Hedges v Australasian Conference Association Ltd

Supreme Court of NSW|2003-10-15|Before: Young CJ, Commission J

CITATION : Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 HEARING DATE(S) : 14, 15 October 2003 JUDGMENT DATE : 1 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : The report concerning the alleged sexual abuse was not created in a manner that afforded the plaintiff procedural fairness. Declare report void.

CATCHWORDS : ADMINISTRATIVE LAW [52]- Investigation into allegations of sexual impropriety at school or church- Requirements of natural justice- Right of person affected to be informed of charge- Whether committee may merely adopt investigator's report- Whether one committee may investigate, charge and adjudicate- Whether certiorari lies to church tribunal performing role under Act supervised by Ombudsman. DISCRIMINATION LAW [1]- Alleged discrimination of residents in NSW because NSW law more stringent- No infringement of s 117 of Constitution. MEETINGS [6]- Quorum- Committee- No quorum specified- All members must participate in decision. PROCEDURE [750] Declaration- Report made criticising plaintiff but otherwise not affecting rights- Declaration made. Australian Constitution s 117 LEGISLATION CITED : Commission for Children and Young People Act 1998, ss 33, 39, 42 Ombudsman Act 1974, ss 25A-25F, 26, Part 3A Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Ball v Pearsall (1987) 10 NSWLR 700 Boughey v The Queen (1986) 161 CLR 10 Carver v Law Society of NSW (1998) 43 NSWLR 71 Craig v South Australia (1995) 184 CLR 163 Ethell v Whalan [1971] 1 NSWLR 416 Faulkner v Talbot [1981] 1 WLR 1528; 3 All ER 468 Fitzgerald v Kennard (1995) 38 NSWLR 184 Green v The Queen (1891) 17 VLR 329 Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 CASES CITED : Kable v DPP (1996) 189 CLR 51 Kioa v West (1985) 159 CLR 550 Leeth v Commonwealth (1992) 174 CLR 455 Lipohar v The Queen (1999) 200 CLR 485 Lyster's Case (1867) LR 4 Eq 233 MacLeod v Attorney-General for NSW [1891] AC 455 Musico v Davenport [2003] NSWSC 977 Re The Liverpool Household Stores Association Ltd (1890) 59 LJ Ch 616 Reg v Ireland [1998] AC 147 St Leonards MC v Williams [1966] Tas SR 166; 15 LGRA 62 White v Ryde MC [1977] 2 NSWLR 909 PARTIES : Dwane Hedges (P) Australasian Conference Association Limited and The President Office Holders and Members of the Australian Union Conference (D) FILE NUMBER(S) : SC 1916/03 COUNSEL : D C Fitzgibbon (P) D R Pritchard and E C Muston (D) SOLICITORS : Daphne Kennedy (P) Henry Davis York (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1916/03 - HEDGES v AUSTRALASIAN CONFERENCE ASSOCIATION LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff frames his case in certiorari challenging a decision of the defendant and its agents debarring him from participating in the life of the Gosford Seventh Day Adventist Church. 2 The plaintiff was employed as a teacher at the Sydney Seventh Day Adventist College at Strathfield at all material times prior to December 1996. That College appears to be owned and operated by the Church itself rather than by any subsidiary company. 3 The plaintiff was then employed by another arm of the Church between April 1998 and February 2000. However, he now works for an independent employer as a sales manager. 4 The plaintiff is a regular member of the Gosford Seventh Day Adventist Church. 5 On 5 March 2003, the plaintiff received a letter from the Pastor of his church which requested him to stand down temporarily from all church office including any position of church leadership or responsibility pending the outcome and report of an investigation being made in accordance with the Seventh Day Adventist Church statement on child sexual abuse. 6 The plaintiff then commenced these proceedings. He filed a statement of claim on 17 March 2003 which was amended more than once, the latest version being filed on 29 April 2003. His complaints were that the defendants had negligently caused certain investigations to be conducted into alleged misconduct of the plaintiff and have failed to provide him with precise details of the purported claims against him. In the alternative it is alleged that such actions were a denial of natural justice or constituted unconscionable conduct or are "an abuse of the process of law and a breach of statutory duty." 7 The statutory provisions referred to in the statement of claim are ss 33, 39 and 42 of the Commission for Children and Young People Act 1998 and ss 25A-25F and 26 of the Ombudsman Act 1974. 8 The case came on for hearing before me on 14 and 15 October 2003. Mr DC Fitzgibbon of counsel appeared for the plaintiff and Mr D R Pritchard and Mr E C Muston of counsel for the first and third defendants. It was conceded that the persons named as the second defendant should not be parties to the suit. 9 The defendant Australasian Conference Association Limited (ACA) has been named as the first defendant and has appeared as a representative of the Seventh Day Adventist Church. However, for reasons that will be made apparent, it is a mere trustee company and the unincorporated structure of the Seventh Day Adventist Church in Australia leads to considerable problems in this litigation. 10 It is necessary to set out the background facts in some detail.

11 I need to go back to 5 July 2001 when the plaintiff received a letter on letterhead marked "Seventh-Day Adventist Church, Professional Standards Committee A duly appointed body of the Seventh-day Adventist Church within Australia & New Zealand", signed by one Anne Norman who described herself as "Investigation Co-ordinator Professional Standards Committee". 12 The essential parts of that letter were as follows: "We have recently received a complaint of sexual abuse and harassment on behalf of the Seventh-day Adventist Church in which you were named as the alleged offender. You will be informed of the details of the complaint at an interview. Our role as the Professional Standards Committee (PSC) of the church is to act fairly to all parties investigating such a complaint and to present our findings to the church board of your local church. … Following advice of the complaint against you, a representative of the PSC, Ros Leahy, will invite you to meet with them [sic] for an interview at which a support person may be present. In general the support person will only speak during the interview if so requested by the interviewer. Subsequent interviews may be needed to complete the investigation." 13 It would seem that before this letter was sent and received the plaintiff had been contacted about an accusation by one Cheryl Robertson and that Anne Norman had notified the allegation of child abuse to the Child Protection Team of the NSW Ombudsman.

14 One might wonder what a problem within a church had to do with the Ombudsman. The answer is that what are termed child protection laws in this State spill over into about a dozen statutes involving a number of State instrumentalities though the principal costs of administering the legislation are thrown on to private educational, church and scouting organizations and the like. 15 Under Part 3A of the Ombudsman Act 1974, the Ombudsman is to be notified of any child abuse allegation and the Ombudsman may decide to become involved with the investigation. It does not appear from the legislation that there has been any delegation to Elizabeth Le Brocq, who says that she had decided to 'oversight' the matter. However, on 13 September 2001, a day after the PSC had purportedly made a decision on the matter, the Ombudsman's Office notified that "we" have decided to monitor the investigation. It is not clear whether the "we" refers to the Ombudsman's Office or whatever as the Ombudsman is not a plural person. 16 Resuming the narrative, it should be noted that the defendant's chronology lists May 2001 as the date Ms Leahy was retained and that she had 18 telephone or other interviews with people up to 3 August 2001. 17 A four hour interview was held between Ms Leahy and the plaintiff at which Pastor Nixon, the plaintiff's father in law attended as his support person. The interview was held at the Gosford Church. 18 The plaintiff asked that he be permitted to tape the interview. This request was refused Ms Leahy saying, "I don't believe that's necessary because its you two to my one". This was a peculiar statement from a neutral investigator. 19 However, it must be said on the other side that the request to tape the interview came from legal advice, which advice seems to be to test everything and to say little. 20 Ms Leahy said that she kept a transcript of the interview. This was wrong: she did not. She did, however, take some notes. She said that she wrote as people replied. However, she rarely wrote down the question, merely putting a number which was a cross reference to an allegation. Her 14 pages of very rough notes were appended to her affidavit. 21 The plaintiff requested a copy of the transcript after the interview. He received nothing until 20 February 2002, a week after he had been "convicted" by the PSC, at which time he received a two page typed summary of the interview from Ms Leahy's report. 22 The plaintiff says that Ms Leahy's record of the interview is incomplete, contains many inaccuracies, fails to record statements in full and generally exhibits bias towards him. 23 Ms Leahy made the clear point that the plaintiff told her that he did not intend to return to teaching. The plaintiff, however, informed the court that he may wish to do so. 24 Ms Leahy gave evidence before me. In her affidavit she describes herself as "a qualified social worker with extensive knowledge and experience in the area of child protection and sexual abuse of young people". Her only tertiary qualifications are a Bachelor of Social Work from the University of NSW in 1973 and two postgraduate diplomas. She has also partly completed studies towards a Bachelor of Legal Studies at Macquarie University. She has been a social worker employed by various public hospitals up until 1987, and following this she largely worked for the Victorian Government as a supervisor for the Health and Community Services including some work in the child protection area. From January 1996 she has been a teacher in Community Welfare at Nirimba TAFE. 25 Ms Leahy swore that she is regularly retained by the Seventh Day Adventist Church to investigate matters involving the sexual abuse of young people concerning the church. 26 This is very much an understatement. It appeared from other evidence that Ms Leahy has in fact been a founding member of the PSC.

27 However she gave evidence that she has conducted 10-15 investigations for the Seventh Day Adventist Church in each of the last two years in addition to the present inquiry, and that she has also prepared reports for solicitors for child problem matters and sexual abuse cases. 28 Ms Leahy clearly has no visible skills as an investigator or adjudicator. One piece of her evidence in particular was mind boggling and was reminiscent of Kafka's novel, The Trial. She said that she did not believe in putting to the person she would call in her report "the alleged offender" what the complaint was, but would say to him "You know why you're here, don't you?" and would await the flow of guilt ridden statements. 29 Her actual evidence at T44 was: "Q. Do you go along with the philosophy that is I suggest prevalent in your organisation that you don't tell people, the PSC, you don't tell people what is alleged against them because they might make up stories?' A. No, I always think that in good investigations you ask someone why they are there. I mean, they know it is in relation to sexual abuse and sexual misconduct. I would like to hear why they think they might be there. I ask open-ended questions and try to develop a rapport with the person and try to develop a little bit about their conduct and why they are coming there and put the specific allegations to them." 30 Mr Fitzgibbon put to Ms Leahy that it was a fact that out of 80 cases she had investigated 70 offenders were found guilty. She cavilled with that proposition saying that the usual result was that some of the allegations were substantiated and some not. 31 However, Ms Norman admitted under cross-examination that those statistics were about right and that she may have said that to a reporter for a church newspaper. 32 Ms Norman also agreed that the PSC's policy was that "Perpetrators aren't told the allegations prior to interview." 33 I received two versions of Ms Leahy's affidavit one an expurgated version which was made available to opposing counsel and an unexpurgated version which only I and the defendant's counsel saw. I was uncomfortable about this, but counsel for the plaintiff said he had no objection to the course as he could easily guess the names that had been blacked out on the expurgated version. 34 I need to say something at this point about the structure of the Seventh Day Adventist Church. 35 The Church is a world wide institution and, like most churches, unincorporated and in some respects can be said to be a federation of unincorporated churches. 36 The world wide Adventist Church is arranged in 12 administrative divisions. The South Pacific Division operates in Australia. 37 The Adventist Church in Australia operates at four levels. The local church is made up of individual believers and members. The local Conference is constituted by members of local churches in a region. The Union Conference is made up of churches within a nation. The General Conference is made up of the unions throughout the world. 38 The Australian Union Conference (AUC) is an unincorporated association. Its general purpose is to support its constituent conferences. It has an Executive Committee which acts as its standing committee. 39 The defendant Australian Conference Association Ltd (ACA) is primarily a trustee company which holds the title to the Church's property. 40 The PSC is answerable to the AUC. Under its constitution it is to consist of 5-7 persons who have professional training and expertise in dealing with sexual abuse/misconduct. It is to consist of a minimum of 4 SDA professionals and at least one non-SDA professional and is to function under the direction of a chairperson who will be appointed by the executive committee and have professional expertise and experience in dealing with sexual abuse/misconduct. The PSC is to comprise at least * one legal representative with an awareness of abuse/misconduct issues

one specialist in the field of complaints or investigation * three individuals with clinical qualifications and experience in the helping profession
the Director of Adventist Support No less than 50% of the members of the committee are to be female and no more than 50% shall be employed by the church. 41 As an aside, the word "professional" in the PSC's constitution is odd. The word originally either had the annotation of someone who did work to benefit fellow human beings as opposed to just doing a job for wages or a person who played sport for money rather than as a gentleman. Neither of those meanings seem compatible with the PSC's constitution. The word seems to be used in the sense of someone with expertise or at least pseudo-expertise in the "helping industry" whatever that may be. 42 There was no provision in the PSC's constitution defining a quorum. This meant that all members needed to attend in order to make a valid decision. 43 Whilst it may be laudable for an investigating committee to be made up with specific representation of specific interests groups, it is usually undesirable for this to be the case with an adjudicative committee. Unfortunately, this PSC was both. 44 I will consider how the PSC was in fact constituted for consideration of the present problem in due course. 45 Ms Leahy presented her report dated 8 August 2001 to the PSC on 12 September 2001. 46 The Report was headed "INVESTIGATIVE REPORT" Name (Alleged offender): Dwane Hedges." 47 This is the start of the problems in this case. A church or other body may commission a report into a person's affairs for a number of reasons. The two prime reasons are to see if the propositus may have committed a breach of the church rules or secular law. The second is to see, whether in all the circumstances the propositus is a fit and proper person to hold church office. If the enquiry is the second, there is no room for terms like "alleged offender". If it is the first, particular care must be taken to safeguard the civil rights of the propositus. 48 We do not know what was the commission referred to by Ms Leahy as the "investigative brief", nor does the Report itself ever note what was the subject of Ms Leahy's investigation. 49 We do now know, however, that the process was triggered by a formal complaint from the senior pastor of the Gosford Church based almost entirely on hearsay material. 50 The Report has the following headings:-

list of persons interviewed * list of other relevant persons *summary of alleged concerns/allegations (as stated by persons interviewed) *specific concerns indicative of sexual misconduct *summary of relevant information from Dwane Hedges' personnel file *summary of interview with alleged offender *complicating issues *summary of investigation *victims and associated persons *church communities *management response to concerns *outcome *recommendations 51 The material under "Outcome" was as follows: "On the balance of probabilities the Professional Standards Committee believes the allegation that Dwane Hedges was sexually inappropriate with female students at SAC. The committee further believes that inadequate administrative practices contributed to the continued abuse of students." 52 The Recommendations were in four sections, (1) headed "Relating to the Alleged Offender and family", (2) Relating to Victims, (3) Relating to the SDA Educational Systems and (4) relating to the Church. 53 The recommendations relating to the plaintiff included that he be required to arrange both individual and joint counselling with his wife at his own expense for two years, that he not be employed as a teacher for two years and that he not hold church office or a position of leadership for two years. 54 The structure of the report suggests that no-one really knew what were the allegations against the plaintiff when the investigation was launched. There was a series of "concerns" based on hearsay. Other people were interviewed and hearsay was added to hearsay. Some bizarre allegations were put to the investigated as a result of gossip including an allegation that the plaintiff had fathered a child of a particular schoolgirl. The girl herself denied this, but this fact does not appear in the report. When she had collected this material, the investigator then interviewed the plaintiff, but could not put any "charge" to him as there wasn't one. All she could do was, after first inviting him to tell all, to put specific incidents to him. 55 This procedure was not wholly the fault of the investigator. The structure of the legislation is that any gossip about a schoolteacher, even gossip between students in a playground overheard by another teacher is information which must be reported and investigated. 56 The structure of the report indicates that the investigator adopted both the function of looking at the church and school systems of protection as well as seeing whether there was a case against the plaintiff. 57 The fact finding in the report was quite inadequate. Ms Leahy noted that the plaintiff's recollection of events differs significantly to the other witnesses. However, she goes on to say "he reduces the alleged degree of harm by distortion of the facts". Ms Leahy never found any facts. 58 The use of the terms "victims" and "perpetrator" or even "alleged perpetrator or offender" in the report were unfortunate. They give the flavour of a bias against the person being investigated which should not appear in an impartial investigation. 59 Ms Leahy should also have been aware that the schoolgirl principally concerned in the alleged misconduct, now a happily married woman (whom I will call "the lady") denied the allegations and said that the plaintiff was a good mentor to her. This evidence was not contained in the report, rather this lady's evidence was summarized as [the lady] "was extremely defensive about Dwane and his touching, seeing it as caring and having no negative impact on her." 60 This summary tends to put down the lady as being unable to give a true account because of some evil influence of the plaintiff. However, when the lady gave evidence in court, she appeared to be a well adjusted mature person who knew her own mind. 61 The lady did however, say that she was surprised with the brief informal chat that Ms Leahy had had with her over the telephone: she expected that she would be interviewed properly in person. 62 However, Ms Leahy did note that the information from the people she refers to as "victims and their parents" "is significantly less in content and seriousness than information received from witnesses to whom they allegedly disclosed at the time of the alleged offences." This circumstance should have made an investigator be extremely concerned in accepting gossip and hearsay. 63 The bizarre allegation that was also put to the investigator as fact based on hearsay that the plaintiff had had a love child with the lady which the lady categorically denied, was another feature which should have registered a red light with the investigator. 64 The plaintiff particularly complains about a paragraph that his former headmaster alleged that he estimated that 12 or more females were victims of the plaintiff's inappropriate behaviour. The plaintiff notes that only four girls are identified. However, the report notes that there was a reluctance of the girls to make formal complaints and that the investigation was "impeded" by the "agenda of a serious falling out between the headmaster and the plaintiff. There is, however, in the report, the overtone that as the inappropriate behaviour with four girls probably occurred, so it did also with the other eight who were too reluctant actually to complain. There is no material to support this view. 65 The investigator should also have taken into consideration that there seemed to be a political battle involving the plaintiff being waged in the church which might have influenced some of the gossip about the plaintiff circulating in the Gosford church. The plaintiff had been the complainant against a pastor who was sleeping with one of his parishioners and the pastor was "sacked". This incident is said by the plaintiff to have caused some of the ex pastor's friends to pay back the plaintiff. It is clear that the investigator knew of this incident. She did not, however, deal with it in her report. 66 The significance of the inadequate investigation was debated before me. 67 Normally, where a person has jurisdiction to enquire and report, she has jurisdiction to make an erroneous finding of fact. However, under section 26(1)(g) of the Ombudsman Act, where the Ombudsman finds that an investigation is wrong, the Ombudsman may take appropriate action. 68 As I have said, Ms Leahy's Report was presented to the PSC's meeting on 12 September 2003. 69 The minutes of that meeting as to the report are extremely brief, merely stating "6.2 Dwayne Hedges - report tabled and recommendations accepted. Anne [Norman] to liaise with Ombudsman's Office. David [Robertson] and Anne to meet with Gosford church pastor." 70 The minutes show that at the meeting of the PSC there were present Dr Stephanie Liddell (Chair), Trish Norris, Meredith Cousins, David Robertson, Anne Norman. Dr John Cox-May was noted as an apology. Of these people, only Dr Liddell and Mesdames Norris and Cousins were members of the PSC. David Robertson was a consultant (whatever that may mean), not a member. Anne Norman was not a member. Dr John Cox-May was a member. 71 Ms Norman said that even though the PSC's constitution provided for it to have five to seven members, it only had four as at September 2001. Ms Norris was the person with legal experience and Dr Cox-May was the specialist in the field of complaint. 72 As there was no provision for a quorum, all members of the PSC needed to be present in order to make a valid decision. 73 This proposition follows from the authorities. If a board of directors delegates a function to a committee and makes no provision for a quorum, all members of the committee must be present at the meeting which exercises the power, though, if there is disagreement, the majority view prevails: Re The Liverpool Household Stores Association Ltd (1890) 59 LJ Ch 616, 624. The same applies where a government authority vests in a committee the power to make determinations: Green v The Queen (1891) 17 VLR 329, 333; St Leonards MC v Williams [1966] Tas SR 166; 15 LGRA 62. The rationale in each case is that appointors have evinced the intention that the power is only to be exercised by the whole body and not by some of the members of it. A different rule now applies to company directors; see Lyster's Case (1867) LR 4 Eq 233 and Ball v Pearsall (1987) 10 NSWLR 700, 704. 74 Thus, it would seem that the adoption of the report was bad because the meeting was not properly constituted. 75 It may also have been bad because David Robertson was present and may have participated in the discussion; see Ethell v Whalan [1971] 1 NSWLR 416. 76 The point lastly noted was not made by counsel for the plaintiff. Indeed the quorum point was but reluctantly adopted. There was also reluctance to explore another area of concern and that was that the minute, especially a very terse minute was no evidence of what actually happened at the meeting and that proper evidence should have been presented as to what occurred. 77 The other major problem was that the PSC simply adopted Ms Leahy's draft resolution. 78 Where a body is charged with a responsibility, it must exercise that responsibility itself and cannot delegate it to another. 79 In White v Ryde MC [1977] 2 NSWLR 909, the Court of Appeal ruled, in the words of Reynolds JA at 923-4: "As a general proposition, it is plain enough that he who decides must hear. However, this must be understood in the sense that the decision maker has before him the evidence and submissions of those entitled to be heard. It is by no means a universal requirement that the decision making body must see and hear witnesses, much less actually hear submissions or representations … It is, of course, necessary that the decision making authority must be apprised of all the relevant material in order to evaluate the recommendation and to understand the force of the representations." 80 There is nothing in the evidence in the present case to show that the three members of the PSC had anything before them other than the report and as to whether they directed their minds to the underlying issues at all. They simply appear to have adopted the report. They appeared to have acted in ignorance of the evidence (apart from Ms Leahy's inadequate summary of it). This they were not able to do as a matter of administrative law; see eg Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551. 81 After the purported PSC meeting of 12 September 2001, Ms Norman reported to the Ombudsman's Office. 82 That Office replied on 21 December 2001 that it considered that the church had fulfilled its reporting obligations to the Ombudsman. It noted:

(a) It was a defect that the investigative brief was not included in "your final report". It would have been useful for all to see the objectives and purpose of the investigation.

(b) It would be important to provide the report to the plaintiff to allow him to participate in the decision making about the information becoming public. 83 On 13 December 2001, Anne Norman telephoned the plaintiff and said, "Dwane, I have received the report of Ros Leahy following her interview with you. Would you like the opportunity to meet with me to discuss the content of the report". 84 The plaintiff said he would like that opportunity and arrangements were made to call her after Christmas. 85 Anne Norman never told the plaintiff that the report had already been adopted by the PSC. 86 Anne Norman gave evidence that as she had not received any further communication from the plaintiff, the PSC met on 12 February 2002 and discussed the matter. 87 The minutes of the PSC meeting of 12 February 2002 show that there were present Dr Liddell, Ms Coleman, Ms Norris, Mr Kevin Price, Mr Robertson and Ms Norman. It noted Simon Matthews as an apology. 88 Ms Norman gave evidence that Messrs Price and Matthews and Ms Coleman had become members of the PSC before 12 February 2002. 89 Again, with Mr Matthews not present, there was not a valid meeting of the PSC. 90 The minutes of 12 February 2002, which were taken by Ms Norman, note "Dwane Hedges---Anne to write letter to Dwane and Gosford church pastor informing him of PSC recommendations. Anne offered to meet with Dwane before Xmas and/or after, however Dwane chose not to meet, but decided to write letter to the PSC. To date we have not received the letter but Anne rang him two weeks ago and he is still planning to send it." 91 The activities attributed to Anne in the minutes are absent from her affidavit, and, indeed, run contrary to it. However, even if the minute is accepted, it is clear that the members of the PSC who were present were informed that the plaintiff wished to inform them of material by letter. They did not wait for the letter: they gave no reasons for this failure to listen to their church member's defence. 92 On 17 February 2002, Dr Liddell signed a letter prepared by Ms Norman addressed to the plaintiff. The letter commenced, "A meeting of the Professional Standards Committee took place on 12th February 2002. At this meeting the investigative report and the report from the Ombudsman were tabled. We found the complainants to be credible and their concerns validated. These documents were discussed and a number of recommendations pertaining to this case were passed." 93 The recommendations were, it is no surprise to say, virtually identical to those contained in the Leahy report. 94 The letter also told the plaintiff that he could, if he so chose, view an expurgated version of the investigator's report in the presence of a PSC representative. The plaintiff says that, on legal advice, he did not take up that offer. 95 A problem with the passage I have extracted from the letter is that there is not one suggestion in the minutes of 12 February 2002 that any such resolution was ever passed. 96 In re-examination, Mr Pritchard endeavoured to get over this problem by questions to Ms Norman which elicited the answers that the report was indeed retabled and there was discussion about the Ombudsman's letter as to how procedures should be altered. She could not give any explanation as to why there was no mention of this in the minutes. She also did not give any evidence as to whether the report was discussed or how, if it did, the PSC found the complainants (whoever they were) credible or their concerns validated. 97 I reluctantly formed the view that the letter to the plaintiff of 17 February contained a tissue of untruths. 98 However, on 20 February 2002, Ms Norman reported to the Commission for Children and Young People that disciplinary proceedings had been completed against the plaintiff. That was recorded by the Commission in its records and is available for search by prospective employers. 99 Ms Norman also communicated with the Gosford church whose officials have indicated that they propose to consider and possibly implement the recommendations. 100 I should note that the PSC acted both as the authority which authorised the investigation and also the adjudicator. This is bad practice and usually this fact alone will amount to a denial of natural justice as a person whose ability to earn a living is jeopardised by an adjudication is entitled to have that adjudication performed by an independent group of people: Carver v Law Society of NSW (1998) 43 NSWLR 71. 101 Some of the actions complained about occurred in Fiji. No-one has addressed any argument as to whether it is competent for this Act to penalize acts which occurred outside Australia: see MacLeod v Attorney-General for New South Wales [1891] AC 455. 102 Any decision making adverse findings against the plaintiff must be invalid. It is fatally flawed for about a dozen reasons set out earlier and summarized below. Whilst not all of these defects are made out, the following is a list of the major errors:

No valid meeting of the PSC was ever held to make the decision.

Even if a valid meeting had been held the decision was not actually made.

Non-members were present at the meeting and may have participated in the decision.

The plaintiff was never informed of the precise charge against him.

The plaintiff, who was not allowed legal representation at his "interview" and who was denied permission to tape it, was, despite his request, not given a transcript of his interview.

Knowing that the plaintiff wished to make representations, the PSC did not give him a proper opportunity to do so.

The PSC had already purported to make a decision in August and then communicate that decision to the Ombudsman before purportedly remaking its decision in February 2002 without informing the plaintiff.

The PSC did not comply with the plaintiff's request for a transcript of his interview until after the decision to "convict" was made, and then did not provide a proper transcript.

The PSC never was presented with the whole of the evidence.

The PSC appeared merely to have adopted the investigator's report.

The PSC acted both as the authority which authorised the investigation and also the adjudicator.

The investigator was not properly instructed as to what she was supposed to be investigating.

The investigation was obviously amateurish and inadequate.

It may not have been competent to examine conduct that occurred in Fiji. 103 Mr Pritchard, always the consummate advocate, replied to some of these criticisms by saying that the church was only a relatively small concern and that to carry out the process with every "i" dotted and every "t" crossed would cost far more money than this small church could reasonably afford. 104 I believe that there is a lot of truth in this submission and that it may well be that the State has thrown too heavy a burden on voluntary organisations to police this sort of conduct. Be that as it may, the fact is that, even with limited resources, the church could have performed much better than it did. 105 What is surprising is that the Government authority which was monitoring the investigation failed to put the process back on track. 106 What is most surprising of all is that counsel for the plaintiff is not too upset about most of the matters I have summarized. He puts far more emphasis on general denial of natural justice and of what he calls breach of statutory duty. 107 Mr Fitzgibbon also put forward a submission that because New South Wales had adopted a set of child protection laws which subjected male schoolteachers to jeopardy with respect to their economic benefits derived from employment in a way far more burdensome that those in other States, that the NSW laws were invalid because of s 117 of the Australian Constitution. 108 Section 117 of the Constitution provides that: "A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." 109 This section protects a resident of State A who is discriminated against in State B because he lives in a State other than B. It does not deal with a resident of State A who is discriminated in State A because he lives in State A. If it were otherwise, no State would be able to pass laws different from any other State. 110 I have set out at the commencement of these reasons the statutory provisions upon which Mr Fitzgibbon relies. 111 As to the Commission for Children and Young People Act, s 33 is a mere definition section, s 39 imposes a duty on employers to notify the commission of certain matters and s 42 deals with unauthorised disclosure of information. None of them could possibly impose a statutory duty. 112 As far as the provisions of the Ombudsman Act relied upon are concerned s 25B of the Act requires the Ombudsman to keep investigations of the present type under scrutiny. However, whilst it is possible that some statutory duty lies on the Ombudsman, no statutory duty could lie on the church which could sound in damages or equitable relief to the present plaintiff. 113 Mr Fitzgibbon also submitted that the provisions of the NSW Child Protection legislation which applies to non-government schools is different from the legislation which applies to government schools and thus has a discriminatory effect. Even if this is so, a matter on which I make no comment, this would surely be a matter for the legislature. 114 Mr Fitzgibbon further says that the Child Protection legislation is unconstitutional because of ss 51, 73, 75, 76, 109 and possibly s 117 of the Constitution. There is no substance in this submission. 115 In this connection, Mr Fitzgibbon furnished me with a transcript of the argument before the High Court in Kable v DPP (1996) 189 CLR 51. With respect, I cannot see how I am assisted by this document. 116 Then it is put that the situation means that there is inequality before the law depending on whether a person is a State employee or a church employee. He relies on the minority in Leeth v Commonwealth (1992) 174 CLR 455 for support that such as state of affairs is prohibited under the constitution. The majority decision says that this is not so. 117 Mr Fitzgibbon then says that cases such as Lipohar v The Queen (1999) 200 CLR 485 would "prima facie suggest serious breaches of the rights of the plaintiff and others at common law". Again, there is no substance in this submission. 118 Finally, Mr Fizgibbon says that the NSW legislation is bad because it operates retrospectively. It picks up on acts which occurred before the legislation was passed and imposes penalties ex post facto in respect of such acts. 119 It is certainly true that there are elements of retrospectivity about the legislation. However, the purpose is child protection in the present and future and to my mind the fact that past acts are now to be recorded in order to achieve that end is well within the powers of the Parliament. 120 I turn now to general submissions as to denial of natural justice. 121 Natural justice is usually a question of procedure. Different situations will give rise to requirements of satisfying the general principle of natural justice in different ways. 122 Mr Fitzgibbon says that I should apply the principle of natural justice formulated by Mason J in Kioa v West (1985) 159 CLR 550, 582: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it". 123 I have already dealt with most of the content of this submission earlier in these reasons. 124 The Kafkaesque style of interrogation used by Ms Leahy would prima facie run contrary to this principle. However, this is really because the church failed to realize that there were three distinct stages involved in the process. The first stage is information gathering by the investigator to determine whether there is a case to be made of misconduct or whether the welfare of the church requires that a person step down from office. The second stage is putting to the person against whom action is to be directed a clear statement of the matters he or she must answer. The third stage is the adjudication. The church elided all three stages into one. 125 I do not consider that the process did give the plaintiff a fair chance of knowing what exactly was alleged against him and an opportunity to answer. 126 However, I should note, that early on in the investigation, the plaintiff took the position, which he says was a result of legal advice in not co-operating in the investigation and waiting until formally informed of the precise allegations. This was a dangerous path to take. However, the errors of the church are so gross, that I must uphold the submission of a denial of natural justice. 127 Some of the material led against the plaintiff was that he soon became a hero to young girls and that he was not mature enough to see the dangers of this. Moreover his natural personality as a "touchy feely " person exacerbated the problem in the eyes of some parents and church leaders.

128 "Inappropriate behaviour" is a most inexact term. One of its problems is that people of different ages and gender will take a different view as to what behaviour is expected in different life situations. 129 The plaintiff seemed to acknowledge that he could be considered to be on the border line of appropriate behaviour, but he had not crossed the line. 130 There is no evidence at all that the plaintiff ever actually sexually abused anyone (subject to what I will shortly say about assault). However, the material before me makes it clear that a reasonable person could conclude that the plaintiff's behaviour was such as to lead to a dangerous situation with impressionable students of the opposite sex and might be considered inappropriate in that sense. 131 Section 33 (1) of the Commission for Children and Young People Act, defines "child abuse" as meaning "(a) assault (including sexual assault) of a child… whether or not, in any case, with the consent of the child". [Paragraphs (b) and (c) of the definition have no relevance here]. 132 Mr Pritchard put that as there was admitted occurrences of the plaintiff hugging female students (with consent) there was an assault and thus child abuse. 133 It is difficult to accept this proposition. If it were correct, any parent who kissed his or her child good-bye as the child was leaving for school would be guilty of child abuse. Any teacher who caught a child who was falling off a platform would be guilty of child abuse. 134 Mr Pritchard's submission has support from cases such as Faulkner v Talbot [1981] 1 WLR 1528 at 1534; 3 All ER 468 at 474, where Lord Lane CJ described an assault as "any intentional touching of another person without the consent of that person and without lawful excuse." See also Fitzgerald v Kennard (1995) 38 NSWLR 184. Indeed in Reg v Ireland [1998] AC 147, it was held that the making of nuisance telephone calls may be an assault as the brain is disturbed by them. 135 However, it must be remembered that not all physical contact between people is an assault. The expected jostling in peak hour conditions does not involve assault, not because of consent, but because the ordinary incidents of social intercourse even though there might be touching, does not constitute an assault: Boughey v The Queen (1986) 161 CLR 10, 24. 136 Likewise in a school scenario. The ordinary incidents of social and sporting intercourse does not constitute an assault. A teacher tapping a child on the shoulder to indicate that it is his or her turn to go on stage , a teacher demonstrating to a child how to hold a cricket bat or tennis racquet does not commit an assault even if the child is physically touched. 137 It would be unwise to go too far along this line as, whilst it is possible to state that particular acts fall on one side of the line or the other, it is impossible to be more specific. There would be some actions which do not cause immediate harm to a child such as hugging a child who has scored a goal, which may or may not come within the term "assault" as used in the Act. 138 The meaning of the word "assault" in the Commission for Children and Young People Act must be given a sensible meaning that would make it a worthwhile exercise for money to be spent in making investigation, the cost incurred in keeping a government register and the cost of future employers taking notice of the entries in the register. 139 In the instant case, I am unable to say whether the hugging was an assault and thus statutory child abuse or not. I suspect it might well be, but no-one has directed their minds to the definition problem. The matter is not as straightforward as Mr Pritchard suggests. 140 I now turn to the question of remedy. 141 Mr Pritchard says that the whole matter is premature as all the PSC did was to make recommendations to the local church at Gosford which recommendations it might or might not implement. 142 The answer to that submission as far as declaratory relief is concerned is to be found in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 that a report wrongly made which could have repercussions can be declared void even though the report itself does not cause damage. 143 As I noted at the commencement of these reasons, Mr Fitzgibbon's primary thrust was for certiorari to quash the PSC's decision. 144 There is great doubt as to whether certiorari extends to the decisions of a private tribunal such as a church professional standards committee. The High Court held in Craig v South Australia (1995) 184 CLR 163, 174 that certiorari goes to tribunals exercising governmental powers. 145 In Musico v Davenport [2003] NSWSC 977, McDougall J held that certiorari lay to an arbitrator appointed under the Building and Construction Industry Security of Payment Act 1999. 146 In the present case, whilst the private tribunal is in one sense doing the work needed to be done to fulfil the objects of the government's child protection legislation, I do not consider that it is "exercising governmental powers". 147 Indeed, it might also be said that as the Seventh Day Adventist Church is an unincorporated body and as the PSC does not exist at law apart from its members (who are not parties to this litigation), certiorari could not be granted in any event.

148 An additional and equally valid reason why certiorari does not lie is provided by Ainsworth v Criminal Justice Commission (supra), namely that no legal effect or consequence attaches to the report. 149 Thus certiorari does not lie. 150 Accordingly the most to which the plaintiff is entitled is a declaration that the purported decision of the PSC is void. 151 I thought about a consequential order that the defendant notify the authorities of this declaration. However, as completed disciplinary proceedings have to be notified whatever the result unless the complaint is found to be baseless (which is not the case here) no such consequential order should be made. 152 The question arises whether any declaration should be made at all. As I have said, the members of the PSC are not parties and the defendant is only a trustee company and is not the church. 153 However, as the matter has been fully argued, and the defendant has put forward a defence of the church, I believe it is appropriate to make the declaration. 154 As to costs, the plaintiff has been successful, but a number of the grounds on which he sought relief were hopeless. He succeeded on a part of the case which he ran as a second string to his bow. Moreover, he took the attitude that he would sit back and take all technicalities that his lawyers were able to advance rather than co-operate with his church to ensure that the members were not detrimentally affected by his conduct. 155 In my view the defendant ACA should pay one-third of the plaintiff's costs. However, as this matter of costs was not the subject of argument, on application to my Associate by either party within 14 days I will vacate the order for costs and make such order as I consider appropriate after hearing argument. 156 I will publish these reasons and stand the matter over to Tuesday 9 December 2003 for the purpose of short minutes containing the appropriate form of declaration and order for costs to be brought in by the plaintiff.

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