New South Wales Supreme Court CITATION : Smith v Mater Dei School [2007] NSWSC 820 HEARING DATE(S) : 18/07/07 JURISDICTION : Equity Division JUDGMENT OF : Young CJ in Eq EX TEMPORE JUDGMENT DATE : 18 July 2007 DECISION : Declaration made in plaintiff's favour. CATCHWORDS : ADMINISTRATIVE LAW [1152]- Ombudsman- Other matters- Plaintiff teacher's aide involved in alleged incident of child abuse- Defendant school investigates, reports to Ombudsman- Investigation declared void- Whether plaintiff may seek damages in addition to declaration- Held no cause of action from which damages may flow. EDUCATION [17]- Schools- Teachers- Whether dragging a disobedient child from classroom an assault. LEGISLATION CITED : Freedom of Information Act 1989 Ombudsman Act 1974, s 25F Giles v Samuels (1972) 3 SASR 307 CASES CITED : Murdock v Richards [1954] 1 DLR 766 R v Hermes; Ex parte Ball [1967] Aust Arg LR 158 State of New South Wales v Paige (2002) 60 NSWLR 371 Wade Smith (P) PARTIES : Mater Dei School (D1) The Province of Sydney as Trustee for the Catholic Commission for Employment Relations (D2) FILE NUMBER(S) : SC 4821/05 COUNSEL : M Vincent (P) P Skinner (D) SOLICITORS : Bowring Macaulay & Barrett (P) Carroll & O'Dea (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Wednesday 18 July 2007 4821/05 – SMITH v MATER DEI SCHOOL JUDGMENT 1 HIS HONOUR: The plaintiff was formerly employed by the first defendant, which is a school operated by the second defendant. He was initially employed as a gardener, but was later promoted to teacher's aide and first aid attendant. 2 The plaintiff resigned his employment on 23 January 2006 purporting to make his resignation effective as of 21 November 2005. His parting company with the first defendant had nothing to do with the incident which I am about to relate. The only significance of that is that the plaintiff has claimed damages for the loss of his remuneration as a first aid attendant for about two years which was a result of the incident. 3 By his amended summons, the plaintiff seeks a declaration that the defendants' investigation into the incident was so flawed that it is void and that the subsequent reports about the investigation to the Ombudsman under s 25F of the Ombudsman Act 1974 are void. 4 The first defendant operates a school charitably described as a school for children who have mild to moderate intellectual disabilities. One of those children is a boy whom I will call "Keith" (which is not his real name) whose behaviour was such that he needed to be given regular medication while at school during the luncheon recess. 5 On 30 July 2003, Keith, then aged 7, was to receive his medication and the plaintiff was involved in administering that medication in the First Aid Room. Keith usually refused to take his medication and he did so on this day. The plaintiff says that Keith was well skilled in avoiding the medication and he was also skilled in removing himself from restraint by using agility, speed and strength. He would scratch and he would kick, both while standing and lying down, squirming, punching and slapping as well as clinging to furniture, etc, to avoid removal. That has never been gainsaid. What appears to have happened is that Keith's attitude on this particular day was such that the plaintiff removed him from the First Aid Room. There seems little doubt that he did so, however, the way in which he removed Keith is described differently by various people. 6 On 1 August, the Principal, Mr Pitt, was informed by one woman, "P", that Keith kicked and screamed whilst they were attempting to give him his medication and yelled at the plaintiff, "Get out of this room." She says the plaintiff was outraged, got up and dragged Keith by one leg from the First Aid Room and dumped him outside saying, "Don't you dare tell me to get out of my room." Keith then got up and followed a woman, "L", to Keith's classroom and his classroom teacher. P says that the response of the staff present was "to remove the child and ourselves away from this aggressive behaviour displayed by [the plaintiff]." 7 The other woman, L, initially said in her report of 31 July that upon Keith saying that he didn't want his medicine the plaintiff grabbed Keith's clothes, one hand on the shoulder and one on the pants leg, dragged Keith out of the First Aid Room and then chucked him on the floor and said, "I don't need this and I don't need you", and that Keith then ran down the stairs. She then said she took Keith on her lap and tried to calm him down as he was screaming. Then another officer of the school came down and took over. 8 The Deputy Principal gave a report the following day, 1 August, that L had said that Keith was yelling, screaming and non-compliant, that the plaintiff had been angry and picked up Keith and had thrown him out of the First Aid Room into the hallway, and that then she, P and Keith had walked from the hallway and that Keith had run downstairs. The report of the interview with L on 1 August says that the plaintiff grabbed Keith by the shirt at his shoulder and his pants at the ankle and dragged him to the door and threw him out the door. L's perception was that the child landed and may have banged his head. Keith then ran down the stairs and L followed him and comforted him. L then went back to the lunchroom, grabbed her lunch and left. 9 In the formal interview with P, P said that Keith screamed at the plaintiff, "Get out of this room", the plaintiff then pulled Keith by the leg, Keith was wriggling around on the floor at this time, and dragged him out of the First Aid Room. The plaintiff let go of Keith's leg and left him lying outside the First Aid Room on the carpet. He was yelling out quite violently, "Don't you dare tell me to get out of my room." Then the investigator stated: "I asked P to be very specific with regard to the way that [the plaintiff] had moved Keith out of the First Aid Room as there are obvious discrepancies in the two versions of events. P was quite emphatic that the child was dragged by one leg, not carried and that he was left outside of the room. P also stated that the child returned to his classroom and not down the stairs as reported by L." 10 The Principal, Mr Pitt, noted in his evidence that both P and L appeared to be very emotionally upset when they made their statements. This fact probably has two significances: (a) that an experienced decision maker would need to evaluate very carefully their evidence, especially when the evidence included coloured words such as "chucked"; but (b) that unless the women were normally hyper-reactive or, alternatively, were involved in problem personal relationships in the school, that something out of the ordinary had happened on this particular day to upset them. 11 On 4 August, that is, the following Monday, the Principal says that he called the plaintiff in to see him in the morning and said to the plaintiff that there was an allegation made about him concerning the way he treated Keith last Wednesday. The plaintiff asked what he was supposed to have done and the Principal said: "The allegation is that Keith was playing up when you tried to give him his medicine and that you grabbed him by the leg or the ankle and dragged him outside the First Aid Room and dumped him on the floor." The plaintiff said: "Well I don't remember that. If I dragged him anywhere it would have been to avoid him injuring himself from sharp instruments that are kept in the First Aid Room." 12 The plaintiff denies that that conversation ever took place. The defendants pointed, however, to file notes on the file of what I might call Head Office. These are annexures C and D to the affidavit of Michael McDonald sworn in March 2006. The first note bears the date 3 August 2003, which is improbable, seeing that that was a Sunday. It has some handwriting which would appear to be in the handwriting of a Mr Davis. The handwriting includes the words: "Spoke to Wade re: allegation. Investigation plus counselling plus options re: leave with no penalty." 13 Now, whatever be the situation, that could not have happened on Sunday, 3 August, on anyone's account. 14 The next piece of paper, annexure D, bears the date 4 August and appears to be in Mr Davis' handwriting. It says that "FP", which I assume means Mr Pitt, the Principal: "has spoken to Wade this am. · Informed of investigation team. · Offered support/counselling. · Support person. · LWP if required." Now, that appears to be exactly the same as is on annexure C and appears on both, though in different handwritings. 15 Mr Davis was never called, so that it is very hard to work out when this particular note was made. It is certainly true that the words "this am" would suggest that there was a conversation between Mr Pitt and the plaintiff on that day, but the fact that Mr Davis was not called, that the plaintiff denies it, and the plaintiff was not shaken in cross-examination, makes me consider that I could not be satisfied that the conversation alleged to have occurred on the morning of 4 August actually took place. It is also inconsistent with the attitude the plaintiff and his solicitors maintained from the time the solicitors first came into the matter. 16 The defendants set up an investigation team originally to consist of two ladies. The plaintiff objected to one of these and she was replaced by Ms McManus, who did give evidence before me. The other investigator was Ms Purdy, who also gave evidence. They had been provided by Head Office with guidance as to how they were to conduct their interviews and what sort of questions they were to ask. However, both of them considered that their role was not to make any decision, but merely to report the "facts" that they had discovered as a result of their consultations. 17 Question 4 of the standard form was answered in part by the plaintiff as follows: "If I had removed Keith from the First Aid Room, it would have been for a good reason. In the confines of the First Aid Room there is a lot of dangerous objects, ie, sharp knives, powerpoints, electrical equipment etc and I believe that I have always worked under the knowledge that where a student is in danger they must be redirected and moved to a safe place. If I have to pick up a child every attempt is made to do it safely for the child, myself and anyone else who may be in the area. While working at Mater Dei, I have been asked to remove children over 100kg and children as small as Keith." 18 He was then asked if he had any other comments and he made the comment that I have already recorded about Keith, who, though small in stature, was well skilled in avoiding physical removal. The plaintiff's general attitude was that he couldn't remember anything specific of note that happened on 30 July. 19 Mr Pitt got in touch with Head Office seeking advice as to how to proceed. On 4 August, there is no doubt that Mr Pitt supplied the plaintiff with advice that: "Information has recently been provided to me which contains an allegation of inappropriate behaviour by you concerning a student. The nature of this information means that the procedures required by Part 3A, Ombudsman Act 1974 must be followed … . In brief, the information alleges that on 30 July 2003, in the first aid room of Mater Dei, you physically removed Keith from the room with undue force. This amounts to an allegation of physical assault." The letter ended: "I wish to assure you that as well as being concerned with child protection, the relevant legislation is also focused upon natural justice and fairness for employees involved in a matter such as this." 20 On 19 August, Ms Sanchez, the Employment Relations Officer of Head Office, sent an email to Mr Pitt: "Good afternoon Frank. Please find enclosed preliminary findings letter to WS … . Have a read of the document and let me know your thoughts when you receive it." The draft letter included the following: "The investigation is now completed and a preliminary finding has been reached. As a result of the enquiries that were made, I am now able to inform you that, on the balance of probabilities, the preliminary finding is that the allegation of physical assault was sustained. This decision was made upon careful consideration of all of the information that was gathered and upon advice from the Head of Agency, the Catholic Commission for Employment Relations (CCER) as to the requirements of the legislation." 21 Mr Pitt wrote the letter with only cosmetic alterations. 22 Mr Smith was invited to make a written response to this preliminary finding. It will be noted that no-one ever appears to have assessed the material that was gathered by the investigation team. 23 In the witness box Mr Pitt was asked who had made the decision and he said he did. He then gave evidence that he was guided by what the CCER had told him. He seemed to indicate at one stage that the CCER had told him what the finding was to be, but, whilst his evidence was a little confused, it would appear that he at least turned his mind to the matter and took the view that there were two witnesses who said that there was an assault, the plaintiff had given no satisfactory response and, accordingly, he should choose the lesser of the two versions and make the finding. This is, with respect, hardly a very satisfactory way of dealing with a very serious matter. I will deal with the questions as to particulars and as to adjudication in due course, but I will just pass on for the moment. 24 Following the letter of 21 August, the plaintiff responded to Mr Pitt by saying that he wanted further information regarding the allegation made against him including the details of the allegation documented. He also wrote other letters, including a letter of 25 August to Ms Sanchez at Head Office which essentially said that he had been victimised because at that particular school there had to be manhandling of students, which many of the staff were involved in. There was also a note of 5 September 2003 in like vein. However, on 17 September, Mr Pitt wrote: "After the completion of the investigation … correspondence was sent to you advising you of the preliminary finding … . Your response to the preliminary findings has been considered and noted. All relevant matters arising from your response will be attended to and looked at in accordance with the Ombudsman's Guidelines. The allegation is sustained." 25 There has never been any indication as to how it came about that the allegation became sustained. 26 The essential nature of the complaint made was that the plaintiff never had sufficient particulars to enable him to make any meaningful response to the allegation. Indeed, he says that whilst he heard in the gossip around the school that the complainants were P and L, he never knew until he saw his file under the Freedom of Information Act 1989 in November 2004 what the actual allegations against him were. 27 Child protection is a serious matter. It is unfortunate in one sense that the legislation lays on schools such a heavy onus to police child protection by requiring them to treat even what the community might consider as trivial incidents as child abuse and assault. However, it must be remembered that assault in the ordinary sense of the word is a crime and that if a person such as an employer alleges a crime against a member of staff then a fairly heavy onus applies before one can discipline the staff member for committing that crime. A fortiori is this the situation where there is a compulsory system of reporting to the Ombudsman and, although it did not come into this case, to the Commission for Children and Young People. A recording on an official register may well prevent the person concerned from ever being employed in the industry again. 28 However, even if the matter was a simple one of assault in a magistrate's court, it would, to my mind, be quite insufficient to inform the accused, "Because you physically removed Keith from the room with undue force this amounts to an allegation of physical assault." As I have said, I cannot accept Mr Pitt's version that he informed the plaintiff orally in greater detail of the allegation. 29 In Giles v Samuels (1972) 3 SASR 307 Bray CJ in the Supreme Court of South Australia dealt with the particulars that are needed in a charge of assault and made it quite clear that one must identify the episode and the details of what happened with fair particularity. One cannot merely allege that there has been, in that case, "an assault on a police officer" and, indeed, that flavour carries through summary offences. When a person is charged with offensive behaviour he is entitled to full particulars for what the behaviour actually is, not that it is merely offensive; see, for instance, R v Hermes; Ex parte Ball [1967] Aust Arg LR 158. 30 What amounts to undue force, of course, is very relative. If one is breaking up a fight between two 100 kilogram men it will be quite different to something that one is doing if one is escorting an old lady from a bus. It seems to me, with great respect, that unless the plaintiff was given details that he had dragged a child by the ankle and had put him outside the room, or whichever one of the other versions that was given to Mr Pitt, there was not sufficient material made available to him from which he could adequately answer the allegations. 31 Indeed it seems to have been assumed by everyone that dragging a disobedient child from a classroom must be an assault. The authorities would not support this proposition. So in Murdock v Richards [1954] 1 DLR 766 it was not an assault for a teacher to pull a resisting female pupil by her arm out of the classroom to the hall to receive the strap. The circumstances are all important. 32 The riposte of Mr Skinner, who appeared for the defendants, was that as the plaintiff always said that he couldn't remember anything untoward it wouldn't have done him any good anyway. With great respect, that is a little too blasé. Very often it is the intimate detail of an incident brought home to someone's memory which will trigger recollection. 33 There is always in these matters care taken by the school to keep the identities of complainants relatively confidential. To a degree, this has to be commended, but, even if one does pursue that policy, there is no reason why one could not have shown the accused anonymized statements setting out what he is alleged to have done. Now, it may be that he would work out (as he indeed did from gossip around the school) who the complainants would have been from this, but it at least would have given him sufficient material to be able to defend himself. That did not occur in this particular case. 34 Although the main attack was on the supply of particulars, and that attack has been made out, the way in which the matter was resolved is extremely disturbing. There is no use collecting information unless someone fairly assesses that information. Ordinarily, one would have expected that once the information had been collected the accused would have been confronted with that material and asked whether he wished to make any comment. Making a "preliminary finding" is odd. Judges cannot make preliminary findings because, if they did, when it came to make their final finding, someone would justly say that they had already made up their mind and so were disqualified from doing so. 35 Mr Pitt, in fact, made a finding because he said that on the balance of probabilities the preliminary finding is that the allegation is sustained. What should have happened at this stage is that Mr Pitt should have said (and I am not blaming Mr Pitt personally because Head Office directed him to do what he did) "As a result of the inquiries, I am of the view that there is a sustainable case against you and I must now proceed to consider that evidence together with any comments you may wish to make." Then, having presented the accused with the information, and taking into account his reply, at that stage a finding could have been made. But to make that finding, someone would have had to assess the credibility of the witnesses and taken into account the differing versions they had given, as the Deputy Principal had already noted in her report that the allegations were just not consistent. There were very significant details of difference. 36 The question as to whether the balance of probabilities or the Briginshaw test applied would have to have been considered by someone. The whole background would have to be considered because what might be an assault with respect to a Lord Fauntleroy type child being escorted from a classroom is very different to a child who is kicking and screaming and refusing to take medication being removed from a room where there are all sorts of dangerous implements. But none of this happened. The people concerned just seemed to follow the form and find the assault and then reported it to the Ombudsman. 37 Now, fortunately for everybody, Mr Pitt reported to the Ombudsman in such a way, showing sympathy to the plaintiff, that the Ombudsman properly took absolutely no action. Furthermore, no-one ever informed the Commission for Children and Young People of the incident and, again, I think that was entirely appropriate. Accordingly, very little damage has actually been done. 38 Mr Skinner says that because of that the court should not in its discretion make any order at all, however, Mr Smith's reputation has been damaged in that the allegation has been found to be proved on inadequate material. 39 I should say at once that I am not by that statement saying that Mr Smith is not guilty. A finding by a court that the process miscarried merely means that there has been no proper inquiry at all. It does not mean that he is guilty, it does not mean that he is not guilty, merely that the process was not carried out as it should have been. Under modern rules, where a process has sufficiently miscarried, courts are entitled to treat it as void and to make a declaration accordingly. 40 Mr Vincent, who appears for the plaintiff, also seeks damages. That is what he was instructed to do. The damages I have assessed at $2,151. However, Mr Vincent very properly did not deeply press that application. He referred me to what the Court of Appeal said in State of New South Wales v Paige (2002) 60 NSWLR 371 at 403 and following as to damages based on defective decision-making by administrative authorities. I think that is as high as it can be put. There is no proper cause of action here from which damages could flow and I will not make any award for damages. 41 The plaintiff also seeks a declaration that the report to the Ombudsman be declared void. I do not think I should go that far. I think all I should do is to make a declaration in accordance with paragraph 1 of the amended summons and recommend to the defendants that they send to the Ombudsman a letter setting out the fact that the first declaration has been made. 42 I think that in all the circumstances there is no alternative but that the defendants pay the costs of the proceedings. 43 The exhibits may be returned on the understanding that they will be returned to the court should there be any appeal. ******************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.