act.

4. The CER Report dated 3 February 2023 was a report prepared by an “investigator” within the meaning of that term in s 10 of the CG Act because the person who prepared that report was “a person conducting an investigation on behalf of the head of a relevant entity”.

5. The allegations concerning the plaintiff were “reportable allegations” within s 18(1) because they were made in relation to an employee of a Schedule 1 entity and were allegations that the employee had engaged in conduct that might be “reportable conduct”, which, under s 20, includes “sexual misconduct” and “ill-treatment of a child”, as defined in ss 22 and 23, as follows:

“Sexual misconduct means conduct with, towards or in the presence of a child that—

(a) is sexual in nature, but

(b) is not a sexual offence.

…

Ill-treatment, of a child, means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel.”

63. Section 27 of the CG Act relevantly requires a person who becomes aware of a reportable allegation in relation to an employee of a relevant entity to report the matter to the head of the relevant entity. In the present case, on or about 14 November 2022, the Principal was made aware of reportable allegations in relation to the plaintiff.

63. Under s 34(1)(a) of the CG Act, as soon as practicable after receiving the report, the Principal, as head of the relevant entity, was required to investigate, or arrange for an investigator to investigate, the reportable allegations. This the Principal did by arranging for an investigator from CER to investigate the allegations concerning the plaintiff. Consistently with the recommendations in the NSW Reportable Conduct Scheme Fact sheet 4, the Principal wrote to the plaintiff on 16 November 2022 informing him that information relating to conduct alleged to have been engaged in by him had been received by the College, without providing details of such conduct, and explaining in some detail the potential consequences and steps proposed to be taken. Relevant passages from that letter have been quoted above at [5].

64. Section 34(2) of the CG Act provides that during such an investigation “an employee the subject of a reportable allegation … may give the head of the relevant entity a written submission concerning the allegation … for the purpose of determining what, if any, disciplinary or other action should be taken in relation to the employee”.

65. By virtue of s 34(3), the investigation under s 34(1)(a) must be completed “within a reasonable time”.

66. As part of the investigation and as recommended in Fact sheet 4, CER provided the plaintiff with detailed particulars of the allegations against him by letter dated 2 December 2022, portions of which have been set out above at [10]. In that letter, he was invited to an interview and given the opportunity to provide a written response and to speak to that response. The plaintiff took up the opportunity to provide a written response by providing his letter of 16 December 2022 in which he addressed each of the allegations and portions of which have been set out above at [15].

67. Section 35 of the CG Act provides that the head of the relevant entity, or the investigator, in conducting an investigation into a reportable allegation must have regard to the matters in Div 6 of Pt 4 of the CG Act. Thus, the Principal or the CER investigator was required to take into account as mandatory considerations when investigating the reportable allegations in the present case the “matters” in s 40 (which is the applicable provision in Div 6). Section 40 relevantly provides:

“40 Assessing conduct

(1) The head of the relevant entity … must make a finding of reportable conduct if it is satisfied that the case against the employee the subject of the reportable allegation has been proved against the employee on the balance of probabilities.

(2) Without limiting the matters the head of the relevant entity … may take into account in deciding whether it is satisfied the case has been proved on the balance of probabilities, the head of the relevant entity … may take into account—

(a) the nature of the reportable allegation and any defence, and

(b) the gravity of the matters alleged.

(3) The head of the relevant entity … must consider whether the reportable allegation relates to conduct that is in breach of established standards applying to the employee of the relevant entity, having regard to the following—

(a) professional standards,

(b) codes of conduct, including any professional or ethical codes,

(c) accepted community standards.”

69. A potentially relevant code of conduct for the purposes of s 40(3)(b) would be the College’s Staff Code of Conduct.

70. Section 36 governs what must be done next and relevantly includes the following:

“36 Report by relevant entity about investigation or determination

(1) After an investigation … is completed, the head of the relevant entity must prepare a report for the Children’s Guardian (an entity report), [except in certain circumstances which are not relevant for present purposes].

….

Maximum penalty—10 penalty units.

(2) The entity report must be provided to the Children’s Guardian within 30 days after the head of the entity receiving the report of the reportable allegation … unless the head of the relevant entity gives the Children’s Guardian—

(a) an interim report under section 38 within 30 days after receiving the report of the reportable allegation …, and

(b) a reason for not providing the report within 30 days, and

(c) an estimated time frame for the completion of the entity report.

Maximum penalty—10 penalty units.

(3) Despite subsection (2), if the Children’s Guardian consents to an extension of time under subsection (1)(c), the report is due by the date granted under the extension.

…

(4) The entity may give the entity report to the employee of the relevant entity the subject of the report.”

71. Under s 37(1), an entity report in a case such as the present must include:

“(a) in relation to a reportable allegation—

(i) information about the facts and circumstances of the reportable allegation, and

(ii) the findings the head of the relevant entity has made about the reportable allegation after completing the investigation, including whether the head of the relevant entity has made a finding of reportable conduct, and

(iii) an analysis of the evidence and the rationale for the findings,

…

(c) a copy of any written submission made by the employee under section 34(2),

(d) information about what action has been, or will be, taken in relation to the reportable allegation … including the following—

(i) remedial or disciplinary action in relation to the employee,

(ii) whether information about the matter has been referred to a different entity,

(iii) changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards,

(iv) if no further action is to be taken—that no further action is to be taken,

(e) the reasons for the action taken, including taking no further action,

(f) any other information prescribed by the regulations.”

72. Furthermore, s 37(2) requires that an entity report also be accompanied by any copies of documents in the relevant entity’s possession that are relevant to the report, including transcripts of interviews and copies of evidence.

73. The word “investigation” in s 36(1), given its context in Div 5 of Pt 4 of the CG Act, naturally refers back to the investigation referred to in the preceding ss 34 and 35. Further, it is consistent with the purpose and scope of the legislation for the investigation under s 34(1)(a), where relevant, to be completed before the head of the relevant entity has to prepare the entity report required under s 36(1). Thus, s 36(1) should be construed as imposing an obligation on the head of the relevant entity to prepare an entity report for the Children’s Guardian after the investigation under s 34(1) has been completed, which must be “within a reasonable time” by virtue of s 34(3).

74. In the present case, the CER Report was provided to the Principal on 3 February 2023.

75. Having regard to the text of s 36(1) and the absence of any other provisions of the CG Act indicating to the contrary, s 36(1) should be construed as meaning that the completion of an investigation under s 34(1)(a) does not have any necessary consequence other than to trigger the obligation on the head of the relevant entity to prepare an entity report. This construction of s 36(1) is supported by a consideration of the context provided by s 36(2) and by s 37(1)(ii) and (iii).

76. Under s 36(2), the entity report must be provided to the Children’s Guardian within 30 days after the head of the entity received the report of the reportable allegation, subject to a number of exceptions which are not of present relevance. This indicates that the legislative intention was that the investigation to be carried out under s 34(1)(a) should generally be completed with sufficient time for the head of the relevant entity to consider the results of the investigation, any evidence or submissions by the person against whom the allegations were made in response to the results of the investigation and any other relevant material, before providing the entity report to the Children’s Guardian within 30 days of the reportable allegations being brought to the head of the entity’s attention. These considerations also indicate that the s 34(1)(a) investigation was not intended to cover all of the material that the head of the relevant entity might eventually consider and that further information could be received and considered by the head of the entity before the entity report was finalised.

77. Section 37(1)(a)(ii) and (iii) require the entity report to include “the findings the head of the relevant entity has made about the reportable allegation after completing the investigation, including whether the head of the relevant entity has made a finding of reportable conduct” and “an analysis of the evidence and the rationale for the findings”. Thus, it is the findings of the head of the relevant entity, not the findings of the investigator under s 34(1)(a), which must be included in the entity report to the Children’s Guardian. In that sense, the findings of the s 34(1)(a) investigation do not have any effect of their own. While there is nothing in the CG Act which would prevent the head of the relevant entity having regard, inter alia, to the evidence and analysis relied on in, and the conclusions reached as a result of, the s 34(1)(a) investigation, ss 36 and 37 establish that the head of the relevant entity must analyse the evidence and provide his or her own rationale for any findings in the entity report. The Principal was not bound to accept the findings of the s 34(1)(a) investigation and may reject them, for example, after taking into account further information received, whether from the plaintiff or any other person or both, provided that the Principal had afforded the plaintiff procedural fairness before finalising the entity report. In other words, the investigation under s 34(1)(a) was a preliminary investigation which might inform the consideration and analysis to be undertaken by the head of the relevant entity for the purposes of preparing an entity report, but the investigator’s findings made based on that preliminary investigation were also, necessarily, preliminary.

78. In addition, the terms of ss 34(2) and 37(1)(d)(i) and (iv), and (e) of the CG Act make manifest that the entity whose head provides an entity report to the Children’s Guardian is required, by the time the entity report is provided, to have considered whether any, and if so what, remedial or disciplinary action in relation to the employee should be taken in relation to the reportable allegations.

79. The relevant consequences which flow from the head of a relevant entity providing an entity report to the Children’s Guardian are governed by the Child Protection (Working with Children) Act 2012 (NSW) (the WWC Act). Under s 15(1) of the WWC Act, the Children’s Guardian must conduct a risk assessment of the holder of WWC clearance, such as the plaintiff, to determine whether the holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the holder is “subject to an assessment requirement”. Section 14 of the WWC Act provides that:

“A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.”

Item 2 of Sch 1 to the WWC Act specifies that one of the matters that will render a person “subject to an assessment requirement under this Act” is where the person “has been the subject of a finding … by a relevant entity within the meaning of Part 4 of the Children’s Guardian Act 2019, that the person engaged in … sexual misconduct committed against, with or in the presence of a child”.

80. Although the language of item 2 of Sch 1 is not precisely apt, item 2 should be construed as meaning that a person who was the subject of an “entity report” within s 36(1) of the CG Act by the head of a relevant entity which found that the person had engaged in sexual misconduct against a child, was “a person subject to an assessment requirement under this Act”. Consequently in this case, if in the entity report the Principal found that “Allegation 1 reportable conduct – sexual misconduct” were sustained, the Children’s Guardian would be required to conduct a risk assessment of the plaintiff to determine whether he posed a risk to the safety of children, in accordance with s 15 of the WWC Act.

81. If, as a result of such a risk assessment, the Children’s Guardian was satisfied that the plaintiff posed a risk to the safety of children, the Children’s Guardian would be required to cancel the plaintiff’s WWC clearance, by virtue of s 23 (1) of the WWC Act.

82. Consistently with this analysis of the relevant provisions of the CG Act and the WWC Act, no necessary consequences under those Acts flow from any findings made as part of an investigation under s 34(1)(a) of the CG Act. It is only the completion of such an investigation which has any necessary effect under the CG Act, namely that, after such an investigation is completed, the head of the relevant entity is required by s 36(1) of the CG Act to prepare an entity report for the Children’s Guardian, subject to certain exceptions which are not relevant for present purposes.

83. Having regard to what has occurred in the present case, the investigation under s 34(1)(a) of the CG Act was “completed”, for the purposes of s 36(1), when the CER Report was provided to the Principal on about 3 February 2023. It can be noted that the CER Report was headed “Preliminary Investigation Report”. From that date, the Principal’s conduct was directed to undertaking the analysis and making the findings referred to in s 37(1)(a)(iii) and (ii) and considering whether any, and if so what, remedial or disciplinary action might be taken against the plaintiff as referred to in s 37(1)(d)(i) and (iv) and (e), in order to prepare her entity report for the Children’s Guardian. The steps taken by the Principal with a view to preparing the entity report included writing to the plaintiff on 23 February 2023 making him aware that the s 34(1)(a) investigation had been completed and providing him with details of the CER investigator’s findings. That letter also provided the plaintiff with an opportunity to provide any further response and notified him in effect that an entity report was required to be provided to the Children’s Guardian because there was “a preliminary finding of reportable conduct – sexual misconduct”. Portions of this letter are set out at [23] above.

84. As a result of steps taken on behalf of the plaintiff, on 13 March 2023, he was provided with a redacted copy of the CER Report, together with the Complainant’s 27 page document, the complainant’s interview summary, and the interview summaries for W1, W2, W3, W4, W5 and W6. Furthermore, by letter dated 14 March 2023, the Principal gave the plaintiff a further opportunity to provide all relevant information on which he relied in relation not only to the Allegations and the CER Report’s preliminary findings but also in relation to any remedial or disciplinary action that might be appropriate. Parts of this letter have been set out at [28] above.

85. Thus, by 14 March 2023, the plaintiff had been provided with all relevant documentation and offered the opportunity to respond to all relevant matters on a fully informed basis. Furthermore, as a result of the correspondence between 22 March 2023 and 28 April 2023, referred to above, further opportunities to respond were provided to the plaintiff before the entity report was to be finalised.

Relevant principles in relation to procedural fairness

86. There was no dispute that the CER investigator and the Principal as head of the relevant entity were obliged to afford the plaintiff procedural fairness nor were the applicable principles in relation to procedural fairness in contest. Accordingly, these matters can be dealt with briefly.

87. Observance of procedural fairness is an implied condition of the exercise of jurisdiction by “every one who decides anything” pursuant to statute to affect the interests of an individual by force of the statute, unless and to the extent that procedural fairness is clearly excluded by the statutory scheme: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [16] (Kiefel CJ and Gageler J).

88. The concern of procedural fairness is with procedures rather than with outcomes. It follows that a failure on the part of a decision-maker to give the opportunity to be heard which a reasonable decision-maker ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 (WZARH) at [55] (Gageler and Gordon JJ).

89. A denial of procedural fairness is material so as to the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the person affected by the decision of "the possibility of a successful outcome”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54; WZARH at [56].

90. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [367] (Gageler J).

91. The concern of the law when dealing with procedural fairness or natural justice is to avoid practical injustice. A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Where, however, no practical injustice has been shown, there will be no denial of procedural fairness. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1: [2003] HCA 6 at [37] and [38] (Gleeson CJ).

92. If the opportunity to put any information or argument to the decision-maker has not been lost, or no detriment has otherwise been suffered, there will be no practical injustice: WZARH at [57]. The failure to provide an opportunity to be heard at one point may be cured by the provision of such an opportunity at a later time before the relevant decision has been made.

93. I pause at this point to note that neither CER nor the CER investigator was a party to the present proceedings, notwithstanding that the relief sought was that the CER Report be declared void or of no effect. The first ground of review appeared to proceed on the assumption that the College was responsible in some relevant way for any failure on the part of the CER investigator or CER to afford procedural fairness. The basis for this assumption was not the subject of submissions and, in light of my conclusions, it is not necessary to consider that issue.

94. Against this background, the particular issues raised in the first ground of review now can be addressed.

Issue 1 - Findings made by the investigator before completion of the investigation

95. The first issue raised under the first ground of review was that the “investigator made findings before completing the investigation”. This was based on the observation that the CER Report was dated 3 February 2023 but witnesses W4 and W5 were not interviewed until 13 and 16 February 2023, respectively. While this is factually correct, it does not give rise to a basis for finding that the plaintiff was denied procedural fairness or that the CER Report was “void” or “of no effect”.

96. The CER Report was completed on 3 February 2023, thus any interviews which took place on 13 and 16 February 2023 cannot have been taken into account in making the findings in the report. Given the nature of an investigation under s 34(1)(a) as explained above, however, the CER Report did not determine the outcome of the Principal’s entity report. The fact that the CER Report was provided to the Principal on 3 February 2023 simply indicated that the preliminary investigation had been completed. Thereupon, the Principal was required by s 36(1) to prepare her entity report.

95. For the reasons explained above, the Principal was not bound to accept the findings in the CER Report and was entitled to take into account further evidence and submissions from both the plaintiff and any other relevant person. For this purpose, the Principal was entitled to engage an investigator, such as CER, to interview further potentially relevant witnesses, such as W4 and W5, so that their information could be considered by the Principal. This appears to be what occurred in the present case. Provided the plaintiff was informed of any relevant information provided by W4 and W5 and given an opportunity to respond, prior to the Principal finalising her entity report, there would be no failure to accord the plaintiff procedural fairness.

96. On 13 March 2023, the plaintiff was provided with, inter alia, the summary of interviews with W4 and W5 and has been given an opportunity to respond to the information provided by those witnesses. The Principal has not yet finalised her entity report. In these circumstances, the plaintiff has not relevantly been denied procedural fairness nor has he suffered any practical injustice, as a result of W4 and W5 being interviewed by CER after the CER Report was provided to the Principal. The fact that CER interviewed two potentially relevant witnesses after the CER Report had been provided to the Principal did not provide a basis for concluding that the CER Report was “invalid” or “void” or that the plaintiff had suffered any practical injustice, especially since the plaintiff has subsequently had the opportunity to respond to his material, as offered in the Principal’s letter of 14 March 2023 and subsequent correspondence.

Issue 2 - The CER investigator took into account matters not identified and not provided to the plaintiff for response

99. The next issue was said to be based on the fact that the CER Report contained the statement that “[a] number of documents and records were provided by [the complainant] and have been considered in determining findings for each allegation” without their being specifically identified. It was contended that, as a result, the plaintiff was denied a genuine opportunity to respond to that evidence before the CER Report was completed.

100. In this regard, it should be noted that the plaintiff was given detailed particulars of the allegations against him in CER’s letter of 2 December 2023. These particulars included, but were not limited to, verbatim accounts of conversations and quotations from text messages. The plaintiff has not identified documents or material which contained allegations, the substance of which was not put to him in the letter of 2 December 2023. Accordingly, it has not been established that he was not afforded a reasonable opportunity to respond to the matter on which the CER Report was based.

101. Further and in any event, the CER Report, which contained a detailed analysis of the evidence for and against the allegations relied upon by the investigator, was provided to the plaintiff on 13 March 2023 together with all the relevant documentation. Thereafter, the plaintiff has been provided with several opportunities to respond to any of that information, before the Principal finalised her entity report. Indeed, the plaintiff still has the opportunity to respond to any such material, as the Principal’s entity report has not yet been finalised because of these proceedings. Thus, even if contrary to what has been said above, there were some relevant denial of procedural fairness as a result of information not being disclosed to the plaintiff prior to the CER Report being finalised, this would be cured as a practical matter by the subsequent opportunities that the plaintiff has had, and still has, to respond to that material.

Issue 3 - The CER investigator concluded that the plaintiff breached the College’s Code of Conduct which had no relevance

102. Also raised under the first ground of review was the issue that the CER investigator reached the conclusion that the plaintiff was in breach of the College’s Staff Code of Conduct by taking into account the fact that the Plaintiff had a sexual relationship with the complainant, who was never of student at the College, within three years of her leaving the other school. This was in effect contended to involve error because the complainant was never a student of the College and, thus, the plaintiff’s relationship with her cannot have been in breach of the College’s Staff Code of Conduct.

103. It is important in considering this issue to understand the context in which the CER investigator referred to the College’s Staff Code of Conduct. The CER Report noted, in relation to Allegation 2 – ill treatment, that:

“The OCG provides that in making a finding of ill-treatment, consideration should be given to relevant codes of professional conduct expected of employees and which will inform whether the conduct is unreasonable or improper”.

This statement was footnoted with a reference to the Children’s Guardian’s Fact sheet 8 which contains a statement to that effect.

104. The statement in the CER Report also reflected the fact that the definition of “ill-treatment” in s 23 of the CG Act includes “conduct towards a child that is unreasonable and … improper” and s 35 and s 40(3)(b) of the CG Act make it mandatory for an investigator, and the head of the relevant entity, to consider “whether the reportable allegation relates to conduct that is in breach of established standards applying to the employee of the relevant entity, having regard to … codes of conduct, including any professional or ethical codes” when conducting an investigation under s 34(1)(a). The standards of unreasonableness and impropriety applying to employees such as the plaintiff can be informed by having regard to a code of conduct such as the College’s Staff Code of Conduct.

105. The CER Report:

1. noted relevant aspects of the College’s Staff Code of Conduct concerning relationships between students and staff;

2. recorded the conduct that the evidence established was engaged in by the plaintiff towards, and with, the complainant while she was a student at the other school and within 3 years after she left that school;

3. stated that the Allegation 2 – ill treatment was sustained.

106. There was no suggestion that the CER Report proceeded on the incorrect basis that the complainant was a student of the College. The finding was not that the plaintiff had breached the College’s Staff Code of Conduct as a result of his conduct towards a student of the other school. Rather, when the CER Report is read fairly, as a whole, the College’s Code was relied on as a “code … of professional conduct expected of employees and which … inform[ed] whether the conduct is unreasonable or improper” for the purposes of determining whether the conduct amounted to or involved “ill-treatment”, for the purposes of considering Allegation 2 – ill treatment, which is consistent with ss 35 and 40(3)(b) of the CG Act.

107. There was, thus, no error or misuse of the College’s Staff Code of Conduct such as might vitiate the CER Report. There was no denial of procedural fairness or practical injustice to the plaintiff as a result of the reference to the College’s Code of Conduct in the CER Report as the plaintiff contended. Moreover, even if it were established that there were some error by the CER investigator in this regard, the plaintiff has had, and still has, the opportunity to make submissions and provide information on this topic and any others to the Principal before the entity report is finalised, so that any practical injustice has been effectively eliminated.

108. I reject the submission that the CER Report should be declared to be “void” or “of no effect” as a result of the reference to the College’s Staff Code of Conduct in the report.

Issue 4 - The CER investigator and the College and the Principal took into account previous unsubstantiated complaints

109. The next issue raised under the first ground of review was to the effect that the CER investigator, as well as the College and the Principal, took into account previous unsubstantiated complaints to support making findings about the reportable allegations in the present case. The relevant evidence relied on in this regard was:

1. the passage in the CER Report under the heading “Observations of repeated behaviour” where it was said:

“Mr Savet’s behaviour towards [the complainant] (that which can be sustained) might, at its lowest, be categorised as an ‘early career teacher who got it wrong’ but is similar to Mr Savet’s conduct that was investigated in 2022. Even though the conduct complained of in 2022 was not sustained, and we have not relied on those allegations or findings in determining the outcome of the present allegations, it suggests that Mr Savet favours and enjoys familiarity with individual female students”; and

2. the Principal’s statement in her letter of 14 March 2023, after referring to the previous unsubstantiated complaint, that she held “serious concerns that you will respect the trusted position of a teacher and act in accordance with the principles of child protection and professional boundaries”.

110. Contrary to the plaintiff’s submission, the CER investigator did not take into account the previous unsubstantiated complaint in 2022 in making her findings in relation to the reportable allegations the subject of the CER Report. The investigator who prepared the CER Report expressly stated “we have not relied on those allegations or findings in determining the outcome of the present allegations” and there is no basis at all for concluding that this was not an accurate statement of what occurred.

111. Furthermore, the reference to the previous unsubstantiated complaint in the CER Report must be understood in the context of an investigation under s 34(1)(a) and an entity report under s 36(1) of the CG Act. The paramount consideration in relation to decision making under the CG Act is the “safety, welfare and wellbeing of children, including protecting children from child abuse” by virtue of s 7 of that Act. Protecting children involves assessing the risks associated with persons who relevantly interact with children, including teachers such as the plaintiff. An assessment of such risks must be informed not only by offences which have been proved to have been engaged in by such persons or complaints against them which have been found to be sustained. The fact that a complaint was made, even if not substantiated, and the nature and circumstances of the complaint may give rise to a legitimate concern as to the risk posed by the person in question. The situation may be seen as analogous to the consideration of risk referred to in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523. In that case, Beech-Jones J (as his Honour then was) highlighted at [33] the relationship between unsubstantiated allegations and consideration of risk in consideration of child-welfare:

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

112. The CER investigator’s observation was that a previous unsubstantiated complaint in 2022 “suggests that Mr Savet favours and enjoys familiarity with individual female students”. Such a consideration should be seen as potentially relevant to an assessment of any risk posed by the plaintiff in relation to some of the children at the College. Reference to the previous unsubstantiated complaint in this context and for this purpose did not involve an error that would vitiate in some way the CER Report.

113. Similarly, the Principal’s comment in her letter of 14 March 2023 that she has “serious concerns” as to whether the plaintiff would act in accordance with the principles of child protection and professional boundaries should be understood as relating to the degree of relevant risk potentially posed by the plaintiff. In assessing such risk, it was legitimate, especially given the paramount consideration in the CG Act, for the Principal to take into account the fact that there had been a previous complaint, albeit found to have been unsubstantiated. In addition, the entity report has not yet been finalised and the plaintiff, being aware of the issue as a result of being provided with the CER Report and the letter of 14 March 2023, has been given the opportunity and still has the opportunity to make submissions and provide evidence to the Principal on this issue before any findings are made and any conclusions reached for the purposes of the entity report.

114. For these reasons, I do not accept that the reference to the previous unsubstantiated complaint in the CER Report would lead to that report being “void” or “of no effect”. Furthermore, a failure to accord procedural fairness in that regard, if it were found to have occurred, and any practical injustice were cured by the provision of the opportunity to make submissions and provide information in relation to those matters in the Principal’s letters of 23 February 2023 and 14 March 2023 and subsequent correspondence.

Issue 5 - The defendants found that Allegations 1 and 2 were sustained in their entirety whereas the CER Report found certain particulars of those allegations not sustained

115. The plaintiff also contended under the first ground of review that the College and the Principal sustained findings that were not sustained by the CER Report in that the Principal “determined to accept and sustain” allegations 1 and 2 “in their entirety” whereas the CER Report concluded that Allegation 1 particular 2(g), (h) and (i) and Allegation 2 particular 6(a), (b) and (c) were not sustained.

116. This issue appeared to be based on a misunderstanding of the Principal’s letters of 23 February 2023 and 14 March 2023. The CER Report found each of Allegations 1, 2 and 3 sustained but not each of the sub-particulars relating to each of Allegations 1 and 2. In particular, sub-particulars (g), (h) and (i) of particular 2 of Allegation 1 and sub-particulars (a), (b) and (c) of particular 6 of Allegation 2 were found to be not sustained due to lack of evidence.

117. The Principal’s letter of 23 February 2023 noted the findings in the CER Report, including those sub-particulars which were not sustained due to lack of evidence, and sought any written response from the plaintiff by 2 March 2023.

118. As noted above at [28], the Principal’s letter of 14 March 2023 contained the following:

“In order to properly progress this matter whilst ensuring you have an opportunity to provide all relevant information, I have determined to accept the findings made by CER. I note that this remains subject to any further information or evidence you provide on or before 23 March 2023.

Overall Findings

The particulars of the allegations and preliminary findings were set out in my letter dated 23 February 2023, and I have decided not to reproduce the bulk of that material again, but I have enclosed a copy of the letter for your ease of reference.

In respect to Allegation 1 – reportable conduct – sexual misconduct, I find the allegation sustained.

In respect to Allegation 2 – reportable conduct – ill-treatment, I find the allegation sustained.

In respect to whether or not you engaged in Professional Misconduct, that is, conduct that falls short of what is expected of a teacher; I find the allegation sustained.”

119. The findings made in her letter of 14 March 2023 by the Principal, “subject to any further information or evidence [the plaintiff may] provide on or before 23 March 2023”, were consistent with the findings in the CER Report and the substantiated particulars referred to in the Principal’s letter of 23 February 2023. The Principal was not saying that she found sub-particulars (g), (h) and (i) of particular 2 of Allegation 1 and sub-particulars (a), (b) and (c) of particular 6 of Allegation 2 to be sustained, contrary to the analysis in the CER Report.

120. Accordingly, this issue raised by the plaintiff was misconceived. Furthermore, as framed by the plaintiff, it was based on a discrepancy between the CER Report and what the plaintiff submitted the Principal had accepted. In these circumstances, it is difficult to perceive how this issue could provide a basis for concluding that the CER Report should be declared “void” or “of no effect”, as sought.

Other issues concerning the CER Report

121. As noted above, the other issues concerning the CER Report set out in par 47(c)-(f) and (i) of the amended summons were apparently not pressed or not pressed with any great vigour. In so far as this understanding was not correct, those issues can be addressed briefly as follows:

1. The contention in par 47(c) and (d) was in effect that the plaintiff was denied procedural fairness in that the CER letter of 2 December 2022 “contained allegations with little or no specific allegations of conduct and the date and time of the alleged conduct”. A review of the letter of 2 December 2022 shows that it contained a statement of the allegations in as detailed a form as the material available to CER reasonably required. Further, in his letter of 16 December 2022, the plaintiff provided specific responses to the particulars of the Allegations and did not contend that he could not respond adequately because of the lack of detail in the allegations except in relation to the “other students” referred to in particular 1(b) to Allegation 1 but who were not named. Viewed fairly and as a whole, the CER letter of 2 December 2022 and the plaintiff’s written response of 16 December 2022 establish that the plaintiff had a reasonable opportunity to respond to the allegations and did so. Finally, even if there were some denial of procedural fairness because of the lack of detail in the allegations, contrary to the above analysis, the plaintiff subsequently received all of the information relied upon by the CER investigator and the additional information from W4 and W5. He also has been given and still has the opportunity to respond to the CER Report and all other information before the Principal finalises her entity report, so that any denial of procedural fairness at the stage of the CER Report has been cured and there is no practical injustice.

2. Paragraph 47(e) contained the contention that the plaintiff was denied procedural fairness in relation to the CER Report because the CER letter of 2 December 2022 did not give the plaintiff “notice of the gravity and consequences of a finding of sustained reportable conduct could result in a cancellation of his [WWC] clearance by the Children’s Guardian”. Contrary to that submission, in my view, the CER letter of 2 December 2022 did give adequate notice, in the following terms:

“We note that these allegations are serious. If substantiated, they could result in disciplinary action taken against you, which may include the termination of your employment. If the allegation of reportable conduct – sexual misconduct is substantiated, the findings will be referred to the Working with Children Check Directorate of the Office of the Children’s Guardian.” (emphasis added)

3. Par 47(f) included the contention that the CER investigator demonstrated pre-determination or bias in the 2 December 2022 letter as a basis for concluding that the plaintiff was denied procedural fairness. In my view, the terms of the 2 December 2022 letter put it beyond reasonable dispute that there was no pre-determination or bias as contended by the plaintiff and there was no reason to conclude that the statements in that letter were not correct. In the 2 December 2022 letter:

1. the matters being investigated were consistently described as “allegations”;

1. it was expressly noted that “these allegations are serious. If substantiated, they could result in disciplinary action taken against you …” (emphasis added);

2. in the context of the plaintiff being invited to attend an interview or provide a written response, it was stated:

“Please note that your response will be genuinely considered, and the outcome of this matter has not been pre-determined.”

4. In par 47(i), the plaintiff contended that the CER investigator denied the plaintiff procedural fairness because she failed to put to him for response and comment: the College’s Code of Conduct; the previous complaint; and, the matters raised by the witnesses, including W4 and W5. The conduct the subject of the relevant allegations was adequately disclosed to the plaintiff in the 2 December 2022 so as to allow him a reasonable opportunity to respond. The College’s Code of Conduct, the previous unsubstantiated complaint and the matters raised by witnesses W4 and W5 have been addressed above and reference to them in the CER Report did not involve any denial of procedural fairness in the context of the present matter for the reasons already given.

5. Furthermore, even if any one or more of the matters raised above should be found to have involved a failure by the CER investigator to afford the plaintiff procedural fairness, in my view, any such failure has been cured by the opportunities that the Principal has provided to the plaintiff to put submissions and information to her for the purpose of her preparing the entity report. There was, as a result, no practical injustice suffered by the plaintiff in this case.

Conclusion on the first ground of review

122. For all these reasons, I am of the view that there has been no denial of procedural fairness suffered by the plaintiff in relation to the preparation of the CER Report or, if there were any such procedural unfairness, the failure to accord procedural fairness and any practical injustice have been more than adequately cured by the opportunities provided by the Principal to the plaintiff to make submissions and provide information for the purposes of her making findings and undertaking the analysis required to prepare the entity report to be provided under s 36(1) of the CG Act. Consequently, the first ground of review has not been made out and it is neither necessary nor appropriate to grant the declaratory relief sought.

Ground 2 – Actual bias on the part of the Principal

123. The second ground of review was to the effect that the Principal was actually biased and must recuse herself from the investigation as she had pre-determined that the plaintiff was guilty of reportable conduct and sustained the findings on the basis of irrelevant information. As a result, it was said that the Principal should be restrained by injunction “from being the decision maker in relation to any child protection investigation pursuant to the Children’s Guardian Act 2019 (NSW) in relation to the conduct of the Plaintiff between 1 February 2016 and 28 August 2019”.

Submissions

124. It was submitted on the plaintiff’s behalf that the Principal was actually biased. ^[2] This was said to be so because she had already made an unambiguous finding that the plaintiff was guilty of reportable conduct. In oral submissions, the conduct said to demonstrate actual bias was identified as the statement in the Principal’s 14 March 2023 letter to the plaintiff that “… I have determined to accept the findings made by CER.” Furthermore, it was contended that the rest of that letter showed that this was not a tentative finding, subject to the further consideration in light of other material, but a definitive conclusion. The passages from the 14 March letter relied on by the plaintiff in this regard were: ^[3]

     2. Tcpt, 25 July 2023, p 18(2).

     3. Tcpt, 25 July 2023, p 13(42) – p 14(16), p15(5)–(33).

1. the Principal’s statements that she found each of Allegation 1, Allegation 2 and the Professional Misconduct Allegation “sustained”;

2. the Principal’s reference to the previous complaint and her acknowledgement that, whilst no warnings about the plaintiff’s behaviour were given at the conclusion of that investigation, and the events of the allegations described in the findings of the CER investigation pre-date the events which were the subject of the previous complaint, nonetheless, that Principal said that it concerned her “that this is now the second time this type of behaviour has been reported to me”;

3. the Principal’s statement that she had “serious reservations” that the plaintiff could be trusted to maintain professional boundaries and uphold child protection protocols during his employment at the College in the future, given his responses to date;

4. the Principal’s statement that “[y]ou will be provided with an opportunity to provide your verbal responses to these matters and any mitigating factors you wish the College to take into account at the meeting”.

125. The relevant issue was summarised by Mr Latham of counsel, who appeared for the plaintiff, as follows: ^[4]

“One of the questions your Honour is going to have to determine in this is that are these findings preliminary findings subject to whatever might be put further by the plaintiff; or are they, in effect, ultimate findings with a door open to providing further material, in circumstances where the decision has already been made? That is really the fulcrum in this argument.

The use of the words ‘any mitigating factors’ of course, your Honour, in an employment context would obviously imply that the decision as to liability, if one can describe it that way or wrongdoing, has already been made and what one is being asked to do is provide mitigating material as to why the penalty shouldn't be as high as it might otherwise be.”

4. Tcpt, 25 July 2023, p 15(22)-(33).

126. The defendants submitted that an allegation of actual bias was a grave matter and would require the plaintiff to prove that the Principal was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented, citing Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.

127. More specifically, it was submitted that the references to the previous complaint and the expression of concern that this was the second time that such allegations had been reported were not improper and did not reach the level of prejudgment required to establish actual bias. The defendant also contended that the Principal’s preliminary findings as to the allegations being sustained were not inconsistent with the CER Report and were not otherwise a demonstration of prejudgment.

128. As to the contention that an “unambiguous finding” had already been made by the Principal that the plaintiff had engaged in reportable conduct, it was submitted that the relevant comments amounted to “the transparent disclosure of the findings that would be made if the Plaintiff provided no further material” and this served the requirements of procedural fairness.

129. Finally, it was submitted that the injunction sought by the plaintiff was not consistent with the scheme in Pt 4 Div 5 of the CG Act which required the head of the relevant entity to act promptly and did not envisage that the head of the relevant entity could be forced by injunction to exercise any power of delegation in the midst of conducting the process under Pt 4 of the CG Act.

130. On these bases, the defendants submitted the claim for injunction relief should be rejected.

Consideration

131. The plaintiff’s case that the Principal was actually biased was based principally upon the contents of the letter of 14 March 2023, read as a whole and in context. Relevant parts of that letter have been quoted above at [28].

132. The principles to be applied in determining whether a decision maker is actually biased were identified by Gleeson JA (Emmett and Tobias JJA agreeing) in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (Reid) at [68]-[74] and have been adopted in subsequent cases including Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [55] and Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [35]. Those principles relevantly include:

1. A finding of actual bias is a grave matter and should not be made lightly; it must be distinctly alleged and clearly proved by cogent evidence: Reid at [68];

2. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. The question is not whether a decision-maker's mind is blank but whether it is open to persuasion: Reid at [69] and [70] quoting Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [71] and [72];

3. There are three elements involved in concluding that a decision maker has prejudged an issue. First, the decision-maker must be found to have an opinion on a relevant aspect of the matter in issue in the particular case. It must be found, secondly, that the decision-maker would apply that opinion to the matter in issue and, thirdly, that the decision-maker would do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case: Reid at [71] adopting the analysis of Hayne J in Jia Legeng at [185].

4. Allegations of actual bias through prejudgment often fail at the third step because, notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded: Reid at [72];

5. The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the decision-maker in question but actual bias need not be confined to an intentional state of mind; it may be subconscious, provided it is real: Reid at [73].

133. Furthermore, absence of bias, as an element of natural justice, does not require the absence of any predisposition or inclination for or against an argument or conclusion: Jia Legeng at [72].

134. In my view, when the letter of 14 March 2023 is read as a whole, in the context of what had occurred previously and the obligation on the Principal to act promptly in accordance with the CG Act, I am not persuaded that the Principal displayed actual bias, as the plaintiff contended.

135. While it is true that the introductory paragraphs of that letter included the words “I have determined to accept the findings made by CER”. They must be considered in context. The immediate context of those words was that, in the same sentence, it was explained that such an approach was being taken “[i]n order to properly progress this matter whilst ensuring you have an opportunity to provide all relevant information”. Further, those words were immediately followed by the sentence “I note that this [the Principal’s acceptance of the findings made by CER] remains subject to any further information or evidence you provide on or before 23 March 2023.” The date 23 March 2023 was the date mentioned in the preceding paragraph of the letter which stated, inter alia:

“On 23 February 2023, you were provided with preliminary findings and given a further opportunity to provide more evidence to support your previous statement. You have not yet provided a response but rather, via your legal representative, sought access to documents related to the investigation and sought further time to provide additional information by 23 March 2023. I have agreed to that course of action, and the relevant documentation was provided to your legal representative on 13 March 2023.”

136. In my view, the plain and natural reading, as well as the correct understanding, of this part of the letter was that the Principal was indicating to the plaintiff that, if he did not provide additional information or submissions, she was minded to accept the findings in the CER Report. The Principal was not indicating that, whatever additional information or submissions the plaintiff might provide, her mind was made up and that she was not open to persuasion.

137. In so doing, the Principal was seeking to progress the matter while according the plaintiff procedural fairness by explicitly putting the plaintiff on notice of her tentative conclusions so that he would have a proper opportunity to address those tentative conclusions and the material and analysis on which they were based. It did not follow from the statement of the Principal’s tentative conclusions that any information or submissions that the plaintiff put to her would be disregarded. Indeed, the proper inference is that any such information or submissions would receive due consideration.

138. The subsequent paragraphs in the letter of 14 March 2023 identified the particular “preliminary findings” in the CER Report which the Principal accepted and were merely designed to provide specificity in relation to the findings made by CER which the Principal said that she had determined to accept “subject to any further information or evidence you provide on or before 23 March 2023”.

139. In addition, the Principal’s references to the previous complaint and that the fact that she was concerned “that this is now the second time this type of behaviour has been reported to me” and she had “serious concerns” that the plaintiff could be trusted to maintain professional boundaries and uphold child protection protocols during his employment were similarly aimed, in my view, at putting the plaintiff squarely on notice as to the potential findings that might be made against him, not so much in relation to whether the Allegations were sustained, but rather in relation to the risk posed by the plaintiff. This conclusion is supported by the fact that the letter included the following comments:

“As such, and subject to your responses to the CER findings, I am considering the termination of your employment for the above reasons.”

and

“You will be provided with an opportunity to provide your verbal responses to these matters and any mitigating factors you wish the College to take into account at the meeting [on 23 March 2023]”.

140. The Principal was required to consider these matters, as indicated by s 37(1)(d)(i) and (iv), and (e) of the CG Act. Consequently, putting these matters to the plaintiff in these forms was a proper way in which to accord him procedural fairness.

141. Having regard to the relevant principles in relation to actual bias and the gravity of the matter alleged, the text and context of the letter of 14 March 2023 and the particular facts and circumstances of this case, I do not accept that this letter involved “ultimate findings with a door open to providing further material, in circumstances where the decision has already been made”, to adopt Mr Latham’s formulation. In my view, in this letter, the Principal was very properly putting the plaintiff on notice of her preliminary findings, while maintaining an open mind amenable to persuasion in the light of any further information and submissions that the plaintiff might wish to put to her. Nothing in the subsequent correspondence between the parties or their legal representatives caused me to reach a different conclusion.

142. For these reasons, I reject the second ground of review. Accordingly, the claim for injunctive relief should be dismissed.

Costs

143. The defendants have been entirely successful and I am not aware of any circumstances that would render it inappropriate to order otherwise than that costs should follow the event.

Orders

144. For the reasons set out above, the orders of the Court are:

1. The plaintiff’s amended summons filed on 19 May 2023 is dismissed.

2. The plaintiff is to pay the defendants’ costs as agreed or assessed.

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Endnotes

Decision last updated: 29 August 2023