New South Wales Supreme Court CITATION : A Smith v K G Boston & 2 Ors [1999] NSWSC 1116 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30028/99 HEARING DATE(S) : 26 August 1999 JUDGMENT DATE : 19 November 1999 (Plaintiff) Andrew Smith v PARTIES : (First Defendant) Kenneth George Boston (Second Defendant) Gillian Shadwick (Third Defendant) George Green JUDGMENT OF : Sperling J COUNSEL : (Plaintiff): C A Porter QC/J Needham (First, second & third Defendants): Mr P Menzies QC/S Dowling SOLICITORS : (Plaintiff): MacMahon Associates (First, second & third Defendants): A Murphy CATCHWORDS : ADMINISTRATIVE LAW - whether disciplinary proceedings should be stayed for abuse of process as vexatious - whether proceedings sought to litigate anew a case disposed of by earlier proceedings - prior determination necessary - discretionary considerations, including public interest in proceedings going on - prior determination necessary for res judicata, issue estoppel, and Anshun estoppel. Teaching Services Act 1980 ACTS CITED : Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1991 CASES CITED : Blair v Curran (1939-1940) 62 CLR 464; D A Christie Pty Ltd v Baker [1996] 2 VR 582; Jago v District Court (NSW) (1989) 168 CLR 23; Maganja v Arthur [1984] 3 NSWLR 561; Walton v Gardiner (1992-1993) 177 CLR 378 DECISION : Summons dismissed; Plaintiff to pay the defendants' costs IN THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION SPERLING J Friday, 19 November 1999 No 30028/99 Andrew Smith v Kenneth George Boston & 2 Ors JUDGMENT HIS HONOUR: 1 The plaintiff, Andrew Smith, is a teacher employed by the Department of Education and Training (NSW). A charge has been brought against him pursuant to the Teaching Services Act 1980, s 83, which provides as follows, so far as is relevant: "An officer … who … (f) engages in any disgraceful or improper conduct …is guilty of a breach of discipline." 2 Section 84 provides (relevantly) that a breach of discipline alleged to have been committed by an officer shall be dealt with by the Director-General of Education or a prescribed officer. Section 85 provides that where a breach of discipline is then found or admitted, the Director-General or prescribed officer may impose a range of penalties. Where the breach is dealt with by the Director-General, the range of penalties includes dismissal or a direction that resignation will be accepted. Where the breach is dealt with by a prescribed officer, the prescribed officer may recommend to the Director-General that the officer be dismissed or that he or she be required or allowed to resign. The Director-General is not bound by such a recommendation and may impose a lesser penalty. A decision by the Director-General has effect subject to the Government and Related Employees Appeal Tribunal Act 1980. 3 Section 87 provides that an officer may be suspended from duty until the charge has been dealt with. 4 On 12 September 1997, Ms G Shadwick, an Assistant Director-General of the department, gave notice of a charge pursuant to s 83 involving a young person. (Pursuant to a direction given by me in the course of the hearing the young person involved is now referred to as "Miss T"). The notice of charge dated 12 September 1997 was in the following terms. "You are charged with a breach of discipline within the meaning of section 83(f) of the Teaching Services Act 1980 in that: You engaged in improper conduct. Particulars of this breach of discipline are, whilst at Yeoval Central School: 1. During November 1991 whilst attending a party at the home of a student (namely Darvy Wurr) you: (a) Allowed or condoned students (including Darvy Wurr, Miss T , Andrew Eggleton) to consume alcohol. (b) Consumed alcohol in the presence of students (including Darvy Wurr, Miss T , Andrew Eggleton). (c) Kissed a female student (namely Miss T ). (d) Engaged in sexual intercourse with a female student (namely Miss T ). 2. During November or December 1991, you took a female student (namely Miss T ) to your home, took her to your bedroom and engaged in sexual intercourse with her on your bed. 3. On or about 22 December 1991, you drove a female student (namely Miss T ) to Wellington, Dubbo and back to Yeoval without her parents' consent. 4. During September 1991, you left your Year 12 class unsupervised so that you could drive to your home to change your clothes for a social engagement immediately after school finishing time. 5. On or about 5 December 1991, whilst at a party at the home of a male student (namely Paul Price) you consumed alcohol in the presence of students (including Andrew Eggleton). 6. On or about 18 December 1991 and 20 December 1991, you engaged in conduct leading to cautions by a police officer (Constable Ken McKenzie) in regard to the supply of alcohol to students. You are directed to reply to me in writing within fourteen (14) days, either admitting or denying the truth of the charges and provide any explanation you desire to give." 5 Following correspondence between the plaintiff's solicitors and the department, the charge was amended by letter dated 9 March 1998 to include the following matters. "7. During December 1991, despite warnings from the principal (Ron Phillips), you organised and held a party at your residence in Yeoval when you knew or ought to have known that students would attend the party. 8. During the party referred to in particular 7, you: (i) allowed and or condoned students to attend the party. (ii) consumed alcohol in the presence of students (including Amanda Lees). (iii) kissed and embraced a female student (namely Miss T ). 9. You failed to: (i) maintain proper standards of conduct whilst in the presence of children who were students at your school; (ii) have regard for the need to protect the reputation of the teaching service and the Department. by: (a) becoming angry during the party referred to in Particular 7 and throwing household objects (including a toaster) out of the house. (b) during the party referred to in Particular 7, punching a wall with your fist which necessitated your conveyance to the local hospital for medical treatment. (c) engaging in the conduct outlined in Particulars 1 to 6 inclusive." 6 Following further correspondence, Mr G Green, an assistant Director-General of the department, advised the plaintiff's solicitors, by letter dated 8 March 1999, that he had been appointed as the prescribed officer to deal with the charge and would proceed accordingly. 7 On 1 April 1999, the plaintiff instituted these proceedings in the Administrative Law Division of the court, by summons, joining as defendants Mr K G Boston (Director-General of the department), Ms G Shadwick and Mr G Green as defendants. The following orders are claimed in the summons: "1. An order permanently restraining the Third Defendant from dealing with the Charge of breach of discipline contrary to Section 83(f) Teaching Services Act 1980 contained in a Notice of Charge signed by the Second Defendant dated 12 September 1997 and amended on 9 March 1998. 2. An order permanently restraining the Second Defendant from prosecuting the charge of breach of discipline contrary to Section 83(f) Teaching Services Act 1980 contained in a Notice of Charge signed by the Second Defendant dated 12 September 1997 and amended on 9 March 1998. 3. An order permanently staying all proceedings pertaining to the prosecution of the charge of breach of discipline contrary to Section 83(f) Teaching Services Act 1980 contained in the Notice of Charge signed by the Second Defendant dated 12 September 1997 and amended on 9 March 1998. 4. Costs." 8 As at 11 May 1999, the plaintiff had been suspended from active teaching. On that date, Dunford J noted an undertaking by the defendants not to take any further steps in relation to the charge until the present proceedings were determined provided that the plaintiff prosecuted the proceedings expeditiously and did not seek to return to active teaching. 9 The matter came on for hearing before me on 26 August 1999. Mr Porter of Queen's Counsel and Ms Needham appeared for the plaintiff. Mr Menzies of Queen's Counsel and Ms Dowling appeared for the defendants. 10 The evidence for the plaintiff consisted of two affidavits together with documents annexed and exhibited. No evidence was adduced by the defendants. The first affidavit read in the plaintiff's case was that of Mr P A MacMahon, the plaintiff's solicitor, sworn 1 April 1999. The affidavit gave some part of the history of the case which is apparent in further detail from the documentary material referred to in the affidavit and exhibited to the affidavit. A copy of the departmental file in relation to the disciplinary charge was exhibited to the affidavit. 11 In the second affidavit, sworn on 26 August 1999, the plaintiff said that, following his dismissal in April 1992, he left the Yeoval area and has not returned to that area nor, with two minor exceptions, had contact with any of the persons with whom he was in contact whilst living at Yeoval. He went on to say that he no longer had his diaries nor any other documentation which might assist him to establish where he was at any particular time in the latter part of 1991. 12 The plaintiff graduated from the University of Newcastle with the degree of bachelor of education in social sciences. He was engaged by the department pursuant to s 48 of the Teaching Services Act 1980. (This section provides, in general terms, that a person appointed to a permanent position is to be appointed on probation for a period of twelve months or such longer period as the Director-General may determine. The Director-General may, after expiration of the period of probation, confirm or annul the appointment or, during the period of probation, extend the period of probation or annul the appointment. There is a statutory bar against appeal to the Government and Related Employees Appeal Tribunal against termination of employment pursuant to such annulment. 13 The plaintiff commenced employment at Yeoval Central School shortly after the beginning of the 1991 school year, teaching social studies and related subjects. The plaintiff's headmaster in 1991 was Mr R Phillips. 14 The following course of events appears from the documentary material which is in evidence. During 1991, Mr R Phillips, headmaster of Yeoval Central School, recorded, in his diary, concerns in relation to asserted deficiencies in the plaintiff's classroom work and attendance record. In November and December 1991, Mr Phillips recorded concerns about alleged fraternisation by the plaintiff with students, particularly female students, outside school hours. 15 On 9 December 1991, Mr Phillips wrote a report on the plaintiff's performance. The report refers to recent improvement in level of commitment and enthusiasm for teaching but the need to maintain a more consistent and sustained approach. The report was, generally speaking, unfavourable but hopeful of improvement. Mr Phillips recommended that the plaintiff's efficiency be determined as not satisfying the requirements for the award of a teacher's certificate. The implication of the report was a recommendation that the plaintiff's probation period be extended. 16 In January and February 1992, Mr Phillips recorded concerns in relation to an alleged sexual relationship formed by the plaintiff with a student, Miss T, associated with heavy drinking by the plaintiff in the company of students. Mr Phillips also recorded that Constable McKenzie of Yeoval had informed him of having given two cautions to the plaintiff in December 1991 regarding the supply of alcohol to school students (presumably under age); that he (Mr Phillips) had interviewed Miss T who confirmed that sexual intercourse with the plaintiff had occurred; that the allegation had been put to the plaintiff by Mr R Hankin, Director, Orana West Cluster of Schools, who was present at the interview of the plaintiff; and that the plaintiff had neither confirmed nor denied the allegation. The matter was apparently reported to the police and to the Department of Community Services. 17 The allegation of a sexual relationship with a student was, as expected, of serious concern to the department. Pending legal advice, the department wrote to the plaintiff on 19 February 1992, advising him that serious allegations had been made concerning his conduct and that, pending investigation, the plaintiff was suspended on full pay. 18 The department's file includes a copy of a police statement made by Miss T at Dubbo Police Station on 20 February 1992. (It is not apparent from the file whether this statement came into the possession of the department earlier than 10 July 1997. On that date, Miss T signed a document authorising the department to use information contained in the statement. The department was, however, fully conversant with Miss T's assertions, from the departmental interview to which I have referred.) Miss T said in the statement to the police that she was born on 24 May 1975. (Accordingly, she would have been sixteen years of age in November 1991.) She said that, at the end of November 1991, she had gone to a party at the home of a school friend; she and other students had walked to the hotel in the town where one of the students had bought a large bottle of spirits and some soft drink; they all chipped in; they walked back to the house where the party was going on and shared the purchases among about four of them; she was feeling a bit drunk; she saw the plaintiff there; he went to the hotel at one stage and bought the boys a carton of beer; Miss T also drank Tropicana (which I take to be alcoholic); she started to feel drunk; she remembered some things but not others; she and Mr Smith were kissing on the lounge; she could not remember which of them had initiated that conduct; a friend, Amanda Lees, had chipped her and the plaintiff for kissing; the plaintiff mentioned this to her; she said to the plaintiff, "Oh who cares what she thinks" and they started kissing again; later, they were sitting on the ground in the backyard, kissing each other; a fellow student, Andrew Eggleton, gave them a blanket; the plaintiff picked up the blanket and he and Miss T walked further down into the backyard to the vegetable patch. 19 Miss T's language in the statement displays a certain nonchalance about what is then said to have occurred. She is recorded as saying "We started kissing again and then it just happened. We had a root. I remember feeling his dick going into my fanny and I remember him moving up and down on top of me. After we finished, he said, 'I wish we could do it again, when we are sober.' He said it when we were lying on the blanket. Before we had the root, I can't remember if Mr Smith took my clothes off or whether I took my clothes off for him. After we finished, I had to put my undies and my cut off blue jeans back on. I think my top and bra were still on, but I just had to do the bra up." After describing that episode, Miss T said in the statement: "I just remembered that before Mr Smith and I went down in to the back garden, he said to me, something like, 'Can you stay the night at my place.' I said, 'Can we phone mum from your place? He said, 'My phone doesn't work.' So then I said, 'I will ring Mum from here.' I went and made a phone call to mum. I was going to make out to her that I was staying at Amanda's place. She told me something. I can't remember if Mr Smith was in the room or not when I made the call." 20 There is no suggestion in the statement to the police that Miss T was at all upset by what is alleged to have occurred, either at the time or at any later time. The tenor of the statement strongly suggests she was not. 21 In her statement, Miss T went on to describe a further episode in a similarly casual manner. She said, "The next time Mr Smith and I had a root was before school had broken up for the Christmas holidays." She then described meeting the plaintiff after receiving a message from two of her friends. She said the plaintiff drove her in his car to a place twenty or thirty kilometres from the town; on the way, the plaintiff had said they needed to get their story right about the party; Miss T replied that she and a friend had already got a story ready, namely, that the plaintiff had left at a point in the party which preceded anything of a sexual nature having occurred; they stopped, talked and kissed; the plaintiff checked that his house mate was still playing tennis; Miss T said that her mother was still at Tech; they got undressed and lay on the bed; she then described a further episode of intercourse in a matter of fact way; she said the two of them then "just lay and talked for a while about different things." 22 Again, there is no suggestion in the statement that Miss T was upset by the episode, then or at any later time, and the strong implication is that she was not. 23 In her statement, Miss T said that, on 22 December 1991, she went for a drive with the plaintiff; nothing happened between them that day, she went to his place a little later that night and he drove her home afterwards. 24 Miss T went on to say that, just before 22 December 1991, the plaintiff had a party at his place. Miss T said in her statement, "When I was at his party, we had a kiss, but that was all." She said her boyfriend "went right off at me" for that; the plaintiff had asked her to stay the night at his place but that proved to be impracticable. 25 Miss T said that, on the Saturday night prior to making her statement, 15 February 1992, she had been at a party at Rachael Lees' house; the plaintiff was at the same party and was ignoring her, she told a friend, Melissa Redding, that she and the plaintiff had slept together twice; she also told another friend, Tanya Wykes. 26 Miss T said in her statement that she had had sex with her boyfriend previously. She said she did not want to see the plaintiff get into trouble from the police or go to gaol. She said she did not want to go to court or tell people what happened. She said another reason she did not want "to go" (presumably, to court) was because she did not want to see the plaintiff get into any trouble. 27 Mr Phillips' report of 9 December 1991 was made on a departmental form which makes provision for a memorandum to the teacher, appearing at the foot of the same form. The memorandum is dated 18 February 1992. It is in terms that, following consideration of Mr Phillips' report and of other evidence, it was proposed that the plaintiff's efficiency would be determined on 18 March 1992 as not satisfying the requirements for the award of a teacher's certificate and for the position held. This was not notice of annulment and it is unnecessary to decide precisely how that memorandum related, if at all, to the scheme of the Teaching Services Act 1980. 28 Mr W Kyrios, Director of Legal Services, was consulted. He wrote to the department's Director of Human Resources on 21 February 1992. He advised that there was sufficient evidence either to annul the plaintiff's probationary appointment pursuant to s 48 or to charge him with a disciplinary offence pursuant to s 83. The letter went on to advise, in effect, that the department could terminate the plaintiff's engagement pursuant to s 48 or, if the department was not satisfied that the plaintiff's services should be terminated, the matter could be dealt with by way of disciplinary charge. Mr Kyrios went on to advise that, if the former approach were to be adopted, the plaintiff should be given the opportunity of responding to the allegation of sexual misconduct and that the issues should be confined to that topic. 29 It was implicit in Mr Kyrios' advice (incorrect, as it turned out) that annulment pursuant to s 48 would terminate the plaintiff's employment in a way that could not be challenged other than for denial of procedural fairness. (As, as will appear, Mr Kyrios was by no means alone in his view). 30 Pursuant to Mr Kyrios' advice, the department wrote to the plaintiff on 5 March 1992 enclosing a letter from Mr Hankin dated 4 March 1992. In that letter, Mr Hankin said it was alleged that the plaintiff was involved in an intimate personal relationship with Miss T, a student at Yeoval Central School; that sexual intercourse had occurred on two occasions; that, Miss T being under seventeen years of age, the matter had been notified to the police who had obtained a statement from Miss T; and that Mr Hankin recommended consideration be given to annulling the plaintiff's appointment. The department's letter sought a response to the allegations of having formed an intimate personal relationship with a student and having engaged in sexual intercourse with a student under seventeen years of age. The letter went on to advise the plaintiff that he was suspended on full pay until further notice. 31 On 10 March 1992, the plaintiff wrote to the department saying that he categorically and totally denied the matters alleged. 32 On 19 March 1992, Mr Phillips submitted a report. The report was very unfavourable. It asserted, in detail, lack of thorough lesson and programme planning and preparation, inappropriate teacher technique and inability to cater for a wide range of student needs and abilities, and persistent lack of appropriate student supervision. Additionally, it asserted inappropriate conduct and behaviour with students, stating that a number of serious incidents had occurred in 1991, that on at least four occasions the plaintiff was counselled and finally cautioned about his relationship with students both at school and in a social setting, involving alleged drinking in the company of students at a hotel and at his house, inviting male and female students to his house, and transporting female students in his car despite being cautioned about the practice. The report concluded with the comment that, in November 1991, the plaintiff had been informed that he would not be recommended as having fulfilled the requirements to receive his teacher's certificate. There was no explicit mention in the report of the alleged sexual misconduct with Miss T. 33 On 20 March 1992, the department received a letter from the plaintiff, responding to Mr Phillips' report of 9 December 1991 and the memorandum of 18 February 1992. In his letter, the plaintiff said he had not received the report and memorandum until 11 March 1992. (There is no evidence that he received it earlier.) In his 20 March 1992 letter, the plaintiff, in effect, sought an opportunity of fulfilling Mr Phillips' expressed hopes that the plaintiff's performance as a teacher would continue to improve, which the plaintiff said (as was obviously the case) could not be done while he was suspended. 34 On 1 April 1992, the Director-General, Mr Boston, directed a notice to the plaintiff annulling his appointment pursuant to s 48 and determining that the plaintiff would cease to be employed as from 8 April 1992. 35 On 22 April 1992, the plaintiff filed an application for reinstatement in the Industrial Relations Commission of New South Wales pursuant to the Industrial Relations Act 1991, s 246. The application included a statement of the plaintiff's reasons as to why the dismissal was harsh, unreasonable and unjust within the meaning of that section. These were as follows: "1. In respect of the Principal's report prior to its receipt I had been given no indication by him or my immediate supervisor that my services were so unsatisfactory that I may be dismissed. 2. I believe that the matters raised in the Principal's report are not the real reasons for my dismissal. On about 5 March 1992 I received from the Department details of certain allegations that had been made against me by a person unknown as to my personal conduct. I have denied the allegations. The coincidence of the allegations and my dismissal, however, lead me to believe that that is the reason for my dismissal. 3. I believe that in view of the above my dismissal is harsh, unreasonable and unjust." 36 The department sought a preliminary ruling by the Commission that there was no jurisdiction to entertain the application on the ground that an annulment pursuant to s 48 of the Teaching Services Act 1980 was not a dismissal within the meaning of the Industrial Relations Act 1991, s 246. On 14 August 1992, Connor CC held that it was. On 16 December 1992, on appeal to the Industrial Court of New South Wales, Cahill DCJ reversed that decision. On 27 August 1993, the Full Court of the Industrial Court of New South Wales reversed Cahill DCJ and reinstated the decision of Connor CC: (see (1953) 51 IR 204). 37 The hearing of the substantive application then proceeded before Connor CC on 25 November 1993. Evidence was given by the plaintiff in support of the application. The department commenced its case. Mr Phillips was called. Part way through his evidence in chief, the Commissioner intervened with some observations concerning the issues in the proceedings and the matter was adjourned to 26 November 1993. On 26 November 1993, the Commission was informed that the matter had been settled on the basis that the plaintiff would be reappointed as a probationary teacher from the beginning of 1994 but with details remaining to be discussed. The matter was adjourned to 16 December 1993 for that purpose. On 16 December, terms of settlement were handed up. These included a term that the plaintiff would be reinstated on the basis of a further six months probationary period. 38 I infer that the plaintiff then resumed teaching duties with the department and that he continued to work for the defendant as a teacher for some four years until the present charge was notified. I assume that, at some stage, the plaintiff fulfilled the department's requirements and obtained a teaching certificate. 39 I will now provide a more detailed summary of the proceedings in the Commission. Part of the transcript of the proceedings before Connor CC is contained in the department's file. The following is a summary of the evidence given before the Commission so far as it appears from the incomplete transcript. 40 Conformably with the plaintiff's assertion that the real reason for annulment was the allegation of sexual misconduct, it was led from him in chief that he had received the department's letter of 5 March 1992 and the enclosed letter of 4 March 1992 by Mr Hankin, which together specified the allegation of sexual intercourse with Miss T. The plaintiff's letter denying the allegation was also tendered. Asked when he first became aware of the allegation, the plaintiff said that he had heard rumour of it during the previous year, 1991; that he been asked by someone in a hotel whether he had had sex with a student; that, less than a week later, he was asked by a student in another class whether this was so; that the student's father was a friend of his, and the question was put to him in his friend's home. Asked whether the suggestion that he had formed an intimate relationship with the student was true, the plaintiff answered that it was not. The plaintiff then went on to say that, about two weeks into the beginning of the school year in 1992, he was made further aware of the allegation in the discussion with Mr Phillips and Mr Hankin (that being the interview to which I have referred); and that, on that occasion, he had been asked to resign. 41 The plaintiff was cross-examined about alleged deficiencies in relation to class work. He was asked if Mr Phillips had counselled him strongly against holding a party for students because of possible problems with alcohol. He agreed that Mr Phillips had done so and that he (the plaintiff) had agreed not to hold the party. He agreed though that the party had gone ahead, not at his place, and that he had attended. He agreed he had gone to a party in early December 1991 given by one of the students and had become reasonably drunk. He denied supplying alcohol to a year nine student. He denied kissing and cuddling Miss T at that party. He denied being especially friendly with another female student. He did not recall receiving cautions from Constable McKenzie a week or so before Christmas 1991, although he agreed that was possible. He then agreed that he had had a couple of discussions with Constable McKenzie, one to do with a driving matter and the other to do with supplying alcohol. (He did not admit in cross-examination that he had supplied alcohol to an under age person. He was not asked if he had, except in relation to the particular year nine student to whom I have referred, and that he denied, as I have said.) 42 He agreed, in cross-examination, that, at the interview with Mr Phillips and Mr Hankin concerning Miss T, he did not agree with or deny the allegations put to him at that time. 43 It appears from other cross-examination that the plaintiff had said in his evidence in chief (in a part of the transcript which is not before me) that he was aware of his classroom deficiencies but believed he was improving and that his superiors were not dissatisfied with the way he was going. 44 It was not put to the plaintiff in cross-examination that he had had sexual intercourse with Miss T. 45 Mr C Howard of the NSW Teachers' Federation was called in the plaintiff's case. The substantive parts of his evidence have not been included in the transcript in evidence before me. 46 Trevor Smith, the plaintiff's father was called in the plaintiff's case. He had spoken to Mr Hankin at the beginning of 1992. Nothing presently relevant seems to arise from this witnesses evidence. 47 The Crown then opened its case. Mr Phillips was called. He gave evidence of matters of which he had direct knowledge and which had caused him concern. The plaintiff had complained about Mr Phillips writing an interim report, whereas that report (he said) was merely part of the routine procedures in relation to a teacher on probation. The Commissioner then allowed evidence of things Mr Phillips was told, but only as evidence of being so told not as evidence of the fact. These matters related to teaching ability and competency, punctuality and lesson preparation. Familiarity with students, Mr Phillips said, was probably not the concern. There was a concern about lack of class discipline. The plaintiff's lesson plans had been produced for review by a senior teacher, Mr Batten. About a month later, Mr Phillips reviewed the situation in relation to classroom work and found that there had been an improvement, but Mr Phillips said he was not satisfied that the plaintiff was ready to receive a teacher's certificate, further development being needed. Mr Phillips said he had included encouraging comments in his report, (which I take to be the report of 9 December 1991) so as not to destroy the plaintiff's aspirations, but that the conclusion was that the plaintiff was not qualified to receive a teacher's certificate at that stage. Mr Phillips said he was not confident that the plaintiff would ever qualify for a teacher's certificate. 48 Mr Phillips said that, on 21 November, he had counselled the plaintiff against holding a party for students. Mr Phillips said he heard that the party had gone on elsewhere and that the plaintiff had attended. He spoke to the plaintiff about this. The plaintiff had replied that it was his own private business and threatened to bring in the Teachers' Federation. The Federation did not intervene and Mr Phillips did not pursue the matter further. Then Mr Batten had raised with Mr Phillips the matter of the plaintiff transporting students in his car. The plaintiff was counselled and cautioned about that, particularly about having young girls in the car with him because of the risk of innuendo. There was then a report of the plaintiff drinking with a student, Andrew Eggleton, while counselling him over some matter. Mr Phillips had warned the plaintiff about that. 49 Up to this point, no evidence of sexual intercourse with Miss T had been led in the department's case. 50 It was then sought to adduce evidence from Mr Phillips concerning something he was told by a student, Melissa Reading (sic). This was a person referred to in Miss T's statement to the police. In that statement, Miss T said that, on 15 February 1992, at a party at Rachael Lee's house she told a friend, Melissa Redding (sic), that she (Miss T) and the plaintiff had slept together twice, and that she (Miss T) had also told another friend, Tanya Wykes, of this. 51 There was an objection to hearsay evidence being led. The Commissioner correctly devined what the nature of the evidence would be, although he may not have known what it was to be in terms. He said, "This goes to, I gather, the allegation which was a central issue in the proceedings does it?" No coherent response is recorded in the transcript. The Commissioner referred to his power to admit hearsay evidence but expressed a reluctance to rely on hearsay evidence of the kind he believed to be involved. The proceedings were then adjourned for an off-the-record discussion with the Commissioner. 52 The terms of settlement handed up when the proceedings resumed on 16 December 1993 were as follows. "1. Mr Smith will be reinstated to the Department of School Education Teaching Service on day one, term one, 1994 (Western Division). 2. Mr Smith will be appointed to Willyama High School as a mobile Social Science Teacher. 3. The appointment will be for a six month probationary period. 4. During the six month probationary period the Principal of Willyama High School will submit a report containing a recommendation on efficiency at the end of term one and the end of term two. 5. The Principal will be advised of the areas of concern identified by the Principal of Yeoval Central School and will put in place a detailed improvement program for Mr Smith directed to these areas. The Principal will be provided with a copy of the Principals report on teacher dated 9 December, 1991 and with details of previous improvement programs developed for Mr Smith. 6. Mr Smith will co-operate fully with all aspects of the improvement program including providing evidence of lesson preparation on a weekly basis. 7. At the conclusion of term 2, 1994 - (i) Should Mr Smith receive a satisfactory report, he will be appointed to the nearest available vacancy; (ii) Should Mr Smith receive an unsatisfactory report, action will commence immediately to annul his appointment. 8. Mr Smith will not receive any payment or accrue any leave or other entitlement for the period from his dismissal until his retirement." 53 On the same date, 16 December 1993, Connor CC issued a document under the heading "Statement". It gave details of the history of the matter prior to the application and of the course of the application. The history of events recounted in the statement referred to the alleged unsatisfactory features of the plaintiff's employment during his first year, including fraternisation with students outside of school hours. It made no reference to any higher level of misconduct such as sexual impropriety with a student, travelling in a motor vehicle with female students, drinking with students or providing alcohol to students. The statement concluded with the matter having been resolved in accordance with the terms of settlement. The Commissioner said, "The matter is concluded on that basis." 54 The parties are at issue as to how to characterise what had occurred in the Commission. It is submitted on behalf of the plaintiff that the proceedings were concluded with an order by the Commission for reinstatement. I disagree. Connor CC noted that the proceedings were concluded on the basis of the terms of settlement. The terms of settlement included an agreement for reinstatement not agreement to an order for reinstatement. No such order was made. 55 No further action was taken by the department until 1997. There is then a record of interview with Miss T, conducted by a departmental officer on 10 July 1997. Miss T was now twenty two years of age. There is also a statement by Miss T on file. It is undated, but I take it to have been made shortly after interview (as is the case with other persons interviewed a little later). In the statement, Miss T gave a short but clear account of sexual intercourse on the two occasions referred to in her statement to the police. 56 There are some disturbing features of the interview conducted on 10 July 1997. Asked how she felt "about all this", Miss T replied that a lot of people heard about it then, and she felt they blamed her for the plaintiff losing his job, leaving town and possibly going to gaol. The interviewer replied that the plaintiff had not gone to gaol, that he was stood down from his job "firstly because of efficiency", that he had appealed on the grounds of wrongful dismissal, that he had been reinstated and that he had been employed at a school near Broken Hill. 57 The interviewer then gave Miss T information about the background of the reopened investigation, including the recommendation of the Honourable John Slattery that a number of investigations into sexual misconduct on the part of teachers should be reopened. The interviewer went on to provide information about the nature of the reopened investigation. Miss T was told it was highly unlikely that the process would end in any criminal court and that it could all be settled by what was called a paper hearing between the department's lawyers and the plaintiff's union lawyers; that, if the allegations were substantiated, the plaintiff could be charged with breaches of discipline and disciplinary action might follow within the department, not in a criminal court; and that, if the matter reached a certain stage, the plaintiff would have a right of appeal to the NSW Government and Related Employees Appeal Tribunal. 58 I hesitate to criticise an interviewing officer, who has not had the opportunity to be heard. It is sufficient to say, for present purposes, that Miss T appears to have been given to understand - erroneously - that, if she authorised the use of her police statement, she could be assured oral evidence by her in any investigation would be unnecessary (an assurance which the interviewing officer was in no position to give) and, secondly, that any sanction imposed on the plaintiff would be a punishment which, by implication, did not include the prospect of dismissal. Whether Miss T would now be willing to give evidence against the plaintiff (if that be required) in the current disciplinary proceedings is doubtful. Whether the department would compel her to do so - assuming a power to compel - must also be doubtful in the circumstances that have occurred. 59 On 4 February 1998, Ms Amanda Lees was interviewed and, on 10 February 1998, she signed a statement. On 4 February 1998, Ms M Tobin was interviewed, and she signed a statement on 23 February 1998. These interviews and statements were also directed to investigation of the allegation of sexual impropriety on the part of the plaintiff. 60 There is nothing in the record of interview of Miss T or the other persons to whom I have referred suggesting that Miss T was at all upset by the alleged sexual episodes involving the plaintiff. 61 The first argument advanced by counsel for the plaintiff was that the disciplinary proceedings should be stayed as an abuse of process. He relied on the decision of the High Court in Walton v Gardiner (1992-1993) 177 CLR 378 and, in particular, on that part of the decision to which I shall refer. Reliance on the decision was limited in that way. 62 The inherent jurisdiction of a superior court to stay its own proceedings on grounds of abuse of process was stated (at 393) as extending to - "all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness." Such categories were said to include the following (at 393) - "(I)f, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 63 These statements of principle have equal application where proceedings other than proceedings in the same court are sought to be stayed. In Walton itself, the proceedings sought to be stayed were disciplinary proceedings before a tribunal. 64 Does the department seek to litigate anew a case which has been disposed of by earlier proceedings? I do not think so for the following reasons. 65 The case against the plaintiff allegedly disposed of by the proceedings before the Commission was not explicitly stated in the argument before me. I take the plaintiff's argument to be that the case against him, allegedly disposed of by the proceedings before the Commission, was that sexual intercourse with Miss T warranted termination of the plaintiff's employment by the department, and that this is the case he now faces anew in current proceedings. 66 I find, in the plaintiff's favour, that that case was advanced against him in the Commission. 67 The plaintiff first raised the matter as part of his case before the Commission. One at least of the grounds on which he contended that the dismissal had been unfair was that lack of teaching proficiency was the ostensible but not the true reason for his dismissal, and that the true reason was the complaint of sexual misconduct made against him which, according to the plaintiff, was false. The plaintiff threw down the gauntlet on that issue. The department had a choice. It could have let the gauntlet lie and sought to justify the dismissal solely on the ground of lack of teaching proficiency, irrespective of any hidden agenda which it might have had based on the allegation of sexual misconduct. Alternatively, it could also have sought to justify the dismissal solely on the ground of lack of teaching proficiency and, confining its case to that, it could have sought to dispel the assertion of a hidden agenda - if it was in a position to do so - by calling those departmental officers who made the relevant recommendations and decisions about termination of the plaintiff's appointment. The department did neither of these things. It took up the gauntlet, electing to answer the plaintiff's challenge by endeavouring to justify the dismissal, not only on the ground of lack of teaching proficiency, but also on the ground of sexual intercourse with Miss T. 68 The statement in Walton (quoted above) that there need not be an estoppel does not qualify the need for disposal of the case against the plaintiff by the earlier proceedings. That statement serves only to include within the ambit of the principle the disposition of substantially the same issue, that is, notwithstanding some insubstantial difference. (See the discussion at 398.) 69 The fatal flaw in the plaintiff's argument is that the case of sexual intercourse with Miss T warranting dismissal was not disposed of by the proceedings in the Commission. No determination having been made, no judgment given and no order made, the proceedings disposed of nothing. All the Commissioner did was to record the parties' agreement for re-instatement. 70 If I am wrong and the relevant issue was materially disposed of by the earlier proceedings, I would not stay the disciplinary proceedings in the exercise of the Court's discretion. 71 In Walton, the majority, in their joint judgment, referred to the earlier decision in Jago v District Court (NSW) (1989) 168 CLR 23. They said (at 395-6): "As was pointed out in Jago , the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners." 72 Walton involved disciplinary proceedings against medical practitioners which could have resulted in their deregistration in the public interest. The present case involves whether the employment of a teacher should be terminated for alleged misconduct in the public interest. In the present case, the disciplinary proceedings would come on for determination about eight years after the relevant allegations were made. The plaintiff has had reason to believe, since 1993, that these allegations would not be relied upon as a ground for dismissal. There is a serious question as to whether Miss T will be a witness against the plaintiff in the disciplinary proceedings and as to whether, on that account, the charge of misconduct in the relevant respect can be sustained. But, notwithstanding these considerations, the nature of the allegations is such that the agency charged by the parliament to decide whether the plaintiff's employment should be terminated for such alleged misconduct should be allowed to discharge its function. In my view, the public interest in that regard prevails. 73 I would stress that dismissal is not the inevitable outcome of the relevant allegations being made out (if that should occur), and nothing in this judgment should be construed as conveying such a view. If the charge is made out factually, that is, of course, a serious matter. It is an offence against s 73 of the Crimes Act 1900 for a teacher to have sexual intercourse with a female pupil above the age of sixteen years and under the age of seventeen years. The maximum penalty is penal servitude for eight years. The policy of this law is obvious enough. An adolescent girl may be induced to have intercourse with a person in authority in circumstances where the experience may prove to be psychologically harmful. The fact that Miss T was not or may not have been the plaintiff's pupil within the meaning of s 73 (in that she was not taught by him) is not a relevant distinction for the purpose of recognising the seriousness with which conduct of the kind alleged is viewed by society and the policy reasons for that. However, it has also to be recognised that no psychological harm might be done in such a case. Some adolescents are sexually active earlier than others, and some engage in sexual activity with persons who are substantially older than themselves without psychological harm. There is no reason to suppose, on the material which I have seen, that any psychological harm was done in this case. There are strong indications to the contrary. That would be an important consideration. 74 If the allegations are admitted or proved, the prescribed officer and the Director-General would also, no doubt, take into account what has happened in the intervening eight years. I have no information about that. I do not know whether there has been any similar complaint, what has been the standard of the plaintiff's service in the department since 1991, what the plaintiff's domestic situation has been, and so on. These would be important considerations. 75 I can readily envisage a situation in which dismissal were not the result of proven sexual misconduct with a student, having regard to such considerations. There is the important further consideration of delay, the plaintiff having faced the same allegations in the proceedings before the Industrial Commission and the plaintiff having presumably ordered his life on the assumption that those allegations would not be further pursued in view of the settlement that was reached. 76 I would expect those with responsibility for the investigation and for the determination of the charge to exercise their function responsibly were the allegations established, and to consider whether it were truly necessary, in the public interest, for the plaintiff's employment to be terminated. 77 As alternative to the argument based on that part of the decision in Walton to which I have referred, counsel for the plaintiff advanced res judicata, issue estoppel and Anshun estoppel. All three are dependent on there having been a determination by the Commission. That there was no judgment, order or decision is fatal to each of these arguments: see Halsbury's Laws of Australia, para 190-40. Further as to res judicata and the need for a prior judgment, see Maganja v Arthur [1984] 3 NSWLR 561, 564. Further as to issue estoppel and the need for a prior judgment or order, see Blair v Curran (1939-1940) 62 CLR 464, 531. And further as to Anshun estoppel and the need for a prior judgment, see D A Christie Pty Ltd v Baker [1996] 2 VR 582, 602. 78 Each of the arguments advanced by the plaintiff in support of the summons fails for these reasons. The summons must be dismissed with costs. 79 The orders I make are as follows: 1. Summons dismissed. 2. The plaintiff to pay the defendants' costs. ********** Last Modified: 11/22/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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