His Honour also held at 154:
However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.
27 The approach so distilled provides a useful analogy that should be adopted in this matter provided it is clear that the applicant must show more than a serious question to be tried and whether that is described in terms of a prima facie case or something more does not require final determination.
28 It is sufficient to note that this application has been approached on the basis that, although it may not be necessary that the applicant show a distinct probability of success, the applicant should demonstrate a seriously arguable case and must, at least at the interlocutory stage, demonstrate that the criterion in s 9(4) has been satisfied. That is, at the requisite level, in terms of the evidence as it stands, the applicant must show that he does not pose a risk to the safety of children. Again, as considered by Mason ACJ, the question of the degree of likelihood of success of the applicant in the substantive proceedings is a factor which will often also be relevant to the question of the balance of convenience. In summary, the applicant must show not only a seriously arguable case but also that he or she will suffer detriment if the stay is not granted and, also that the balancing of relevant considerations favours the grant of the stay.
29 One final observation should be made as to s 9(4). It is clear from both its terms and evident purpose that the test imposes an obligation to consider whether it is satisfied at the time the Commission is considering the application. Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be paid to possible future conduct. There is another factor which must be considered if regard is had by way of analogy to the principles as to the grant of interlocutory injunctions. In that area an important consideration is the preservation to the extent feasible and appropriate of the status quo. In this area there is either no status quo in a relevant sense or the status quo is the fact of the statutory prohibition imposed on the applicant.
30 In considering the application and scope of the statute the precise factual circumstances which will exist in all or the vast majority of cases must be considered. They include the fact that the applicant will have been convicted of one or more serious criminal offences and that he or she will have served any relevant sentence. The applicant will most likely have had no further convictions and not be the subject of further adverse notifications to the authorities. Accordingly, the fact alone of absence of further convictions and absence of further adverse notification to the authorities are not matters of themselves which will necessarily, or be likely to, lead to a grant of an order under s 9.
31 Such considerations serve to show the broad public interest the legislation is intended to serve. It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature. Rather it is intended to provide a means to identify such offenders to the relevant authorities and, where relevant, their employers, and to eliminate to the greatest extent possible the risks that such persons might pose to children particularly from any institutional contact or relationship they might have with them. These considerations serve to emphasise the importance of the public interest considerations embodied in the terms and purposes of the legislation and the stringency of the approach to be taken by the Commission prior to making an order whether final or interlocutory.
32 Having set out what I consider to be the relevant principles I now turn to consider the factual matters which have been placed before the Commission and to relate those to the matters which require consideration in deciding whether or not to grant the interlocutory application now made.
Approach of the Commission for Children and Young People
33 Counsel for the Commission for Children and Young People, the body which is required by s 9(7) of the Act to be a party to any proceedings under s 9, advised the Commission that his client opposed the granting of the application for a stay and, in the alternative, that should the Commission, contrary to those submissions, grant a stay, it should only do so on appropriately stringent terms which were formulated by him.
34 During the course of the hearing a number of rulings were made as to the evidence which was to be admitted in relation to the interlocutory proceedings. The major ruling was the subject of considerable debate and in respect of which a detailed ruling was given and which appears in transcript. It is not necessary to repeat it here. However, an objection on behalf of the applicant to the tender of certain material relating to the time when the applicant was a teacher at a school in suburban Sydney, was overruled. That material was allowed to be tendered, notwithstanding some doubt as to its relevance and weight as to the primary issues set out in s 9(4) and s 9(5) of the Act, as it was considered that such material may potentially shed some light on the possibility that the applicant may at present pose some danger or risk to the safety of children and that the Commission should take a cautionary approach as to that issue.
Consideration and conclusions
35 The principal of the school where the applicant is presently employed gave further evidence in the proceedings by affidavit sworn on 25 September 2000. In that affidavit the deponent sets out the steps he took in relation to his knowledge of the convictions of the applicant both at the time of his employment and also when the Act was the subject of consideration and discussion at the school. For example, he indicates that he discussed such matters with the School Executive, although he apparently did not inform the School Counsellor of such matters. He also indicates that he was not aware of the incidents which were alleged to have occurred involving the applicant in the mid 1980s until the present proceedings although he also gives evidence of having now taken such matters into consideration. He has adhered to the view he expressed in his first affidavit that he considers that the applicant does not pose a risk to children.
36 He also refers in his affidavit to a number of possible conditions which have been formulated by the applicant in conjunction with his legal advisers and which might be attached to any stay granted. He indicates that such matters are matters which can be appropriately adhered to by the school should they be made conditions for the grant of the stay.
37 As indicated earlier, the respondent, on the other hand, although contending that the application for a stay should not be granted, submits in the alternative that should the stay be granted, it be granted on conditions of the utmost stringency. Reference will be made to those matters shortly. In addition to those matters, the Commission raised with counsel for the parties and the intervener a further possible condition that might be imposed should the application for a stay be granted. It was raised in terms of a requirement that the applicant consult a suitably qualified counsellor, to be chosen by him in consultation with his legal advisers. It would be entirely a matter for the applicant and his advisers whether the person in question was a member of any particular profession. The only specific condition in that regard would be that the person be suitably qualified and recognised in the field of counselling.
38 In coming to its conclusion in this matter the Commission has had regard to all of the evidence before it on the basis that much of it has not been tested in a way that would have been appropriate in an application for final relief. Regard has also been paid to the fact that a course unusual in applications for interlocutory relief was taken and cross-examination of the applicant was permitted. It was considered that may be an appropriate course in applications of this kind although such matters would always be within the discretion of the member of the Commission dealing with the particular application. As indicated earlier regard has been had to the various considerations which must be considered under subsection (5) of s 9 and the crucial consideration set out in subsection (4) of that section. The submissions made by all counsel that in considering the test under that subsection and certainly at the interlocutory stage, it was appropriate in determining whether the test had been met to take into account any conditions that were to be imposed at the interlocutory stage, have been accepted.
39 On that basis the Commission has reached the conclusion that the test in s 9(4) has been satisfied. In reaching that conclusion all of the matters earlier referred to in relation to the criteria set out in subsection (5) and the significant concerns and seriousness of the offences in relation to those matters have been considered.
40 In addition, regard has been paid to the exemplary record of the applicant since those convictions were recorded and the fact that he has not come under any form of adverse notice since that time and also the high level of support he has received from the three principals whose affidavits were tendered and who have spoken of his professional commitment and standing and regard amongst his colleagues. Particular regard has been had to the evidence of his current principal and his considered views that the applicant does not pose a risk to the safety of children.
41 It is, however, of concern that there was no reference in the material filed by the applicant as to the allegations concerning him in the mid 1980s and but for the quality of the evidence in his favour including that most recently filed on behalf of the school, that omission may have led to a negative finding as to the s 9(4) criteria.
42 The Commission is entitled in this case to consider as most significant and weighty the evidence filed by the school as to the issue raised by s 9(4) and also to the support of the school and its principal for the grant of the interlocutory application. The applicant was observed closely when he gave evidence and although the submissions of the respondent that it is inappropriate to make any express or final finding on his credit were accepted, there was nothing observed in his evidence or in the way he gave that evidence inconsistent with the finding that has been made at the interlocutory stage under s 9(4).
43 The conditions that are to be imposed should be approached on an appropriately cautionary basis. This approach arises from the nature of the interlocutory proceedings and the fact that such conditions are designed to put beyond any reasonable doubt that the applicant does not pose a risk in a relevant sense to the safety of children. The condition raised by the Commission may appear to be, even on that approach, unduly cautionary in nature. Nevertheless, as the respondent has submitted, the offences in question occurred over a period of some months and were extraordinarily serious in nature and involve a most significant breach of trust and an abuse of the position held by the applicant. That description is relevant not only to the events for which the applicant was convicted but also for those which were alleged to have occurred some years earlier. All of those matters are to be balanced against the other matters which have been relied upon by the applicant and to which reference has been earlier made. The additional condition is considered appropriate in the light of the matters relied upon by the respondent and notwithstanding the findings made otherwise as to the criteria raised by s 9(4).
44 Concluding by returning to the tests or approach earlier referred to adapted from the principles for the grant of interlocutory relief, the evidence as it stands results in the applicant having shown that he does not pose a risk for the safety of children and that it is appropriate on the precautionary basis earlier referred to impose relevant conditions. The applicant has also shown in relation to the issue for determination a seriously arguable case as to that issue. The evidence shows that the applicant will suffer detriment if the stay is not granted and that a balancing of relevant considerations favours the grant of the stay. For example, in relation to the last mentioned matter, a great deal of reliance was placed by both counsel for the applicant and counsel for the school upon the situation of students being taught by the applicant, particularly those in the final two years of schooling, and the adverse affect on their education for the balance of this year should, in the light of the positive evidence given in relation to him on behalf of the school, he not be able to continue teaching for the balance of this year.
45 As earlier indicated, the fact of absence of further convictions since the relevant convictions which have led to the prohibition or no adverse notice since then, does not of itself lead to a grant of an order. There must be a case positive and substantial otherwise to warrant the grant of an order or orders even of an interlocutory nature.
46 Having regard to the various submissions made as to the different conditions proposed by the parties and having made clear that a very cautionary approach has been taken it is not considered appropriate to impose conditions which may not be clear and thus difficult to comply with. Therefore, at least in one respect, one of the conditions raised by the respondent has not been adopted for that reason and there was also another condition which did not, on the evidence before the Commission, require insertion even on a cautionary basis.
Orders
47 I am minded after pronouncing the orders to raise with the parties the possibility of granting liberty to apply as to the form of those orders but, I hasten to add, I am not inviting, if I do that, any rehearsing of matters that I have already dealt with and which