Implied good faith – David Russell and St Mary’s Cathedral

David Russell has been director of music at St Mary’s Cathedral, Sydney for over 25 years.

My earliest memory of David Russell dates from when he belonged to a group called “Young Opera” which gave amateur productions of operettas in Sydney in the 60s and 70s.  The first which I remember seeing was Offenbach’s Orpheus in the Underworld in 1968, at the Sydney Conservatorium of Music.  After that, their productions were mounted in the Cell Block Theatre at the old Darlinghurst Gaol, the East Sydney Tech.  That was a frigid (in winter) but extremely atmospheric venue which no longer appears to be used for live performances, which is a bit of a shame.  I remember Russell as Mr Peachum in John Gay’s The Beggar’s Opera and as (I think) Jupiter in Offenbach’s La Belle Helene. I came across him again in the early 80s when I sang in a city church choir and he was involved in leading combined choral events as the Director of Music at St Mary’s (which is the Catholic cathedral).

It is part of the comedy of chronological perspective that, although he can only have been about 30 when I first encountered him, Russell seemed to me to be quite old.  By the time I saw him in the 80s, when he would only have been in his 40s, I mean no disrespect to say that, in the register of human types, I thought of him as a fat old ecclesiastical queen.  The qualifier “ecclesiastical” is important here, because you have to realise that such queeniness was a question of personal style rather than any declaration of sexuality.  The St Mary’s Cathedral Choir is a men and boys choir.  The boys have scholarships at the cathedral school.  The world of the cathedral choir is distinctly homosocial.  Whilst everyone assumed that the world of high ecclesiastical theatre which a cathedral embodies attracted more than its fair share of gay people who were attracted to its colour and movement, the price of admission was to leave any direct manifestations of homosexuality off the agenda, at least publicly or devant les enfants

 Fast forward about 20 years.  The following is extracted, with some editing, from a  judgment of the Industrial Relations Commission.

In 1998/99 allegations of sexual assault were made against the David Russell and a David O’Grady by Mr Daniel Buckley, a former pupil of the School and, whilst at the school, a member of the choir. Mr Buckley alleged that he was the victim of events which, in his statement prepared for criminal proceedings against Mr O’Grady is said to be from 1979 to 1983, and during the course of those proceedings said to be in the period January 1981 to December 1983. Mr O’Grady was at the time a sacristan at the Cathedral.

Mr O’Grady occupied a room at Mr Russell’s residence as a boarder for some months in late 1982, early 1983 at the request of the then Dean of the Cathedral.

Mr Russell strenuously denied any involvement in any improper conduct and any knowledge of improper conduct by Mr O’Grady towards children whilst he was boarding at the Applicant’s residence or at any other time.

In 2000 Mr O’Grady was charged with nine counts of indecent assault on Mr Buckley. He was convicted on one count of indecent assault, being an event at Mr Russell’s residence witnessed by “X”.

Three charges alleging indecent assault were laid against Mr Russell. These allegations were denied. The charges were not pursued at the committal proceedings on 13 March 2000 when Mr Buckley, the complainant, failed to appear.

On conclusion of the proceedings of 13 March 2000 Mr Russell returned to his duties and continued to discharge his obligations as Director of Music.

In August 2002 the Office of the NSW Ombudsman requested that an investigation of Mr Russell’s conduct take place pursuant to Part 3A of the Ombudsman Act 1974. Arising from this request the Cathedral appointed Mr John Cooke to conduct an investigation into the conduct of Mr Russell (“the Cooke enquiry”).

This enquiry[sic] dealed with three sets of allegations: the first described as the “primary allegations”, that being those subject to the criminal charges not pressed; an additional allegation that Mr Russell had seen but did not act upon an incident at his home involving O’Grady and three children; and an alternative allegation that Mr Russell had witnessed and taken no action in respect to an event involving Mr O’Grady, Mr Buckley and another child, identified for the purpose of these proceedings as “X”. This allegation is referred to in these proceedings as “the walking in” allegation or event.

The Cooke enquiry concluded that the primary allegations are not sustained, the additional allegation is not sustained, and that the walking in allegation is on the balance of probability sustained. These conclusions were accepted by the Cathedral, which acted to terminate Mr Russell’s employment on the basis of the finding in respect to the walking in allegation.

David Russell commenced proceedings in the Industrial Relations Commission claiming that the inquiry conducted by the Commission was unfair, that the “walking-in” allegations were untrue and that he had been unfairly dismissed.  He sought reinstatement.

The Commission, after combing over the minutiae of evidence involving train trips, train sets, which dogs were at the house when and all the other corroborative details which might assist in determining when and if an event occurred over twenty years ago, found that the walking in event did not occur, and the termination of the Russell’s employment was harsh, unreasonable and unjust. The Commissioner did not consider reinstatement impractical and accordingly ordered reinstatement with restitution of wages and continuity of service for all purposes.

This might seem a great victory for Mr Russell, but in truth it was a “famous victory” in the poetic sense. The Industrial Relations Commission is a no-costs jurisdiction. Of course, this is normally for the protection of the employees who can therefore bring proceedings against the employer and if need be even represent themselves without risking losing their house if they lose to pay the employer’s army of lawyers. However, in this case, David Russell had spent a fortune on legal and other costs (there were 14 hearing days between June and December 2003) to vindicate his reputation and to win back his $25,000 a year job.

Russell then commenced proceedings in the Supreme Court for damages pursuant to what is generally called the “implied term of good faith” which has recently been discovered by the courts in employment contracts. This novel doctrine first emerged when employees of the corrupt BCCI Bank (a spectacular banking collapse in England which has occupied the courts for almost 20 years since) took proceedings against the Bank (by then in liquidation) because they claimed that the way it conducted its business had besmirched them by association so that, after the bank crashed, their employment prospects were seriously reduced. (I’m simplifying here a bit, but that’s the gist.)

There was a hearing over six days in March 2006 before Justice Rothman, who finally handed down judgment in February 2007.  Justice Rothman gave with one hand, and took away with the other.  He found that:

“the contract of employment had implied into it a duty of good faith. There was also an implied duty that the Church would not, without proper and reasonable cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.”

This was the legally novel (for Australia) part of the judgment.

Justice Rothman also found that the Church had breached that duty under the contract, however he also found that “to the extent that there has been a breach of either one of those implied terms, the plaintiff has sustained no damage as a result.”

This was partly because he held that Russell couldn’t show that the outcome of the Church’s inquiries would have been any different even if it had not breached its duties.

Justice Rothman also found that the court had breached an implied term about the notice which Russell should have been given.  Because Russell had been reinstated with continuity of service (and hence of pay) he hadn’t directly lost any money because of this.  But he only got his job back because he had brought the proceedings in the Industrial Relations Commission.  Justice Rothman held that Russell couldn’t recover any damages for the money he had spent in bringing these proceedings, including money Russell had spent on a public relations consultant.

This was because, on the one hand, he held that, because you can’t get any costs in the Industrial Relations Commission (where your remedy may or may not arise from a breach of contract, and where, if you are reinstated, you actually something which you cannot get from a breach of contract), it would not be “coherent” for Mr Russell to get damages for breach of contract which included this costs. More astoundingly, to me, Justice Rothman also held that the expenses incurred by Mr Russell in hiring a public relations consultant were not damages which he was entitled to recover, because:

The evidence discloses that the public relations consultant was engaged primarily to overcome the damage caused by bad publicity. I make it clear that I find that engaging the public relations consultant was a reasonable step. However, the publicity which was his main focus was publicity generated by the proceedings in the Commission. In those circumstances the expenses of the public relations consultant are not expenses in mitigation of the damage.

The underlying assumption in the foregoing is that any injury to reputation was occasioned by the publicity of the proceedings not the fact of dismissal. In those circumstances no damages arise as a result of any injury to reputation.

I understand that the judgment is being appealed [update: the appeal was  dismissed  in 2008 by the NSW Court of Appeal]. It seems harsh that a person sacked, in breach of contract, for serious sexual allegations which turn out to be unfounded and which have not been properly or fairly investigated and thereby has had their reputation trashed or at least exposed to being trashed simply for trying to get their job back, should not be compensated for what it has cost to vindicate themselves and to protect the injury to their reputation to which this process has exposed them. 

In the meantime, the latest I heard is that the Cathedral is trying to sack Mr Russell again. I guess they just don’t want him around when the Pope comes. They have offered to pay Mr Russell out his notice of one year. Of course, the money is hardly the point (remember, it’s a $25,000 a year job, even though, though not full-time, it involves serious responsibility and public performances and, in term-time at least, entails attendance 5 or 6 days a week) and a papal visit would be a career highlight. Mr Russell, who now has to conduct all rehearsals and similar activities with chaperones, wants to serve out his notice and be there.

PS: You can read a more level-headed and methodical note about this case here.

12 Responses to “Implied good faith – David Russell and St Mary’s Cathedral”

  1. The Long Boom comes to an end « Stumbling on melons Says:

    […] interval, I also ran into J and Lx.  They are now both AIDSocrats.  We discussed the David Russell case (because G QC is appearing in his appeal) and also the more recentl (so far as the denouement […]

  2. Banging your head against a brick wall « Stumbling on melons Says:

    […] had breached its contract but that Mr Russell could not get any damages for this. I have written before about this […]

  3. We can never see ourselves as others see us « Stumbling on melons Says:

    […] have written about these cases on this blog (1), (2). There is one unflattering thing I said about him in the first of these posts (I won’t […]

  4. Carmel Garry Says:

    David was a wonderful friend of my parents when we lived at Ryde, NSW. If I had known of David’s problem when they presented I would have provided a statement of his integrity towards children bet it boy or girl. He loved my brothers & sisters and was Director of the catholic church choir at St Charles, Ryde. He became known to my family when he was about 18 years.

    He took my older brothers & sisters on snow trips & generally David was really like a big brother to us. I have missed his friendship for so long. He was the most wonderful & generous person.

    When my father become ill & we moved to St Marys NSW, David was still teaching at Belmore Boys High. He would finish his school day travel to our home, Teach my mother to drive while driving to the hospital that was about 20km away, then return to our place & return to work the next day. This task I recall would be performed at least twice a week.

    He never hurt us & there was plenty of opportunity & there were 5 of us.

  5. Anony Mouse Says:

    I was in the St Mary’s Cathedral Choir during the 1980’s and personally knew Dan Buckley – who was in the year above me. I can say as a fact that 99% of the men in that choir were gay – even as a 13 year old I figured this out early on. However, during my time in the choir nothing untoward happened to myself or others I was aware of. However, in saying that it was not a good environment to be spending time during my schoolyears – hanging out with gay men in a choir ffs. Some of the other individuals attached to the choir (eg. sacristans etc) were also quite dodgy – I would not have gone near them with a bargepole. I don’t doubt that some kind of abuse could have happened to Mr Buckley – it was certainly the right environment, with trusting Catholic mothers leaving their kids in the hands of choir officials. If David Russell did indeed witness Mr Buckley being abused,[..remainder here edited out because the finding of the court was that he did not]. My advise to any parents – don’t trust any church officials or priests alone with your children – EVER.

    • marcellous Says:

      1. 99% seems an overstatement.
      2. “hanging out with gay men in a choir ffs” – well, is it the choir that is the problem or the gay men? Personally, it’s the organized religion that I have the problem with but that’s part of society which isn’t likely to go away just yet.
      3. “My advise…” [sic] – well you do have to trust other people with your children. The point to me is that no one should assume that church officials or priests are incapable of harmful actions just because they are church officials and priests. All trust is capable of abuse. That is the paradox of trust but not a reason to abandon trust altogether.

  6. Anony Mouse Says:

    Thanks for your comments Marcellous,

    I would say you had to be in that choir to appreciate the amount of gay men in the adult section of the choir. I knew only of 2 men who were straight (married or with a girlfriend) – and the rest were gay or gay leaning, with their “gay accent” giving them away initially.

    Looking back, I feel that spending 7 years of my teenage years in this choir being around mostly gay men not to be a positive experience. This environment seemed to mostly attract gay men into the ranks […deleted passage].

    [further deletion]

    Your point on trust is very valid – and I think a key reason why there have been so many unfortunate cases of abuse involve Catholic church officials. The complete faith many religious followers have in their religion meant they also trusted the officials involved with their children.

    For me, I cannot understand why anyone would want to go anywhere near organised religion these days – or even let their kids anywhere near a church official. It irks me when the Pope and the Catholic Church are completely inadequate in their dealings with the abuse cases – cover ups and not properly dealing with abusing priests is a joke.

    I also think organised religion fails in requiring priests to be celibate. This just goes against natural human instincts – and with this requirement to enter the preisthood you have to ask yourself what kind of men will be attracted to the priesthood ? – the pool of potential priests seems to include a lot of gay men, or gay leaning and potential paedophiles- as has been shown. I also think if this part of you is repressed, it just comes out in a twisted and horrible way. Would these men be abusers anyway if they weren’t priests ? – we cannot be sure of this. If however the priesthood required priests to be married – I think the abuse would be less of a problem – and perhaps many people would find religion more accessible.

  7. marcellous Says:

    AM

    I have deleted one section of your comment because you have assumed matters which were not found to be the case or which were not found to be the case in proceedings to which Mr Russell was a party, including whether Dan Buckley and “X” ever went to Mr Russell’s place and in particular whether they ever went there with the knowledge of Mr Russell. DR said he never had individual boys (or even one or two or three boys) over and he denied “walking in” on the incident between Mr O’Grady and the two boys in question.

    The second deletion is out of abundant caution and I can’t really explain it here without effectively undeleting it, other than to say (to you) that it is a rather broad brush statement which is unfair to quite a lot of people.

    Actually, I really don’t agree with the elision of gay and paedophile inherent in your phrase “gay leaning and potential paedophiles.” I don’t really think gay men are any more potentially (boy-attracted) paedophiles than straight men are potentially (girl-attracted) paedophiles.

    Don’t you think you also got some good things out of your time in the choir? Or has it all turned to ashes in your mouth because a number or even in your estimation most of the tenors and basses with whom you sang were homosexual?

  8. Anony Mouse Says:

    Yep – my time in the choir was a good musical experience, which I would not have got otherwise.

    In hindsight I do not think it was a healthy atmosphere for a schoolboy to be for 7 years – being around a majority of adult males who were homosexual.

    I think Catholic mothers may also have second thoughts these days about sending their kids to join such choirs – if they were aware of this, and if their kids being around gay males was an issue for them.

    • Antony Mouse Says:

      I thought again about this case, and my time in the St Mary’s Cathedral Choir in the eighties. I think it was interesting in your article that you noted that David Russell did hire a public relations consultant during the case. This is something an innocent person does not need to do – and its always a red flag (in my books) when an accused person does this, as it can appear they are trying to “smooth” their image out in the public domain.

      I reiterate some of my earlier thoughts – nothing untoward happened to me in that choir. But I did think the environment was not the healthiest one to be growing up in as a boy and then a teenager. Most of the adult males in the choir were homosexual (in my opinion) – and as I look back, I would have preferred to have spent my non-school time in a different environment.

      With the charges that were made against David O’Grady, we can see unfortunately that this was an environment where such assaults can happen to children – and I hope Mr Buckley recovered from this event and went on to have a successful life.

      • marcellous Says:

        I don’t agree that only an innocent person need hire a public relations consultant – which seems to be the implication of your “red flag” point. The idea that only the guilty have anything to fear is a pernicious one – what about the unjustly accused or the merely casually smeared? Further, I expect David was surrounded by supporters and the idea to engage a PR consultant is unlikely to have come just from David.

        Personally, my main objection to such choirs is the religion rather than the homosociality, though I’m certainly not keen on the combination of the two. Ironically, though some emerge super-religious from such an experience, I suspect many others, having worked backstage (so to speak) emerge no more and possibly even less religious than when they went in.

  9. Kim Walker « Stumbling on melons Says:

    […] implied duty of good faith. This is Mr Garnsey’s special topic – he appeared for David Russell in proceedings which raised some similar […]

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