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- Unreported Judgment
Queensland College of Teachers v Plumbley  QCAT 474
Queensland College of Teachers
Ian Anthony Plumbley
Occupational Regulation Matters
On the papers
Dr Wendy Grigg
15 November 2017
EDUCATION – SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – conviction for unlawful wounding and wilful damage to property – whether disciplinary ground exists – appropriate order
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – OTHER PARTICULAR CASES AND MATTERS – where regulator successful in disciplinary proceedings – whether costs should be awarded
Criminal Code 1899 (Qld), s 3, s 323, s 469
Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 12, s 92(1), s 97, s 161(2), Schedule 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 107
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167, Schedule 2
Health Ombudsman v Antley  QCAT 472
Queensland College of Teachers v Laver  QCAT 499
Queensland College of Teachers v Metcalf  QCAT 147
Queensland College of Teachers v Satora  QCAT 411
Queensland College of Teachers v TSV  QCAT 186
Queensland College of Teachers v WAS  QCAT 61
Veterinary Surgeons’ Board (WA) v Alexander  WASAT 175
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- This matter arises from a mandatory referral by the Queensland College of Teachers to the Tribunal under s 97 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Education Act).
- Under s 97 if the College reasonably believes that one or more grounds for disciplinary action against a “relevant teacher” exist, the College must refer the matter to a disciplinary body. In relation to this matter, the relevant body is QCAT. The College is required to inform the Tribunal about the grounds for the disciplinary matter and the facts and circumstances forming the basis of the grounds. The Tribunal is then to conduct a hearing and, as soon as practicable after finishing the hearing, make a decision about the disciplinary matter having regard to the information provided by the College.
- “Relevant teacher” is defined to mean either an approved teacher or a former approved teacher. “Former approved teacher” means a former registered teacher or a former holder of a permission to teach. A “former registered teacher”, in relation to a disciplinary matter, means a person who was a registered teacher when the conduct to which the disciplinary matter relates happened and is no longer a registered teacher.
- Mr Plumbley was registered as a teacher from 2 February 1978 to 31 December 2015. His registration was suspended on 6 May 2014 under s 49 of the Education Act. Mr Plumbley was removed from the register on 5 April 2016 for failing to renew his registration at the end of the 5-year registration period. The conduct to which the disciplinary matter relates occurred on 27 February 2014. At that time, Mr Plumbley was a registered teacher but is no longer registered. He is therefore a “relevant teacher” for the purposes of s 97.
- The grounds upon which the College rely as a basis for disciplinary action are s 92(1)(b) (convicted of an indictable offence that is not a serious offence) and s 92(1)(h) (not suitable to teach).
Ground for disciplinary action
- Section 92 sets out the grounds for disciplinary action against a teacher. The ground in s 92(1)(b) applies where:
the relevant teacher has been convicted of an indictable offence that is not a serious offence, or an offence against this Act, except if, in relation to the conviction, the teacher becomes a relevant excluded person.
- On 11 November 2016 Mr Plumbley was convicted of one charge of unlawful wounding (s 323 of the Criminal Code) and one charge of wilful damage to property (s 469 of the Criminal Code). These are indictable offences.
- “Serious offence” is defined by reference to s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act). The offences listed as serious offences in Schedule 2 of the Working with Children Act do not include the relevant offences.
- The ground in s 92(1)(b) has been satisfied. There is therefore no need to consider the alternative ground in s 92(1)(h).
Appropriate order against former approved teacher
- Section 161 applies to a former approved teacher where the Tribunal has determined that a ground for disciplinary action against the teacher has been established.
- Under s 161(2)(c), if the Tribunal would have made an order cancelling the teacher’s registration if the teacher had been an approved teacher, it can make an order prohibiting the teacher from reapplying for registration for a stated period from the date the order is made or indefinitely. In this case, given the circumstances of the relevant offences, we would have cancelled Mr Plumbley’s registration had he been an approved teacher.
- The relevant offences occurred at 12:30am one night when Mr Plumbley began climbing Ms X’s garage. Ms X was a woman Mr Plumbley knew but who had, from the time they were first introduced, rejected his advances. She had previously complained to police that he was “stalking” her and would not leave her alone.
- When Mr Plumbley started scaling the garage Ms X heard him and started the remote door to the garage. This caused Mr Plumbley to fall off the garage and he ran away. Ms X’s partner, Y, then pursued Mr Plumbley. However, Mr Plumbley was armed with a 4-inch knife and inflicted a number of lacerations to Y’s hand, lower back and buttocks. The wounds bled profusely. Y managed to disarm Mr Plumbley and was able to restrain him until the police arrived. Y was subsequently admitted to hospital, undergoing surgery to his right hand to repair severed tendons.
- When the police arrived they discovered that, besides the knife, Mr Plumbley had two permanent markers and a torch in the pockets of his shorts. Mr Plumbley had used the marker pens to graffiti Ms X’s garage door. The graffiti read:
… lives here. She is a SLUT. She has a BIMBO BOYFRIEND. She can’t give true love so uses men. She spends quite some time in Currumbin Clinic because she is CRAZY. Her new boyfriend loves FUCKING HER UP THE ARSE. How SICK is that???
… LIVES HERE. SHE IS A 49 YEAR OLD SLUT. APPLY HERE IF U WANT A QUICK ROOT.
- Mr Plumbley was sentenced to 18 months imprisonment, to be suspended after serving 96 days imprisonment, with the balance of the imprisonment suspended for a period of 2 years. Pre-sentence custody of 96 days was ordered to be declared as time already served.
- The College submits that Mr Plumbley’s conduct involved the following aggravating circumstances:
- The significant degree of premeditation associated with the offences evidenced by the knife, 2 marker pens and a torch he was carrying;
- The “opportunistic gratuitous violence” against the male complainant which required surgery;
- It was an unexpected frightening attack on the female complainant;
- The wounding offence involved a weapon, being a knife with a 4-inch blade;
- The offences occurred late at night/in the early hours of the morning; and
- The female complainant was severely psychologically affected by the incident and was unable to stay home alone and also spent some time interstate to stay with family due to her distress.
- In our view, despite the fact the offending did not arise from the performance of teaching duties, the nature and circumstances of the offences are strong indicators that Mr Plumbley is not, at this time, suitable to teach.
- Mr Plumbley has not made any submissions to the Tribunal regarding this disciplinary proceeding nor provided a response to the College’s amended referral and so the Tribunal is unable to conclude that Mr Plumbley has undergone rehabilitation to such an extent that he does not pose a risk of harm to children or to the school community more broadly. We do however make the following observations in Mr Plumbley’s favour:
- He was 59 at the time of the offence and does not have any previous disciplinary history or criminal history to the knowledge of the College;
- He pleaded guilty to the criminal charges; and
- The sentencing judge, Chief Judge O’Brien, District Court, Southport, referred to his “considerable efforts” towards his own rehabilitation since being charged with the offence and, in particular, since being released from prison.
- In Queensland College of Teachers v TSV it was said:
The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way. (s 3(1)) It is essential that persons registered as teachers do not pose a risk of harm to children. (Queensland College of Teachers v Genge  QCAT 163 at ) Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”. (Queensland College of Teachers v Brady  QCAT 464 at ).
- The College has referred to a number of cases involving the commission of offences outside the performance of teaching duties. The offences ranged from “glassing” under the influence of alcohol, premeditated unlawful wounding and unlawful stalking, uses/threatens violence. The periods of prohibition applied by the Tribunal ranged from 6 months to 4 years.
- In all the circumstances, and having considered the authorities referred to, we are of the view that Mr Plumbley should be prohibited from applying for registration or permission to teach for a period of three years from the date of this order.
- Further, given the background to and nature of the offences we consider it appropriate that any application for registration by Mr Plumbley in the future should demonstrate his fitness to teach.
- Section 161(2)(b) gives the Tribunal power to make an order requiring the teacher to pay costs to the College. The costs can be an amount the Tribunal considers appropriate having regard to any expenses incurred by the College either in investigating the matter or in the proceedings before the Tribunal.
- The College has asked the Tribunal to award costs in a fixed amount of $5,000. The College submits that the Tribunal should take into account that the referral was mandatory under the legislation; that the College is wholly funded by the teaching profession and that the College acted at all times appropriately in the conduct of the proceedings. Mr Plumbley, on the other hand, it is argued, failed to comply with Directions, made no attempt to reach an agreed statement of facts and omitted to keep his contact details up to date causing Directions Hearings to be re-scheduled and the College the expense of engaging an investigations company to locate him.
- The discretion to award costs is to be exercised for the purpose of indemnifying the person in whose favour the costs order was made, and not for the purpose of punishing the person against whom it is made. This is consistent with the approach to the disciplinary jurisdiction generally, that it is not “punitive”, merely “protective”.
- It has been held in relation to comparable powers to award costs in disciplinary proceedings that there will usually be a strong case for awarding costs in favour of a regulatory body where a complaint has been proved and results in disciplinary action by the Tribunal.
- In Veterinary Surgeons’ Board (WA) v Alexander it was held:
The Tribunal’s approach to awards of costs in the context of vocational regulation matters is now relatively well established. That general approach was explained by the President of the Tribunal, Chaney J in Motor Vehicle Industry Board and Dawson  WASAT 8 at – where he said:
Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings. In Medical Board of Western Australia and Roberman  WASAT 81 (S) at  the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that:
Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
With those observations the Tribunal concurs.
The College urges us to take into account that the referral to QCAT was mandatory, and that the College is wholly funded through the mandatory payment of registration fees by teachers. We see force in this submission. The proceeding has come about because of WAS improper behaviour as a teacher. It is unfair to expect the cost of disciplining him to be borne by teachers generally, the vast majority of whom behave responsibly. The cost burden on practitioners who fund their regulatory authority has been taken into account by QCAT when considering costs in a case involving a medical practitioner (Medical Board of Australia v Love  QCAT 608, ) and another involving a lawyer (Warren v Queensland Law Society Incorporated  QCAT 234, ).
- Section 107 of the QCAT provides, relevantly, that if the tribunal makes a costs order under an enabling Act it must fix the costs if possible. The College sought fixed costs in the amount of $5000. The College did not seek investigatory costs so we assume the costs are for expenses incurred in the tribunal proceedings.
- We have decided that an award of costs in favour of the College is appropriate in these circumstances. This is a matter where a regulatory body has brought disciplinary proceedings which were not contested and which have resulted in a finding that a ground for disciplinary action exists and that certain sanctions, including a 3-year prohibition period, should be imposed.
- Where a person asks the Tribunal to fix costs, the Tribunal would, in the ordinary course, prefer that reasonable evidence be provided of the nature and amount of those costs. In the absence of such evidence we are not prepared to award costs of $5,000. Doing the best we can, we fix costs in the amount of $2,500.
- The orders of the Tribunal are:
- Ian Anthony Plumbley is prohibited from applying for registration or permission to teach for a period of three years from the date of this order.
- Pursuant to s 161(2)(d) of the Education Act, the following notation is entered into the register of approved teachers:
- Should Ian Anthony Plumbley reapply for registration as a teacher after expiration of the prohibition period, the application should include a psychiatrist’s report addressing the following:
- Details of any history of any condition or disorder including any diagnosis and treatment;
- The significance of any mental illness, condition or disability in relation to suitability to work in a child related field/suitability to teach;
- The likelihood and/or level of risk of a repeat act of violence by the respondent, including within a school environment;
- Assessment of level of “risk of harm to children” presented by the respondent, if any;
- Assessment as to any likely change of the respondent’s “risk of harm to children” as a result of exposure to relevant stressors likely to be experienced in performance of duties as a Teacher in a school /school like environment (teaching);
- Any likely change as to the risk of harm to children as a result of any therapeutic or other treatment; and
- Any recommended treatment relevant to reducing or alleviating any “risk of harm”.
- Any psychiatrist’s report referred to in clause 2(a) must also include confirmation that the author of the report was satisfied that the respondent adequately understood and has addressed the above points; and that the psychiatrist was provided with copies of this Decision and the section 97 amended referral for disciplinary action.
- Ian Anthony Plumbley must pay the costs of the Queensland College of Teachers fixed in the sum of $2,500 within 60 days of the date of this order.
Education Act, s 97(2)(a).
Education Act, s 97(4)(a).
Education Act, s 97(4)(b); s 158.
Education Act, Schedule 3.
Education Act, Schedule 3.
Education Act, Schedule 3.
Certificate from the Queensland College of Teachers under s 223(e) and (g) of the Education Act, dated 24 July 2017.
Applicant’s Amended Referral for Disciplinary Action filed 28 March 2017, .
Criminal Code, s 3(3).
Education Act, Schedule 3.
Submissions of the Queensland College of Teachers filed 30 June 2017,  referring to Auscript Revised Sentencing Transcript dated 4 November 2016, .
Education Act, s 3.
Queensland College of Teachers v TSV  QCAT 186.
 QCAT 186, .
Victorian Institute of Teaching v Gene De Wilde [20 January 2001].
Queensland College of Teachers v Satora  QCAT 411.
Queensland College of Teachers v Laver  QCAT 499.
Education Act, s 161(2)(b).
Education Act, s 161(2)(b).
Health Ombudsman v Antley  QCAT 472,  citing NSW Bar Association v Evatt (1968) 117 CLR 177.
Veterinary Surgeons’ Board (WA) v Alexander  WASAT 175, .
 WASAT 175, .
 QCAT 147, .
 QCAT 61, .
- Published Case Name:
Queensland College of Teachers v Ian Anthony Plumbley
- Shortened Case Name:
Queensland College of Teachers v Plumbley
 QCAT 474
Member Cranwell, Member Grigg, Member Traves
15 Nov 2017