Singleton v Boston

[1999] NSWSC 1152

CITATION:	Singleton v Boston & Ors [1999] NSWSC 1152
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	030119/98
HEARING DATE(S):	4 November 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	Peter Singleton (Plaintiff) Kenneth George Boston (First Defendant) Steve Buckley (Second Defendant) Gillian Shadwick (Third Defendant)
JUDGMENT OF:	Bell J at 1

COUNSEL :	C Porter QC/H Bauer (Plaintiff) P Menzies QC/R Horsley (Defendants)
SOLICITORS:	MacMahon Associates (Plaintiff) A Murphy (Defendants)
CATCHWORDS:	PRACTICE - Stay of proceedings - Whether delay and loss of documents preclude opportunity of fair hearing - Abuse of process - Whether proceedings unjustifiably oppressive
ACTS CITED:	Teaching Services Act 1980 Education Commission Act 1980 Teaching Services (Education Teaching Service) Regulation 1994 Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996 Medical Practitioners Act 1938
CASES CITED:	Matkevich v NSW Technical and Further Education Commission [No 3] unreported NSWCA 2 February 1996 Walton v Gardiner (1993) 177 CLR 378 Smith v Boston & Ors [1999] NSWSC 1116 Kioa v West (1985) 159 CLR 550 O'Reilly v Mackman [1983] 2 AC 237 Jago v District Court of New South Wales (1989) 168 CLR 23 Gill v Walton (1991) 25 NSWLR 190 Herron v McGregor (1986) 6 NSWLR 246
DECISION:	See para 109

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

BELL J

Wednesday, 15 December 1999

030119/98 - PETER SINGLETON v KENNETH GEORGE BOSTON & ORS

JUDGMENT

HER HONOUR:

Introduction

1 By Amended Summons filed on 23 March 1999 the plaintiff claims orders having the effect of permanently staying the prosecution of a charge of breach of discipline contrary to s 83(f) of the Teaching Services Act 1980 (“the Act”) set out in a Notice of Charge dated 10 July 1998 as amended by Notice dated 2 March 1999.

2 The plaintiff is a teacher in the employ of the Education Teaching Service. The first defendant is the Director-General of Education and Training. The second defendant is an Assistant Director-General of the Department of School Education (“the Department”) being the prescribed officer appointed pursuant to s 84 (1) of the Act to deal with the charge brought against the plaintiff. The third defendant is an Assistant Director-General of the Department. She brings the charge against the plaintiff.

3    The misconduct the subject of the charge relates to events in May 1987. The plaintiff is said to have engaged in inappropriate touching of a number of primary school children whilst he was their supervisor at a residential camp.

4 The subject matter of the charges was, in general terms, brought to the attention of the Department in May 1987. The plaintiff was interviewed at that time and an investigation was conducted. He was relieved of teaching duties during the currency of the investigation. A charge of breach of discipline was preferred against him pursuant to s 83(f) of the Education Commission Act 1980 (as the Act was then titled) alleging that he had engaged in disgraceful or improper conduct. That matter was listed for hearing on 8 December 1988. The plaintiff signified his intention of defending the matter. The charge was withdrawn prior to hearing.

5    In August 1997 the plaintiff became aware that the Department was reinvestigating the 1987 allegations and in July 1998 a fresh charge of breach of discipline was brought against him.

6    By these proceedings the plaintiff seeks to stay the further prosecution of this charge upon two grounds:

(i) the lengthy delay in instituting the present proceedings has deprived him of the opportunity of a fair hearing; and
(ii) the revival of charges arising out of the same set of events as the subject of the discontinued proceedings is in all the circumstances oppressive.

7    The matter came on for hearing before me on 4 November 1999. Mr Porter QC and Mr Bauer appeared for the plaintiff. Mr Menzies QC and Mr Horsley appeared for the defendants.

8    In the plaintiff’s case two affidavits sworn by Mr P A MacMahon, the plaintiff’s solicitor, were read. To those were annexed a number of documents including correspondence passing between Mr MacMahon and officers of the Department concerning the charges. The plaintiff gave oral evidence. The affidavit of William Jardine, Principal Investigator with the Department’s Case Management Unit, sworn on 2 March 1999 was read in the defendants’ case. Mr Jardine gave supplementary oral evidence and was cross-examined. A bundle of papers described by Mr Menzies as “the departmental file” was tendered in the defendants’ case; Ex 1. The papers submitted by the Department to the prescribed officer in support of the charge were also tendered in the defendants’ case; Ex 2.

The Facts

9    In May of 1987 the plaintiff was employed as a teacher at the Broken Bay School for Specific Purposes. That school operated residential camps for children drawn from a number of primary schools. Children from the Brookvale, Clovelly and Normanhurst Primary Schools attended a week long camp commencing on 18 May 1987. It was the plaintiff’s responsibility to supervise the children assigned to a dormitory which was named “Magpie Lodge”. The dormitory contained a number of double bunks. The plaintiff’s bedroom was located at the end of the dormitory.

10    The plaintiff gave massages to some of the children who attended this camp. It appears that he had done so with other groups of children on previous occasions. He had undertaken a course in massage offered by the Department as part of inservice training. It is not suggested that the Department through instruction offered at this course, or in any other context, conveyed that teachers should offer massages to primary school children. However, the plaintiff believed that giving massages to the children might relax them and settle them for the night’s sleep. The children were aged 9 and 10 years.

11    The plaintiff has at all times been open in admitting to massaging children under his care. It is his account that there were no sexual overtones to the massages which did not include touching the bottoms or genital areas of the children.

12    The plaintiff cuddled some of the children. This was done in the case of a few homesick children.

13    The plaintiff hopped up on the bunks of some of the children in the mornings when he was trying to get them out of bed.

14    On 19 May 1987 at around 6.30 pm the plaintiff was spoken to by Mr Russell, the Principal of the Broken Bay School. Mr Russell had received a complaint from a fellow teacher, Paul Lester, concerning the plaintiff’s conduct.

15    The Department’s file contains some handwritten notes, dated 19 May 1987, which appear to be a record of Mr Russell’s discussion with the plaintiff. During that interview the plaintiff agreed that he had massaged children in Magpie Lodge but disagreed that the massage had included touching their bottoms. He appears to have agreed that he had got into bed with children in the mornings and that he had given them cuddles. He agreed that he had wrestled with children in his own room on the bed. He denied various other matters.

16    Following this interview the plaintiff was placed on compensatory leave and relieved of his duties at the school. The Department commenced an investigation of the plaintiff’s conduct. The Department of Youth and Community Services was notified of the complaint and officers of that Department interviewed some of the children.

17 By letter dated 4 January 1988 the plaintiff was notified of a charge brought against him pursuant to s 83(f) of the Education Commission Act 1980 alleging that he had engaged in disgraceful and improper conduct. Particulars of that charge alleged that in the period between 18 May 1987 and 22 May 1987 at Magpie Lodge he had:

· massaged a pupil, AZ, on the back lifting his pyjama shirt and pulling down his pyjama pants and massaging his bottom;

· massaged a pupil, SW, on the back and pulled down his pyjamas and massaged his bottom. It was alleged that the plaintiff had got into bed with SW and placed his hand upon SW’s shoulder;

· got into bed with a pupil, DW;

· massaged a pupil, DO, on the back;

· got into bed and hugged a pupil, RH;

· massaged a pupil, LS;

· attempted to get into bed with a pupil, MD.

18    The plaintiff was directed to advise the Department within fourteen days as to whether he admitted or denied the truth of the charges laid against him. By letter dated 25 January 1998 the plaintiff’s solicitors advised the Department of the plaintiff’s response to the particulars of the charge. In general terms he admitted massaging pupils but denied touching them on their bottoms. As to the allegation that he had got into bed with various of the pupils the plaintiff denied getting under the covers of the beds of any of the children. He indicated that he was not able to remember the student RH but admitted that he may well have hugged him in an effort to console him and help him overcome homesickness.

19    The plaintiff gave evidence that there had been a police investigation into the allegations. He was interviewed by a detective in late November or December of 1988. He was informed that the police did not intend to pursue the matter further.

20    The prescribed officer appointed to determine the charge of breach of discipline elected to hold an inquiry into the matter.

21    The inquiry was fixed for hearing on 8 December 1988. On 5 December 1988 Mr Horton, the departmental officer with carriage of the matter, advised the plaintiff’s solicitors that he had received instructions to withdraw the charge. On 7 December 1988 Mr G Comino, Assistant Director Personnel, wrote to the plaintiff advising him that the disciplinary charge had been withdrawn. In that letter the plaintiff was warned that his actions had been unwise, indiscreet and naïve. It was noted that such actions may be easily misunderstood and were liable to be misinterpreted by the children and their parents. The plaintiff was directed not to have any direct physical contact with pupils in the future.

22    The plaintiff was required to attend an interview with Mr Comino at the Department’s Head Office on 8 December 1988. He attended that interview. In the course of it he was counselled not to engage in any physical contact with children.

23    The plaintiff said in evidence that after the charge was withdrawn a man named Bob Nicholls, who was then either the Director or the Assistant Director of the North Regional Office, spoke to him at that office and said, “Here’s the file”. Mr Nicholls proceeded to shred the file in the presence of the plaintiff. The plaintiff presumed that the documents being shredded related to the allegations which had been made against him.

24    As at 1987 the plaintiff did not consider his actions in massaging primary age school children, giving them cuddles and hopping up on their bunks with them was inappropriate. He says that he would not now so conduct himself.

25    The plaintiff resumed teaching duties at the beginning of 1989 at the Marayong Public School. He remained at that school for six years. He was then transferred to the Seven Hills Public School. Thereafter he was promoted to the position of Executive Teacher at the Shelley Public School.

26    Sometime after the charge was withdrawn portions of the file maintained by the plaintiff’s solicitors, including the plaintiff’s instructions concerning the May 1987 allegations, were destroyed in the ordinary course.

27    In July of 1997 the Department appears to have commenced a fresh investigation of the allegations concerning the plaintiff’s behaviour at the Broken Bay School’s Magpie Lodge in 1987. This investigation was commenced by District Superintendent Graham Kennedy. Subsequently, Mr Jardine took over the conduct of the investigation.

28    On 5 August 1997 the plaintiff was advised by letter signed by Ms Blackadder, Chief Investigator of the Department’s Case Management Unit, of allegations that he had engaged in improper conduct including conduct that could amount to conduct of a sexual nature with a student during the period 11 May 1987 to 22 May 1987 at the Broken Bay Sports and Recreation Centre. The plaintiff was directed to provide a written response to the allegations within fourteen days. The allegations contained in Ms Blackadder’s letter were expressed in the most general of terms and did not particularise specific instances when the plaintiff was said to have misconducted himself. It is to be noted that the allegations covered a broader period, namely 11 May to 22 May 1987, than had been the subject of the initial, discontinued, charge.

29    The plaintiff was removed from teaching duties and assigned to work in the Department’s Property Section at Blacktown.

30    By letter dated 20 August 1997 the plaintiff’s solicitor wrote to Ms Blackadder seeking particulars of the allegations. There appears to have been no response to that request and on 9 February 1998 the solicitor renewed his request. On 16 March 1998 the third defendant wrote to Mr MacMahon apologising for the delay in the Department's response to his request for further particulars. In that letter the third defendant advised that the allegations put to the plaintiff on 5 August 1997 were withdrawn and the plaintiff’s response was requested to a series of eight allegations. Allegations 1 and 2 alleged misconduct in the period 11 May to 15 May 1987 involving a student, SI, and another student, TH. Allegations 3-8 inclusive raised the very matters that had been the subject of the charges which were withdrawn in December 1988.

31    In relation to the first two allegations it is to be observed that with respect to the student SI it was contended that the plaintiff had massaged his shoulders and chest and said words to the effect, “Do you want me to go down your shorts as well?” and thereafter proceeded to massage the student under his shorts. The particulars as supplied in March 1998 did not assert that the plaintiff had touched SI’s penis or scrotum. As to the student TH it was alleged that the plaintiff had got into bed with TH, cuddled him and “touched the student’s genitals”.

32    Mr MacMahon responded to the third defendant’s letter by letter dated 25 March 1998 setting out the history of the matter and drawing attention to the circumstance that a number of the allegations had been the subject of a charge which had been withdrawn.

33    On 5 June 1998 the third defendant advised that she had determined to take no further action with respect to allegations 3-8 inclusive and that a charge was then being drafted with respect to allegations 1 and 2.

34 By letter dated 10 July 1998 under the hand of the third defendant the plaintiff was notified of a charge brought pursuant to s 83(f) of the Act alleging that he had engaged in improper conduct. That charge was particularised by reference to the allegation concerning the students SI and TH. It is to be noted that the particulars alleged with respect to SI now included an allegation that the plaintiff had touched the student’s penis and scrotum with his hand. The particulars relating to the allegations made by the student TH were in similar terms to those notified in the Department’s letter of 16 March 1998.

35 By letter dated 1 December 1998 the plaintiff’s solicitors were advised that the second defendant had been appointed by the first defendant as the prescribed officer to deal with the charges brought against him. Having considered both the charge and the plaintiff’s response the second defendant had determined to deal with the charges pursuant to cl 15(2)(a) of the Teaching Services (Education Teaching Service) Regulation 1994.

36    On 14 December 1998 the plaintiff commenced the present proceedings.

37    On 2 March 1999 the third defendant advised the plaintiff’s solicitors of an amendment to the charge. She explained that the amendments were intended to bring before the prescribed officer the events that took place at the first camp from 11 May to 15 May 1987 and the second camp from 18 May to 22 May 1987. The charge as amended repeats the allegations concerning the students SI and TH who both attended the first camp. Additionally, the third defendant relies on allegations concerning the students AZ, SW, DW, DO, RH, LS and MD, each of whom was the subject of the earlier charges which were withdrawn. These students were at the second camp. Allegations are made concerning three children, LS, CO and BK. These allegations also relate to the second camp. It is clear from a review of the materials forming part of the Department’s file (Ex 1) that the allegations concerning LS, CO and BK were investigated in 1987.

Disciplinary Charges - The Statutory Scheme

38 Section 83(f) of the Act provides that an officer of the teaching service who engages in any disgraceful or improper conduct is guilty of a breach of discipline. A breach of discipline is to be dealt with by the Director General of Education or a prescribed officer: s 84(1). The second defendant is an Assistant Director General of the Department of Education and a prescribed officer for the purposes of s 84(1). He has been appointed as the prescribed officer to deal with the charge brought against the plaintiff. Section 84(2) provides that the Regulations may make provision with respect to the manner of dealing with alleged breaches of discipline.

39 Clause 15 of the Teaching Services (Education Teaching Service) Regulation 1994 provides that if a member of staff denies the truth of a disciplinary charge the disciplinary authority (in this case the prescribed officer) may deal with the charge in one of two ways:

(a) by directing the member of staff to furnish an explanation in writing within such time (being at least 14 days) as is specified in the direction; or
(b) by conducting an inquiry.

It is to be noted that cl 15(3) provides that in the event the prescribed officer takes action under cl 2(a), namely by directing the member of staff to furnish an explanation in writing, he or she may make a finding after considering the reports and any explanation. Alternatively, at that point, the prescribed officer may decide to deal with the matter by conducting an inquiry.

40    In cases where it is determined to conduct an inquiry the prescribed officer must give written notice to the member of staff of the time, date and place at which the inquiry is to be conducted. The prescribed officer may call on any person to appear and give evidence, and to produce documents, at the inquiry. The member of staff may be represented by a barrister, solicitor or agent.

41 Where the prescribed officer finds that the member of staff has committed the breach of discipline charged, s 85 of the Act sets out the range of punishments which may be imposed. The prescribed officer may, upon finding a breach to have been committed, recommend to the Director General that the member of staff be dismissed from the teaching service or that he or she be required or allowed to resign. The Director General may act on such a recommendation or decide to impose one of the lesser punishments set out in s 85(1).

42 A member of the Education Teaching Service may appeal against the decision, or decision to make a recommendation, to impose a punishment pursuant to s 85(1) (other than a decision to caution or reprimand) to the Government and Related Employees Appeal Tribunal pursuant to s 24 of the Government and Related Employees Appeal Tribunal Act 1980. Alternatively, an officer dismissed from the teaching service following an adverse finding by a prescribed officer may apply to the Industrial Commission pursuant to s 84 of the Industrial Relations Act 1996 claiming that the dismissal is harsh, unreasonable or unjust.

43 The second defendant made a determination on 1 December 1998 to deal with the charge pursuant to cl 15(2)(a) of the Teaching Services (Education Teaching Service) Regulation 1994. This was a determination to deal with the matter by directing the member of staff to furnish an explanation in writing. There is no suggestion that the amendment of the particulars of the charge notified by the third defendant’s letter of 2 March 1999 has caused the prescribed officer to review his determination.

44    In Matkevich v NSW Technical and Further Education Commission [No 3] unreported NSWCA 2 February 1996 the court dealt with a challenge to the exercise of the prescribed officer’s discretion to deal with a disciplinary charge upon the written reports. It was contended that, in the light of the nature and seriousness of the allegations, procedural fairness required that the appellant be given a right to cross-examine and test witnesses. One of the charges against the appellant alleged that he had sexually harassed a student. That submission was rejected. Cole JA observed:

“Once it is accepted that a discretion to hold an inquiry or not exists as a matter of law, and that there was no procedural unfairness in relation to the exercise of that discretion, it cannot be said that the factual circumstances are such as to remove the right to exercise the discretion in the manner which occurred. So to hold would be to rewrite the regulation” (at 14).

45    I was informed by the parties that the Court of Appeal has reserved judgment in a matter of Hill v Buckley in which further consideration has been given to this aspect of the decision in Matkevich.

46 In the light of the decision in Matkevich no issue as to the exercise of the second defendant’s discretion to proceed upon the written reports pursuant to cl 15(2)(a) of the Act was pursued in the proceedings before me.

Jurisdiction

47 Mr Porter submitted that the power to grant the plaintiff the relief he seeks is analogous to the Court’s power to supervise disciplinary proceedings before the Medical Tribunal; Walton v Gardiner (1993) 177 CLR 378. I note that similar orders to those which the plaintiff here claims were sought by the plaintiff in Smith v Boston & Ors [1999] NSWSC 1116. In that case Sperling J approached the matter upon the basis that the statements of principle in Walton (concerning stays of proceedings on abuse of process grounds) were applicable to disciplinary proceedings under the Teaching Services Act (paragraphs 61 - 63).

48    The first and third defendants were also defendants in Smith. I was informed by Mr Menzies, who appeared for the defendants in Smith that he did not take issue with the Court’s jurisdiction to grant the relief sought in that case. That was not his stance in the proceedings before me. In written submissions it was put this way:

“While there are similarities between those cases ( Herron v McGregor (1986) 6 NSWLR 246, Walton ) and this, those similarities are superficial. In those cases the courts were exercising their inherent jurisdiction to prevent abuse of the process of inferior courts, and of (court-like) tribunals. The very concept of ‘abuse of process’ suggests courts and court-like bodies. It has never been suggested that the supervisory jurisdiction extends to bodies, such as the department or the prescribed officer, making more informal inquiries.
This is a case of an employer dealing with its employee. The Director-General or his prescribed officer are not obliged to act judicially. This case does not involve any tribunal, whose process may be abused and is subject to the supervisory jurisdiction of this court. Therefore the power invoked in the cases referred to above does not apply to this case. The plaintiff seeks to stop the investigation at an earlier stage.”

49    I do not understand the sense in which it is suggested that the prescribed officer is “making more informal inquiries” nor what is intended by the submission that the prescribed officer is not obliged to act judicially.

50 The investigation of the alleged breach of discipline has been completed. In accordance with the scheme provided by the Teaching Services Act a charge, properly particularised, has been preferred and the matter is now in the hands of the prescribed officer for determination. The prescribed officer has a duty to act fairly; Kioa v West (1985) 159 CLR 550; see too O’Reilly v Mackman [1983] 2 AC 237 per Lord Diplock at 276. In order to discharge that duty he must accord the plaintiff an opportunity to make answer to the case brought against him.

51    It was Mr Porter’s submission that the plaintiff has been deprived, having regard to the length of delay in bringing the charge, of the ability to fairly respond to the allegations made against him. That is so whether he makes his response in writing or at an inquiry. Whether the second defendant determines to deal with the disciplinary charge pursuant to cl 15(2)(a) or 15(2)(b) Mr Porter submitted the jurisdiction of this Court to restrain the proceedings on abuse of process grounds exists having regard to the decision of the court in Walton.

52 In Walton the majority held that the court’s supervisory jurisdiction extended to the power to stay proceedings before the Medical Tribunal on the ground of abuse of process: per Mason CJ, Deane and Dawson JJ at p.392 Their Honours rejected the submission that the jurisdiction to stay on the grounds of abuse is confined to cases where the court is satisfied that any hearing before the Disciplinary Tribunal would necessarily be unfair or where the proceedings have been brought for an improper purpose. Where the continuation of proceedings would involve unacceptable injustice, in the sense of being unjustifiably oppressive, the court might order a stay. In the latter regard their Honours (at p.394) cited the observations of Deane J in Jago v District Court of New South Wales (1989) 168 CLR 23 at 58:

“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.”

53    Mr Porter relied both on actual prejudice occasioned by the long delay in bringing the present proceedings and on that category of unjustifiable oppression to which Deane J referred in Jago in the passage set out above. As to actual prejudice he relied on the following matters:

· The loss of the plaintiff’s contemporaneous account contained in instructions given to his solicitors some time prior to December 1988.

· The plaintiff now has no recollection of the individual pupils the subject of the particularised complaints.

· The Department’s own file is incomplete.

· There was a police investigation into the May 1987 allegations. No record of the extent and nature or outcome of that investigation is known.

54    As to the submission contending that the bringing of the charge is unjustifiably oppressive Mr Porter submitted that although not framed in identical terms to the withdrawn 1988 charge in substance it raises the same matters.

55 I consider that this Court does have the power to grant the plaintiff the relief he seeks in the light of the decision in Walton. The principles which inform the Court’s supervision of disciplinary proceedings against doctors brought under the Medical Practitioners Act 1938 (now the Medical Practice Act 1992) seem to me to apply with equal force to the statutory scheme for the discipline of teachers provided under the Teaching Services Act. The second defendant is charged with the duty of determining whether or not the plaintiff has been guilty of a breach of discipline within the meaning of s 83(f) of the Act. It does not seem to me that the question of whether the proceedings are the subject of supervision by this Court should depend upon whether he determines to hold an inquiry pursuant to cl 15(2)(b) of the Teaching Services (Education Teaching Service) Regulation 1994 or to deal with the matter on a review of written reports pursuant to cl 15(2)(a).

The Lost Documents

56    It was Mr Porter’s submission that documents relating to the initial investigation in 1987/88 are missing from the Department’s file. In particular he points to the fact that there are no contemporaneous statements taken from the children (or the parents of the children) or staff at the Broken Bay School for Specific Purposes. The matter was prepared for a hearing on 8 December 1988. It was not until 5 December or shortly before that a decision was made to withdraw the charge. It was submitted that it was inconceivable that the Department would have approached within three days of an inquiry without statements from prospective witnesses.

57    Mr Menzies did not concede that the Departmental file was in any relevant respect incomplete. It was on his submission mere conjecture to contend that there had been statements or other relevant materials which had since been lost or destroyed.

58    Mr Jardine gave evidence concerning his knowledge of the history of the departmental file, Ex 1. He explained that it comprised papers which were collected in 1996. In that year papers of this description (which I took to be a reference to investigations of allegations of misconduct) were centralised within the Case Management Unit. Prior to this time they had been held at the regional offices. Mr Jardine was not able to indicate with certainty from which Regional Office these papers had come. However, he pointed to a stamp on one document from the Metropolitan North Regional Office.

59    In cross-examination it was put to Mr Jardine that the Department would not have “gone into bat” at an inquiry without having statements from the boys which were said to be the evidence against the teacher. Mr Jardine said he thought it would be unlikely but he had no knowledge of the procedure. I understood him to be saying that he was not aware of what procedures were adopted by departmental officers as at 1987/88. In his own experience he obtains statements.

60    Mr Jardine agreed that he thought there would have been a file. It was possible that it had been shredded or destroyed. His predecessor, Mr Kennedy, had attempted to find the old file but had not been able to do so. The papers comprised in Ex 1 are all the papers that were located.

61    Mr Jardine was not able to offer any explanation as to why the 1988 charge had been withdrawn.

62    Mr Porter invited me to draw two inferences from this body of evidence. Firstly, that the file Ex 1 is either incomplete or not the only file maintained by the Department concerning the 1987 allegations and that a number of documents, including statements taken from the children, have been lost or destroyed. Secondly, that the charge in 1988 was withdrawn for good and sufficient reason.

63 Ex 1 comprises some correspondence passing between Departmental officers and the plaintiff and/or his solicitors in 1988. There are copies of reports submitted by officers attached to the Department of Youth & Community Services concerning interviews carried out by them with the children the subject of the allegations. These reports contain a summary

in each case of the child’s account. There are also various handwritten notes apparently made by one or more departmental officers connected with the investigation.

64    There is no reference in Ex 1 to statements having been taken from any of the children. I note that among the handwritten file notes contained in Ex 1 are notes dated 13/10/88. Those appear to be notes of an interview between a departmental officer and Robert Steuart, District Officer. On the same page are notes which may record an interview between the departmental officer and RH, LS and SF. Next to RH’s name appears a notation “recall very little” (report refreshes) very hazy”. That might lend some support to the view that statements were taken from the children in anticipation of the inquiry then listed for 8 December 1988 and that the same have since been lost or destroyed. However, I do not think I can infer that is the case as a matter of probability. I think it more likely that this note records Mr Steuart’s account of the allegations made to him by the three boys.

65    The children were aged between 9 and 11 years at the time of these events and it may be that it was considered inappropriate to interview them on more than one occasion about the matter. There are some indications in the handwritten notes contained in Ex 1 which suggest that those preparing the matter for the inquiry had it in mind to call the officers from the Department of Youth & Community Services who had interviewed the children. The prescribed officer was not bound by the rules of evidence and it may be that the officer with the carriage of the matter proposed to rely on the evidence of the District Officers in combination with the plaintiff’s admissions made to Mr Russell during the interview conducted on 19 May 1987.

66    I do not find that there were statements taken in 1987/88 from the children which have been lost or destroyed. However, I think it right to infer that Ex 1 is not the complete Departmental file relating to the investigation of the 1987 allegations against the plaintiff. There are, for example, no reports, internal memoranda or the like recording the advice and subsequent decision to withdraw the charge against the plaintiff. The file does not include two letters written by the mother of SI complaining about the plaintiff’s conduct or any other contemporary account of the terms of her complaint (or the complaint made by the mother of TH). This is a significant matter to which I will return.

67    I accept the plaintiff’s account that Mr Nicholls shredded some material said to relate to these allegations in late 1988 after the charge had been withdrawn. The plaintiff did not inspect the material and is not able to say what it was. The matter remains unclear.

68    Mr Porter submitted that the current allegations arise out of the matters the subject of the 1987 investigation. The present charge includes allegations that the plaintiff touched two boys, SI and TH, on the genital area. Mr Porter submits that these allegations are closely associated with the allegations the subject of the proceedings which were discontinued. He contended either they were investigated in 1987/88 (and the Departmental records lost) or that they should have been since the Department was on notice of them.

69    To assess this submission it is necessary to look at the evidence concerning the nature and scope of the 1987 investigation.

The 1987/88 Investigation

70    On Tuesday 19 May 1987, Bob Russell, Principal of the Broken bay School, was contacted by Paul Lester and advised that complaints had been received concerning the plaintiff. Paul Lester was a teacher at Blaxland Primary School. At about 6.35pm Mr Russell confronted the plaintiff in his office and took him through the allegations. It seems reasonable to assume that Mr Russell put to the plaintiff each of the allegations of which he had been notified. His record of the interview with the plaintiff suggests that those were as follows:

· Massaging children in Magpie Lodge on the back, front and bottoms (the plaintiff appears to have admitted massages to the fronts and backs of children but denied massages to the bottoms).

· Getting into bed with the children in the mornings and giving them cuddles (the plaintiff appears to have agreed to this).

· Making unsavoury comments about penis size when the children were showering or changing (the plaintiff appears to have denied this).

· Wrestling with children in his own room on the bed (the plaintiff appears to have agreed to this).

· Exposing himself to children from around the corner while he was taking a shower (the plaintiff denied this).

71    It is to be noted that as at the evening of Tuesday 19 May 1987 Mr Russell does not appear to have been put on notice by Mr Lester of any allegation that the massaging of the children had included in any instance explicit touching of the child on the penis or scrotum.

72    Mr R Steuart, District Officer attached to the Department of Community Services Ryde Office, prepared a report dated 25 June 1987 in which he recorded the results of his interviews with RH, LS and a child SF concerning their observations of the plaintiff at the Broken Bay Camp. Mr Steuart details in that report that a child at risk notification had been received at the Ryde Office on 26 May 1987. In the introductory remarks to his report he outlines the background including the allegations made against the plaintiff. The account of the allegations is consistent with those put to the plaintiff by Mr Russell on 19 May. From this I infer that as at 26 May 1987 (when the child at risk notification was made) there was no allegation that the plaintiff had touched any child on the penis or scrotum.

73    Mr Steuart’s report contains the following account of the interviews with RH, LS and SF:

“[A]bout 7.00am on Tuesday, 19.5.87, Mr Singleton had gotten into bed with him, as RH was homesick and had been crying. Mr Singleton had allegedly hugged RH and told him that everything would be alright, and if he needed comforting, he could come and see Mr Singleton in his room. RH stated that he did not feel uncomfortable about Mr Singleton’s actions, and felt better afterwards. At the time that this incident allegedly took place, there were other boys in the dormitory getting dressed in preparation for the day’s activities. RH stated clearly that there was no other incident between himself and Mr Singleton. …
[LS] advised that Mr Singleton had offered to massage the boys’ backs and he, in fact, had had his back massaged by Mr Singleton. LS did not consider that this was inappropriate at the time, and felt quite comfortable about this.
[SF advised he was not] approached by Mr Singleton in any inappropriate manner.”

74    A report prepared by Mr Cauchi, District Officer, Bondi Office of the Department of Youth & Community Services, on 16 June 1987 records his interviews with the parents of the children MD, LS, CO and BK. He notes that:

“The parents consistently said that their sons complained of four things:
(1) there was a beach but we were not allowed to swim,
(2) the food,
(3) there was a tennis court we couldn’t use,
(4) there was a weird teacher there.”
Mr Cauchi went on to note that no parent regarded the incident as being treated very seriously by any of their sons. The incident is a reference to the plaintiff’s offer to give the boys a massage and to the fact that he did massage the necks of the boys LS, CO and BK. He is said to have asked if the boys would like a massage of their back and bottom but all refused.

75    Reports were prepared by Mr Job, District Officer, Manly Office of the Department of Community Services, as to interviews conducted by him with the children AZ, SW, DW and DO in May of 1987:

· AZ said that the plaintiff had massaged him on the back and rubbed him on the bottom a little, partly pulling down his pyjamas. AZ was asked if the plaintiff had touched his penis and he denied that.

· SW said that the plaintiff had massaged his back and pulled his pyjama pants down at the back and massaged his bottom. The plaintiff had lain on the bed with SW and placed his hand on his shoulder.

· DW said that the plaintiff had asked if he would like a massage but he had said no. The following morning the plaintiff had got into DW’s bed. He had his clothes on. DW moved to the other side of the bed without saying anything and the plaintiff got out of bed.

· DO said that the plaintiff had massaged him on the back. He had not touched him on the bottom or anywhere else.

76    It is notable that among such contemporaneous records as exist of the accounts given by children at the Magpie Lodge in May of 1987 though a number described massages and inappropriate behaviour such as lying on the bed with children, none reported overt sexual contact.

77    A handwritten memorandum forming part of Ex 1, which I take to have been made some time prior to the decision to withdraw the charge in December 1988, queries “Have interviews taken place with H/I from Blaxland Primary?”. This is a reference to SI and TH. It is clear from this that at the time of the initial investigation the Department was on notice that SI and TH were students who had attended the Broken Bay School and who should be interviewed.

78    The mother of TH, in a statement made in November 1998, says that she spoke with Ken Cleary, School Principal, at the time (May 1987). No record of the terms of her complaint forms part of the Departmental file. Her recollection as at November 1998 of the terms of her son’s complaint was that the plaintiff had hugged him and asked him if he liked to be tickled and that the plaintiff had touched him over his body, under his pyjamas and fondled him.

79    TH in his statement made in July 1998 describes the plaintiff asking him if he liked to be tickled. He goes on to give an account that the plaintiff put his hand down the front of his pyjamas under the waist band of the pyjama pants. He says that the plaintiff touched his penis, holding it in his hand. The plaintiff rubbed his penis in his fingers slowly and gently for a few seconds and asked if it felt okay or whether he liked it.

80    Fourteen months earlier, on 16 May 1997, TH was interviewed by Mr Kennedy. On that occasion TH’s recollection of the assault appears to have been less precise:

“PS cuddled TH in bed and handled him on the genitals. TH cannot remember the details but has no doubt that the action occurred, was purposeful on the part of PS and was not just a ‘slip of his hand’.”

81    SI, in a statement made in July 1998, gives an account of the plaintiff massaging him under his pyjama top as he lay on his back. He says that the plaintiff slipped his hand under the front of his pyjama pants and moved it, palm downwards, across the front of the thigh at the top of his leg and across his penis and scrotum. As he moved his hand upward he lifted it to slide it across the penis and scrotum touching them lightly and then moving his hand back down the top of the thigh.

82    When SI was interviewed on 13 May 1997 by Mr Kennedy he is not recorded as alleging that the plaintiff touched him on his penis or scrotum. Relevantly Mr Kennedy records him as saying:

“PS would come around at night and offer to massage students - shoulders and chest area - in their bed. He would ask if you wanted your abdomen massaged - he would then massage a bit low and make you feel uncomfortable. … SI remembers PS asking, referring to the massage, “Do you want me to go down your shorts as well?”.

There no account of the assault which is the subject of the incident particularised in paragraph 1(1)(d) of the charge in Mr Kennedy’s report of his interview with SI.

83    SI’s mother, in a statement made in July 1988, says that on the day her son returned from camp he complained to her of the plaintiff “stroking his thighs and genital area”. She subsequently contacted Paul Lester and “informed him that something had happened at the camp”. She also spoke with the Principal of Blaxland High, Ken Cleary. No record of her complaint to either of those Departmental officers forms part of the file.

84    Paul Lester was interviewed by Mr Kennedy on 12 May 1997. The notes of that interview record him as giving this account:

“During one of these shower supervisions PL was talking generally to some students. During the conversation he was advised that during a time when the students were a bit rowdy PS had come out in the nude to settle them down. This was totally out of character for camp supervisors and would be considered inappropriate. He also heard from the students that PS would do massages on children who were sore after their activities. PL noted that the students talked quite freely about this, were not concerned and didn’t seem to see it as ‘unacceptable’.”

The notes of the interview go on to recount that Mr Lester informed the school principal who immediately took action to have the plaintiff leave the camp. After he returned from the camp Mr Lester recalled that a number of parents had contacted him to express concerns. SI’s mother was one. There is no reference in the notes of the interview with Mr Lester to suggest that SI’s mother complained that the plaintiff had sexually assaulted her son (in the sense of touching his penis and scrotum) although it is clear she was troubled about the plaintiff’s behaviour.

85    Mr Kennedy interviewed SI’s father on 6 May 1987. The father, JI, is a staff welfare officer in the employ of the Department. He recalled that after SI returned from camp, he (JI) received telephone calls from other concerned parents. This was conveyed to Paul Lester. The concerns from parents and rumours led to police involvement. JI asked his son what had happened. SI said he did not know/nothing happened. Paul Lester visited the homes of many parents to reassure them. There was a meeting of all parents to discuss their concerns but JI was unable to go.

86    JI told Mr Kennedy that his wife had rung George Comino. He told her that the plaintiff had admitted certain things, been counselled and deemed suitable to return to school.

87    The only contemporaneous record as to the complaints made by either of the parents of TH or SI appears to be the handwritten notation on the undated file note headed, “Note” which queries, “Have interviews taken place with TH/SI”. Adjacent to SI’s name the following appears: “Mrs I. 2 Letters - groin area rubbed”. I infer this note was written by a Departmental officer in the course of preparing the matter for the prescribed officer’s inquiry. The page has a subheading “admissions” and sets out in a summary way the admissions which the plaintiff had made in his interview with Mr Russell. It is located with other handwritten notes made on 13 October 1988 when it is clear that the matter was being prepared for hearing. I think it reasonable to infer from this note that SI’s mother had written two letters to the Department concerning this matter.

The plaintiff’s claim as to unfairness

88    I turn now to deal with the question of whether because of the delay in bringing the charge against the plaintiff he has been deprived of the opportunity to have a fair determination now made with respect to it. I accept that the plaintiff now has no recall of the relevant events. He had given detailed instructions to his solicitors prior to December 1988 when the matter was the focus of his attention. Those instructions have been destroyed. From late 1988 there was no reason for the plaintiff to turn his mind to the allegations made about him at Magpie Lodge. The plaintiff cannot recall what was contained in the instructions he supplied to his solicitor. In any explanation furnished to the second defendant pursuant to cl15(2)(a) of the Regulation the plaintiff can now do no more than make a general denial. I accept that the loss of the plaintiff’s contemporary account occasions him actual prejudice in any defence to the charge now brought. However, the extent of it is difficult to gauge. I note that as at 25 January 1988 when the plaintiff’s solicitors responded by letter to the allegations set out in the initial disciplinary charge the plaintiff did not have a recall of the individual students.

89    While contemporaneous statements made by the various students have not been shown to have been lost or destroyed, I accept that some documents forming part of Ex 1 (or contained in a separate file) relating to the investigation and the initial (withdrawn) charge have been lost or destroyed. Included among these are the internal memoranda or reports recommending the withdrawal of the original charge. It is not clear that the loss of documents in this class serves to deprive the plaintiff of an opportunity to fairly answer the allegations against him.

90    Mr Porter submitted, against the background of the admitted inappropriate conduct engaged in by the plaintiff, room might be thought to exist, after the lapse of years, for the complainants to have engaged in some level of unconscious reconstruction of events. There is force to this submission. It underlines the significance of the contemporaneous accounts of the terms of complaint reported by the parents of SI and TH.

91    The second defendant is invited, in submissions advanced by the third defendant (set out in Ex 2), to accept the statements of TH and SI as reliable upon this basis:

“The statements of SI and TH were made as adults. They refer to incidents which occurred when they were children. The information supplied is consistent with the information which they supplied to their parents at the time. In the circumstances, no inference should be drawn that they have provided misleading information.”

92    The fact is that no contemporaneous account exists of the terms of any complaint made by TH or SI. With respect to the complaint made by SI his parents’ present recollections appear at odds. SI’s mother recalls that her son did complain at the time that the plaintiff had stroked his genital area. SI’s father says he questioned his son at the time and that SI denied any improper contact by the plaintiff. Given that both SI’s mother and father were concerned about the plaintiff’s conduct at the time it is surprising that the mother does not appear to have relayed the terms of the son’s complaint to her husband.

93    A notable feature of the 1987 investigation is that although both SI’s mother and TH’s mother made complaints there is nothing to suggest that in 1987/88 those charged with the investigation understood that the allegations included that the plaintiff had touched either boy on the penis. The letters written by SI’s mother concerning this matter have been lost or destroyed.

94 In Walton it was noted that the members of the Court of Appeal had found, or assumed, that, notwithstanding the lengthy delay, it would be possible for the Tribunal, by taking appropriate steps during the proceedings, to afford the respondents a fair hearing. When one turns to the judgments in Gill v Walton (1991) 25 NSWLR 190 it appears that this was, in part, for the reason that there remained extensive documentation concerning the regime at the Chelmsford Private Hospital including the patients’ medical records.

95    In the present case there is a paucity of documentation concerning the allegations made against the plaintiff. Further, the second defendant’s decision to proceed pursuant to cl 15(2)(a) of the Regulation deprives the plaintiff of the safeguards to which reference is made in Walton.

96    I note that Kirby P (as he then was) was highly critical of the determination to proceed against the plaintiff in Matkevich upon a review of the papers (rather than by way of the holding of an inquiry), although his Honour concurred with the majority that the determination so to do was open to the prescribed officer. The facts in the present case seem to me to point even more strongly in favour of a determination to proceed by way of inquiry than those in Matkevich. Here the gravamen of the charge brought against the plaintiff is that he sexually assaulted two primary school age boys under his care. They are serious allegations involving disputed matters of fact about events which occurred 12 years ago. They arise in the context of the plaintiff who has at all times admitted conduct which by present standards of proper behaviour for teachers was inappropriate and such as to give rise to misinterpretation by the children and their parents. The second defendant proposes to resolve difficult issues of credit upon a review of the written materials.

97    Has the lapse of years and the loss of contemporaneous documentation led to a situation where the plaintiff cannot now have the benefit of a fair determination? I think it has. At a time close to these events the Department conducted an investigation. It was on notice of the complaints made concerning SI and TH. For whatever reason the boys were not interviewed at the time. No record is preserved of the terms of their parents’ complaints made both to Paul Lester and to Ken Cleary nor have SI’s mother’s letters been kept. It appears that responsible officers within the Department were satisified that the plaintiff’s conduct did not involve the sexual assault of the children under his care. Twelve years later the third defendant relies on statements made by SI and TH as adults as to events which occurred when they were nine years of age. It is clear that at the time the plaintiff’s conduct was the source of concern among a number of parents of children attending the Broken Bay School. A meeting was organised to air these concerns. Against this background of what SI’s father described as concerns from parents and rumours there is room for the memories of the two complainants to have become unconsciously distorted.

98    On the material contained in Ex 2 neither SI or TH appear to have recalled the detail of any sexual assault as at June 1997 (although it is plain that in their view the plaintiff’s conduct was highly suspicious). Their statements made in July 1998 in which both describe frank sexual assaults need to be evaluated in that light. It may be that Mr Kennedy’s notes of his June 1997 discussions with the two are inadequate or that his interview was cursory. These are not matters which can be determined upon a mere review of the written materials. If the second defendant, mindful of the difficulty posed by these issues, were to determine, after reviewing the written materials, to hold an inquiry, would that cure the problem? I do not think it would. The challenge the plaintiff makes to the accounts given by SI and TH is that over the years they have come to view his inappropriate behaviour as involving a sexual assault. This does not involve a challenge to their honesty but to the accuracy of their recollections of events that occurred when they were children and which over the years may have been coloured by rumours.

99    The loss of any contemporary record of the terms of the complaints made by the parents of SI and TH is in this context of considerable significance. This is all the more so when it is remembered that SI’s mother complained to Paul Lester. Mr Lester was interviewed by Mr Kennedy in May 1997. At that time while able to recall in general terms the matter that caused him to refer the plaintiff’s conduct to Mr Russell (see paragraph 84 above) it would appear he did not recollect the terms of any complaint made to him by SI’s mother. Generally, Mr Lester’s recall of the incident now appears imperfect. He believed that the plaintiff had been confronted on 12 or 13 May (this was mid way through the first camp). The date on which Mr Lester was first advised by SI’s mother of a complaint concerning her son and the terms of that complaint are of matters of some moment. No diary note or other record exists of the terms of any complaint made by the mothers of SI and TH to Ken Cleary. After the passage of more than twelve years it would be surprising if he had an independent recollection of the same.

100    I consider the loss of the contemporary documents setting out the terms of the complaints said to have been made by SI and TH, and the loss of the recollection of potential witnesses such as Paul Lester and Ken Cleary, together with the plaintiff’s lost instructions in combination produce a result that the plaintiff cannot receive a fair determination of the charge so belatedly brought against him.

101    It flows from this that the plaintiff has made good his claim for relief.

The plaintiff’s claim of oppression

102    I should also note that I would have granted the plaintiff the relief he seeks upon the alternative basis, namely, that the continuance of the disciplinary proceedings is unjustifiably oppressive. In Walton the majority observed that the concept of abuse of process requires some adjustment in order to reflect that the jurisdiction of the Medical Tribunal is protective in character. Their Honours went on to note that, in the context of the Tribunal’s powers to permanently remove a medical practitioner from the Register and to impose a substantial fine, there was an analogy between abuse of the court’s process in relation to criminal proceedings and abuse of the Tribunal’s process in relation to disciplinary proceedings. The question of whether proceedings should be stayed on abuse of process grounds is to be determined by a weighing of considerations similar to those which bear on the question of whether criminal proceedings should be stayed. In deciding whether disciplinary proceedings should be stayed consideration is necessarily given to the protective nature of the proceedings (p.395-396). In this case the important public interest in the protection of children from the risk of abuse must be taken into account.

103 In Walton it was accepted that the Court of Appeal had been right to have regard to the principle which informs the rule against double jeopardy in concluding that the plaintiffs were exposed to unjustifiable oppression by the continuance of the proceedings. There had been no full hearing on the merits in that case nor did the complaints preferred against the doctors exactly mirror the earlier complaints which had been the subject of the stay granted in Herron v McGregor (1986) 6 NSWLR 246. The feature of oppression identified in Walton v Gardiner arose from the 1986 decision of the Court of Appeal to stay disciplinary proceedings followed, as it was, by a Royal Commission and the attempt to prefer disciplinary charges arising out of the same subject matter five years after the grant of that stay.

104    In the present case, as in Walton, the substance of the complaint as amended on 2 March 1999 corresponds to a large extent with the substance of the complaint of 4 January 1988. In coming to this conclusion I have regard to the fact that the Department was on notice of the complaints made concerning SI and TH at the time.

105    There is no evidence from the defendants as to the reason the 1988 charges were withdrawn. The only evidence led in the defendants’ case in this regard was from Mr Jardine who it was clear could cast no light on the matter. Yet it appears the defendants could have led evidence on this issue. Annexure “A” to the affidavit of Mr Jardine lists the persons contacted by Mr Kennedy during the course of his re-investigation of this matter. Those persons include Mr Harrison, the ex Director of Personnel who appears to have made the decision to withdraw the charge, Mr Horton, the officer who was handling the file and who advised the plaintiff’s solicitors of the planned withdrawal of proceedings, and Mr Comino who counselled the plaintiff over the matter. It is to be noted that a number of the matters particularised in the 1988 charge were not in issue. The plaintiff had admitted to as much in his interview with Mr Russell. On the plaintiff’s account his behaviour though misguided was not sexual. I infer that in 1988 the responsible officers within the Department accepted the plaintiff’s explanation and, accordingly, decided that the appropriate course was to counsel him and allow him to resume his career.

106    The evidence is that the plaintiff changed his behaviour in consequence of this episode. He was directed not to have physical contact with children and he appears to have acted upon this. He has performed his duties creditably for the past decade. After the interval of so many years to bring a fresh charge raising essentially the same allegations seems to me to amount to that form of unjustifiable oppression which Deane J referred to in Jago in the passage cited in paragraph 52 above.

107    The defendants do not cavil with the fact that the plaintiff has carried out his teaching duties in the intervening years without giving rise to further complaint. This takes some of the force out of the submission that in the balancing process the public interest concerns outweigh considerations of oppression arising out of the revival of a charge withdrawn by the responsible authority eleven years ago.

108    I am of the opinion that this case falls within the exceptional class of case where the continuation of the disciplinary charge arising out of events at Magpie Lodge in May 1987 is unjustifiably oppressive and that the weighing of the considerations of fairness to the plaintiff against the public interest favours granting the plaintiff the relief which he seeks.

109    My orders are:

1. The second defendant be permanently restrained from dealing with the charge of breach of discipline contrary to s 83(f) of the Teaching Services Act 1980 set out in the Notice of Charge dated 10 July 1998 and amended on 2 March 1999 and signed by the third defendant.

2. The third defendant be permanently restrained from prosecuting the charge of breach of discipline contrary to s 83(f) of the Teaching Services Act 1980 set out in the Notice of Charge dated 10 July 1998 and amended on 2 March 1999 and signed by the third defendant.

3. All proceedings pertaining to the prosecution of the charge of breach of discipline contrary to s 83(f) of the Teaching Services Act 1980 contained in Notice of Charge 10 July 1998 as amended on 2 March 1999 signed by the third defendant be permanently stayed.

4. The defendants pay the plaintiff’s costs as agreed or assessed.

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Last Modified: 12/15/1999