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Queensland College of Teachers v BZV QCAT 61
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v BZV  QCAT 61
QUEENSLAND COLLEGE OF TEACHERS
Occupational regulation matters
13 March 2019
On the papers
The teacher’s application for a costs order is refused.
PROCEDURE – costs – discretion to award costs – where professional regulatory body suspended registration of teacher but later supported the ending of the suspension – whether teacher should be awarded costs
Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 50(5)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102
Medical Board of Australia v Wong  QCA 42
Turnbull Mylne Solicitors
E Houston, Acting Principal Legal Officer of the Queensland College of Teachers
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- This is a decision on an application for costs by BZV.
- BZV is a teacher. Queensland College of Teachers is the teacher registration body in Queensland. It has responsibility for taking disciplinary action under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Queensland College of Teachers Act’).
- The costs application relates to a proceeding in the Tribunal in July 2018 arising from the suspension of BZV’s teacher registration.
- On 22 June 2018 the College had suspended BZV’s registration, citing section 49 of the Queensland College of Teachers Act. That section permits the College to suspend a teacher’s registration if the College ‘reasonably believes the teacher poses an unacceptable risk of harm to children’. The allegations against BZV were outlined in the College’s letter dated 22 June 2018. Essentially, they were to the effect that BZV had engaged in an inappropriate relationship with a student and inappropriate communications with a number of students.
- As required under section 50(5) of the Queensland College of Teachers Act, the College then referred the ‘continuation of the suspension’ to the Tribunal for review. The referral was made on 28 June 2018.
- The matter came on for an oral hearing on 27 July 2018 before me. Ms E Houston appeared on behalf of the College. Mr P Mylne, solicitor with Turnbull Mylne, represented BZV.
- Meanwhile, on 24 July 2018, the College had filed written submissions which indicated that, in light of further information obtained since 22 June 2018, ‘… the Tribunal could be satisfied that the information can no longer be relied upon to form a belief that [BZV] poses an unacceptable risk of harm to children.’ The College submitted that it would be appropriate for the Tribunal to end the suspension.
- Under section 55(2)(b) of the Queensland College of Teachers Act, the Tribunal must end a suspension if satisfied that the suspended teacher does not pose an unacceptable risk of harm to children.
- At the hearing on 27 July 2018, even though both parties supported an end to the suspension of BZV’s registration, I considered that I needed to form my own conclusion on the evidence. This was because of the protective nature of disciplinary proceedings. One of the objects of the Queensland College of Teachers Act is to protect the public, and clearly the protection of children is the focus under section 55. Accordingly, I required oral evidence from BZV. Having heard that evidence, and having considered the written material, I decided to end the suspension. In my written reasons, I noted that the teacher had produced evidence which cast significant doubt on the reliability of the complaint, though the matter was not free of doubt. I considered it unlikely, even if the teacher had engaged in the conduct alleged by the complainant, that she would repeat such conduct while under investigation by the College.
- On 9 August 2018 BZV filed an application for miscellaneous matters seeking an order for costs. The representatives for the parties have since filed written submissions on the question of costs: by Mr Mylne for BZV, submissions were filed on 3 September 2018 (dated 3 August 2018) and 20 December 2018 (dated 19 December 2018), and by Ms Houston for the College on 14 September 2018 and 26 October 2018.
- Mr Mylne seeks an order for costs for BZV in an amount to be agreed between the parties or, if not agreed, on the District Court scale. Mr Mylne submits that costs for the hearing day should be on the indemnity basis and fixed at $3,000 plus GST.
Legislative provisions about costs
- Section 100 of the QCAT Act says:
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
- Section 102 of the QCAT Act says:
(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
(3) In deciding whether to award costs under subsection (1) … the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
- In his written submissions Mr Mylne highlighted some of these paragraphs, including (d). In my view, paragraph (d) is not applicable because the referral of a suspension decision is a matter in the Tribunal’s original jurisdiction rather than its review jurisdiction. Nonetheless, of course, the matters mentioned in paragraph (d) might still be relevant in a particular case, albeit via paragraph (f).
- Mr Mylne has also drawn attention to section 105 of the QCAT Act, which provides that the rules may authorise an award of costs in other circumstances. Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) is to the effect that where one party in a proceeding makes a written offer to settle, the other party does not accept the offer, and the decision of the Tribunal is not more favourable than the offer, then the Tribunal may award the party who made the offer all reasonable costs incurred after the offer was made.
Mr Mylne’s arguments in favour of a costs order
- Mr Mylne’s arguments may be outlined as follows. The complainant child made a complaint to the deputy principal of the school on 23 March 2018. On the same date, the school informed the Ethical Standards unit. Then, 14 weeks after the initial notification, on 22 June 2018 the College ‘purported to form a reasonable belief’ that BZV posed an unacceptable risk of harm to children and suspended her registration. Subsequently, the College carried out further investigations, including obtaining information from a student and BZV. BZV was entirely cooperative. On 24 July 2018 the College delivered its submissions to BZV’s solicitors, indicating that the College supported the ending of the suspension. The attachments to the submissions revealed to BZV for the first time the antecedent circumstances leading to her suspension. ‘Those attachments did not form part of the suspension notice … and should have’. On 26 July 2018 BZV’s solicitors wrote to the College seeking agreement on the issue of costs and observing that it would have been open to the College to withdraw the referral. ‘At no time was there a scintilla of reliable evidence that [BZV] was involved in any untoward conduct toward children’. There has been a ‘serious miscarriage of justice’, and in the interests of justice the College should pay BZV’s costs. The College did not seek corroborating evidence from other students, or exculpatory evidence. The College failed to immediately present BZV with the complainant’s evidence for comment, or immediately seek delivery of BZV’s phone to examine whether it had been used for the communications in question.
- Further, Mr Mylne submits, there was a lack of ‘social media acumen … The investigation was inept and grossly unprofessional …’. The College ‘sat on its hands for 14 weeks after the complaint was made, and then embarked on a capricious on-the-spot decision to make up time’. The language of the College’s suspension notice indicated bias and bad faith in that it appeared to uncritically accept uncorroborated hearsay evidence. The College could not form a reasonable belief on hearsay evidence and without having afforded BZV procedural fairness. BZV was wrongly accused, and a ‘more diligent forensic approach’ by the College might have avoided the need for BZV to incur legal costs. The College is a state-funded body, in contrast to BZV who is on a modest salary.
- There are a couple of details in Mr Mylne’s submissions which are mistaken, in my view. The first concerns the funding of the College. My understanding is that the College’s funding comes from teacher registration fees, rather than the state. Having said that, no doubt the financial resources of the College are superior to those of BZV. The second concerns the time taken for the College to suspend BZV’s registration. The College says, and I accept, that it received notification of the allegations from BZV’s employer, the state education department, only on 4 May 2018; it appointed investigators on 31 May 2018; and then after obtaining further information and advice it decided to suspend BZV’s registration on 22 June 2018.
- The investigation ended in October 2018, with findings that the complaint was not substantiated.
- I see some force in Mr Mylne’s criticism of the language of the suspension notice. The notice stated allegations as fact. This was not warranted at a relatively early stage of an investigation, at a point where no more than reasonable belief was required. However, I do not regard the language as necessarily showing bad faith or bias: indeed the College’s openness to reconsidering its initial assessment was later demonstrated. Nor do I accept Mr Mylne’s criticisms of the investigation as unprofessional and inept, or of the suspension decision as capricious. At the time the College made its suspension decision, it was not merely swayed by hearsay evidence. It had before it many pages of social media communications appearing to involve BZV as a party. One passage in particular seemed particularly consistent with having been written by a teacher. The College was confronted with a body of evidence which appeared to implicate the teacher in serious misconduct. With the benefit of hindsight, it might be said that the College should have been more sceptical. However, I have no hesitation in accepting that the College formed a reasonable belief at the time that BZV posed an unacceptable risk of harm to children. The College has a difficult role in such situations: it must attempt to balance risks and rights in a situation where the College does not yet have the benefit of a full investigation, and the protection of children is a vital consideration.
- As I am satisfied that the College had the required reasonable belief, I also accept that it acted reasonably in suspending BZV’s registration. Having suspended the registration, the College was obliged to refer the matter to the Tribunal. The College could have withdrawn the referral when it changed its view, but it was not unreasonable in the circumstances for the College to leave the matter to the Tribunal to determine.
- Further, in my view, the ending of the suspension was likely to be most quickly achieved by the hearing going ahead on 27 July 2018. Otherwise, in the circumstances, the investigation would have to have run its course before the suspension would end.
- The parties referred me to Medical Board of Australia v Wong. In that case the Court of Appeal saw no basis for departing from the requirement in section 100 of the QCAT Act for parties to bear their own costs, where the Board had referred the matter to the Tribunal as required when it formed a reasonable belief that the practitioner had engaged in professional misconduct. I am not convinced, however, that the same approach would be applicable here because, while the referral of a teacher’s matter to the Tribunal is mandatory once there has been a suspension of registration, there is a preceding discretion – rather than an obligation – to suspend.
- I am not satisfied that there was a denial of procedural fairness to BZV. While the notice of suspension must set out the reasons for the decision and the evidence or other material on which it is based, that will not necessarily involve disclosing all material in the possession of the College.
- I am also not satisfied that the College acted in a way that unnecessarily disadvantaged BZV. Rather, I consider that the College acted quite reasonably. I do not consider that there was either undue haste or delay in the actions of the College. While undoubtedly it is unfortunate if BZV was a victim of fabricated allegations, I am not persuaded that the interests of justice in this case displace the expectation that parties should bear their own costs.
- As mentioned earlier, Mr Mylne for BZV also relied on rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), which relates to offers of settlement that have not been accepted. Assuming without deciding that the rule could have application in such a case, I am not persuaded that it would be appropriate to exercise the discretion under that rule. In my view, the College behaved reasonably in not withdrawing the referral.
- The application for costs is refused.
Submissions dated 24 July 2018, 10.
Queensland College of Teachers Act, s 3(1)(c).
Queensland College of Teachers v BZV  QCAT 460, 5[24-26].
Queensland College of Teachers Act, s 53(2).
Submissions dated 19 December 2018, .
See Queensland College of Teachers v BZV  QCAT 460, 4.
Queensland College of Teachers Act, s 50(5).
Ibid, s 52.
 QCA 42.
Queensland College of Teachers Act, s 49.
Ibid, s 50(3)(b).
- Published Case Name:
Queensland College of Teachers v BZV
- Shortened Case Name:
Queensland College of Teachers v BZV
 QCAT 61
13 Mar 2019