"K" v NSW Ombudsman & Anor

[2000] NSWSC 771

Supreme Court of NSW|2000-08-01|Before: Whealy J, Mr P, Sackville AJ, Greg James J, Kirby J

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Court

Supreme Court of NSW

Decision date

2000-08-01

Before

Whealy J, Mr P, Sackville AJ, Greg James J, Kirby J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

CITATION : "K" v NSW Ombudsman & Anor [2000] NSWSC 771 CURRENT JURISDICTION: Common Law - Administrative Law List FILE NUMBER(S) : SC 30044/00 HEARING DATE(S) : 31/07/00 JUDGMENT DATE : 1 August 2000

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PARTIES : "K" v NSW OMBUDSMAN & Anor JUDGMENT OF : Whealy J at 1

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COUNSEL : Mr Crawshaw SC; Mr Lowson - Plaintiff Mr P. Garling SC; Mr Ryan - Defendant SOLICITORS : MacMahon Associates - Plaintiff Crown Solicitor - Defendant Teaching Services Act 1980 Ombudsman Act 1974 Ombudsman Amendment (Child Protection and Community Services) Act 1998 LEGISLATION CITED : Freedom of Information Act 1989 Ombudsman Amendment (Child Protrection and Community Services) Bill (No 3) Commission for Children and Young Pupils Bill (No 2) Child Protection (Prohibited Employment) Bill (No 3) Teaching Services Regulations Ainsworth v Ombudsman (1988) 17 NSWLR 276 at 283 Botany Council v Ombudsman (1995) 37 NSWLR 357 The Commissioner of Police v The Ombudsman (Sackville AJ 9 September 1994, unreported) CASES CITED : Walton v Gardiner (1993) 177 CLR 378 Keelty v Bowie (1951) 83 CLR 516 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635D-636E) Oshlack v Richmond River Council (1998) 193 CLR 72. DECISION : I order that the Summons be dismissed. I propose, subject to one qualification, to order that the plaintiff pay the defendant's general costs of the proceedings including the costs of the hearing on 31 July and 1 August 2000. I express the qualification to my general costs order in that so far as the proceedings of 19 and 20 June and 4 July 2000 are concerned, each party should bear her and their own costs. The exhibits may be returned.

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The Circumstances of the Department of Education Inquiry 11 The plaintiff is a school teacher employed as an officer of the Education Teaching Service at a State high school. The Director General of the Department of Education and Training (which I shall refer to as the Department) brought disciplinary proceedings against the plaintiff. 12 On 21 August 1998 she was charged with a breach of discipline within the meaning of s 83F of the Teaching Services Act 1980. The charge, one of improper conduct, alleged that the plaintiff, while employed as a teacher of the State high school, had engaged in sexual conduct with one of her pupils, he being under the age of eighteen at the time and, further, that she developed and maintained a personal relationship with that pupil. Both the plaintiff and the plaintiff's former pupil denied these allegations. 13 A Mr Steve Buckley was appointed as the prescribed officer to deal with the disciplinary charge. Initially the prescribed officer decided to deal with the charge by adopting the procedures available under cl 15(2)(a) of the Teaching Services Regulations. This was done by directing the plaintiff to furnish an explanation in writing. 14 On 1 July 1999 Mr Buckley informed the plaintiff's solicitor that he had now decided to continue dealing with the matter under cl 15(3)(b) of the Regulations. 15 He said in his letter: "Having considered the material before me, it is quite clear that there is directly conflicting evidence in regard to a number of significant issues which go to the heart of the particulars of the charge. In these circumstances, I have decided to continue dealing with this matter in accordance with clause 15(3)(b) by holding an inquiry in accordance with clause 16. The inquiry will supplement evidence already provided in written submission." 16 The inquiry took place on 13 and 14 October 1999. 17 Evidence was given by the plaintiff, the former pupil and his mother and sister. It was his sister who claimed to have witnessed the sexual conduct which is one of the alleged instances of improper conduct. 18 After the conclusion of the hearing and the furnishing of some further written material, the prescribed officer made his determination. By letter dated 26 November 1999 he advised the charge of improper conduct was "not proven". 19 In January 2000 the Ombudsman issued a notice of investigation to the Department with respect to its conduct in relation to the allegations of child abuse made against the plaintiff. 20 On 2 June 2000 the Ombudsman sent a letter to the plaintiff giving notice of an investigation, which was described in these terms: "The conduct which is the subject of the investigation is:- the conduct of the Department of Education and Training in relation to the investigation and subsequent determination of allegations of child abuse made against "K". the conduct of "K" in relation to allegations of child abuse made against her while teaching at the State High School and her conduct in relation to the subsequent determination of those allegations of child abuse." 21 The letter informed the plaintiff that both she and the Department were the subject of the investigation. Together with that notice the Ombudsman signed a summons to appear addressed to the plaintiff requiring her to attend and give evidence to the inquiry on 21 June 2000. An exchange of correspondence between the plaintiff's solicitors and the Ombudsman occurred. 22 On 19 June 2000 the Ombudsman wrote to the plaintiff's solicitors a letter, Ex 1, which included the following: "I would like to address points 1 and 2: Jurisdiction of Ombudsman. This office is satisfied that it does have jurisdiction in this matter. I draw your attention to Part 3A of the Ombudsman Act 1974 and, in particular: · s 25G(1) which entitles this office to conduct an investigation concerning any child abuse allegation against an employee of a designated government agency; and · s 25G(2) which entitles this office to conduct an investigation concerning any inappropriate handling of or response to any such child abuse allegation. Your client is an employee of a designated government agency, namely, the Department of Education and Training (the Department). With respect to the conduct of the Department identified in the notice of investigation, it may be of assistance to clarify that this office is investigating the adequacy of the Department's investigation of the allegations of child abuse against your client. This office is not investigation the conduct of the prescribed officer who conducted the oral inquiry arising from the departmental charges against your client. I consider the conduct of your client described in the notice of investigation adequately identifies the conduct the subject of investigation. Nevertheless, for the sake of clarity, I would observe that the allegations of child abuse in question are those involving alleged abuse of G.C. I note that it was allegations of such abuse that prompted the departmental charges to which you referred in your letter. This office, therefore, proposes to pursue its investigations of this matter. Accordingly, this office expects your client to comply with the summons to appear served on her and requiring her attendance at this office to give evidence on 21 June 2000." 23 It is important to note that the proposed investigation, according to exhibit 1, is not concerned with the conduct of the prescribed officer or his conduct of the oral inquiry but is concerned with the adequacy of the Department's investigation of the relevant child abuse allegation. 24 As I have already noted, the investigation, which was to proceed on 21 June 2000, did not go ahead and, in effect, it has been postponed pending the determination of these proceedings.

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The Nature of the Ombudsman's Role - Authorities 30 In these proceedings the Ombudsman claims to have jurisdiction to investigate the conduct of the Department in relation to disciplinary proceedings against the plaintiff as well as jurisdiction to investigate whether the plaintiff engaged in child abuse. 31 The Ombudsman relies on pt 3A of the Ombudsman Act 1974 and in particular s 25G(1) and (2) in support of this claim. 32 Part 3A was inserted into the Act by the Ombudsman Amendment (Child Protection and Community Services) Act 1998. This legislation came into force, I was informed, on 7 May 1999. 33 Section 25G(1) empowers the Ombudsman to conduct an investigation concerning any child abuse allegation or child abuse conviction against an employee of a designated government or non government agency of which the Ombudsman has been notified under pt 3A or otherwise becomes aware. 34 Counsel for the defendant has submitted that Part 3A equips the Ombudsman with functions and procedures which are different from, and additional to, those applicable in the investigation of general complaints under s 12. It is also submitted that s 25G should be construed in light of the broad powers of the Ombudsman. 35 Certainly, the powers of the Ombudsman have been widely drawn in case law and have been afforded considerable importance. The office of the Ombudsman has been described as "a unique institution" (Ainsworth v Ombudsman (1988) 17 NSWLR 276, per Enderby J at 283). This case involved consideration of the protection afforded to the office of the Ombudsman by immunity from suit under s 35A of the Ombudsman Act. Enderby J went on to say: "It has always been considered that the efficacy of his office and his function comes largely from the light he is able to throw on areas where there is alleged to be administrative injustice and where other remedies of the Courts and the good offices of the members of the Parliament have proved inadequate. Goodwill is essential. When intervention by an Ombudsman is successful, remedial steps are taken not because orders are made that they be taken, but because the weight of its findings and the prestige of the office demands that they be taken." (at 283 to 284). 36 The New South Wales Court of Appeal considered the scope of the powers and functions of the Ombudsman in Botany Council v Ombudsman (1995) 37 NSWLR 357. In that case the Court held that in exercising the power of external review under s 52 of the Freedom of Information Act 1989, the Ombudsman was also exercising all of the powers and functions conferred by the Ombudsman Act. 37 Kirby P (with Sheller and Powell JJA agreeing) said: "Those powers, as the Ombudsman Act reveals, are, as they ought to be, extremely wide. They are not powers which this Court should read down. They are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability, including to ordinary citizens such as [the original FOI applicants here]. Sadly, the experience of the past (and not only the past) has been of the occasional misuse and even oppressive use of administrative power. One modern remedy against such wrongs has been the creation by Parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may be expected that the Ombudsman will conform to the statute establishing office, a large power is intended. The words of the Ombudsman Act should be given ample meaning." (at 367-368). 38 In The Commissioner of Police v The Ombudsman, Sackville AJ in an unreported decision of the Supreme Court, 9 September 1994, held that the Ombudsman has "a unique role to play in scrutinising the conduct of government agencies, reporting to Parliament on the results of investigations and proposing such remedial action as may be required." (at 29). 39 This role is not without limits, the foremost being the accountability to parliament under Part 4 of the Act - the Ombudsman has the obligation (and entitlement) to report to Parliament. Also, the Parliamentary Joint Committee monitors and reviews the exercise of the Ombudsman's functions under s 31B(1)(a) of the Act. 40 All of these decisions pre-dated the introduction of Part 3A.

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The Plaintiff's Submission - there is no jurisdiction 43 The plaintiff's principal submission is that s 25G(1) does not invest the Ombudsman with power to investigate whether or not child abuse was in fact perpetrated. The argument begins with an analysis of the Ombudsman's traditional powers (prior to the introduction of pt 3A) and notes the "traditional" role for the Ombudsman "to improve public administration and increase the accountability of public administrators". It is said the Ombudsman's powers and procedures as established by the Act revolve around investigation by the Ombudsman of the conduct" of "public authorities", these being concepts defined in s 5 of the legislation. 44 The argument then proceeds to examine the text of s 25G(1) which, it is said, supports the contention that the section should be narrowly construed so as to make it clear that the section does not have the effect of extending the Ombudsman's jurisdiction into allegations of child abuse per se. 45 The plaintiff maintains the presence of s 25J of the legislation is a strong support for her contention in relation to the construction of s 25G(1). She argues that the definition of "conduct" in s 5 conditions the Ombudsman's exercise of powers unless there is an expressed variation to "conduct". While pt 3A contains an expressed variation so that the Ombudsman's jurisdiction extends beyond "public authorities" to certain non government agencies, there is no such express variation in relation to the nature of the conduct which may be investigated by the Ombudsman. 46 The plaintiff's alternative submission is that, if contrary to the principal submission it be found that the Ombudsman does have jurisdiction to investigate allegations of child abuse per se, there is no jurisdiction to consider such an allegation where those allegations of child abuse had been dealt with to finality and where the charges had been found "not proven". This is so, it is urged, because of the need to protect the person such as the plaintiff against double jeopardy (Walton v Gardiner (1993) 177 CLR 378). Secondly, it is suggested the principle of finality of acquittal (Keelty v Bowie (1951) 83 CLR 516) is applicable to disciplinary procedure, particularly where there has been a hearing on the merits leading to a finding of "not proven". If it were otherwise, the plaintiff argues, statutory disciplinary schemes such as that arising under the Teaching Services Act 1980 and the Regulations would be rendered nugatory. 47 A finding of "not proven" would have no practical effect and would not produce finality in an investigation. There is a real prospect that two government agencies (for example, the Department and the Ombudsman) would make two different findings of fact after two separate (but similar "investigations") of the same matter. 48 Finally, insofar as the Ombudsman wishes to investigate the adequacy of the Department's investigations of the allegation of child abuse in which the plaintiff was allegedly involved, the plaintiff argues that this may be precluded by the operation of paragraph 2 of Schedule 1. The reason for this exclusion is that the oral inquiry held pursuant to regulation 15(3)(b) of a prescribed officer appointed according to statute comes within the description of paragraph 2 of Schedule 1. I note, however, that it appears to be accepted by the plaintiff (and was so accepted by her counsel during the course of the argument yesterday) that ex 1 makes it clear that the Ombudsman is not investigating the conduct of the prescribed officer who conducted the oral inquiry arising from the departmental charges, but is wishing to investigate the adequacy of the Department's investigation of the child abuse allegations. 49 It is fair to say, however, that the plaintiff has not given up altogether on this argument because the final alternative submission suggests that there is no jurisdiction for the Ombudsman to investigate the Department's handling of the child abuse allegations against the plaintiff unless there is a stated conclusion from the Ombudsman that "inappropriate handling" within the meaning of s 25G(2) has occurred.

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The Ombudsman's Submission - a broader approach is required 50 In relation to the principal argument, the Ombudsman has put forward two broad propositions: first, Part 3A introduces a procedure which is different from the procedure in place for general complaints. The procedure which is to be found under pt 3 commences with a limited right of complaint, limited because it excludes particular conduct (s 12(1)(a)-(d)). If the conduct, the subject of the complaint, is excluded by s 12 and the schedule, it is not open to the Ombudsman to investigate the conduct. Similarly, the Ombudsman's right of self-initiated investigation in s 13 is also so limited. 51 By way of contrast, Part 3A provides a series of functions which are different from and are additional to those in Part 3 but there is no limitation of the kind expressed in ss 12 and 13 to be found in Part 3A. The principal but not sole function is to both investigate and oversee the investigation of child abuse allegations made against designated agencies or employees of designated agencies. 52 These functions include a surveillance function (s 25D) a monitoring function (s 25E), a response to notifications function (s 25F) and the functions to investigate child abuse allegations and any inappropriate handling or response to any such child abuse allegations (ss 25G(1) and (2)). 53 An investigation concerning any child abuse allegation against an employee of a designated government agency may relate to an allegation of which the Ombudsman has been notified under pt 3A or an allegation of which the Ombudsman "otherwise becomes aware". An investigation concerning any inappropriate handling of or response to any such child abuse allegation may be instigated "on the Ombudsman's own initiative or in response to a complaint". 54 The circumstances in which the Ombudsman might become aware of such allegations and/or determine that he will instigate investigations lead to the plaintiff's second broad point. This is that s 25G and ss 12 and 13 may live consistently with each other in the overall scheme of the legislation. The ability for a private citizen, for example, to lodge a complaint under s 12 in a child abuse allegation or conviction matter is still available. Indeed, s 25G(2) recognises that an allegation of inappropriate handling may arise "in response to a complaint". 55 Section 25G(1) is based upon a much broader source in relation to the Ombudsman's decision to conduct an investigation since it may be founded not only upon an allegation of which he has been notified but it may be founded upon an allegation of which he "otherwise becomes aware". 56 Against this background the Ombudsman argues, first, that s 25G should be interpreted in the light of the fact that the powers of the Ombudsman are broad and are for a beneficial purpose. The language of the subsection does not permit of the narrow interpretation urged by the plaintiff; indeed, on general statutory principles, the subsection should be broadly interpreted. 57 Secondly, the Ombudsman submits that the argument regarding double jeopardy does not apply in the present situation. There is no principle of double jeopardy between disciplinary proceedings and criminal proceedings. An acquittal in criminal proceedings does not inhibit disciplinary proceedings arising out of the same facts. The principal of double jeopardy will only operate where the onus of proof, and the purpose and focus of the proceedings, are identical or are sufficiently similar to be identical in practice (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635D-636E). It is not open to the Ombudsman to convict or acquit anyone of a criminal offence nor is it open to the Ombudsman to discipline the plaintiff for any disciplinary matter. The Ombudsman has no role to play and no function under the relevant Teaching Services Regulations. 58 Thirdly, the Ombudsman argues that there is no warrant for placing a limitation preventing his investigation of a relevant child abuse allegation in circumstances where a departmental inquiry of a charge has resulted in a "not proven" decision. True it is that the charge arising out of the child abuse allegation has been found not proven, but the allegation itself subsists. 59 Finally, the Ombudsman says that the proposed investigation is not prohibited by the exclusion referred to in s 12 and Schedule 1. This is so, first, because s 12 is dealing with the complaint procedure rather than the broader power of the Ombudsman to instigate an investigation under ss 25G(1) and (2). The exclusion of conduct from s 12 has no part to play, it is said, in relation to this subsection. Secondly, as exhibit 1 makes clear, the inquiry is not into the conduct of Mr Buckley in relation to the oral inquiry he held. 60 Thirdly, reference has been made to clause 12 of Schedule 1 which "frees" from exclusion conduct of the public authority relating to (a) the appointment or employment of a person and (b) matters affecting a person as an employee where the conduct relates to a child abuse allegation or child abuse conviction (within the meaning of pt 3A) or to the inappropriate handling or response to such an allegation or conviction.

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An Overall View 80 It is quite apparent the powers conferred on the Ombudsman under s 25G appear in a context of the widest import in relation to the question of child abuse. Apart from the overall obligation and power to scrutinise systems for preventing child abuse by employees of designated government or non-government agencies or of other public authorities, and systems for "handling" and "responding" to child abuse allegations or child abuse convictions involving those employees, the Ombudsman is empowered to take a monitoring role in the actual investigation if he considers it is in the public interest to do so; and to take over the conduct of the actual investigation if he so decides. 81 Independently of the notification he receives under s 25C the Ombudsman has the right to instigate an investigate himself so long as the investigation is one which is "concerning" any child abuse allegation or child abuse conviction and which is against an employee of a government or non-government agency. There is no other restriction imported into the section. 82 I do not accept that s 25J does the work the plaintiff claims for it. "Conduct" as defined in s 5 and "child abuse allegations and child abuse convictions" as defined in s 25A(1) are different matters dealt with in different ways by the legislation. They are deliberately dealt with in different ways, in my view, although they may on occasions overlap. 83 The language of s 25G(1), the heading to the sub-section, the context in which it occurs, the juxtaposition of two types of investigation contemplated by sub-ss (1) and (2), the fact the investigation under subs (2) may be additional ("also") to the investigation permitted under subs (1), lead me to conclude that the investigation under subs (1) of s 25G may be properly concerned with the question whether the fact of child abuse has occurred; and is not confined or limited to an investigation of acts or omissions of public administration. Such acts or omissions may be part and parcel of an investigation under subs (1) and, no doubt, probably will be under subs (2) but the investigation under subs (1) is not, in my view, so limited. 84 I do not accept the argument that the phrases "child abuse allegation" and "child abuse conviction" are to be narrowly construed. In my opinion, the phrases are expressed widely to give the broadest possible scope for the matters to be investigated. The width of the definitions under s 25A to which I have made detailed reference support this construction. 85 In addition, it is difficult to see, for example, how the Ombudsman could come to a conclusion under s 25F(3) when considering his reaction to a report furnished under s 25F(2) unless he were entitled to consider the substance of the child abuse allegations. In a situation where the Ombudsman is monitoring but not conducting the investigation, he is entitled to be supplied with "documentary and other information (including records of interview)." This suggests that, even in the monitoring role, he is actively concerned with the substance of the child abuse allegation itself. 86 If this be so, there is no warrant for limiting the Ombudsman's interest in an investigation he conducts himself, to a lesser arena. Indeed, there is every reason why he should be entitled to consider the substance of the allegation. Unless the Ombudsman is able to determine whether or not there is any substance underlying an allegation of child abuse or, alternatively, the nature of conduct giving rise to a conviction (if any), there is no adequate basis for the Ombudsman to assess the systems in place to monitor prevention of child abuse or the system in place to deal with allegations and convictions. 87 Finally, it is inherent, in my view, that the investigation under sub-s (2) of s 25G cannot be effected unless the substance of the child abuse allegation or child abuse conviction can be assessed. To suggest the investigation under sub-s (1) cannot look to the matter of substance in relation to those matters is an untenable proposition.

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The Remaining Submissions 93 I do not accept that the matters which are the subject of the proposed investigation are excluded by anything in paragraph 2 of Schedule 1. The particulars supplied by the Ombudsman in exhibit 1 make this clear. In these circumstances it is not necessary for me, for the purpose of these proceedings, to determine whether an investigation initiated under s 25G(2) otherwise than by way of a complaint under s 12, or otherwise than initiated by the Ombudsman under s 13, is limited by the schedule. 94 Finally, I do not accept that the fact the plaintiff is said to be unaware of the basis for the Ombudsman's conclusion that there has been "inappropriate handling" of the Department's investigation of child abuse allegations against the plaintiff, goes to found a jurisdictional argument. I do not accept that, on its proper construction, s 25G(2) requires a preliminary finding as to "inappropriate handling" before the Ombudsman may instigate the investigation. 95 I order that the summons be dismissed. After hearing argument, I have come to a view on the issue of costs. I hear what the plaintiff has had to say about the costs of today and yesterday's hearing. I agree that the proceedings involve a matter of some importance involving questions of statutory construction which are themselves of importance. However, I am not satisfied that this case involves public interest litigation of the type referred to in Oshlack v Richmond River Council (1998) 193 CLR 72. I have come to the view, so far as the hearing of the matter yesterday and today is concerned, that it is a case in which, in the exercise of my discretion, costs should follow the event. The plaintiff had a very personal issue at stake in the proceedings but, in the event, has not been successful. The defendants have always maintained there was jurisdiction to proceed with the investigation and have succeeded in their argument. 96 Therefore, I propose, subject to one qualification, to order that the plaintiff pay the defendants' general costs of the proceedings including the costs of the hearing yesterday and today. I accept the plaintiff's submission about the earlier proceedings on 19 and 20 June; the question of 4 July is perhaps less clear, but I am prepared to deal with that day on the same basis as the June dates. Accordingly, I express the qualification to my general costs order in that so far as the proceedings of 19 and 20 June and 4 July are concerned, each party should bear her and their own costs. 97 The exhibits may be returned.