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Queensland College of Teachers v Smith[2015] QCAT 426

Queensland College of Teachers v Smith[2015] QCAT 426

CITATION:

Queensland College of Teachers v Smith [2015] QCAT 426

PARTIES:

Queensland College of Teachers

(Applicant)

 

v

 

John Smith

(Respondent)

APPLICATION NUMBER:

OCR212 -14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

18, 19, 20, 21, 22, 25 May and 28 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Rogers

Member MacDonald

DELIVERED ON:

30 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The referral by Queensland College of Teachers is dismissed.

CATCHWORDS:

OCCUPATIONAL REGULATION – TEACHERS – where teacher took students on private excursions – where teacher bought food and favours for students – where teacher organised sleepover at his home for students without another adult present – whether teacher unsuitable to teach

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 66(2)(e), 99

Education (College of Teachers) Act 2005 (Qld) ss 49, 92(1)(h)

Briginshaw v Briginshaw (1938) 60 CLR 336

Jones v Dunkel (1959) 101 CLR 298

Shahinper v Psychology Board of Australia [2013] QCAT 593

Psychology Board of Australia v Germain [2014] QCAT 202

APPEARANCES:

APPLICANT:

A J Kimmins of Counsel instructed by McInnes Wilson

RESPONDENT:

M Spry of Counsel instructed by Cooper Grace Ward

REASONS FOR DECISION

  1. [1]
    Earlier this decade, John Smith[1] was the principal of a rural primary school. Many of the students at the school came from disadvantaged families. Mr Smith developed a practice of giving students extra-curricular attention, in the form of shopping trips, fast food treats, opportunities for volunteer and paid work and the like.
  2. [2]
    Some teachers at the school formed the view that a core group of about six boys benefited most from Mr Smith’s activities. They were concerned that Mr Smith’s activities were inappropriate so they made a complaint to the Department of Education and Training. After investigation, the Queensland College of Teachers referred him to the tribunal for disciplinary action.

The grounds for disciplinary action

  1. [3]
    The tribunal may discipline a teacher if it considers the teacher is not suitable to teach under s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld).
  2. [4]
    The College grounds for disciplinary action are framed this way. Firstly, the College submits that pursuant to s 92(1)(h) of the Act, Mr Smith is not suitable to teach in that his registration is liable to be suspended under s 49. As a subparagraph of that submission, the College submits that between two dates, Mr Smith was performing his duties but that contrary to his duties he:
    1. a)
      Failed to maintain appropriate professional boundaries with students under his care and control who were all in Year 7; and/or
    1. b)
      Failed to maintain objective and impartial levels of disciplinary standards for students under his care  and control who were all in Year 7; and/or
    1. c)
      Failed to address appropriately concerns within his knowledge in respect of alleged boundary violations with the students under his care and control who were all in Year 7.
  3. [5]
    The College then set out 35 particulars of behaviour under the heading “PARTICULARS OF DISCIPLINARY MATTERS” which, it says, established that Mr Smith was not fit to teach. One of the particulars, 1.1.35, was that the conduct alleged in the previous 34 particulars amounted to grooming.
  4. [6]
    The tribunal struck out particular 1.1.35 on the grounds that it was a conclusion, not a fact on which the witnesses could give direct evidence. The College did not apply to amend the charges.

Non publication

  1. [7]
    The tribunal has earlier ordered a prohibition on the publication of anything that might identify the students involved in these complaints. The tribunal is satisfied that the activities the subject of this complaint focus on five boys. For the sake of convenience, we will refer to those boys as “the subject boys”. Although the particulars name certain students, their identity is irrelevant to the tribunal’s findings and we will not refer to them by name. Four of the subject boys gave evidence. Inexplicably, one student, who was allegedly the subject of most of Mr Smith’s attention, did not give evidence. We will refer to the boys who gave evidence simply as “Boy 1” etc. We will refer to the boy who did not give evidence as “Boy A”.
  2. [8]
    The tribunal also heard from teachers employed at the school during the relevant time. Identifying the teachers may also lead to identification of the boys. Where necessary, we will refer to the teachers as “Teacher 1” etc. Similarly, the identification of other witnesses and locations may lead to identification of the boys. Those identifiers have also been removed.
  3. [9]
    The connection between Mr Smith and identifying the boys is less clear. There are many rural schools in Queensland and it is possible that Mr Smith’s name, without any other identifier, would not lead to identification of the boys. Conversely, the events giving rise to this referral are so specific that, in our view, identification of Mr Smith will inevitably lead to identification of the boys.
  4. [10]
    The QCAT Act also allows the tribunal to order non-publication of certain details if it is in the interests of justice to do so[2]. There are serious allegations against Mr Smith. The evidence, and some of our findings, is not flattering. If we had found that Mr Smith was unsuitable to teach within the charge as framed, we would not be contemplating a non-publication order about Mr Smith. However, in the unique circumstances of this case, where we have declined to find the charges proven, we consider the interests of justice favour a non-publication order for Mr Smith’s name.

The way the students gave evidence

  1. [11]
    Four students gave evidence. They were all under the age of seventeen. Late on the Friday before the hearing commenced on Monday, the College filed an application for these witnesses to be dealt with as special witnesses under s 99 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. [12]
    The tribunal had already determined that these witnesses were special witnesses[3] and made arrangements for them to give their evidence from a separate hearing room by video link. Given the limited resources of the tribunal, accommodating special witnesses is not something that can be achieved on short notice. The tribunal also determined that the witnesses would be supported by an independent person and, otherwise, only the tribunal members would be in the hearing room with the witnesses.
  3. [13]
    Counsel for Mr Smith objected to this procedure. He referred us to s 99 of the QCAT and, in particular, s 99(4), which sets out relevant matters for the tribunal’s consideration. He argued that there was no evidence that these child witnesses would be intimidated by the process, and there was no evidence that Mr Smith was in a position of power over the children. He submitted that, as the children were older, there was no risk to their evidence. Further, counsel for Mr Smith submitted that Mr Smith would be prejudiced by the witnesses not being in the same room, the delay in transmission and “those sorts of issues”.
  4. [14]
    “Relevant matters” – age, education, level of understanding and cultural background – are matters to which the tribunal must turn its mind if the potential special witness is an adult[4]. They are not relevant if the witness is a child. If the witness is a child, the tribunal’s discretion is fettered only by the requirement to observe the rules of natural justice[5]. We were satisfied that the child witnesses did deserve the protection afforded by giving their evidence in a separate room, remote from Mr Smith. We were also satisfied that the process adopted would achieve the necessary balance between procedural fairness and protection of the witnesses.

A general comment about the evidence

  1. [15]
    Boy A is a central character in the narrative presented by the College. He was involved in most of the activities and yet he did not give evidence. The College has not explained why it has no evidence from Boy A. Where Mr Smith and the College differ about Boy A, unless there is direct evidence to the contrary from a third party, we have applied the rule in Jones v Dunkel[6], drawn an adverse inference against the College and accepted Mr Smith’s evidence.
  2. [16]
    There are other characters who appear in the narrative from whom we have no evidence; Boy 4’s aunty, other boys who were part of the subject group, and the Deputy Principal. We have applied the same principle. If there is a conflict in the evidence that relates to these witnesses, we are entitled to draw an adverse inference against the College.
  3. [17]
    Because this is a disciplinary proceeding, the College bears the onus of proof and it must establish its case to a very high standard[7]. For that reason, where there is a conflict of evidence between Mr Smith and a witness that he might have called, but did not, we have declined to apply the rule in Jones v Dunkel.
  4. [18]
    The College submitted extensive evidence about matters that are interesting, but not the subject of a particular, nor does the College ever specifically link that evidence with a charge against Mr Smith. Examples include Mr Smith’s shopping expedition to get clothes for Boy 4 on the way to camp, Mr Smith’s relationship with his staff, whether or not Mr Smith obtained relevant permission for activities, and incidents that relate to Mr Smith’s approach to disciplining the boys. The College submits that these are “side issues” that have an effect on credit[8]. That submission is largely untrue. The facts of the incidents speak for themselves. If the College wanted to present a case that the side issues also amounted to breaches of Mr Smith’s obligations as a teacher, it should have done so. The tribunal should not be asked to make findings on “side issues” that do not relate directly to the particulars.

Are the particulars established by the evidence?

  1. [19]
    The College submits that the three categories of conduct in which Mr Smith failed are “as particularised below”. It is obvious, however, that not every particular relates to every category. Unhelpfully, the College’s submissions simply state “the particular is established” without directing us to which of the three categories the particular relates.
  2. [20]
    Counsel for Mr Smith submits that, because of the way the College’s grounds were drafted, the tribunal must be satisfied that all of the particulars are proven before the tribunal can find that Mr Smith is not suitable to teach.
  3. [21]
    We disagree. The task for us, with no assistance from the College, is to decide whether a proven fact establishes a particular which we can match with one of the three categories.
  4. [22]
    We also disagree with the College’s submission that it is enough to show the particulars proven are examples of Mr Smith’s unsuitability to teach. It is important that the allegation which Mr Smith must answer are of sufficient particularity to permit him to do so[9]. We therefore intend to deal only with the 34 particulars identified by the College.
  5. [23]
    We have not, and will not, explore other evidence to see if we can find other examples of where Mr Smith acted contrary to his duties as a teacher. Although the tribunal is not bound by the rules of evidence[10], and we have an inquisitorial power[11], the disciplinary jurisdiction (where, as we have observed, a very high onus of proof exists) is not the jurisdiction for such frolics. The tribunal took a similar approach to an application for a notice to produce in Psychology Board of Australia v Germain[12] We must be satisfied that, given the proven facts, and in the context of Mr Smith’s explanation, the College has established a particular as drafted, which then shows that Mr Smith acted contrary to his duties as a teacher.
  6. [24]
    Although Mr Smith concedes the facts of many of the particulars, he often disputes that the particular has been established. The core of his submissions are that, because of circumstances surrounding the admitted fact, the particular, as an element of the charge, is not established. We will, therefore, consider each particular in two parts. Firstly, we will consider whether the facts underlying the particular are proven. Then, we will consider whether the facts support a finding that Mr Smith has failed in his duty as a teacher, having regard to the three categories.

1.1.1 On a date unknown in or about early 2012, Mr Smith became aware of comments as made by the school cleaner to another person, words to the effect alleging inappropriate conduct involving his association with Boy 1

  1. [25]
    Mr Smith concedes he became aware of a conversation between the cleaner and a local business owner alleging inappropriate conduct involving his treatment of Boy 1[13]. However, he denies that the comment named Boy 1 and he denies that the cleaner made the comment to the business owner. Mr Smith says, instead, that the business owner made the comment to the cleaner.
  2. [26]
    The cleaner’s sworn evidence[14] was that the business owner asked her about rumours concerning Mr Smith. The business owner told the cleaner that some parents had seen Mr Smith around town with boys from the school and then asked the cleaner what she knew. The cleaner told the business owner she did not engage in gossip.
  3. [27]
    The business owner also gave evidence. Interestingly, she gave no evidence about her conversation with the cleaner. Her evidence related to a later conversation she had with Mr Smith.
  4. [28]
    Mr Smith is correct that there is no evidence that the cleaner made any comments to a third person. He is also correct that there is no evidence that Boy 1 was mentioned specifically. To that extent, the particular is not made out. However, we are satisfied that the cleaner did have a conversation with the business owner about Mr Smith’s behaviour with boys from the school.
  5. [29]
    This fact, by itself, does not establish any particular failure by Mr Smith in his duty as a teacher.

1.1.2 Following his becoming aware of the comments made by the cleaner, Mr Smith addressed a staff meeting where he stated in words to the effect that any staff member raising allegations against him about favouritism towards certain students would be subject to legal action and/or their employment would be placed in jeopardy.

  1. [30]
    Mr Smith concedes he called a staff meeting, which took place on 14 July 2012[15].  He also concedes that he called the meeting after he found out about the business owner’s comments. He denies that he stated in words to the effect that any staff member raising allegations against him about favouritism towards certain students would be subject to legal action and/or their employment would be placed in jeopardy. He also denies that the evidence establishes that he stated in words to the effect that any staff member raising allegations against him about favouritism towards certain students would be subject to legal action and/or their employment would be placed in jeopardy.
  2. [31]
    Six witnesses, including the cleaner, gave evidence about this meeting. The cleaner’s sworn evidence was that Mr Smith told the meeting that a colleague had been spreading rumours about him. He indicated he would be taking legal action against that colleague and a third party. At the hearing, under cross examination, the cleaner also told the tribunal that Mr Smith did, perhaps, say that if any of the staff had a problem with him, he could arrange an exit package for them.
  3. [32]
    Teacher 1 remembered Mr Smith stating that “if anyone had any issues with the way that he interacted with students they could put in their transfers”.[16] Under cross examination, Teacher 1 confirmed that she took Mr Smith’s reference to a transfer seriously. She wanted to stay at the school but she was intimidated by Mr Smith, particularly by his conduct and demeanour at the meeting. She did not recall seeing Mr Smith so angry or upset before.
  4. [33]
    Counsel for Mr Smith suggests that we should not accept the evidence of Teacher 1. He suggests that Teacher 1 did not refer to the staff meeting, or any threats, in the first of her two affidavits. That submission is incorrect, as we have already recorded. Counsel also suggests that Teacher 1 had no reason to be intimidated, because Mr Smith could not compel her to apply for a transfer. That may be true. It may affect Teacher 1’s reaction to Mr Smith’s comment but it does not necessarily mean that Mr Smith did not make that statement.
  5. [34]
    Teacher 2 remembers that Mr Smith was “fuming” at the staff meeting[17]. She states that Mr Smith said words to the effect that if any staff member spoke about the incident he would ruin their career and that he would be suing the third person who had been spreading rumours. She records that Mr Smith was “very frightening” and “fairly serious” during this meeting[18].
  6. [35]
    Counsel for Mr Smith submits that we should not accept Teacher 2’s evidence. He submits that we should be concerned that Teacher 2 failed to act, by lodging a complaint about Mr Smith, until some months later. He submits that, under cross examination, Teacher 2 could not remember the words Mr Smith used during the meeting, in contrast to the precise wording in an email she sent in November 2012.
  7. [36]
    As with Teacher 1’s evidence, Teacher 2’s failure to act on Mr Smith’s intimidation or threats does not mean that he did not make that threat. Her failure to act may have been a breach of her obligations under the Code of Conduct, and we will refer to that issue later, but it does not result in her evidence being unreliable. Similarly, we would be surprised if Teacher 2 could remember the exact words used in a meeting that occurred almost three years beforehand.
  8. [37]
    Teacher 3 stated[19] that Mr Smith said words to the effect that, of anyone defamed him, he would sue them and end their career.
  9. [38]
    Counsel for Mr Smith submits that we should not accept Teacher 3’s evidence. He submits, correctly, that Teacher 3 did not complain about Mr Smith’s conduct at that meeting when he should have done so. Once again, the fact that Teacher 3 did not complain does not, in our view, affect the truth of his evidence.
  10. [39]
    Counsel submits that, because Teacher 3’s evidence was raised in response to Mr Smith’s affidavit, it lacks credibility. We agree that Teacher 3’s evidence does suffer from the passage of time and the College’s failure to secure an early statement or affidavit from him.
  11. [40]
    Counsel for Mr Smith also submits that Teacher 3’s evidence is tainted by his attendance at a meeting between some teachers before a formal complaint against Mr Smith was submitted. Counsel stops short of asserting that Teacher 3 colluded with other teachers to present a consistent story but this appears to be the implication. If so, there can be no justification for such an implication. The meeting occurred in 2012; any solidarity between the teachers, who had dispersed across the State into different careers, was long gone. Further, as their statements show, although the teachers’ evidence was generally consistent, they were not “singing from the same song sheet” in a way that would suggest an agreed position.
  12. [41]
    Counsel also submits that Teacher 3’s evidence does not prove the precise allegation pleaded by the College. We agree.
  13. [42]
    Teacher 4 gave sworn evidence[20] that Mr Smith said words to the effect that he would “shut down” the business owner and that those present at the meeting should be very careful about what they said to anybody.  Under cross examination[21], he agreed that Mr Smith reminded those present of their obligations under the Code of Conduct to protect students from harm by reporting any incident of concern.
  14. [43]
    Teacher 4’s evidence that Mr Smith referred to the Code of Conduct confirms Mr Smith’s evidence about that meeting. And yet, Counsel for Mr Smith submits that we should reject Teacher 4’s evidence as being untruthful. Counsel submits that it is inconceivable that, had Mr Smith reminded staff of their obligations under the Code of Conduct, Teacher 4 did not act on that obligations by complaining or seeking advice.
  15. [44]
    Teacher 4 explained why he, and other staff members, took no action. He told the tribunal that he felt he had no job security. Teacher 4 wanted to progress to being Principal of a small school. He felt he needed a good reference from Mr Smith for that step. He was concerned that Mr Smith would not provide that reference.
  16. [45]
    Counsel also refers to the fact that Teacher 4 maintained a friendship with Mr Smith after the meeting. Counsel submits that Teacher 4 tried to downplay this relationship under cross examination. We agree. It might also be that the friendship had, as Teacher 4 suggested, taken a different course.
  17. [46]
    Counsel also points to inconsistencies between the evidence Teacher 4 gave to investigators in 2013 and the evidence he gave to the tribunal and that he failed to mention the teachers’ meeting to which Teacher 3 referred. We agree that Teacher 4’s evidence has gaps and inconsistencies. We find it odd, however, that Counsel for Mr Smith vociferously attacks the one teacher whose evidence supports Mr Smith’s recollection. But we also agree with Counsel’s submission that Teacher 4’s evidence does not support the particular as pleaded.
  18. [47]
    Teacher 5 attended that staff meeting. She recalls Mr Smith telling the meeting about the rumour, explaining his position on the rumour and then stating that if they had any concerns to see him and maybe start looking for another job[22].
  19. [48]
    Counsel for Mr Smith submits that Teacher 5’s evidence does not support the particular as pleaded. We agree. Counsel also submits that, in cross examination, Teacher 5 conceded Mr Smith called the meeting’s attention to the Code of Conduct. Counsel submits that, again, that it is inconceivable staff would not take action in the face of such a statement. For the reasons we have already given, we do not necessarily agree.
  20. [49]
    Counsel also submits it is inconceivable that Mr Smith would remind staff of their obligation but, at the same time, threaten them for taking that very action. We agree that it is odd. However, we note that Teacher 5’s evidence that Mr Smith referred them to the Code of Conduct was obtained under skilful cross examination. In fact, Teacher 5’s response to the question of whether Mr Smith referred to the Code of Conduct was “I assume so. I can’t recall that information.”[23] In that context, Teacher 5’s evidence is not “inconceivable”.
  21. [50]
    Although no witness swears to the particular precisely as it is framed, we are satisfied that, even at the highest end of the Briginshaw[24] standard of proof, the weight of evidence supports a finding that Mr Smith did suggest that any staff member raising allegations against him about favouritism towards certain students would be subject to legal action and that the employment of any staff opposed to his action may be in jeopardy. The teachers’ recollection of what Mr Smith said differs, as might be expected with the passage of time. But their understanding of what he said – “be quiet or things will not go well for you” – was consistent.
  22. [51]
    The question for the tribunal is whether Mr Smith appropriately addressed concerns within his knowledge about alleged boundary violations. We find that he did not appropriately address those concerns.
  23. [52]
    The Department has a policy for dealing with allegations against employees in the area of student protection[25]. The policy requires that even low level incidents are to be reported to the Ethical Standards Unit, using a particular form. Mr Smith did not refer this incident to the Ethical Standards Unit.
  24. [53]
    In instances where the suspicion aligns to some or all of grooming indicators, and the Principal is the person under suspicion, the matter must be referred to the Principal’s supervisor. Reporting is mandatory and there should be a written report sent to both the Ethical Standards Unit and the Queensland Police. Mr Smith told the tribunal he reported the incident to his supervisor[26] but he did not provide a written report.
  25. [54]
    The policy states that the Ethical Standards Unit conducts any investigation about such incidents. Mr Smith had a meeting with the business owner at her business address[27] and with the cleaner[28]. Whatever Mr Smith’s purpose to those meetings, he should not have engaged with these people when, in due course, they would have been contacted by the Ethical Standards Unit.
  26. [55]
    Counsel for Mr Smith submits that Mr Smith acted properly in reminding staff of their obligations under the Code of Conduct not to engage in gossip or innuendo. He also submits that it is inconceivable that Mr Smith would remind staff of their reporting obligations and then threaten them with adverse action if they did report him.
  27. [56]
    All teachers who gave evidence reported feeling intimidated by Mr Smith’s comments at that meeting. The weight of the evidence supports a finding that Mr Smith threatened staff with dismissal or transfer if they acted against him. Even if the message – a reminder of reporting obligations – was valid, we find that Mr Smith acted inappropriately by calling the meeting and delivering the message in a bullying, rather than supportive, way. We are satisfied that Mr Smith failed to appropriately address concerns within his knowledge in respect of the alleged boundary violations.

1.1.3 After Boy 1 was sent from the classroom, Mr Smith allowed the student to sleep in his office, where the student stayed for the rest of the day

  1. [57]
    The College withdrew particular 1.1.3.

1.1.4 Mr Smith took Boy 1 to McDonalds

  1. [58]
    Mr Smith concedes he bought takeaway food for students a number of times[29]. He admits he bought McDonalds for Boy 1[30]. The facts are established.
  2. [59]
    Counsel for Mr Smith submits the evidence shows that Boy 1 was always part of a group of students when this occurred whereas the particular alleges that Mr Smith bought McDonalds for Boy 1 when they were not in the company of other students.
  3. [60]
    The particular, as it is pleaded, simply states that Mr Smith took the student to McDonalds. There is no suggestion in the particular itself that the nature of the visit – whether accompanied by others – was important.
  4. [61]
    Mr Smith told the tribunal that Boy 1’s visits to McDonalds were part of regular school activities/reward system which he outlined[31]. If we accept Mr Smith’s evidence, then a trip to McDonalds would not be a failure to maintain professional boundaries if it fell within one of the outlined activities.
  5. [62]
    Mr Smith does not assert that Boy 1 was a member of the soccer team, or the tournament of minds.  Boy 1 was not a school leader. Mr Smith does not assert that Boy 1 participated in the rock performance or that he was in the class that achieved the highest attendance. Boy 1 was a member of the school rugby team. If we accept Mr Smith’s evidence, Boy 1 might have received McDonald’s at the end of the season.
  6. [63]
    Boy 1 told the tribunal he received McDonalds on more than one occasion. He told the tribunal Mr Smith would buy him McDonalds “if he asked for it”[32]. That evidence suggests that Mr Smith took Boy 1 to McDonalds in circumstances that were not part of a regular school activities/reward system. If that is proven, then we are satisfied that Mr Smith’s trips to McDonalds with Boy 1 was a failure to maintain appropriate professional boundaries.
  7. [64]
    Boy 1 was not a good witness. He had not seen his affidavit before the morning he gave evidence and he didn’t write the affidavit himself[33]. He remembered about half of the matters set out in his affidavit[34]. He said that the person who wrote his statement did not write it correctly[35]. Under cross examination, he was inconsistent.
  8. [65]
    But, under cross examination, Mr Smith agreed that he bought Boy 1 McDonalds on multiple occasions, usually after football training.[36] We are satisfied that Mr Smith took Boy 1 to McDonalds in circumstances that were not part of a regular school activities/reward system and, therefore, that he failed to maintain appropriate professional boundaries with Boy 1.

1.1.5 Mr Smith associated with Boy 1 on weekends other than in respect of school activities

  1. [66]
    Mr Smith concedes that Boy 1 whipper-snipped his lawn, that he took him to football trials (when Boy 1 was not trying out at the trials), and that he drove Boy 1 to club rugby games[37].
  2. [67]
    Counsel for Mr Smith submits that this particular is not proven because Mr Smith had permission from the student’s guardian to engage in these activities. Permission or otherwise is not part of the particular, although it does go to the charge. The facts are established.
  3. [68]
    Counsel for Mr Smith submits that Boy 1 whipper snipped Mr Smith’s lawn only once, and with the permission of the boy’s guardian.
  4. [69]
    There was no evidence of the guardian’s permission. The guardian did not give evidence. Mr Smith did not produce, or even refer to, a written permission slip. Counsel for Mr Smith is silent about Mr Smith’s other contact with Boy 1 over an extended period. We are satisfied that Mr Smith’s association with Boy 1 on weekends establishes that he failed to maintain appropriate professional boundaries with Boy 1.

    1.1.6Mr Smith bought Boy 1 football boots, a mouth guard and rugby club registration

  5. [70]
    Mr Smith agreed that he bought Boy 1 football boots, and mouthguard and club registration[38]. Once again, the fact has been proven.
  6. [71]
    Mr Smith explained that Boy 1 had been caught breaking into the school, which was reported to the police[39]. Mr Smith attended a restorative (justice?) meeting at which he became aware of the boy’s personal circumstances[40]. Mr Smith decided to help the boy by encouraging him to take up sport[41]. He stated that Boy 1’s guardian had repaid him for the equipment[42].
  7. [72]
    Counsel for Mr Smith submits that, under cross examination, Mr Smith recalled that CentreCare probably paid for the club registration. In his affidavit[43], Mr Smith does refer to CentreCare providing funding. Mr Smith does not state that this student received funding from CentreCare. He does not state that CentreCare reimbursed him for the club registration. The reference to CentreCare is vague and in direct contradiction to an earlier statement[44] that he personally paid for the club registration.
  8. [73]
    Under cross examination, Mr Smith gave inconsistent evidence. He was not clear about whether the guardian reimbursed him. He was not clear whether CentreCare funded some of the costs.
  9. [74]
    We acknowledge the background to, and motivation for, Mr Smith’s decision. But we find that he should have, or could have, tried to other ways to fund the equipment and registration. Instead, Mr Smith spent what was a substantial sum of his own money. He could not have extended this generosity to every child in the school who needed help. As we will see, Mr Smith consistently conflated student’s learning outcomes and the school environment with students’ personal desires and personal circumstances. By doing so, Mr Smith stepped outside the professional boundaries that exist between teacher and student. 
  10. [75]
    Even accepting Mr Smith’s motivation in this case, to involve Boy 1 in sport, we find that he failed to maintain appropriate professional boundaries with Boy 1.

1.1.7 Mr Smith paid for items at Kmart for Boy 1, took him to a donut shop and bought him a milkshake, and arranged for the Deputy Principal to drive Boy 1 to rugby games while Mr Smith was on leave.

  1. [76]
    Mr Smith concedes that he arranged for the Deputy Principal to drive Boy 1 to rugby games[45]. He also agrees that he bought zoo animals for Boy 1, but says he was one of a number of students who could not participate in a class activity without the animals. He agrees he took Boy 1 to Kmart. He denies that he bought Boy 1 a milkshake.
  2. [77]
    Teacher 6 gave evidence[46] that she saw Boy 1 sitting at the donut shop, Mr Smith was with him and she saw Mr Smith coming from the counter. She asked Boy 1 if he was having a nice day. The student said he was and that Mr Smith had bought him a milkshake.
  3. [78]
    Mr Smith denies he bought Boy 1 a milkshake and Boy 1 gave no evidence about these matters. The incident was not put to him in cross examination. There is no direct evidence that Mr Smith bought the student a milkshake in circumstances where there could have been, and should have been, direct evidence. We are not satisfied that Mr Smith bought the student a milkshake.
  4. [79]
    Similarly, Teacher 5 gives evidence about a conversation with Mr Smith concerning the purchase of farm animals[47] but there is no direct evidence that Mr Smith took Boy 1 to Kmart to buy the animals. We are satisfied that Mr Smith bought the animals. We are satisfied that Mr Smith took Boy 1 to Kmart but we are not satisfied that he took Boy 1 to Kmart for that express purpose.
  5. [80]
    The facts are made out, in part.
  6. [81]
    Because Mr Smith bought the toy animals for a number of students, we are not satisfied that this is an instance where he failed to maintain professional boundaries. But the act of taking Boy 1 to Kmart, when he did not extend that favour to other boys, is enough to establish that Mr Smith failed to maintain appropriate professional boundaries with Boy 1.
  7. [82]
    Similarly, Mr Smith could not arrange the Deputy Principal to drive Boy 1 to weekend football without intruding into Boy 1’s personal life. Again, the motive for the intervention may be admirable, but it is irrelevant.

1.1.8 Mr Smith took students to Coles outside school hours.

  1. [83]
    Teacher 1 gave sworn evidence that she saw Mr Smith driving students to the local shopping centre at about 3 or 4 pm, just before the school camp[48]. Mr Smith agrees that he took students to Coles[49] He says he took them to buy lollies for camp. Mr Smith does not address the issue of timing for that trip.
  2. [84]
    None of the students allegedly involved gave evidence about this trip, even though two of them provided affidavits and gave oral evidence. We are satisfied that Mr Smith took the students shopping. We are not otherwise satisfied that the facts are established.
  3. [85]
    We are not satisfied that the act of shopping with students for school camp lollies establishes that Mr Smith failed to maintain appropriate professional boundaries. However, the fact that he took some of the subject boys shopping does raise concerns about his ability to maintain professional boundaries with those students.

1.1.9 Mr Smith drove Boy 1 to another town after school hours without the presence of another adult to mow his wife’s lawn

  1. [86]
    Mr Smith agrees that he drove Boy 1 to another town and that Boy 1 mowed his wife’s lawn while at that town[50]. These facts are established.
  2. [87]
    Mr Smith stated that the Deputy Principal made the decision for Boy 1 to travel to another town to attend regional football trials. Mr Smith stated that Boy 1 was a “spare” in case other boys did not attend the trials[51]. The Deputy Principal did not give evidence.
  3. [88]
    Boy 1 was not selected for his town team[52]. The Deputy Principal did not select more obvious candidates to act as a spare[53] but we don’t know why.
  4. [89]
    Unfortunately, although he gave evidence, Boy 1 gave no evidence about this event. Mr Smith’s evidence, although unlikely, is uncontested. The College submits that Mr Smith should have called the Deputy Principal. We disagree. The College bears the onus of proof. Mr Smith has stated a fact. The fact is uncontested. The gaping holes in the evidence submitted by the College compels us to accept that Mr Smith had a legitimate purpose for driving Boy 1 to the other town.
  5. [90]
    Mr Smith stated he had the guardian’s verbal permission for Boy 1 to mow his wife’s lawn[54]. The guardian did not give evidence. Once again, we are required to accept this uncontested evidence.
  6. [91]
    However, the Department has a policy for school excursions, which includes excursions on weekends[55]. The policy states that the school should obtain a guardian’s written consent to the excursion, which must be filed as proof of parental permission. There was no evidence of written consent from Boy 1’s guardian. If the travel to the trials was a legitimate school activity, Mr Smith’s use of the travel as an opportunity to have his wife’s lawn mown was not. It was a personal activity and not within the professional boundaries expected of a Principal. In that respect, Mr Smith failed to maintain appropriate professional boundaries.

1.1.10 Mr Smith drove Boy 1 to rugby games

  1. [92]
    Mr Smith agrees that he drove Boy 1 to rugby games[56], but he says that it always in the company of others.
  2. [93]
    Counsel for Mr Smith submits that the particular implies that Mr Smith and Boy 1 travelled alone and that there is no evidence to support a finding that they travelled alone.
  3. [94]
    The particular is not qualified by reference to whether Mr Smith drove Boy 1 in company or alone. The facts are established.
  4. [95]
    Mr Smith stated that it was not unusual to provide transport for other disadvantaged students at the school, especially when their parents were unable to do so[57]. Teacher 4 confirmed that this was a practice of the school[58]. Boy 1 confirmed that, if not for lifts from Mr Smith, he would not have been able to attend football[59]. We are not satisfied that Mr Smith failed to maintain professional boundaries in driving Boy 1 to football games.

1.1.11 Mr Smith took the subject boys to hardware shops during school hours and supplied them with food from McDonalds

  1. [96]
    Mr Smith agrees that he took students to hardware shops and to McDonalds[60]. The facts are established.
  2. [97]
    The trips to the hardware shop appear to be part of a legitimate school activity; obtaining supplies for the woodworking class.
  3. [98]
    Boy 3 stated that he thought Mr Smith was “pretty cool” because helping him around the school “got us out of work”[61]. He stated that Mr Smith would get him out of school work 2 or 3 times every 2 weeks. He also stated that other students were jealous because they didn’t get to do the things he did, like getting wood for woodworking[62]. Boy 3 also stated that, even though they were getting out of school work, they were also rewarded with “Maccas”[63].
  4. [99]
    Boy 4 confirmed that Mr Smith bought Maccas after their excursions to the hardware shop “lots of times”[64]. He acknowledged that other boys in the school were jealous[65].
  5. [100]
    Boy 2 gave similar evidence. He recalled that Mr Smith bought treats, such as Maccas, after shopping trips[66]. He also believed that he was one of the boys who received special treatment[67].
  6. [101]
    Both Boy 3 and Boy 4 thought Boy A was Mr Smith’s favourite, because he received even more attention than they received.[68] 
  7. [102]
    Teacher 1 observed[69] that the boys returned from shopping trips with McDonalds.
  8. [103]
    Even if the trips were for a legitimate purpose, the fact that Mr Smith selected the subject boys for those trips, and not other students, that the trips were considered a treat, and that Mr Smith then further rewarded the boys with Maccas persuades us that Mr Smith failed to maintain appropriate professional standards.

1.1.12 Mr Smith took students shopping during school hours on the guise of being for cooking classes which was not a class conducted by Mr Smith.

  1. [104]
    Mr Smith agreed he took students shopping for ingredients for cooking classes.[70]
  2. [105]
    Teacher 1 states that Mr Smith did not take cooking classes; Teacher 4 took those classes[71]. She repeated that assertion in oral evidence before the tribunal.
  3. [106]
    Teacher 4 states that, as far as he was aware, Mr Smith did not take cooking classes[72]. In a later affidavit[73], however, Teacher 4 was only able to say that he could not comment on whether Mr Smith was formally taking cooking classes.
  4. [107]
    The students confirmed that Mr Smith took them shopping for ingredients. Under cross examination, one student confirmed that Mr Smith conducted the cooking class “sometimes”[74]. The evidence tends to suggest that Mr Smith might have conducted cooking classes but it was not his regular responsibility.
  5. [108]
    “Guise” means external appearance in general; aspect or semblance or an  assumed appearance or mere semblance[75]. While we accept that this is an inference that can be drawn from the evidence, given the very high standard of proof, we are not persuaded that Mr Smith’s expeditions to purchase ingredients could be characterised as “mere appearance”.
  6. [109]
    However, we are satisfied that Mr Smith failed to maintain professional boundaries. Once again, he chose the subject boys. He took them out of school in a way that the boys thought was a treat and which created jealousy with the other students.

1.1.13 Mr Smith took students during school hours to wash the school car

  1. [110]
    Mr Smith agrees that he asked students to wash the school car[76]. He says that the students washed the car at either lunchtime or, once, after school. The facts are established.
  2. [111]
    Mr Smith spoke to investigators from the Department about this issue in October 2013. The College tendered an excerpt of that transcript[77] in which Mr Smith stated the boys were given jobs, like washing the car, if they had been removed from the classroom because of their conduct. The transcript shows that Mr Smith regarded washing the school car as punishment.
  3. [112]
    In later evidence, Mr Smith told the tribunal that car washing was part of developing the student’s leadership skills[78]. He told the tribunal that only school leaders washed the car[79].
  4. [113]
    It is clear, as we have already noted, that the boys regarded helping Mr Smith, or doing tasks for him, as a treat, not punishment. If Mr Smith regarded car washing as a punishment, then he was in error and we find that he failed to maintain objective and impartial levels of disciplinary standards. 
  5. [114]
    Only Boys 2 and 3 were part of the leadership team. Boy 2 recalls washing the car[80]. Boy 3 gave no evidence about washing cars. Boy 1 told the tribunal that he cleaned the car out once[81].
  6. [115]
    Teacher 2 gave evidence[82] she had the impression that Mr Smith had students clean the car during class time. Teacher 1 gave evidence[83] that Mr Smith took students to do jobs, including washing the school car, which were not within normal classroom and school activities. Neither teacher named the particular students involved.
  7. [116]
    If Mr Smith regarded car washing as a component of developing leadership skills, then the evidence does not support his assertion, because car washing duties were not limited to school leaders.

1.1.14 Mr Smith bought takeaway food as a reward for work done by students in return for the activities in particulars 1.1.12 and 1.1.13

  1. [117]
    Mr Smith agrees that he bought takeaway food for students who assisted around the school[84]. The facts are established.
  2. [118]
    Counsel for Mr Smith submits that, even with this admission, the particular is not established because there is no evidence of a direct link between the purchase of food and the two events referred to in the particular.
  3. [119]
    One of the students involved gave evidence[85] that “When we did these jobs for Mr Smith, we were rewarded with Maccas”. The “work” to which the student referred included purchasing supplies for cooking[86] but not washing the school car. A second student gave similar evidence[87]; they received McDonalds when they went to purchase supplies. A third student gave evidence[88] that the students would get Coke, drinks and hot food like chips for doing things around the school on weekends and holidays.
  4. [120]
    The particular is, in effect, a restatement of particulars 1.1.12 and 1.1.13 with the addition of the concept of reward. We have already found that the boys viewed the takeaway food as a reward. We have already observed that this was inappropriate and that Mr Smith therefore failed to maintain appropriate professional boundaries. The wording of this particular, although not ideal, does not persuade us to change our view.

1.1.15 Mr Smith allowed Boy A, Boy 3 and Boy 4 to attend his house on weekends to mow the lawn or perform yard work for monetary payment

  1. [121]
    Mr Smith agreed that he allowed, and requested, Boy A and Boy 4 attend his house on weekends to perform yard work[89]. He agrees that he paid those boys for this work[90]. He states he also paid the boys “in kind”[91]. The facts are established in relation to Boy A and Boy 4. They are not established for Boy 3.
  2. [122]
    Mr Smith stated that he had verbal permission to do so from the boys’ guardian. There is a question about whether he had permission from the relevant person so far as it relates to Boy 4 but the question is moot. Verbal permission is insufficient. Permission does not render an inappropriate activity appropriate.
  3. [123]
    We cannot see how this can be a legitimate school activity. Once again, for perhaps entirely appropriate motives, Mr Smith conflated his role and rights as a principal with his private interests. He failed to maintain appropriate professional boundaries.

1.1.16 Mr Smith drove Boy A and Boy 4 to another town outside school hours to mow the lawn at the premises where Mr Smith’s wife resided

  1. [124]
    Mr Smith agrees he drove students to another town outside school hours to mow his wife’s lawn[92]. The facts are established.
  2. [125]
    Mr Smith stated that he drove the students with their parents’ or guardian’s permission. Again, it appears to be verbal, not written, permission. Again, whether or not Mr Smith had permission is not the issue. The issue is whether this activity was appropriate. It was not appropriate. Mr Smith blurred the line between school activities and private interest.
  3. [126]
    Mr Smith’s failure to obtain appropriate written permission from parents was a breach of the Code of Conduct. He consistently failed to observe Departmental guidelines and procedures when interacting with students both during and after school hours. This demonstrates a troubling lack of insight into the difference between a teacher and a friend.
  4. [127]
    He failed to maintain appropriate professional boundaries.

1.1.17 Mr Smith took Boy A and Boy 4 to a fete in another town after they were taken outside school hours to mow his wife’s lawn and, on that date, Mr Smith bought drinks and hamburgers as dinner for Boy A and Boy 4 students

  1. [128]
    Mr Smith agrees he took the students to a fete in another town outside school hours after they mowed his wife’s lawn[93]. He agrees that he bought those students drinks and food for their dinner[94]. The fact are established.
  2. [129]
    As with the previous particular, Mr Smith’s action blurred the line between school activities and a private excursion. The activity was not appropriate. Mr Smith failed to maintain appropriate professional boundaries.

1.1.18 Mr Smith engaged students during school holidays to build a garden and set up a games room on school premises

  1. [130]
    Mr Smith agrees that, during September 2012 school holidays, students attended to build a garden and set up a games room[95]. The facts are established.
  2. [131]
    Counsel for Mr Smith submits that the students were not “engaged” to do this work because Mr Smith called for volunteers at a school assembly and these students volunteered. Mr Smith’s evidence about this is not contradicted.
  3. [132]
    The word “engage” can mean “to occupy the attention or efforts of (a person, etc.)”[96] However, the more commonly understood meaning of the word is “to secure for aid, employment, use, etc.; hire”[97]. While we are satisfied that students worked on these projects, we are not satisfied that they were “engaged” for these projects. We are satisfied that the students were involved in legitimate school activities.
  4. [133]
    If he had obtained the parents’ written permission for this activity, Mr Smith would have observed and maintained appropriate professional boundaries. He did not obtain written permission. He therefore failed to maintain professional boundaries.

1.1.19 Mr Smith permitted and caused Boy A and Boys 2, 3 and 4 to sleep over at his house on the basis of being a reward for work on the garden and games room.

  1. [134]
    Mr Smith stated that he organised a sleep over in the newly created games room as a reward for work on the garden and games room[98]. He also states that he moved the sleepover from the games room to his home[99]. The facts are established.
  2. [135]
    Mr Smith initially stated that he obtained parents’ verbal permission for the students to attend the sleepover[100]. Verbal permission is not sufficient for an overnight stay. The policy on school excursions[101] requires an organiser to give parents details of the timetable, supervision provided and activities to be undertaken. The organiser must maintain a register containing information about meal and first aid arrangements. The organiser must undertake a risk assessment. The organiser must record students’ medical conditions and obtain full information regarding illness or allergies. Mr Smith did none of these things.
  3. [136]
    However, during cross examination, Mr Smith acknowledged the requirements of the policy and told the tribunal he gave the necessary paperwork to the Deputy Principal to complete[102].
  4. [137]
    Boy 2’s parent told the tribunal she gave verbal permission for her son to stay in the games room, but not Mr Smith’s house. She stated that she would probably not have given her permission for her son to stay at Mr Smith’s house had she known[103]. Otherwise, no parent refers to permission. None of the parents referred to written permission. It is obvious that there was no written permission. Mr Smith cannot blame the absent Deputy Principal for that omission.
  5. [138]
    Mr Smith stated that he arranged for Teacher 4 to attend the sleepover but, at short notice, Teacher 4 advised that he could not attend[104].
  6. [139]
    In an earlier interview on 27 September 2013,[105] Teacher 4 stated that he knew of the sleepover a couple of days beforehand. In an affidavit filed in the tribunal, Teacher 4 denied any prior knowledge of the sleepover[106]. He was cross examined on this point; Teacher 4 was adamant that he had no prior knowledge of the sleepover[107].
  7. [140]
    Counsel for Mr Smith suggests that Teacher 4 was evasive in cross examination and that he changed his evidence after receiving an email from the investigator which put Mr Smith’s version of events to him. Whether or not Teacher 4 knew about the sleepover beforehand, at no stage does he say that Mr Smith asked him to assist in supervising the sleepover. We prefer Teacher 4’s over Mr Smith’s evidence in that regard.
  8. [141]
    Mr Smith stated that, when Teacher 4 was not available, he asked Teacher 3 to attend instead but that teacher could not attend[108].
  9. [142]
    Teacher 3 denies that Mr Smith asked him to help with the sleepover[109]. Counsel for Mr Smith suggests we should not accept Teacher 3’s evidence for two reasons. Firstly, Teacher 3 was involved in a meeting with other teachers in November 2012 in which they agreed to make a complaint about Mr Smith. The meeting occurred shortly after Mr Smith raised performance issues with one of the teachers about her supervision of students returning from camp. No teacher disclosed the fact of this meeting until Teacher 3 was under cross examination[110]. Secondly, Teacher 4 discussed his evidence with Teacher 3 after being interviewed by the investigator[111], despite being directed not to do so[112].
  10. [143]
    Although the evidence from the teachers is contradictory and, perhaps, weakened by their collaboration, the inescapable fact is that Mr Smith persisted with the sleepover without another teacher present. His efforts to secure another teacher, and the reason why those efforts were unsuccessful, does not excuse his decision to proceed without another teacher present.
  11. [144]
    Mr Smith stated that he continued with the sleepover because the parents had made plans for the night[113]. The parents of Boys 2 and 4 told the tribunal that they were not busy the night of the sleepover and, therefore, Mr Smith could have dropped their sons home[114]. Boy 3’s mother told the tribunal that her son called to tell her the venue for the sleepover had changed[115]. She is silent about whether she would have been able to collect Boy 3. Of course, we have no evidence about Boy A.
  12. [145]
    Mr Smith stated that he changed the venue from the games room to his house because he forgot to notify the security company and, therefore, their presence would have triggered the alarm[116].
  13. [146]
    Glen Dyer is acting manager in charge of technical services at State Government Security. He provided two affidavits to the tribunal. In the first affidavit[117], he explains how the alarm systems in schools are monitored and recorded and provides details of activity on the alarm system on the night of the sleepover. In the second affidavit[118], he responds to Mr Smith’s understanding of the school security system.
  14. [147]
    At 9.00 pm each night, there was an automatic check of security at the school to see if the buildings were armed. If a building was not armed, security generated a “Fail to Close” alarm. Security then manually dialled into the school alarm system to remotely arm the building[119]. Security only checked the status of the school alarm once. If a person disarmed a building after 9 pm, the alarm was not continually activated[120].
  15. [148]
    Users with appropriate access, like Mr Smith, can disarm the alarms.  On the night in question, security recorded that Mr Smith disarmed the library and D Block at 6.35 pm[121]. Security also recorded that these areas failed to close[122], even though Mr Smith appears to have armed the Administration Block at 7.13 pm[123].
  16. [149]
    Mr Dyer’s evidence confirms the evidence of Boy 2[124] that they stayed at the games room until just before 9.00 pm before transferring to Mr Smith’s house.
  17. [150]
    Security does have a form by which schools can notify of special events or after hours activities[125]. Mr Dyer stated that, in his experience, it is not uncommon for schools to notify of special activities on the day of the event[126]. He also stated that there is a procedure in place to accept and verify last minute calls to deactivate security[127]. Mr Smith’s supervisor told the tribunal that, in his experience, notification of an after-hours event was usually by phone[128].
  18. [151]
    Taking all the evidence into account, we find Mr Smith’s explanation for moving the sleepover unconvincing. Putting the best possible interpretation on his evidence, we find he was ill-prepared for the sleepover, determined that it proceed “no matter what” and careless of his obligations. We find that he did not properly consider the needs of the students in his care. We find that Mr Smith could have conducted the sleepover in the games room but that he transferred it to his house for no good reason. We find that the sleepover was not a legitimate school activity. We are satisfied that Mr Smith failed to maintain appropriate professional boundaries.

1.1.20 Mr Smith took students fishing after school hours and on weekends

  1. [152]
    Mr Smith agrees that he took students fishing after school hours[129]. The facts are established.
  2. [153]
    Mr Smith stated that the purpose of the trip was to test the school fishing gear prior to school camp[130]. He stated that he had verbal permission to do so from the students’ parents[131].
  3. [154]
    There was more than one fishing trip; they occurred over a period. Mr Smith bought the fishing gear on a school credit card on 9 November 2012[132]. Mr Smith left for camp on 10 November 2012[133]. His version of events cannot be true.
  4. [155]
    Mr Smith agreed that one of the boys who attended the fishing trips was Boy A’s brother[134]. He was not a student at the school[135].
  5. [156]
    There is no evidence that the fishing trips had the character of a legitimate school excursion. The evidence suggests that there were private trips, at Mr Smith’s suggestion. The fishing trips were not appropriate. We have, already, commented that verbal permission is not sufficient. Mr Smith did not maintain appropriate professional boundaries.

1.1.21, 1.1.22, 1.1.23 Mr Smith allowed students to drive his car in the vicinity of the fishing spot and at another location en route to the fishing spot

  1. [157]
    Mr Smith denies these allegations.
  2. [158]
    Boy 4 gave evidence[136] that Mr Smith was teaching him to drive in Mr Smith’s car, a Hilux of a particular colour. He stated that three other students were in the car at the time. He also saw two other students driving Mr Smith’s car. Boy 4 identified the fishing spot and the location on the way to the fishing spot.
  3. [159]
    Counsel for Mr Smith points out that, in cross examination[137], Boy 4 admitted that he had not read his affidavit all the way through. For that reason, it is submitted that we should not accept his evidence.
  4. [160]
    In cross examination[138], Boy 4 was emphatic that he drove Mr Smith’s car and that he drove the car at particular locations. When Counsel for Mr Smith told Boy 4 that Mr Smith denied these events, the student said “he’s lying”.
  5. [161]
    Two of the students named by Boy 4 (one of whom was Boy A) I did not give evidence to the tribunal.
  6. [162]
    The fourth student, Boy 3, did give evidence. His affidavit evidence[139] acknowledged that Mr Smith took them fishing, and he identified Mr Smith’s car as a Toyota “like a Hilux” of the same colour[140]. He, too, stated he saw Mr Smith allowing Boy A and his brother drive his car at the fishing spot[141]. Under cross examination, Boy 3 told the tribunal that he drove Mr Smith’s car[142]. His oral evidence was vague; he could not say where he drove the car, or whether it was the school car or Mr Smith’s car.
  7. [163]
    Mr Smith admits that he allowed Boy A to idle his car through the school gates[143] but otherwise denies that he ever allowed students to drive his car, regardless of location. He claims no knowledge of the particular spot en route to the fishing spot. He states he does not own, and has not owned, a Hilux.
  8. [164]
    Although the students’ evidence is unreliable, we are inclined to accept that students did drive Mr Smith’s car. It is something that a boy of 12 or 13, interested in cars and the independence that they represent, is likely to remember. We are not, however, satisfied that Boy 3 drove Mr Smith’s car.
  9. [165]
    We are satisfied that Mr Smith allowed students to drive his car in the vicinity of the fishing spot. The particular is established to this extent.
  10. [166]
    We have already found that the fishing trips were inappropriate. Mr Smith has compounded the inappropriate act by allowing students to drive his car when they were unlicensed and he did not have parental permission. It is a further failure to maintain appropriate professional boundaries.

1.1.24 The subject boys travelled to school camp with Mr Smith in the school car, rather than on the chartered bus, without another adult or teacher accompanying him

  1. [167]
    Mr Smith agrees that students travelled to school camp with him in the school car rather than on the chartered bus, and that they travelled without another teacher accompanying him[144]. The facts are established.
  2. [168]
    Mr Smith stated that the students travelled with him because there was not enough room on the school bus. The bus carried 50 passengers but, because another school joined Mr Smith’s school, the number to be transported came to 61. Both Mr Smith and the Principal of the other school took students in their car[145].
  3. [169]
    Mr Smith stated that he selected the students in conjunction with the Deputy Principal and Teacher 1. He selected three students (Boy A, Boy 4 and another) because they were often poorly behaved and Teacher 1 had trouble managing their behaviour. He chose Boys 2 and 3 to offset the behaviour of the others[146].
  4. [170]
    The Deputy Principal did not give evidence. Teacher 1 stated that she didn’t mind who travelled with Mr Smith, so he “chose his favourites”[147]. She denies that she was consulted, or that Mr Smith explained the rationale for his decision[148]. Teacher 2 confirms that Mr Smith made the decision about who would travel in the car with him[149].
  5. [171]
    The other Principal, who travelled with his own students to camp, stated that, while he would not travel alone with just one student, he has travelled with more than one student on numerous occasions[150]. None of the teachers had a problem with Mr Smith undertaking that journey without another adult present. In the particular circumstances of this school, Mr Smith’s decision to transport students is unexceptional.
  6. [172]
    The troubling aspect of Mr Smith’s decision is that he chose the subject boys to travel with him. It reinforced the students’ perception that these boys were Mr Smith’s favourites. His decision to transport the boys in his car once again demonstrated a misunderstanding of his role as a teacher/Principal, rather than a friend to the boys. Our concerns are amplified when we consider the issue of the helicopter ride.

1.1.25 Mr Smith permitted and caused students to be accommodated with him and sleep in the same room on an overnight stop on the way to camp. The accommodation was not an accommodation stop for students who travelled on the chartered bus.

  1. [173]
    Mr Smith agrees that, on the relevant date, he permitted and caused the students to sleep in the same room on an overnight stop on the way to camp[151]. He agrees that students on the chartered bus did not stop at this location. The facts are established.
  2. [174]
    If we accept, as we do, that the decision to transport some students separately was not inappropriate, then the decision to accommodate the boys in the same room is reasonable.  Mr Smith stated that it was common for teachers to stay in accommodation with students on overnight trips[152]. The Principal who travelled with his own students to camp stated that he has stayed in overnight accommodation with more than one student and no other adults[153] and he had no concerns with Mr Smith’s arrangements[154]. Mr Smith gave examples of other occasions where teachers stayed in the same room and Boy 3 confirmed[155] that, on a different trip, a female teacher slept in the same room as the female students.
  3. [175]
    Mr Smith’s decision around accommodation choices was not improper although we repeat our concerns that the students involved were the subject boys.

1.1.26 Mr Smith permitted and caused Boy 3 to sleep in the same room on an overnight stop on the way to camp and he caused the other students to be accommodated in a second room of the same cabin. The accommodation was not an accommodation stop for students on the chartered bus.

  1. [176]
    Mr Smith agrees that, on the relevant date, he permitted and caused students to sleep in the same room, and a second adjoining room on an overnight stop on the way to camp. He agrees that the accommodation was not an accommodation stop for students on the chartered bus[156]. He denies that he caused, or permitted, Boy 3 to sleep in the same room without other students present.
  2. [177]
    Boy 3 stated that he slept on a mattress on the floor of Mr Smith’s room[157]. Boy 2 agreed that Boy 3 slept in the same room as Mr Smith, without other students[158].
  3. [178]
    The College submits that the propriety of this action should be considered in light of an admission from Mr Smith that is conduct could have compromised his position as a teacher.
  4. [179]
    Mr Smith’s admission is that it could have compromised his position, not that it did compromise his position. We are satisfied that, in these particular circumstances, it did not compromise his position for three reasons. Firstly, the College has not established that Mr Smith had a suitable alternative. Secondly, Boy 3 ended up in Mr Smith’s room through the boys’ game of “rock, paper, scissors” which Boy 3 “lost”[159]. Finally, Mr Smith and the other teacher stayed in Mr Smith’s cabin talking late into the night[160].
  5. [180]
    Again, given the nature of the trip, Mr Smith’s decision to have Boy 3 sleep in the same room and the other boys in an adjoining room was not improper, subject to our comments about the appropriateness of the subject boys being chosen for the trip.

1.1.27 Mr Smith permitted and caused students to sleep in the same room on an overnight stop on return from camp and he caused other students to be accommodated in a second room in the same cabin. The accommodation was not an accommodation stop for students on the chartered bus.

  1. [181]
    Mr Smith agrees that, on the relevant date, he permitted and caused students to sleep in the same room on an overnight stop on return from camp and that he caused other students to be accommodated in a second room in the same cabin. He agrees that the accommodation was not an accommodation stop for students on the chartered bus[161]. The facts are established.
  2. [182]
    We question why Mr Smith did not select other students for the return trip with him. It reinforced the impression that these students were his favourites and, perhaps, he should have considered taking a different cohort of students on the return trip. Otherwise, we do not consider that decision improper.

1.1.28 Mr Smith permitted and caused students to sleep in the same room in accommodation that was not an accommodation stop for students on the chartered bus

  1. [183]
    Mr Smith agrees that, on the relevant date, he permitted and caused students to sleep in the same room on an overnight stop on return from camp[162]. The evidence establishes that none of the students on the chartered bus stayed at this accommodation. The facts are established. Again, for reasons we have already outlined, the action was not improper although the impression of favouritism cannot be discounted.

1.1.29 During the course of a school camp, Mr Smith allowed students to stay in cabin accommodation adjacent to his own cabin

  1. [184]
    Mr Smith agrees that, during the camp, the named students stayed in cabin accommodation adjacent to his own cabin[163].
  2. [185]
    “Allow” means “to grant permission to or for; permit”[164]. Mr Smith says that the students chose to stay in that cabin. Ms Ward, in cross examination, confirmed that the students were free to make any choice of cabin[165]. None of the students gave evidence on this point. We are satisfied that the students did stay in the cabin next door but there is no evidence to suggest that Mr Smith actively permitted the students to stay next door.
  3. [186]
    The facts are not established. The College submitted that we should consider evidence about the state of the door between the two rooms when considering the particular. We do not propose to do so in the absence of a specific allegation that the status of the door amounted to a breach of Mr Smith’s obligations.

1.1.30 Mr Smith supplied McDonalds to particular students during a nominated timeframe

  1. [187]
    Mr Smith agrees he supplied McDonalds to those students when travelling to and from camp[166]. The facts are established.
  2. [188]
    The boys had to be fed. While McDonalds may not be an ideal choice, it cannot be said that Mr Smith chose improperly or in breach of his obligations as a teacher.

1.1.31 During the course of the school camp, Mr Smith gave Boy A and Boy 4 $50 each in cash

  1. [189]
    Mr Smith agrees that he gave Boy 4 and Boy A $25 each in cash[167].
  2. [190]
    As we have already mentioned, Boy A did not give evidence. Boy 3 gave evidence that Boy A did receive $50 from Mr Smith[168] but it is not clear how Boy 3 knew of this transaction. If, as seems likely from cross examination[169], that Boy A told him about the money, then the evidence is hearsay and unreliable.
  3. [191]
    The evidence of Boy 4 also suffers from a lack of consistency. In his affidavit, which he didn’t read[170], the student stated he received $50 from Mr Smith[171]. He also stated he received $150 from Mr Smith[172]. Under cross examination, Boy 4 agreed that he never received $150 from Mr Smith; at most, he shared $50 with Boy A[173] .
  4. [192]
    The particular as drafted is not established. However, we are satisfied that, during camp, Mr Smith gave two students $50 to share.
  5. [193]
    We have already found that Mr Smith’s decision to engage the boys for yard work was improper. If the engagement was improper, the payment was also improper.
  6. [194]
    The College provided additional evidence that Mr Smith bought Boy 4 $100 shoes on a stop on the way to camp[174] and he received another $50 when shopping during the camp[175]. This evidence does not relate to this particular, and there is no specific allegation, or particular, that Mr Smith acted inappropriately. We see no reason why we should make findings about this evidence. 

1.1.32 Mr Smith paid for Boys 2 and 3 to accompany him on a helicopter joy flight which he undertook exclusively and separately from the other activities undertaken by others attending the camp.

  1. [195]
    Mr Smith agrees he paid for Boys 2 and 3 to accompany him on a helicopter ride[176]. We have to decide whether or not the ride was exclusive and separate from the other activities undertaken at the camp.
  2. [196]
    In his affidavit, Mr Smith stated that the ride was a reward for the students helping out at the camp. He says that the boys who travelled to camp separately with him were aware of the possibility of the ride before they left for camp, because, as Mr Smith told the tribunal, it was an incentive for good behaviour[177]. Soon after, though, Mr Smith told the tribunal that he selected Boy 2 because he helped out with students who were seasick[178], and Boy 2 chose Boy 3 as his companion[179].
  3. [197]
    Boy 2 thought the ride was his birthday present[180]. He didn’t remember helping the seasick students[181]. Boy 3 gave similar evidence; he was chosen by Boy 2, the birthday boy, to share the ride[182].
  4. [198]
    If Mr Smith intended the helicopter trip as a reward for good behaviour, it was a failure but we are not persuaded that this was the purpose of the trip. Rather, we find that the trip was an indulgence looking for an excuse.
  5. [199]
    We are satisfied that Mr Smith’s decision to pay for two students to accompany him on a helicopter ride was undertaken separately and exclusively from the other activities undertaken by others attending the camp. The two chosen were part of the subject boys. Their selection exacerbated the perception of favouritism.
  6. [200]
    Further, as we have already commented, the absence of written permission from the parents shows a troubling lack of respect for proper procedure. This particular is established.

1.1.33 Mr Smith allowed the subject boys to call him by his first name during the school camp

  1. [201]
    Mr Smith states that all students were allowed to call him by his first name during camp[183].
  2. [202]
    The College submits that no other students called Mr Smith by his first name during camp. The evidence to support this submission is simply that none of the teachers ever heard another student refer to Mr Smith by his first name[184]. That evidence is not enough to support a finding that Mr Smith’s invitation did not extend to the entire camp. Because the particular is limited to the subject boys, the facts are not established. And because Mr Smith’s invitation extended to the whole camp, not just the subject boys, the particular is not established.

1.1.34 Mr Smith became friends, and communicated, with three students on Facebook which was inappropriate

  1. [203]
    Mr Smith agrees he was Facebook friends with two of the three named students[185].
  2. [204]
    The College submits that this was inappropriate in that it was in contravention of either:
    1. a)
      the Department Standard of Practice which relevantly provides:

You must not use social media sites such as Face Book, Twitter, My Space or You Tube to contact/or access students enrolled in any state educational facility.

And/or

  1. b)
    The Education Queensland Student Protection Policy.
  1. [205]
    Counsel for Mr Smith submitted that there was no blanket prohibition on teachers contacting students via social media and referred the tribunal to the Standard of Practice[186], under the heading “Personal use of social media”, which states:

Social media may include social networking sites such as, Facebook, Myspace, or Linkedin. It can also include instant messaging (SMS), geo-spatial tagging such as, Foursquare and video or photo sharing websites such as, Youtube. The Department recognises that you may use these and other social media in your personal time (outside of working hours) and does not intend to discourage nor unduly limit your personal communications or online activities. However, you should recognise the potential for damage to be caused (either directly or indirectly) to the Department and possibly other client groups in certain circumstances through personal use of social media, particularly, if you can be identified as a departmental employee. Therefore, you should be aware of the risks and ensure that any risk of damage or detriment is minimised. You are responsible for the content you publish from your social media platform.

  1. [206]
    Counsel is correct; that section of the Standard does not prohibit teachers’ use of social media to interact with student.
  2. [207]
    However, under the heading “Electronic communication/social networking”, the Standard states:

All telephone, email, SMS and other social networking contact by employees with students must be authorised by the principal or manager. Records of the approval and the nature of the communication should be kept on file by the principal or manager who will advise the parent/custodian of the communication as appropriate.

The following standards relate to all employees who have any form of contact with students.

Unless in exceptional circumstances, electronic communication with students, particularly those under 18 years of age, is unacceptable unless:

  • for justifiable appropriate educational reasons; or
  • approval is gained from the employee’s principal or manager.

A record of the approval is to be kept by the employee and the employee’s principal or manager.

…

Employees must not use personal social networking sites including Facebook and Twitter, to contact or access students enrolled in any state educational facility. Employees must discourage students from communicating with them in this manner.

Employees must not use any official departmental social media site for inappropriate or non-work related communication. They must only establish an official social media presence / site with approval from their principal or manager.

  1. [208]
    The Standard is clear. Teachers may contact students via Department social media sites under strict conditions. Mr Smith did not meet these conditions[187]. Teachers may not contact students from personal social media sites.
  2. [209]
    It is ironic that Mr Smith lectured his staff about their obligations under the Standard and yet he was in breach of this fundamental prohibition in the Standard. There is no excuse for his breach. Mr Smith failed to maintain appropriate professional boundaries. The particular is established.

Did Mr Smith fail to maintain appropriate professional boundaries with students under his care and control who were all in Year 7?

  1. [210]
    As we have identified throughout these reasons, we are satisfied that Mr Smith failed to maintain appropriate professional boundaries with students. He took Boy 1 to McDonalds in circumstances that were not part of a regular school excursion. He bought football boots, a mouthguard and rugby registration for Boy 1. He took Boy 1 to Kmart to buy toy animals and arranged for him to be transported to and from weekend rugby games. He drove students to another town so they could mow his wife’s lawn. He had the boys do yard work on his home near the school. He paid the boys for that work. He took boys to McDonalds after school related shopping trips. He bought McDonalds as a reward for the subject boys when it was inappropriate to do so. He took two boys to a fete and bought them a meal. He arranged a sleepover as a reward for work the boys did during the holidays but the sleepover was not within the framework of a usual school activity and poorly organised. So poor was Mr Smith’s preparation, he felt obliged to transfer the sleepover from the school to his own home. He took boys fishing after hours. He allowed the boys to drive his car. He gave two students cash to spend on the school camp. He took two students on a helicopter flight.
  2. [211]
    Some of these events show, simply, poor judgment in assessing the effect on the boys themselves and the general student community. Although Mr Smith could not see it, the boys thought they were his favourites as did the rest of the school community. This perception was reasonable, given that Mr Smith consistently extended these favours to five boys from a Year 7 cohort of over fifty students.
  3. [212]
    Mr Smith’s interactions with the boys after school hours, particularly in taking them to another town, taking them fishing, and allowing them to drive his car, indicates a more serious lack of judgment. In our view, these activities demonstrate Mr Smith’s lack of insight into two crucial facets of a teacher’s obligation. Firstly, he appears not to understand the boundary between school life and private life. Secondly, he appears not to understand the complex relationship that a Principal has with his community and his staff.
  4. [213]
    Four incidents stand out as being particularly serious. The first is allowing students to drive his car while on a fishing trip. Mr Smith had no permission to take the boys fishing and he engaged the boys in an unlawful activity.
  5. [214]
    The second incident is the sleepover. We find Mr Smith’s explanations around the sleepover to be very concerning. We do not accept that he thought through the necessary steps for a school excursion to ensure the students’ safety. We do not accept he had a valid reason for persisting with the sleepover without another adult present. We do not accept he had a valid reason for transferring the sleepover to his home.
  6. [215]
    The third incident is the helicopter ride at camp. Mr Smith told the tribunal; that he rewarded Boy 2 for helping sea sick students[188] Boy 2 chose Boy 3 to come on the trip with him.
  1. [216]
    Boy 2 thought he was rewarded because it was his birthday[189]. Mr Smith did not offer the helicopter ride to students beyond the subject boys, even though there were four other students who had their birthday celebrations at camp[190], and even though Boy 2 could not remember helping Mr Smith with the seasick students[191]. The other children received birthday cakes, with candles[192].
  2. [217]
    As Teacher 1 observed[193], the other students thought the helicopter ride was unfair. It was unfair and it was inappropriate. Mr Smith’s decision to take two boys on a helicopter ride was not an appropriate school activity; it was a personal decision by which Mr Smith failed to maintain appropriate professional boundaries with his students.
  3. [218]
    The fourth incident is Mr Smith’s decision to friend a student on Facebook. As we have already identified, Mr Smith should not have used his personal Facebook account to friend the student. Mr Smith’s decision to friend the student was a deliberate act in breach of the Standard.
  4. [219]
    Mr Smith stated that he friended Boy A and Boys 2 and 3 to deal with bullying by other students[194]. The evidence does not support Mr Smith. Boy 3’s mother did not recall any conversation with Mr Smith about her son being bullied[195]. Boy 2’s mother had no knowledge of her son being bullied. She had no knowledge Mr Smith friended her son on Facebook. Another teacher told her Mr Smith was her son’s Facebook friend. She checked Facebook, found it was true, and directed Boy 2 to unfriend Mr Smith[196].
  5. [220]
    Mr Smith had no valid reason to friend students on Facebook, no permission to friend students, and no reason to use his personal Facebook account. His decision to do so was a failure to maintain appropriate professional boundaries.

Did Mr Smith fail to maintain objective and impartial levels of disciplinary standards for students under his care and control who were all in Year 7?

  1. [221]
    The tribunal had some evidence from Teachers 1 and 2, who were the Year 7 teachers, about how Mr Smith’s actions, in buying McDonalds or taking students out of class, exacerbated the behavioural issues of some of the boys. There is also some evidence about a meeting at camp, at which favouritism was addressed but dismissed. None of that evidence made its way into a particular.
  2. [222]
    There are two particulars which do support a finding that Mr Smith failed to maintain objective and impartial levels of disciplinary standards for students under his care and control. The first is that he removed students from class to wash the school car. Although Mr Smith regarded it as punishment, the students regarded it as a treat, and they were rewarded with McDonalds. As Principal, Mr Smith should have monitored the effect of any punishment strategy and, if it was not working, changed the strategy. He did not do so.
  3. [223]
    The second incident is the helicopter ride at camp. Mr Smith says he pitched it as a reward, but the boys were evidently unimpressed, as they remembered little about the promise. Further, we consider a helicopter ride is disproportionate to the disciplinary issues Mr Smith was addressing. The principal from the other school provided rewards of iTunes cards, lollies, pencils, notebooks and little toys[197]. Teacher 1 gave rewards of stickers, pencils and bouncy balls[198]. There is no cogent explanation for Mr Smith’s generous and excessive treat.
  4. [224]
    As it turned out, Mr Smith did not reward the boys for good behaviour during the drive. We have already identified that he rewarded Boy 2 for helping with seasick students (or as a birthday present). It was not an effective disciplinary tool. It was not an objective and impartial application of disciplinary standards.
  5. [225]
    Teacher 2 outlined the behaviour management plan for students in her class[199]. The last level in the plan was that students who continued to misbehave were sent to the Principal. She observed that Boy A and Boy 4 started to deliberately misbehave so that they could be sent to Mr Smith.
  6. [226]
    Teacher 2 also believed that Boy 1’s behaviour improved towards the end of the year when he no longer received special treatment from Mr Smith[200]. Boy 1’s behaviour records[201] do not support that statement. They do support her earlier statement that the boys were deliberately provoking a trip to Mr Smith[202]:

After returning from first break, [Boy A, Boy 1 and Boy 4] went straight to the computers. When asked to go to their desks, they said no they wanted to go to Mr Smith. All three left the classroom without permission. When they returned 5 minutes later they went back to the computers and said Mr Smith told them they could.

  1. [227]
    The behaviour records[203] tend to suggest that Mr Smith’s attention to Boy 3 did not, in fact, reinforce good behaviour. Boy 3 had no adverse incidents were recorded in the first half of 2012, but there are three incidents in September/October where he refused to comply with his teacher’s directions.
  2. [228]
    We are satisfied that Mr Smith failed to maintain objective and impartial levels of disciplinary standards for students under his care and control.

Did Teacher Mr Smith fail to address appropriately concerns within his knowledge in respect of alleged boundary violations with the students under his care and control who were all in Year 7?

  1. [229]
    Mr Smith’s handling of the complaint as a whole was inappropriate. The complaint was about him; he should have automatically handed the investigation to an independent person.
  2. [230]
    Mr Smith’s visit to the local business owner, to discuss rumours about his conduct, was inappropriate. His decision to take the Deputy Principal to that meeting did not legitimise the visit, although it would have been useful if the tribunal had heard from her.
  3. [231]
    It is clear from the evidence that Mr Smith could not maintain an impartial view of the information from the business owner. She stated that Mr Smith was “extremely angry” and that he started yelling at her. She felt threatened by him[204]. She was intimidated by his solicitors’ letter she received about two weeks later[205]. Whilst the solicitors’ letter might be seen as a normal “warning” letter, the alleged defamatory remarks in that letter are quite different from the cleaner’s recollection of the conversation. In fact, the matters alleged in that letter are those that Mr Smith communicated to the cleaner[206]. We can understand why, therefore, the business owner found that letter to be threatening and why she found Mr Smith to be a bully[207].  Mr Smith overreacted and, therefore, did not address the concerns appropriately.
  4. [232]
    Similarly, it was not appropriate for Mr Smith to question the cleaner about the rumours. That task should have been done by an independent person who could look at the facts calmly and objectively.
  5. [233]
    Further, we find that Mr Smith’s attitude and comments at the teachers’ meeting were inappropriate. He addressed the issue of innuendo and gossip in a bullying and intimidatory way. We find Mr Smith failed to address appropriately concerns within his knowledge in respect of alleged boundary violations with the students under his care and control who were all in Year 7.
  6. [234]
    We also find it odd that, although many other witnesses were aware of a perception of favouritism[208], Mr Smith was blind to it[209]. A competent Principal should have been vigilant for any signs that his actions were being misinterpreted or misunderstood. Mr Smith’s failure to understand the potential for misunderstanding or misinterpretation shows a lack of insight.
  7. [235]
    Although the particulars do not address Mr Smith’s relationship with his staff, we wish to make some comment. The evidence establishes that Mr Smith created an atmosphere in which teachers did not feel comfortable raising their concerns about Mr Smith’s treatment of the boys. They felt intimidated and, in every case, thought that Mr Smith held the key to their continued advancement through the profession and would use that key to stifle complaints. Whether or not their fears were justified is not the point. A Principal, though his actions, sets the standard and the tone for the way a school operates. Mr Smith evidently failed to create the necessary atmosphere of trust and mutual respect.

Is Mr Smith unsuitable to teach in that his registration to teach is liable to be suspended under s 49 of the Act?

  1. [236]
    We have found that Mr Smith failed to maintain appropriate professional boundaries with students. We have found that he failed to maintain objective and impartial levels of disciplinary standards for students. We have found that he failed to appropriately address concerns within his knowledge in respect of alleged boundary violations. We have found that he failed to recognise concerns in respect of alleged boundary violations in circumstances where a prudent Principal would have recognised concerns. We have found that, contrary to the Standard of Practice, Mr Smith friended students on Facebook through his personal Facebook address.
  2. [237]
    We have found that some of Mr Smith’s activities render him unsuitable to teach. Unfortunately for the College, however, our findings, and our decision, are constrained by the grounds for disciplinary action annexed to the application for referral.
  3. [238]
    It is implicit in the way the College framed its case that it suspected Mr Smith was grooming the boys.
  4. [239]
    If the tribunal looks at the indicators of grooming[210], Mr Smith engaged in many of the behaviours. He allowed students to call him by his first name. Students were seen in close proximity with him. There was an unusual frequency of contact. He transported students in his car. He gave students special and differential treatment. He organised a sleepover for selected students. He was a Facebook friend. He bought students treats and rewards, including an expensive helicopter ride.
  5. [240]
    The College has not, however, alleged grooming as conduct which made Mr Smith unsuitable to teach. Rather, grooming was a particular of one of three alleged breaches of Mr Smith’s failure as a teacher. When we struck out that particular, there was no remaining allegation of grooming.
  6. [241]
    Even if there had been an allegation of grooming, the evidence could not substantiate a finding to that effect. As the Standard records, grooming is the act of deliberately establishing an emotional connection to lower a child’s inhibitions. Grooming requires intent and we have no evidence of intent. Although the boys acknowledged that they were Mr Smith’s favourites, the evidence tends to suggest that the boys were taking advantage of Mr Smith, rather than Mr Smith grooming them for some later, inappropriate purpose. Even though many opportunities were presented to him, there is no evidence Mr Smith ever touched the boys. They never even saw him without his shirt on, even though they shared rooms with him to and from the school camp[211]. There was no evidence of any sexualisation. Mr Smith was not secret about anything that he did.
  7. [242]
    The boys never felt intimidated, pressured or uncomfortable in Mr Smith’s presence. On the contrary, they chose to sleep in the cabin next door at camp.
  8. [243]
    Although they considered Mr Smith’s actions odd, the teachers’ main complaint was that it was unfair to other students and eroding their authority in the classroom.
  9. [244]
    While we are satisfied that there is sufficient evidence to establish that Mr Smith is not suitable to teach, we are not satisfied that the evidence supports a finding that Mr Smith posed an imminent risk of harm to children and it was necessary to immediately suspend his permission to teach so as to protect children. The application for a referral was framed, and limited by, reference to s 49 which required imminent risk of harm. The evidence did not establish an imminent risk of harm and, therefore, the referral must be dismissed.
  10. [245]
    Mr Smith is fortunate that the College did not draft its referral, or the particulars of the referral, well. He is also fortunate that the evidence from College witnesses was deficient and, in some cases, altogether missing. If the referral had been better prepared, the tribunal’s conclusion may have been very different.
  11. [246]
    We will hear the parties as to the costs of the proceeding.

Footnotes

[1]  Not his real name.

[2]  S 66(2)(e).

[3]  QCAT Act s 99(4).

[4]  S 99(4).

[5]  S 28(3)(a).

[6]  (1959) 101 CLR 298.

[7]Briginshaw v Briginshaw (1938) 60 CLR 336.

[8]  See, for example, the College’s submissions on 1.1.29.

[9]Shahinper v Psychology Board of Australia [2013] QCAT 593 at [17].

[10]  QCAT Act s 28(3)(b).

[11]  QCAT Act s 28(3)(c).

[12]  [2014] QCAT 202.

[13]  Exhibit 36 at [398] to [400].

[14]  Exhibit 24 at [6].

[15]  Exhibit 36 at [49].

[16]  Exhibit 7 at [15].

[17]  Exhibit 5 at [28]; Exhibit 6 at [12].

[18] Exhibit 5 at [28]; Exhibit 6 at [12].

[19]  Exhibit 18 at [5].

[20]  Exhibit 15 at [9].

[21]  Transcript at page 3-34.

[22]  Exhibit 28 at [8]; Exhibit 29 at [4].

[23]  Transcript at page 4-19.

[24]Briginshaw v Briginshaw (1938) 60 CLR 336.

[25]  Exhibit DAP-13 to Exhibit 34.

[26]  Exhibit 36 at [46].

[27]  Exhibit 36 at [409].

[28]  Exhibit 36 at [398].

[29]  Exhibit 36 at [67] to [71].

[30]  Exhibit 36 at [333].

[31]  Exhibit 36 at [68].

[32]  Transcript page 1-28.

[33]  Transcript page 1-24, lines 15 – 21.

[34]  Transcript page 1-25, lines 13 – 19.

[35]  Transcript page 1-27, lines 15 – 17.

[36]  Transcript page 6-94.

[37]  Exhibit 36 at [80], [82], [87], [335].

[38]  Exhibit 36 at [77], [334].

[39]  Exhibit 36 at [72].

[40]  Exhibit 36 at [74].

[41]  Exhibit 36 at [75].

[42]  Exhibit 36 at [78].

[43]  Exhibit 36 at [79].

[44]  Exhibit 36 at [77].

[45]  Exhibit 36 at [85].

[46]  Exhibit 30 at [12].

[47]  Exhibit 28 at [8].

[48]  Exhibit 7 at [47].

[49]  Exhibit 36 at [257].

[50]  Exhibit 36 at [82].

[51]  Exhibit 36 at [80] to [82].

[52]  Transcript page 6-108, lines 41 – 42.

[53]  Transcript page 6-109, lines 33 – 39.

[54]  Exhibit 36 at [82].

[55]  SCM-PR-002: School Excursions.

[56]  Exhibit 36 at [80], [85], [87], [335].

[57]  Exhibit 36 at [80], [88].

[58]  Exhibit 16 at [2].

[59]  Transcript page 1-26, lines 24 – 25.

[60]  Exhibit 36 at [67]to [68], [91].

[61]  Exhibit 9 at [5].

[62]  Exhibit 9 at [10].

[63]  Exhibit 9 at [15].

[64]  Exhibit 13 at [6].

[65]  Exhibit 13 at [15].

[66]  Exhibit 2 at [13].

[67]  Exhibit 2 at [10].

[68]  Exhibit 9 at [11], Exhibit 13 at [8], [13].

[69]  Exhibit 7 at [7].

[70]  Exhibit 36 at [94].

[71]  Exhibit 8 at [21].

[72]  Exhibit 15 at [7].

[73]  Exhibit 16 at [8].

[74]  Transcript at page 2-70, Lines 5 – 10.

[75]https://0-www.macquariedictionary.com.au.catalogue.sclqld.org.au/features/word/search/?word=guise&search_word_type=Dictionary.

[76]  Exhibit 36 [95] to [98].

[77]  Exhibit 45.

[78]  Exhibit 36 at [97].

[79]  Transcript pages 7-43, 7-44.

[80]  Exhibit 2 at [15].

[81]  Transcript page 1-34, lines 25 – 27.

[82]  Exhibit 5 at [8(j)].

[83]  Exhibit 7 at [7(c)].

[84]  Exhibit 36 at [68(j)], [70].

[85]  Exhibit 9 at [15].

[86]  Exhibit 9 at [10].

[87]  Exhibit 13 at [6].

[88]  Exhibit 2 at [10].

[89]  Exhibit 36 at [82], [99], [324].

[90]  Exhibit 36 at [337]; Exhibit 36 at [101].

[91]  Exhibit 36 at [101], [105].

[92]  Exhibit 36 at [102].

[93]  Exhibit 36 at [103].

[94]  Exhibit 36 at [105].

[95]  Exhibit 36 at [110].

[96]https://0-www.macquariedictionary.com.au.catalogue.sclqld.org.au/features/word/search/?word=engage&search_word_type=Dictionary.

[97]  Supra.

[98]  Exhibit 36 at [112].

[99]  Exhibit 36 at [119].

[100]  Exhibit 36 at [113].

[101]  SCM-PR- 002:School Excursions.

[102]  Transcript page 7-52, 7-53.

[103]  Exhibit 3 at [13]; Exhibit 4 at [8].

[104]  Exhibit 36 at [114].

[105]  Exhibit 17.

[106]  Exhibit 15 at [11]; Exhibit 16 at [11].

[107]  Transcript page 3-41 to 3-42.

[108]  Exhibit 36 at [115].

[109]  Exhibit 18 at [4].

[110]  Transcript pages 3-57, 3-58.

[111]  Transcript page 3-65.

[112]  Transcript page 3-65.

[113]  Exhibit 36 at [115].

[114]  Exhibit 12 at [2]; Exhibit 4 at [9].

[115]  Exhibit 10 at [20].

[116]  Exhibit 36 at [118], [119].

[117]  Exhibit 26.

[118]  Exhibit 27.

[119]  Exhibit 27 at [2(a)].

[120]  Exhibit 27 at [2(b)].

[121]  Exhibit 26 at [24].

[122]  Exhibit 26 at [25].

[123]  Exhibit 26 at [24].

[124]  Exhibit 2 at [31].

[125]  Exhibit 27, exhibit GD-1.

[126]  Exhibit 27 at [3].

[127]  Exhibit 27 at [4].

[128]  Transcript page 5-14, lines 41 – 44.

[129]  Exhibit 36 at [121].

[130]  Exhibit 36 at [121].

[131]  Exhibit 36 at [124].

[132]  Exhibit 34, DAP-3, page 69.

[133]  Exhibit 36 at [144].

[134]  Exhibit 36 at [121].

[135]  Exhibit 9 at [6].

[136]  Exhibit 13 at [28] to [29].

[137]  Transcript page 3-3.

[138]  Transcript at page 3-12.

[139]  Exhibit 9.

[140]  Exhibit 9 at [7].

[141]  Exhibit 9 at [31].

[142]  Transcript page 2-72.

[143]  Exhibit 36 at [129].

[144]  Exhibit 36 at [136], [143].

[145]  Exhibit 36 at [133] to [136].

[146]  Exhibit 36 at [139].

[147]  Exhibit 7 at [31].

[148]  Exhibit 8 at [3].

[149]  Exhibit 5 at [11].

[150]  Exhibit 56 at [17].

[151]  Exhibit 36 at [149].

[152]  Exhibit 36 at [150].

[153]  Exhibit 56 at [18].

[154]  Exhibit 56 at [19].

[155]  Transcript page 2-69.

[156]  Exhibit 36 at [153].

[157]  Exhibit 9 at [24].

[158]  Exhibit 2 at [23].

[159]  Exhibit 2 at [25].

[160]  Exhibit 36 at [154]; Exhibit 56 at [31].

[161]  Exhibit 36 at [171].

[162]  Exhibit 36 at [172].

[163]  Exhibit 36 at[158], [160].

[164]https://0-www.macquariedictionary.com.au.catalogue.sclqld.org.au/features/word/search/?word=allow&search_word_type=Dictionary.

[165]  Transcript at page 1-88 at line 45.

[166]  Exhibit 36 at [155].

[167]  Exhibit 36 at [166].

[168]  Exhibit 9 at [25].

[169]  Transcript at page 2-71.

[170]  Transcript at page 3-3.

[171]  Exhibit 13 at [18].

[172]  Exhibit 13 at [19].

[173]  Transcript at page 3-11 at line 24.

[174]  Exhibit 13 at [19].

[175]  Exhibit 13 at [18].

[176]  Exhibit 36 at [165].

[177]  Transcript at page 7-111.

[178]  Transcript at page 7-113.

[179]  Transcript at page 7-114.

[180]  Exhibit 2 at [30].

[181]  Transcript at page 1- 49, at lines 36 – 43.

[182]  Exhibit 9 at [27].

[183]  Exhibit 36 at [168].

[184]  Exhibit 8 at [4]; Exhibit 5 at [22]; Exhibit 7 at [8].

[185]  Exhibit 36 at [181].

[186]  Exhibit BL2 to Exhibit 7.

[187]  Exhibit 32 at [5].

[188]  Exhibit 36 at [165].

[189]  Exhibit 2 at [30].

[190]  Exhibit 7 at [44].

[191]  Transcript pages 1-49, 1-50.

[192]  Exhibit 36 at [256(e)].

[193]  Exhibit 7 at [44].

[194]  Exhibit 36 at [174] to [183].

[195]  Exhibit 10 at [9].

[196]  Exhibit 3 at [4].

[197]  Exhibit 56 at [48].

[198]  Exhibit 8 at [13].

[199]  Exhibit 6 at [2].

[200]  Exhibit 6 at [4].

[201]  Exhibit 36 exhibit CK-5 at pages 92, 93.

[202]  Supra at page 92.

[203]  Exhibit 37.

[204]  Exhibit 23 at [5].

[205]  Exhibit 36 at CK-4.

[206]  Exhibit 24 at [9].

[207]  Exhibit 23 at [11].

[208]  Boy 2, Exhibit 2 at [10]; Teacher 2, Exhibit 5 at [8(f)]; Teacher 1, Exhibit 7 at [7]; Boy 3, Exhibit 9 at [10]; Boy 3’s mother, transcript at pages 2-87 to 2-88; Boy 4, Exhibit 13 at [8]; Teacher 5 Exhibit 28 at [7]; The accompanying Principal at camp Exhibit 56 at [61].

[209]  Exhibit 36 at [231].

[210]  Exhibit 34, DAP-13 pages 172 – 173.

[211]  Transcript page 2-73 at line 5.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v John Smith

  • Shortened Case Name:

    Queensland College of Teachers v Smith

  • MNC:

    [2015] QCAT 426

  • Court:

    QCAT

  • Judge(s):

    Senior Member Stilgoe OAM, Member Rogers, Member MacDonald

  • Date:

    30 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Psychology Board of Australia v Germain [2014] QCAT 202
2 citations
Jump To
Cite 1 - [2014] QCAT 202
Cite 2 - [2014] QCAT 202
Shahinper v Psychology Board of Australia [2013] QCAT 593
2 citations
Jump To
Cite 1 - [2013] QCAT 593
Cite 2 - [2013] QCAT 593

Cases Citing

Case NameFull CitationFrequency
Chief Executive, Department of Justice and Attorney-General v Penney–Filippini [2016] QCAT 2532 citations
CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 614 citations
Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 3481 citation
QCT v Teacher GXM [2016] QCAT 4411 citation
Queensland College of Teachers v CSK [2016] QCATA 12533 citations
Queensland College of Teachers v CSK [2018] QCAT 702 citations
Queensland College of Teachers v Teacher BYJ [2016] QCAT 5041 citation
Queensland College of Teachers v Teacher CXJ [2016] QCAT 5111 citation
Teacher BNU v Queensland College of Teachers [2023] QCATA 1642 citations
1

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