Disciplinary Proceedings - Statutory scheme
39 I shall first examine the Teaching Services Act 1980 and the regulations with a view to assessing the function of disciplinary proceedings.
40 Section 37 of the Act provides that the Director General of Education is responsible to the Minister for the general conduct and the efficient, effective and economical management of the functions and activities of the Education Teaching Service. This latter reference is a reference to all persons employed under Division 2 of Part 4 of the Act (s 44).
41 The functions of the Director General of Education are set out in section 38. They are many and varied. They include the classification of schools; the determination of teaching staff establishment for schools; the grading of officers employed in the Education Teaching Service; the determination of promotions and transfers of officers and transfers of temporary employees. Relevantly, for present purposes the functions of the Director General extend, subject to the provisions of the Act and the regulations, to the maintenance of discipline in the Education Teaching Service, (s 38(1)(i)).
42 I have earlier set out s 83 which deals with breaches of discipline. I have also made brief reference to the regulations. Section 84(2) provides that the regulations may:
"(a) make provision for or with respect to the manner of dealing with alleged breaches of discipline, and
(b) prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Division."
43 Section 85 deals with punishment for breaches of discipline. Disciplinary responses include a caution, reprimand, fine, and reduction in rate of salary or wages or a reduction to a lower classification or position in the teaching service. In addition, the teacher may be dismissed or required to resign. Where the breach has been dealt with by a prescribed officer, such officer may decide to recommend to the Director General that the officer be dismissed or that he or she be required or allowed to resign.
44 Section 86 provides for punishment where an officer is guilty of "a serious offence". This refers to a finding of guilt in NSW of an offence that is punishable, either on indictment or summary conviction by imprisonment for a term of 12 months or more. It extends to a guilty finding elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence punishable by imprisonment for a term of 12 months or more. There is also a power of suspension of officers charged with breaches of discipline or serious offences (s 87).
45 The Teaching Services (Education Teaching Service) Regulation 1994 contains regulation 15(2)(a) and 15(2)(b) which I have referred to earlier.
46 The manner of laying of charges is dealt with in Regulation 14. This enables a charge to be laid orally or in writing, but, if laid orally, the member of staff must be furnished with a written copy of the charge within a reasonable time. The member must be directed to send a written reply to the authority within such time as is specified in the direction. The reply must admit or deny the truth of the charge; and may give an explanation that the person wishes to make in regard to the charge.
47 As indicated, the method of determining the charge may take one of two paths. The first is essentially an explanation path which relies on written explanations and reports. The second is by conducting an inquiry. If the latter path is chosen the conduct of the inquiry is dealt with under regulation 16.
48 Regulation 19 provides that if a charge of breach of discipline against a member of staff is found not to be proved:
"(a) any suspension of the member must immediately be removed; and
(b) the charge must not be recorded in (or, if already recorded, must be removed from) the member's personal record."
49 In considering the relationship of this statutory scheme to the matters pleaded in paragraphs 35, 36 and 37 of the amended statement of claim, it is necessary to bear in mind that the plaintiff had been charged in June 1997 with serious counts of aggravated assault against two ten year old children. True it is these charges were withdrawn on 11 December 1997. Nevertheless the subject matter of those charges were the subject of further investigation with a view to the laying of disciplinary charges against the plaintiff. The charges were made in late June 1998. The Prescribed Officer was appointed on 12 November 1998 and determined to deal with the changes by way of the "explanation" route in Clause 15(2)(a) of the 1994 Regulations. The allegations were found not proven and all charges were dismissed on 29 July 1999.
50 The pleading, it will be recalled, alleges that "the Department of Education, by its servants and agents who investigated and conducted the disciplinary procedures, were negligent and as result of which the plaintiff has suffered injury, loss and damage."
51 It is clear that the matters pleaded allege that the negligence was that of the servants and agents of the Department who both investigated and conducted the disciplinary procedures. It is not clear from a reading of the "particulars of negligence" contained in paragraph 37 of the pleading whether this extends to the actual charging of the plaintiff and the conduct by the Prescribed Officer of the disciplinary proceeding. I shall assume however for the purposes of the present application that it does extend to those matters. Certainly, the allegations of negligence extends to the activities of the two named persons Pat Clear and Glenys Blackadder, who were said to be involved in the investigation and charging of the plaintiff. There are some 22 particulars pleaded in paragraph 37. Essentially, these particulars allege that the allegations against the plaintiff were not investigated "diligently", "within a reasonable time"; and that there was "undue delay" in both the investigation of the allegations and the bringing and prosecuting of the Departmental charges. Other particulars include an allegation that there was a failure to obtain statements from relevant witnesses prior to recommending that the plaintiff be charged; a failure to take reasonable steps to investigate the allegations and gather together all the relevant material prior to recommending that the plaintiff be charged; and a failure to supply to the Prescribed Officer statements of persons whose evidence would be exculpatory of the plaintiff. In addition, there was a general failure on the part of the case management unit to provide to the Prescribed Officer certain detailed statements and correspondence until after the plaintiff's solicitors (and others) brought these matters to their attention. There was also an allegation that those carrying out the investigations into the allegations against the plaintiff did so in an unfair and biased manner; and that they had pre-judged the plaintiff. Finally, there were a series of particulars essentially alleging that the system of investigation involving complaints about members of the teaching profession was flawed and inadequate.
52 It will be seen that the allegation of the existence of a duty of care is postulated precisely in relation to the statutory scheme for investigating, charging and conducting disciplinary proceedings against teachers. It has been said that the nature of disciplinary proceedings, particularly in relation to professional people, is not penal in nature but protective. (Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77; Re; Maraj (a Legal Practitioner) (1995) 15 WAR 12). There is no reason to doubt that this is so in relation to disciplinary proceedings involving teachers.
53 The "disgraceful or improper conduct" said to constitute a breach of discipline in the present matter was the serious sexual interference with young pupils. While in one sense it is correct to say, as the plaintiff did in his arguments, that the Teaching Services Act is more concerned with the employment of teachers than with the precise position of students within the schools taught by government teachers, there can be no doubt that disciplinary proceedings related to allegations of breaches under section 83 of the Act are plainly concerned with the welfare of students committed to the care and control of teaching staff. If it is necessary to identify the objects of the "protective" disciplinary system created by the Act and its Regulations it is clear, in my view, that the protection is essentially that of the students. No doubt, there are other ambits to the protective nature of the disciplinary proceedings, namely the overall efficient operation of schools and the maintenance of proper professional standards. But, in my view, the essential purpose of the disciplinary procedures is to provide protection to those for whom teaching services are provided, namely the children.
54 It is in this context that the inconsistent obligations described in Sullivan come into play. The duty of care, which the plaintiff asserts exists in the present matter, cannot be reconciled satisfactorily with the duties of those whose task it is to investigate, recommend charges and take part in the subsequent disciplinary proceedings. These functions require, if the task is to be carried out properly, a thorough and careful investigation into the circumstances without apprehension as to possible adverse consequences for the person who is the subject of the disciplinary proceedings. The example given in Sullivan at 582 para 62 is, in my view, not inappropriate to the present examination. Let it be assumed that, in the present matter, those persons in the Case Management Unit responsible for the examination of the complaints took the view that the dismissal of the police proceedings did not satisfactorily deal with the complaint by the children against the plaintiff. Let it be further assumed that, in those circumstances, the departmental officers set about making further inquiries and obtaining further statements and the like with a view to determining whether departmental charges should be brought against the teacher. The interests of the children, that is the alleged victims of the disgraceful conduct, would require the most thorough and exhaustive investigation while ever there remained any suspicion that the inappropriate conduct had occurred. On the other hand, the interests of the teacher suspected of the inappropriate behaviour, in the circumstances where it was by no means clear that the conduct had occurred, would head in the opposite direction.
55 While it is true that there is no express provision in the Act or regulations which make the interests of the children paramount, it is clear that the protective nature of the disciplinary procedures is starkly at odds with the proposition that in conducting those procedures, there is a duty of care owed by the Department and its staff to the teacher.
56 The proper investigation of a charge against a teacher in circumstances where sexual misconduct is alleged may require extensive and exhaustive inquiries. It would be contrary to the nature of disciplinary proceedings of this kind that there should exist an obligation, sounding in damages for breach, if the investigation were not able to be completed rapidly and without delay. The duty of care expressed in those terms, as it is indeed pleaded in the para 37 particulars, is in my view inconsistent and incompatible with the obligations cast on those whose duties it is to investigate, recommend and prosecute charges for serious breaches of discipline.
57 The second matter which has drawn me to the same conclusion is the careful and thorough analysis of the subject statutory scheme by Spigelman CJ in The State of New South Wales v Paige. This involved an appeal from the judgment of Graham DCJ. The respondent to the Appeal had succeeded in a claim in negligence with respect to psychological damage he suffered as a result of the manner in which he was dismissed as the principal of a public high school in Sydney. There had been, at the school, complaints of alleged sexual misconduct against one of the teachers. The respondent dealt with these matters, partly in accordance with departmental requirements but partly in his own fashion. Later when this came to light, an investigation was conducted in relation to the actions of the respondent at the time the complaints had been made to him. This in turn led to a breach of discipline charge under s 83(e) of the Teaching Services Act 1980 for "negligence in the discharge of the respondent's duties". The particular matter claimed against the respondent was that he had failed to follow departmental policy with respect to the complaints made about the former staff member. The person appointed to conduct the investigation decided to recommend to the Director of General Education and Training that the respondent be allowed to tender his resignation. The Director General, however, wrote to the respondent's solicitors informing them he proposed to direct the respondent to resign. In these circumstances, the respondent himself had submitted a notice of resignation. Later, he wrote to the Department, withdrawing his "notice of retirement" and indicating that he wished to remain in the job. Sometime later, following a certain amount of lobbying for position, the Director General wrote indicating that he had now determined that the respondent would be allowed to resign and that he had accepted the earlier application for resignation. Thereupon the respondent ceased working for the Department and subsequently commenced proceedings against the State of NSW.
58 This somewhat complicated state of affairs led, as I have said, to the respondent's ultimate success in the District Court. In those proceedings Graham DCJ found that there was a duty of care in relation to the employer's obligation to provide a safe system of work encompassing the provision of a safe system of investigation and decision making in a disciplinary inquiry. His Honour also found the duty of care had been breached and that the respondent had suffered psychiatric injury and damage. Spigelman CJ determined that a duty of care would involve an element of incompatibility with the statutory scheme. The imposition of such a duty would have an inhibiting effect on expeditious investigation under the statute. Further, the Chief Justice found that the duty contended for involved incoherence with the law applicable to termination of employment; and incoherence with the principle of administrative law in which context compensatory damages were available only in limited circumstances. Finally, his Honour determined that considerations of control and vulnerability, although they pointed in the direction of an existence of a duty of care, did not outweigh in the instant case concerns about coherence and compatibility. In this regard his Honour placed reliance upon the Court of Appeal's decision in Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43.
59 At para 177 Spigelman CJ said: -
"There is, in my opinion, a real issue of coherence with administrative law if the law were to recognise a duty of care in the conduct of investigations, the laying of charges and the hearing of disciplinary proceedings. Where a decision making process again, then that should enable in many cases, the injured party to be put in the same position as he or she would have been in the absence of error. However, sometimes, as in the present case, it may not be likely if even possible that a new decision making process can have such an effect. The line between the two will often be contested. The coherence of the law, n my opinion, requires restraint even in such a context."
60 On this aspect of the decision, namely the existence or not of a duty of case, there was agreement from Mason P and Giles JA.
61 Faced with this formidable hurdle, Mr Gross QC suggested, as I indicated earlier, that Paige was distinguishable from the present matter. The present plaintiff was neither found guilty nor was he seeking to set aside the finding of guilt. The present plaintiff did not allege wrongful termination nor was he seeking damages for an employment determination.
62 There are, of course, differences between the Paige situation and that revealed by the present pleadings. But they are not in my opinion sufficient to displace the force of the principles stated and the analysis conducted in Paige.
63 First, it is fair to say that it would be a very odd result if no duty of care existed in the case of Paige where an alleged error of a kind recognised by public law may have occurred during the course of disciplinary proceedings and was one which resulted in termination of employment; but, by way of contrast, a duty of care should be found to exist in a case such as the present where inappropriate handling of a disciplinary investigation of a teacher occurred in circumstances where the charges were dismissed against the teacher. This of course, is not determinative of the matter but, as I say, it would be a very odd result indeed. But in any event, the decision of the Court of Appeal in Paige impacts precisely upon the conduct of the disciplinary proceedings that are at the core of the plaintiff's present claim. The decision is, in my view, direct authority suggesting that issues of incompatibility and incoherence must deprive the present plaintiff of a cause of action. I have earlier set out my own views in relation to incompatibility. It is important, however, to note that Spigelman CJ expressly dealt with this issue at para 101. He said: -
"Within the confines of the limited range of statutory provisions upon which the Appellant relied in submissions in this case, the conflict of responsibilities is not as stark as that found in the legislation under consideration in Sullivan v Moody . Nevertheless, there is at least a level of tension, and perhaps of conflict, between imposed upon the Director-General and his or her officers, a duty owed to both the public at large and to the particular school community, to ensure the efficient and effective operation of the State education system, on the one hand, and a duty or provide a "safe" disciplinary process with respect to such matters, on the other hand.
Although the Court's attention was not drawn to any specific duty, it can be readily accepted that a duty exists to have proper systems in place for investigating improper handling of allegations of sexual misconduct by teachers…
As a general rule, in my opinion, it is undesirable to inhibit an investigation into the exercise of a statutory power which protects public interests by imposing the chilling effect of a risk of civil liability."
64 In relation to incoherence with administrative law principles, his Honour said: -
"121 In the present case, the scheme for the laying of charges involves the formulation of an opinion that a breach may have occurred and inquiring whether it is denied prior to charge. It is desirable that this stage be conducted expeditiously. The introduction of a duty of care at this time is fraught with the possibility of delay. I note that reg 14 empowers a disciplinary authority to lay a charge orally at first and to fix a time within which a reply to a charge must be given. A concern with expedition is plainly part of the statutory scheme.
122 Subsequent to charge, some form of hearing must take place - whether on paper or oral. The charge is no more than an allegation, albeit one that a disciplinary authority has found "may" constitute a breach of discipline. The kinds of matters that may constitute such a breach cover a broad spectrum of conduct and levels of iniquity. There are many circumstances in which delay caused by the imposition of a duty of care with respect to the statements made during this phase, or with respect to the act of laying the charge itself, will render the process less efficient and effective.
123 In my opinion there is a significant level of inconsistency or incompatibility between a duty of care prior to charging and the expeditious institution of the charging process under reg 14.
124 With respect to the inquiry stage, the decision maker has a discretion to choose between the explanation route and the inquiry route. Hill v Green holds that, whichever route is chosen, there is a duty to afford procedural fairness. Although the Respondent did not plead its case by expressly adopting the public law terminology of procedural fairness, he sought to uphold in this Court the trial judge's reasoning that did so. Such an approach is not appropriate. By formulating the private law duty in terms of a public law duty, the element of incompatibility between the duties is obscured."
65 And later Spigelman CJ said: -
"128 For the purposes of determining liability it is not, in my opinion, appropriate to pose the issue in administrative law terms: Was there legal error in choosing the explanation route rather than the inquiry route? Or was there a denial a procedural fairness? The issue would be: Was the conduct of the investigator that of a reasonable investigator, mindful of the risk of inflicting mental trauma?
129 Understood in this way issues of compatibility arise more clearly with respect to the investigation, in much the same way and for much the same reasons as I have discussed above with respect to the charging stage, namely the risk of adding to delay and expense, in a statutory context where expedition may sometimes be required and inhibition on the decision maker is often undesirable.
130 As to the third stage, ie, the ultimate decision, the observations of the Privy Council in Rowling v Takaro Properties are particularly apt. Misconstruing the law is so unlikely to constitute a breach that it is a factor relevant to the imposition of a duty.
131 There is an element of incompatibility between the duties. It lends weight to a conclusion that this new class of duty of care should not be established."
66 As I have earlier indicated, counsel for the plaintiff has attempted to side-step these authoritive and binding statements by suggesting that here there is no attack on the decision maker's decision. Rather, the attack is on the method of conducting the investigation prior to charges and the manner in which the disciplinary proceedings thereafter continued, having regard to those matters particularised. But just as the statutory content may require that expedition will be necessary in some instances, so there will be other instances in the statutory context where care and deliberation need to be taken in the conduct of the investigation. This may not be in the interests of the person being investigated (although strangely enough it may be if he is subsequently exonerated) but it is nevertheless in the interests of the victims of the alleged conduct. It is also in the interests of the maintenance of the system under which such disciplinary breaches are investigated. To hold otherwise would expose those processes to incompetence inefficiency and perhaps eventual destruction.
67 In any event, an examination of a number of the matters pleaded in para 37 of the amended statement of claim demonstrates that they are based on public law considerations eg, bias and pre-judgment. This consideration underlies the remarks of Spigelman CJ's which I have set out above. In my view, Paige is authority for the proposition that disciplinary investigations of employees pursuant to the Teaching Services Act do not attract a duty of care on the part of those in conducting the investigations and subsequent disciplinary inquiry. This is essentially so because of the principles deprived from Sullivan v Moody. In Paige, the New South Wales Court of Appeal found that the Department did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to its employee. That is precisely the claim made in the present statement of claim in paras 35, 36 and 37. In this regard, the plaintiff's claim is not relevantly distinguishable from that in Paige. Accordingly I consider that the relevant paragraphs should be struck out and that the appeal from Master Harrison's decision be dismissed.
68 I should mention, for completeness, that the plaintiff supplied me with three further submissions in reply on the negligence point. I have given consideration to those matters but I have concluded that there is nothing in the additional submissions which alters the conclusion I have reached.