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Supreme Court 18 July 2007

Smith v Mater Dei School

[2007] NSWSC 820

Other
ADMINISTRATIVE LAW [1152] OMBUDSMAN OTHER MATTERS INVESTIGATION DECLARED VOID SCHOOLS TEACHERS

Citation: Smith v Mater Dei School [2007] NSWSC 820
Court: Supreme Court of NSW, Equity Division
Date: 18 July 2007
Judge(s): Young CJ in Eq

Background

The plaintiff was a teacher's aide and first aid attendant at a school for children with mild to moderate intellectual disabilities. On 30 July 2003, he was involved in removing a seven-year-old boy from the First Aid Room after the child refused to take his medication and behaved disruptively. Two staff members who witnessed the incident gave accounts describing the plaintiff as having dragged, thrown, or "chucked" the child, though their accounts differed in material respects.

The school conducted an internal investigation into the incident and, treating it as substantiated child abuse, reported the findings to the Ombudsman under s 25F of the Ombudsman Act 1974. The plaintiff denied that the investigation was conducted properly or that the finding of assault was justified. He sought declaratory relief and damages.

The plaintiff's employment ultimately ended when he resigned in January 2006, though that resignation was unconnected to the incident. He claimed damages representing approximately two years of lost remuneration as a first aid attendant, which he attributed to the incident.

  • Whether the school's investigation into the alleged child abuse incident was so procedurally flawed as to be void
  • Whether removing a non-compliant child from a room containing dangerous implements could constitute an assault
  • Whether the report made to the Ombudsman under s 25F of the Ombudsman Act 1974 should also be declared void
  • Whether damages could be awarded flowing from a defective administrative investigation

Decision

Young CJ in Eq found that the investigation was insufficiently rigorous. The witness accounts were materially inconsistent, the witnesses were visibly emotionally upset when making their statements, and an experienced decision-maker should have evaluated that evidence with care. The investigation failed to properly weigh those inconsistencies and proceeded to a finding of assault on inadequate material.

The court also noted that the plaintiff's account, which described removing the child to protect him from sharp instruments in the First Aid Room, was never adequately tested or addressed. That explanation was at least a plausible and even benign account of the conduct in question. The process had sufficiently miscarried to be treated as void, and a declaration to that effect was appropriate.

On the question of damages, the court declined to make any award. Referring to the Court of Appeal's analysis in State of New South Wales v Paige (2002) 60 NSWLR 371, Young CJ in Eq held there was no proper cause of action from which damages could flow in these circumstances. Counsel for the plaintiff properly did not press the point with force, acknowledging the limits of the applicable authority.

As to the Ombudsman report, the court declined to declare it void as a separate matter. Instead, the court recommended that the defendants write to the Ombudsman advising of the declaration that the investigation was void. The court noted that the Ombudsman had, in any event, taken no action on the report, and that no notification had been made to the Commission for Children and Young People. Very little practical damage had therefore resulted.

Orders Made

  • Declaration made in the plaintiff's favour that the defendants' investigation into the incident was void
  • No declaration made that the report to the Ombudsman was void
  • No damages awarded
  • Defendants ordered to pay the plaintiff's costs of the proceedings
  • Court recommended the defendants send a letter to the Ombudsman advising of the declaration

Key Takeaways

  • A court finding that an internal administrative investigation has miscarried does not amount to a finding that the subject of that investigation is either guilty or not guilty; it means only that no proper inquiry was conducted.
  • Where witness accounts are materially inconsistent and were given in a state of emotional distress, an investigation that fails to carefully evaluate those inconsistencies may be treated as void.
  • Under the principle confirmed by reference to State of New South Wales v Paige (2002) 60 NSWLR 371, damages are not available as a remedy where there is no proper cause of action flowing from a defective administrative decision-making process.
  • The Supreme Court declined to declare an Ombudsman report void as a separate head of relief, preferring instead to recommend a corrective communication to the Ombudsman, particularly where the Ombudsman had already taken no action on the report.
  • Removing a non-compliant child from a room containing dangerous implements was identified as a potentially legitimate explanation for the conduct, reinforcing that context and purpose are relevant considerations when assessing whether physical contact with a child amounts to an assault.

Legislation and Cases Referenced

Legislation:
- Ombudsman Act 1974 (NSW), s 25F
- Freedom of Information Act 1989 (NSW)

Cases:
- State of New South Wales v Paige (2002) 60 NSWLR 371
- Giles v Samuels (1972) 3 SASR 307
- Murdock v Richards [1954] 1 DLR 766
- R v Hermes; Ex parte Ball [1967] Aust Arg LR 158