DEF v Trappett

Court of Appeal (NSW)|2017-06-19|Before: Beazley ACJ, Simpson JA, Beech-Jones J

Solicitors: McAuley Hawach Lawyers (Applicant) Unsworth Legal (First, Second, Third and Fourth Respondents) Mullins Lawyers (Brisbane) by their agents Carroll & O'Dea Lawyers (Fifth Respondent) File Number(s): 2016/381736 Decision under appeal Court or tribunal: Supreme Court Citation: [2016] NSWSC 1698 Date of Decision: 2 December 2016 Before: Beech-Jones J File Number(s): 2014/374692

Judgment

THE COURT: On 2 December 2016, Beech-Jones J dismissed proceedings brought by the applicant, who is a Catholic priest in the Brisbane Diocese, against the respondents for declaratory and injunctive relief in respect of an assessment process (the Assessment Report) undertaken in accordance with a procedure entitled Towards Healing. Towards Healing encompasses the "principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia".
The defendants to the action brought by the applicant were: the two assessors appointed pursuant to the Towards Healing protocol (the first and second defendants); the Director of the Office of Professional Standards (Queensland) Catholic Church (the third defendant); the chairperson of the National Review Panel (the fourth defendant); and the Catholic Archbishop of Brisbane (the fifth defendant). At the hearing at first instance, the first to fourth defendants had the same legal representation. The fifth defendant was separately represented.
The applicant's claim against the defendants, in essence, was that he had been denied procedural fairness in the assessment process. As we explain below in more detail, the proceedings having been commenced, the fifth defendant voluntarily undertook not to act on the Assessment Report. In addition, the review of the assessment that had been sought by the applicant was voluntarily suspended pending the outcome of the proceedings.
At the hearing, the defendants contended that the Court had no jurisdiction to hear and determine the matter. His Honour accepted that this was so, concluding, at [189], that the Court had no jurisdiction to judicially review a decision of a private body or tribunal which did not affect legal rights or obligations. His Honour observed, at [175]-[178], that a decision of a private body only affected a person's reputation, in which case the remedy lay in defamation: at [175]-[178]. His Honour considered that neither Australian Football League v Carlton [1998] 2 VR 546, nor Mitchell v Royal New South Wales Canine Council (2001) 52 NSWLR 242; [2001] NSWCA 162 expanded the basis on which the courts may intervene in such decisions, and that his analysis was consistent with this Court's decision in Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331 at [186]-[187]. His Honour thus ordered that the proceedings be dismissed.
The applicant sought leave to appeal from his Honour's dismissal of the proceedings. The first, second and fourth respondents filed submitting appearances. Those submitting appearances were filed by the same solicitor as appeared on the record for the third respondent, so we consider that the first to fourth respondents continue to have the same representation. This is relevant for reasons we discuss below.
The summons seeking leave to appeal and the appeal, if leave be granted, were directed to be heard concurrently. At the outset of the concurrent hearing, the Court required the parties to address on the question of leave before any argument as if on appeal. Having heard argument on leave, the Court determined that leave to appeal should be refused and made an order to that effect.
The Court's reasons for refusing leave, which were reserved, follow. In giving these reasons, we point out that as leave to appeal has been refused, our reasons are more abbreviated than is required after a fully contested appeal: La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254 at [8]-[9]. However, as there was extended argument on the question of leave, these reasons are more detailed than is usually required on the determination of a summons for leave to appeal.

Brief overview of facts

Following a complaint made by a parishioner that the applicant had engaged in a sexual relationship with his wife, the third respondent instigated the Towards Healing protocol. The first and second respondents were engaged to do an assessment pursuant to that protocol. The specific complaint the subject of the assessment identified in the Executive Summary of the Assessment Report was, relevantly, that the applicant, in the period between 2000 and 2003: "… whilst holding a pastoral care role … and having a Pastoral relationship with [the complainant and the complainant's wife] abused a position of trust and authority in relation to those in his pastoral care by engaging in conduct of a sexual nature with [the complainant's wife], a vulnerable person."
The applicant, when first informed of the complaint by the fifth respondent, "categorically" denied the allegation. However, the applicant did not provide any information, by way of statement or otherwise, to the assessors, nor did he personally appear before them, despite the assessors providing him with a number of opportunities to do so: see letters dated 3 July 2014, 15 July 2014, 21 July 2014 and 31 July 2014. At the time that the assessment was being conducted, the applicant had come under the care of Dr Martin, psychiatrist, and was hospitalised for a period. It is not relevant for present purposes to review the evidence of the applicant's state of health, other than to note that it was the reason he advanced for being unable to be interviewed by the assessors or to provide a statement or other information to them.
On 14 August 2014, the applicant was advised by letter from the third respondent that the assessment was complete and a report had been prepared. The Conclusions/Findings section of the Assessment Report was attached to the letter. What in fact was provided to the applicant was part of the Assessment Report, comprising paras (1)-(10) and para (60)(a)-(k). Paragraphs (1)-(10) contained the Executive Summary and para (60) contained the assessors' Conclusions/Findings. There was a redaction of a name in paras (60)(g) and (h).
Following further correspondence in which the applicant complained about the failure to provide him with a complete copy of the Assessment Report, the fourth respondent advised the applicant on 19 September 2014 that he had "determined that a full unredacted copy of the Assessment Report should be made available to [the applicant]". The applicant was advised that the full report would be released to him by the third respondent.
By letter dated 22 September 2014, the third respondent forwarded to the applicant "a full/un-redacted copy of the Assessment Report". Paragraph (24) of the report recorded, "[f]or a detailed analysis of the evidence adduced by Assessors, please find all relevant material attached". The material referred to para 24 of the Report was not attached. There was no explanation for its absence.
On 16 December 2014, the applicant's solicitors wrote to the fourth respondent advising that he intended to commence legal proceedings "relating to, inter alia, the Assessors' decision and the refusal to provide material taken into account by the Assessors" and also stating that he wished to make an application for a Review pursuant to cl 44 of the Towards Healing protocol. The solicitors noted the three month time limit for making an application and sought confirmation that the review could be made within 28 days of the conclusion of those legal proceedings.
Following a response on behalf of the fourth respondent, the applicant decided to make his application for review immediately and did so by letter dated 18 December 2014. In his application for review, complaint was made that, amongst other things, the material referred to in para (24) of the Assessment Report had not been included in the material provided to the applicant.
The relief claimed in the applicant's Second Further Amended Statement of Claim included an injunction restraining the third, fourth and fifth respondents from taking further steps to pursue an assessment pursuant to Toward Healing and an injunction preventing the fourth defendant from taking any steps in relation to the review application made by the applicant. The suspension of the review process occurred in response to the relief sought by the applicant.

The Assessment Report

We have referred above to the terms of the complaint made against the applicant. In section H of the Assessment Report, entitled Conclusions/ Findings, the assessors found that the applicant "had sexual intercourse with the [c]omplainant's wife initially on the first occasion without her consent": para (60)(d); and that "the actions of [the applicant] constitute abuse within the meaning of that term as defined in the Towards Healing Protocol": para (60)(e). The assessors found the applicant's conduct to be "a very serious violation of the integrity of the pastoral role": para (60)(j).
Section I of the assessment report, entitled Recommendations, contained a number of specific statements in relation to the applicant. Three in particular are of significance. The first was a recommendation, at para (61), that: "… on the basis of the medical reports alone, and especially on the findings of this complaint by assessors, consideration be given to further restricting [the applicant's] unsupervised contact with church attendees."
The second matter of significance, at para (62), was that the investigation by the assessors "has produced evidence on oath of two serious sexual assaults on women who were under the pastoral care of [the applicant]". The women were not identified, but presumably, having regard to the finding referred to above, one was the complainant's wife. The third matter of significance was a statement, at para (62), that the applicant had "demonstrated that he is willing to pervert the course of an investigation of his actions by attempting to offer an inducement to witnesses to lie to Assessors". There was no identification of these witnesses.

The Towards Healing protocol

It is convenient at this stage to refer to the relevant provisions of the Towards Healing protocol. Part Three of the protocol sets out the procedures for dealing with complaints of abuse. Insofar as these procedures relate to the person accused of abuse, cl 38.5 provides that after receiving notice of the complaint, the accused is to be informed "of the nature of the complaint". The clause further states that "[t]he accused needs to be given enough detail about the complaint, and the person who was allegedly abused, to be able to offer a response".
Clause 39 specifies the various processes that might be engaged for investigation of a complaint. Relevantly, cl 39.3 provides that where the facts of a case are in dispute, the matter is to be dealt with in accordance with cl 40, which provides for an assessment process. In the usual case, two assessors are appointed: cl 40.1. After the investigation, the assessors are to provide a written report to the Church Authority, relevantly in this case, the fifth respondent, and to the Director of Professional Standards, being the third respondent: cl 40.9. The assessors are required to provide reasons for their findings: cl 40.9.1.
Clause 40.9.3 provides that: "The accused is ... entitled to know promptly the findings of the assessment and the reasons for them if he or she has participated in the assessment, or otherwise could be subjected to disciplinary action by the Church Authority as a consequence of it."
A review of the assessment is provided for in cl 44. A review is available for accused persons only if they cooperated with the assessment process: cl 44.1.3. The review is: "… an independent evaluation, not only of whether there is substance in any of the grounds for complaint, but also whether the principles established in the first part of the document have been adhered to": cl 44.2.
The time for seeking a review is "three calendar months of the time when the Director of Professional Standards has furnished the assessment report to the Church Authority": cl 44.4. The procedures for the review are to be determined by the Reviewer, who is to have access to all relevant documentation: cl 44.6.
Under the Towards Healing protocol, there is a National Review Panel. Its functions include "to decide upon requests concerning a review of process or findings": cl 35.9. The Review Panel may substitute its own findings for those of the assessors, "provided that it has all the information available to do so". The Panel may also direct that a further assessment be undertaken: cl 44.9.

Legal principles

Leave to appeal will only be granted where there are substantial reasons to allow an appellate review: Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12], that in the usual case: "… it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]."

Applicant's submissions

The applicant submitted that the question whether the court has jurisdiction to review the assessment process involves a question of public importance. The Towards Healing protocol, with the exception of the Melbourne Archdiocese, applies to the Catholic community across Australia, including to priests, employees and volunteers at Catholic schools, hospitals, churches and the like. Accordingly, the applicant submitted that it was a matter upon which the determination of an appellate court was warranted.
The applicant further submitted that, in refusing relief, the primary judge had declined to follow first instance decisions of this Court and intermediate appellate decisions in other Australian jurisdictions. He contended that the fact that there were first instance and intermediate appellate decisions that supported the availability of relief and the failure of the assessors to notify the applicant of the allegation of non-consensual intercourse or to expose their reasons in the assessment report meant that there was more than arguable injustice involved, and for that reason also leave to appeal should be granted.
Finally, the applicant contended that he did not know whether the review process under the Towards Healing protocol was available to him in circumstances where it might be argued that he had not co-operated with the assessment process: see cl 44.1.3. He further submitted that, in any event, the availability of the review process was futile in circumstances where he had not been provided with the full report.

Respondents' submissions

The third respondent submitted that leave to appeal should be refused because the applicant had commenced but not exhausted the process provided under the Towards Healing protocol for the review of the report and findings of the assessors. The third respondent submitted that, as was the case in statutory contexts, the existence of a review process was relevant to the content of procedural fairness that was to be accorded in the process engaged by the Towards Healing protocol. He contended that given the existence of the review process in cl 44, the findings of the assessors were in the nature of an initial determination. He submitted, therefore, that until the review process had been completed, it could not be said that there had been a breach of procedural fairness.
The fifth respondent also resisted the grant of leave to appeal.

Consideration

Although the application for leave to appeal to this Court was in respect of the primary judge's dismissal of the applicant's claim relating to the assessment process, the availability of a review was central to the question whether leave to appeal should be granted.
The applicant's concern as to whether there was a right of review available to him related to whether a point would be taken by the respondents or a reviewer appointed pursuant to cl 44 that he had not co-operated with the assessment process and was thus not entitled to seek a review: see cl 44.1.3.
However, the third respondent stated to the Court that the review application had been accepted and that no point had been taken or would be taken that the applicant was not entitled to bring the application. It appears that this was the first occasion when this was made explicit. In the third respondent's written submissions before the primary judge, at para (40), the third respondent put the matter no higher than that there had "seemingly been an acceptance that [the applicant] can obtain a review". On the appeal, the third respondent referred back to those submissions.
In circumstances where the third respondent relied upon the availability of the review in opposition to the grant of leave, the position as to acceptance of the applicant's review application should have been, and was not, clearly stated. The fact that the review process was suspended pending the outcome of the proceedings at first instance perhaps suggests that the respondents accepted that the applicant was entitled to a review, or at least that they would not contend that he was not so entitled. However, it is by no means clear that that was the case.
This observation retains its force, notwithstanding that the first, second and, most relevantly, the fourth, respondents entered submitting appearances. We also recognise that at this stage of the legal proceedings, the respondents do not necessarily have an identity of interests, although as appears from the what we say below, the third respondent was able to obtain instructions as to the provision of documents to the applicant for the purpose of the review, that process being something in which he has no involvement. Our point is, however, that the position as to whether the review process would proceed should have been clearly stated if the third respondent intended to rely on the availability of a review to resist the grant of leave.
We should also indicate, so that it is clear, that whilst we understand that, in accordance with the review process provided for in cl 44 of the Towards Healing protocol the third respondent has no role in that process, we understood his statement to the Court that the review application had been accepted to be made on behalf of whoever is the responsible entity for making that decision.
The applicant's second concern related to the failure to provide the applicant with the annexures to the Assessment Report. The applicant was entitled pursuant to cl 40.9.3 to know the reasoning process of the assessors. It is unclear from cl 24 of the Assessment Report whether the reasoning of the assessors was contained in the attachments, or whether the attachments were copies of statements upon which they had relied. The third respondent, after some pointed observations from the Bench, informed the Court that the attachments would be provided. He indicated, however, that it was believed that the attachments were merely copies of statements and documents that had been provided to the applicant at the commencement of the assessment.
That may be so, but the third respondent was not able to say whether that was definitely the case and it is beside the point. The respondents resisted the grant of leave on the basis that there was a review process available to the applicant. In this regard, the third respondent referred to the observation of Fitzgerald JA in Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161; [1999] NSWCA 477, at [157], that "an adequate right of appeal ordinarily provides the appropriate remedy for a denial of procedural fairness at the stage of an initial determination".
As is apparent from its terms, Fitzgerald JA's statement is a qualified one. The right of appeal, or in this case, review, must be "adequate" and the principle stated is in respect of the ordinary case. In circumstances where a person is not provided with all the material upon which an original assessment was made and where the procedure for conducting a review is in the determination of the appointed reviewer, there must be a question whether there is an adequate right of review.
However, as the full Assessment Report is now to be provided to the applicant, the question for determination on the leave application was whether the availability of a right of review provided a sufficient basis for this Court to refuse leave to appeal. Before considering the legal principles governing the grant of leave, it is necessary to make one more observation. We have referred to the fact that the procedure for the review is determined by the reviewer. However, the third respondent submitted that the review for which cl 44 provides is "a full right of review". We proceeded on the basis that that correctly stated the nature of the review process, albeit that we accept that the procedure for conducting a full review is a matter for the reviewer.
It is well recognised that the availability of an appeal or review process may answer any deficiency in procedural fairness that occurred at the initial hearing or decision making stage. The principle was stated by Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 in the following terms: "[T]he earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have 'cured' a defect in natural justice or fairness which occurred at first instance."
This view was accepted by the Privy Council in Calvin v Carr [1979] 1 NSWLR 1 at 13. That case arose out of the disqualification of the appellant as a member of the Australian Jockey Club by the Club's stewards on the basis of an alleged breach of the Club's Rules of Racing. Following the dismissal of the appellant's appeal to the Committee of the Club, the appellant instituted proceedings in the Equity Division of the Supreme Court of New South Wales seeking declaratory and injunctive relief restraining the Club from giving effect to the disqualification, relevantly, on the basis that he had been denied procedural fairness.
In dismissing the appellant's appeal to the Privy Council, Lord Wilberforce, at 10, stated that: "…no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so."
Lord Wilberforce, at 10-11, identified a number of "typical situations as to which some general principle can be stated", which included, relevantly for present purposes, two categories of case. The first was "where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it". His Lordship stated that "[i]t is not difficult … to reach the conclusion that the first hearing is superseded by the second".
The second category was: "… where, after examination of the whole hearing structure, in the context of the particular activity to which it relates … the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original, and at the appeal, stage."
Lord Wilberforce, at 11, also referred to an intermediate category of case in which: "… the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organization, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect."
His Lordship, at 11, explained that in this intermediate category of case: "… it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association."
His Lordship recognised, however, that even in that category, the failure to accord procedural fairness might be "so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result", so as to permit the court's intervention, including by quashing the decision.
In Hill v Green a question arose as to the requirements of procedural fairness in circumstances where disciplinary action was taken against a number of teachers pursuant to the Teaching Services Act 1980 (NSW) and cl 13 of the relevant regulations. Fitzgerald JA, at [156], referred to the principle which he ascribed to Mason J in Twist v Randwick Municipal Council, as that "an adequate appeal 'cures' a failure by an original decision-maker to provide procedural fairness". His Honour then stated, at [157], that although there were other views, "the theory which has received most assent" was that upon which the third respondent relied, to which reference is made above.
His Honour, at [164], observed that even where there was a full right of appeal: "Nonetheless, the Court retains a discretion to grant other relief if that is justified in the circumstances of the case. For example, a person charged with a disciplinary offence which involves criminal conduct should not be obliged to give evidence and expose himself or herself to the risk of self-incrimination." (citations omitted)
In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, the High Court confirmed that, in some circumstances, a court may grant relief in respect of the initial decision-making stage despite the availability of a right of appeal.
McHugh J, at [146], accepted, in the statutory context, that a right of appeal "might [not] provide an answer to a complaint that procedural fairness was denied in relation to an initial determination" and made reference to Hill v Green. His Honour identified a number of factors relevant to this question. In particular, he observed that if formal procedures apply at the first level of the decision-making process that may support an inference that the right of appeal is not the sole source of procedural fairness. His Honour also considered that the nature and breadth of the right of appeal was relevant as were the nature of the interest, subject matter and consequences for the individual.

Conclusion

In this case, not only is there is a review process available to the applicant, the applicant initiated that process and did so before bringing curial proceedings in the Supreme Court. The only reason the review process did not proceed was because of the curial proceedings in circumstances where the applicant had sought injunctive relief against the review proceeding. Whoever was responsible for the process voluntarily suspended the process so as to await the outcome of these proceedings.
In circumstances where the Court was informed that the applicant's application for review had been accepted and that the applicant would be provided with the complete assessment report, the Court was persuaded that leave to appeal should be refused. On a full review, any failure to accord procedural fairness in the assessment process has, at the least, a reasonable prospect of being 'cured' or rectified.
It was also relevant to the Court's determination that there is a serious question as to whether this is a matter in respect of which the Court has or would exercise jurisdiction. The recent decision of the Court in Agricultural Societies Council of New South Wales v Christie may stand in the way of the applicant's entitlement to or likelihood of the grant of relief. Given the recency of that determination, the Court ought not to embark upon a serious and difficult contested appeal until the applicant has exhausted other avenues of relief available to him.
When the Court made its order on 19 June 2017 dismissing the summons for leave to appeal, and after hearing briefly from the parties, the costs of the summons were reserved. The third respondent initially sought that he have his costs on the summons. However, the position eventually taken by both the third and fifth respondents was that costs be reserved to enable written submissions to be provided to the Court on the question of costs. The applicant expressed concern that on the hearing of the summons for leave to appeal, the third respondent for the first time had expressly agreed to make the material annexed to the Assessment Report available to him.
In our view, each party should pay his own costs of the appeal. The applicant was unsuccessful on his application for leave to appeal for the reasons we have given. Of particular relevance to the question of costs is that not only was there a review process available to him, he had invoked that process prior to commencing proceedings. He then sought an order to have that process stayed. The respondents agreed to a stay, so that it was not necessary for the applicant to pursue interlocutory relief in that regard.
The respondents, as we have pointed out, relied upon the availability of the review to resist the grant of leave, in circumstances where the applicant had not been provided with the documents that were annexed to the Assessment Report. Although the third respondent stated that it was believed that the documents had already been provided to the applicant at an earlier point of time, there was no identification of the annexed documents so that it is not known whether the applicant already had them.
The position of the fifth respondent is different from that of the third respondent. The applicant had sought injunctive relief against him acting on the Assessment Report. That too became the subject of agreement. Given that the fifth respondent plays no role in the assessment or review process, it might have been thought appropriate that on the summons for leave to appeal and, if leave be granted, the appeal, he submit to the orders of the Court. His reason for not doing so was that the applicant had made a submission that he had refused to provide the material annexed to the Assessment Report in circumstances where he did not have that material. However, he could have filed a short affidavit or submission setting out his position and otherwise submitting to the orders of the Court.
In the circumstances, we consider that there should be no order for costs, with the intent that the applicant and third and fifth respondents are responsible for their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2017

Teaching Services Act 1980(NSW)

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