Queensland College of Teachers v Duffin
[2024] QCAT 298
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- Queensland College of Teachers v Duffin[2024] QCAT 298
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Queensland College of Teachers v Duffin[2024] QCAT 298
Queensland College of Teachers v Duffin[2024] QCAT 298
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Duffin [2024] QCAT 298 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v leigh william duffin (respondent) |
APPLICATION NO/S: | OCR084-23 |
MATTER TYPE: | Occupational Regulation Matter |
DELIVERED ON: | 10 July 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member George Member Grigg |
ORDERS: |
|
CATCHWORDS: | EDUCATION – EDUCATORS – REGISTRATION – training and registration of teachers – where teacher engaged in inappropriate conduct leading to a sexual relationship with student commencing when she was 16 years of age – whether teacher’s conduct satisfies standard of behaviour generally expected of a teacher – where consideration of appropriate sanction ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where publication might lead to identification of child or former student – whether non-publication order should be made – whether in the interests of justice – whether exception needed Education (Queensland College of Teachers) Act 2005(Qld), s 3, s 76, s 92, s 97, s 98, s 108, s 111A, s 123, s 147, s 160, s 201, s 285, s 285AA, s 285B, s 287, Schedule 3 Queensland Civil and Administrative Tribunal Act 2009(Qld), s 66, s 100, s 102 South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8 State Administrative Tribunal Act 2004 (WA), s 87 AB v Queensland Building Services Authority [2023] QCATA 187 Briginshaw v Briginshaw (1938) 60 CLR 336 Consolidated Gold Coast Holdings Pty Ltd v Body Corporate for Kirrikilli Heights [2024] QCATA 42 Crime and Corruption Commission v NDZ [2024] QCAT 21 Fisher v Hebburn Ltd (1960) 105 CLR 188 Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2023] QCAT 408 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Maxwell v Murphy (1957) 96 CLR 261 McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380 Medical Board of Australia v TXA (No 4) [2023] QCAT 360 Medical Board of Australia v Wong [2017] QCA 42 Medical Board of Western Australia v Roberman [2005] WASAT 81(S) Motor Vehicle Industry Board v Dawson (2006) 41 SR (WA) 343 Neller & Anor v Queensland Building and Construction Commission (No 2) [2024] QCATA 46 Nicholas v Commissioner for Corporate Affairs [1988] VR 289 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Pound v Queensland Building and Construction Commission [2023] QCAT 298 Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107 Queensland College of Teachers v ALE [2019] QCAT 143 Queensland College of Teachers v Armstrong [2010] QCAT 709 Queensland College of Teachers v ATL [2020] QCAT 59 Queensland College of Teachers v DGM [2018] QCAT 194 Queensland College of Teachers v MUE [2021] QCAT 401 Queensland College of Teachers v PPK [2019] QCAT 59 Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441 Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101 Western Australian Planning Commission v Questdale Holdings Pty Ltd (2016) 213 LGERA 81 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Background
- [1]The respondent first held registration as a teacher in 1993. In 2019, the applicant received notification pursuant to s 76 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’) of allegations relating to the respondent’s conduct between 1999 and 2001 whilst he was employed as a teacher. The notification was based on a historical complaint by a former student (‘the student’), whom he taught when she was in years 11 and 12. It is alleged that the respondent engaged in a sexual relationship with the student, commencing when she was in year 11 and 16 years of age and concluding late in the year after she left school.
- [2]By s 97(1) of the Education Act, if the Queensland College of Teachers (‘QCT’) reasonably believes that grounds for disciplinary action against a ‘relevant teacher’ exist,[1] it must refer the matter to a ‘practice and conduct body’, which means either the Tribunal or the Professional Capacity and Teacher Conduct Committee (‘PC&TC committee’).[2] Initially, the matter was referred to the PC&TC Committee. That is because on 9 June 2020, by s 98 of the Education Act, the QCT authorised an investigation into the matter, following which the Senior Investigator found that the allegation was substantiated and that a ground for disciplinary action exists under s 92(1)(h) of the Education Act. In those circumstances, by s 201(2)(a)(ii) of the Education Act, the written report about the investigation must be given to the PC&TC Committee, in which event, by s 108(b) of the Education Act, the PC&TC Committee was seized of the matter. However, in accordance with s 111A(2)(b) of the Education Act, the PC&TC Committee referred the matter to the Tribunal.
- [3]By s 123(4A) of the Education Act, if the PC&TC Committee refers the matter to the Tribunal, the QCT must inform the Tribunal about the grounds for the practice and conduct matter and the facts and circumstances forming the basis for the grounds. The Tribunal is then to conduct a hearing and make a decision having regard to the information provided by the QCT.
- [4]Relevant to the report and findings of the Senior Investigator, s 147 of the Education Act provides:
During the hearing, QCAT may—
- receive in evidence a transcript, or part of a transcript, of evidence taken in a proceeding before a disciplinary body or a court, tribunal or other entity established under the law of the State, the Commonwealth, another State or a foreign country, and draw conclusions of fact from the evidence it considers appropriate; or
- adopt, as it considers appropriate, decisions, findings, judgements, or reasons for judgement, of a disciplinary body, court, tribunal or other entity that may be relevant to the hearing.
- [5]The conduct subject to this disciplinary proceeding occurred in 1999 through to 2001, when the respondent was a registered teacher.
- [6]In deciding whether a ground for disciplinary action is established, the applicable standard of proof for the Tribunal is the civil standard, on the balance of probabilities, with the degree of satisfaction varying according to the gravity of the facts to be proven.[3]
- [7]If the Tribunal is satisfied that a ground for disciplinary action exists against the respondent, the Tribunal may take one or more of the actions under s 160 of the Education Act. That is dealt with separately, below.
Retrospectivity
- [8]There is a preliminary jurisdictional question raised in the submissions of the QCT. That arises because the Education Act was enacted in 2005, while the alleged conduct occurred between 1999 and 2001. The previous, repealed legislation was the Education (Teacher Registration) Act 1988 (Qld). There is a common law presumption that legislation does not have retrospective effect. As stated by Dixon CJ in Maxwell v Murphy:[4]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
- [9]
There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.
- [10]However, there is no retrospectivity in the sense that, for present purposes, the focus of the Education Act is on whether a ground for disciplinary action arises; in particular, whether, pursuant to s 92(1)(h) of the Education Act, the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher. As is evident from s 3 of the Education Act, the main objects of the Act include the upholding of the standards of the teaching profession and protection of the public. On that basis, the question is one of present suitability, which may properly be assessed by reference to relevant earlier conduct, including conduct pre-dating the legislation. It is also noted that the earlier, repealed legislation had equivalent provisions in relation to disciplinary action, including a provision analogous to s 92(1)(h) of the present Education Act.
- [11]Even should it be viewed as operating retrospectively in the present case, there is a clear implication in the Education Act that the relevant provisions are intended to extend to prior conduct, including that arising before its enactment, to the extent that it reflects on the standard of behaviour generally expected of a teacher. The legislation is protective in nature, so that in part there is a question of whether there is a present risk to students. Should the legislation be viewed otherwise, it would mean that any conduct arising immediately before the enactment, no matter how egregious, could not be taken into account, despite any evident risk to students or the public.
- [12]There is case law in support of that approach. Nicholas v Commissioner for Corporate Affairs,[6] concerned the authority of the Commissioner for Corporate Affairs to issue a notice to the appellant requiring him to show cause why he should not be served with a notice under the Companies Code prohibiting him for a period of five years from being a director or promotor or taking part in the management of a corporation without leave of the court, in circumstances where the underlying events and conduct arose prior to the enactment of the relevant provision. It was argued that the provision did not operate on events that occurred prior to the enactment. In that case, Kaye J, with whom King J agreed, stated:
The common law rule of construction concerning retrospectivity is subject to a qualification that ‘a statute is not retrospective merely because it affects existing rights; nor is it retrospective because a part of the requisites for its action is drawn from a time antecedent to its passing’: Halsbury, 4th ed., vol. 44, ‘Statutes’, para. 91.
…
Moreover, a line of authority establishes that a statute, the object of which is to protect the public interest by disqualification based on conduct antecedent to the enactment, does not fall within the principle of retrospectivity. Early among them is R v Vine (1875) LR 10 QB 195 where the relevant statute disqualified forever persons ‘convicted of felony’ from selling spirits retail. The Court held that a person who has been convicted of felony before the passing of the Act became disqualified upon the enactment.
- [13]In that case, Cockburn CJ stated that ‘the object of the enactment is not to punish offenders, but to protect the public against public houses in which spirits are retailed being kept by persons of doubtful character’.
- [14]In a separate judgment in Nicholas, Fullagar J stated:
But the point to be made, which I think is of fundamental importance in the present case, is that the so-called rule against retrospectivity is neither more nor less than a rule of construction, with its fundamental concomitant that the doctrine can have no application at all where the words used are such that they simply do not admit of a construction which will avoid ‘retrospectivity’. In all the decided cases which have been brought to our attention in the present case, where the question arose whether the statute was to be permitted to have a retrospective effect, the statute was couched in language which was readily susceptible of a construction which avoided retrospectivity. In my opinion, the statute in the present case is couched in language which is not susceptible of the last-mentioned construction, with the result that the ‘the rule against retrospectivity’ has no application.
But if I am wrong about this, and the words are reasonably capable of non-retrospective construction, still I am of the opinion that in all the circumstances of the present case the presumption is virtually non-existent, because the section is concerned with past history as an indication of present fitness, and the present fitness of a person for the managerial office concerned would be equally detracted from whether or not the section operated ‘retrospectively’, and because I think that in any event the words used , on their proper construction, are such that they require the ‘retrospective operation’ to which the appellant objects.
- [15]In McNab Constructions Australia Pty Ltd v Queensland Building Services Authority,[7] Chesterman JA referred to the decision in Nicholas and the cases cited therein, but by way of distinguishing them from the issue under consideration in the case at hand. In doing so, his Honour referred to the category of cases in which statutes:[8]
impose a liability or disqualification on a member of a profession or an officer eg. of a company by reference to specified circumstances such as misconduct or suspected ineptitude. For the most part the cases have held that the existence of the circumstances is enough to give rise to the disqualification even if the circumstances pre-dated the legislation which authorises the disqualification.
- [16]It was added that the basis for these authorities is ‘that the public needs protection from persons unfit to conduct a professional calling or discharge the obligation of an office’.[9]
Grounds for disciplinary action
- [17]In relation to grounds, the QCT submits that the relevant ground for disciplinary action is the ground contained in s 92(1)(h) of the Education Act, which applies where:
the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [18]The standard of behaviour generally expected of a teacher is not defined in the Act. However, in Queensland College of Teachers v Armstrong it was stated:[10]
… the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.
- [19]In Queensland College of Teachers v PPK,[11] it was stated that the standard is fluid and is ‘informed by how the community, including the teaching profession, would expect a teacher to behave’.
- [20]The Tribunal has previously observed that teachers are bestowed with a special trust by parents and the community to act in the best interests of students and to protect them from harm and, with that trust, an expectation that it will not be breached.[12]
- [21]In considering the expected standard it is also appropriate to bear in mind the objects of the Education Act, which are:[13]
- to uphold the standards of the teaching profession; and
- to maintain public confidence in the teaching profession; and
- to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- [22]The respondent was Head of Year of Senior Years Social Science at the student’s school. He taught the student in 1999, when she was in year 11, and in the following year, when she was in year 12. The allegations against the respondent may be summarised as follows.
- In April of 1999, at which time the student was 15 years old, he consumed alcohol with the student and kissed her and toughed her over her clothing in his hotel room whilst they were on an overseas school trip.
- From about May 1999 to about December 2000, he kissed and touched the student over her clothing at his residence.
- From about August 1999 to about December 2000, he touched the student underneath her clothing at his residence.
- From about September 1999 to about December 2000 he engaged in sexual intercourse with the student at his residence and in June 2001 engaged in sexual intercourse with the student in NSW.
- In about September 1999, he suggested to the student that she see his general practitioner to obtain emergency contraception after they had sexual intercourse.
- In April 2001, visited the (now former) student at her University student residence in Victoria.
- In April 2001, went on trips in Victoria with the (now former) student.
- In September or October 2001, attended Buderim, Queensland with the (now former) student.
- [23]The student states that the relationship has had a detrimental impact on her life. She further states that her complaint, relevant to the present proceedings, was prompted by the fact that a relative had expressed a wish to attend the same school and that she was uncomfortable with that eventuating whilst the respondent was a teacher there.
- [24]In submissions filed in March 2024, the respondent states that he does not wish to be heard in relation to the grounds and does not oppose an order for indefinite cancellation of his teacher registration. In an earlier communication through his legal representative, it was stated: ‘Our client maintains that the allegations relating to unsuitability are untrue. However, he does not wish to be heard on the matter and will abide by the final orders of the Tribunal’.
- [25]As noted at [2] above, the material filed by the College includes a report and findings of the Queensland College of Teachers’ Senior Investigator, which was completed in June 2021. The 77-page Investigation Report has 51 annexes, including interviews with the student, the respondent and third parties. By s 147 of the Education Act, noted at [4] above, reference can be made to and reliance placed upon that report and findings.
- [26]In her records of interview, the student makes allegations consistent with the allegations outlined at [22], above. There are also separate records of interview with two ‘friends’ of the student, who refer to the respondent visiting the student in 2001 when they were in Melbourne. One of the friends says that she was introduced to the respondent as the student’s boyfriend, recalls them holding hands and that the respondent was staying with the student at the student’s accommodation. A fellow student on the overseas school trip in 1999 states in her record of interview that the respondent was ‘really close’ with the student during the trip and that ‘they would hug a lot’, though she adds that it did not seem inappropriate. That student kept a travel journal of the trip, which she produced to the interviewer. The journal makes reference to being in the respondent’s hotel room with the student and others. The fellow student also states that the student and the teacher were ‘really close’ while she was a student at the school and that she observed them hug, make jokes and talk after class on their own.
- [27]In a record of interview conducted in 2019, which he attended with his solicitor, the respondent denied that he had a sexual relationship with the student and that he had behaved in an inappropriate manner towards her. He stated that he had no recollection of the student or other students drinking wine on the overseas school trip or of students being in his hotel room and that it was ‘extremely unlikely’ that he and the student were alone in his hotel room. He denied hugging and kissing her in his room. He also denied the allegations of kissing and touching at his residence in Queensland and the progression to a sexual relationship but accepts that she attended his residence on a single occasion. He said that he met the student by chance in Melbourne in 2001 when he was having coffee with a teacher colleague. In a separate interview, that colleague stated that she could not recall the incident, though noted that it could have happened. The respondent stated that at the chance meeting in Melbourne he exchanged phone numbers with the student so that they could catch up for a coffee. He states that subsequently they went on a day trip together along the coast, following which she showed him around her student accommodation complex. He did not recall meeting any of her friends or acquaintances and denied being introduced to anyone as her boyfriend or holding hands with the student.
- [28]Consistent with what was said by the respondent, a friend of the respondent who shared a house with him from 1999, recalls a student visiting the house on one occasion. She was introduced as a student and he didn’t think ‘anything untoward’ was going on.
- [29]In the Investigation Report, the Investigator found on the balance of probabilities that each of the allegations made were substantiated and that a ground for disciplinary action existed pursuant to s 92(1)(h) of the Education Act.
- [30]In relation to the allegations of consuming alcohol with the student and kissing her in his hotel room while on an overseas school trip, the Investigator noted that the journal kept by a fellow student was a contemporaneous record, with the entries clearly dated and the geographical location of each entry listed. In preferring the evidence of the student, the Investigator refers to the collaborative journal entries of the fellow student, which note the drinking of alcohol by her and the student in the presence of the respondent as well as the visit to the respondent’s hotel room.
- [31]In relation to the other allegations, including the sexual relationship and the obtaining of morning after contraception, the Investigator extensively canvassed the available material. In stating that he preferred the evidence of the student and finding all of the allegations substantiated, the Investigator referred to the independent evidence of the fellow school student as to reported conduct on the overseas school trip and at school and of the two friends in relation to the respondent’s visit to the student’s accommodation complex in Melbourne. He also noted that after all these years the student was able to describe in some detail the inside of the respondent’s house in Queensland, including the location of the bedroom, and provide details in relation to aspects of the respondent’s personal life, as well as other matters such as the location of a payphone near the respondent’s house, from which she said she would call him before visiting him. While the student could not clearly identify the doctor she visited in relation to contraception, from a list of doctors operating in that area at the relevant time she identified a doctor whose name was ‘most familiar’. There is evidence that the respondent was consulting that doctor at the time.
- [32]The Investigator also noted that there was no known motive for the student or fellow student to fabricate the allegations and that the respondent himself stated that he had ‘no idea’ as to why the allegations were made.
- [33]Taking into account all of the material, including the records of interview, the Investigation Report and other documents provided, we are satisfied on the balance of probabilities, taking into account the considerations in Briginshaw v Briginshaw,[14] that the conduct as alleged by the student occurred. In addition to the matters referred to by the Investigator, we note the unlikely scenario of the chance meeting in Melbourne during the respondent’s visit there, coupled with the then occasion for their taking a day trip together along the coast, followed by his visit to her accommodation, given, on the respondent’s account, a relationship simply of teacher and student. Also, most recently, the respondent has stated that he does not wish to be heard in relation to grounds and that he does not oppose an order for indefinite cancellation of his registration.
- [34]Accordingly, the question is whether, in terms of s 92(1)(h) of the Education Act, the behaviour is such that it does not satisfy the standard of behaviour generally expected of a teacher. In deciding whether there is a ground for disciplinary action, s 158(2) of the Education Act provides that the Tribunal must have regard to any relevant previous decision by a practice and conduct body of which it is aware. In its submissions, the QCT refers to several decisions, including those set out below. In each of these cases it was held that a ground for disciplinary action had been established under s 92(1)(h) of the Education Act.
- [35]In Queensland College of Teachers v MUE,[15] the respondent was an experienced teacher who engaged in inappropriate conduct leading to sexual intercourse with a 15-year-old student. He purchased and consumed alcohol with the student. The relationship continued beyond year 12. Whilst the respondent provided psychological and psychiatric reports, those reports made no reference to any acknowledgment of harm or any expression of remorse on the part of the respondent.
- [36]In Queensland College of Teachers v ALE,[16] the teacher engaged in overfamiliar conduct with a student, which progressed to sexualised social media communications, leading to a sexual relationship.
- [37]In Queensland College of Teachers v ATL,[17] the teacher engaged in inappropriate electronic communications with a year 12 student, which led to a sexual relationship. There were also allegations of inappropriate relationships with other former students and the Tribunal found that a ‘propensity to pursue relationships with current and former students is apparent’.
- [38]In the circumstances of the present case, clearly the conduct of the respondent does not satisfy the standard of behaviour generally expected of a teacher and the Tribunal finds that a ground for disciplinary action under section 92(1)(h) of the Education Act is established.
Sanction
- [39]Where there is a finding that a ground for disciplinary action has been established, the sanctions that may be imposed by the Tribunal are set out at s 160 of the Education Act. They include at s 160(2)(d), cancellation of the teacher’s registration or permission to teach. Section 160(2)(j) then provides that if the Tribunal cancels the registration, it may:
make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely.
- [40]The QCT seeks a sanction from the Tribunal cancelling the respondent’s registration and prohibiting him for reapplying for registration or permission to teach indefinitely. As noted above, the respondent ‘does not oppose an order for indefinite cancellation’.
- [41]In both of the decisions in MUE and ALT, noted at [35] and [37] above, the respondent was prohibited from applying for registration or permission to teach indefinitely. The conduct of the respondent in the present case is well below the standard of behaviour generally expected of a teacher. In addition, other than a belated acceptance of an order prohibiting him from reapplying for registration indefinitely, the respondent has consistently denied the allegations, so that there is nothing in the materials to indicate insight into the consequences of the conduct, including its impact on the student and others.
- [42]In the circumstances, the appropriate sanction is cancellation of the respondent’s registration or permission to teach and an order prohibiting the respondent from reapplying for registration or permission to teach indefinitely.
Costs
- [43]The QCT has made an application for costs. The respondent opposes the application, on the basis of his cooperation with the QCT in relation to their submission as to an order for indefinite cancellation and his limited financial resources.
- [44]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) is headed ‘Each party usually bears own costs’ and provides:
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.
- [45]Section 102 of the QCAT Act is headed ‘Costs against party in interests of justice’ and provides:
- 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.
- However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- 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);
- the nature and complexity of the dispute the subject of the proceeding;
- the relative strengths of the claims made by each of the parties to the proceeding;
- for a proceeding for the review of a reviewable decision—
- whether the applicant was afforded natural justice by the decision-maker for the decision; and
- whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- the financial circumstances of the parties to the proceeding;
- anything else the tribunal considers relevant.
- [46]There have been divergent views expressed in the decisions of the Tribunal as to the effect of those provisions. A number of those decisions are referred to in Pound v Queensland Building and Construction Commission [2023] QCAT 298 (‘Pound’) and it is not proposed to recanvas them here.[18] Two of the more recent decisions, Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)[19] and Crime and Corruption Commission v NDZ,[20] dealt with the considerations arising where an application for costs was made against the regulator. The present matter involves an application for costs by the regulator.
- [47]The decision in Pound considered the operation of s 100 in the context of s 102 of the QCAT Act and, in adopting the approaches taken in other jurisdictions, particularly Victoria, where there are statutory provisions similar to those in s 100 and s 102 of the QCAT Act, it was stated:
[36] The approach taken in the Victorian cases in particular, is that the ‘general rule’ that each party bears their own costs reflects the objects of the Act and is designed to promote access to justice generally and minimise the overall level of costs in tribunal proceedings as far as is practicable.[21]
[37] That approach also seems appropriate to the Queensland legislation, where, by s 3(b), the objects include ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.
[38] The link between the s 3 objects and s 100 of the QCAT Act is evident from the Explanatory Note to the QCAT Bill, which states: ‘The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical, informal and quick’, including by ‘providing that parties bear their own costs in proceedings unless the tribunal considers the interests of justice require it to order otherwise’.[22]
…
[41] The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.
[42] For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood,[23] might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.
[43] On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.
- [48]
Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012.
- [49]Unlike in Wong and other decisions referred to in NDZ, the present application for costs is brought by the regulator. The question of costs in those circumstances has been considered by the State Administrative Tribunal of Western Australia. Analogous to s 100 of the QCAT Act, s 87(1) of the State Administrative Tribunal Act 2004 (WA) provides:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
- [50]While s 87(2) then provides that the Tribunal may make an order for costs, there is no guidance, other than to a limited extent in relation to the review jurisdiction, as to the circumstances in which the discretion should be exercised, such as by reference to the interests of justice or principles of fairness. However, in Western Australian Planning Commission v Questdale Holdings Pty Ltd, Murphy JA, with whom Martin CJ and Corboy J agreed, stated:[26]
Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.
- [51]
Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case
- [52]
- [53]As suggested in Pound, s 100 of the QCAT Act reflects the objects set out in s 3 of the QCAT Act, including at s 3(b):
To have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick;
- [54]The authorities cited above reflect the concern to ensure access to justice in the public interest in relation to disciplinary proceedings. The position of the QCT in that regard is noted, below, in the context of the reference to s 102(3)(e) of the QCAT Act.
- [55]However, as also noted in Pound, in determining whether a costs order should be made factors relevant to the operation of s 100 of the QCAT Act should be placed in the balance along with the s 102(3) considerations. Other than as noted below, neither party has made submissions in relation to those considerations.
- [56]In relation to s 102(3)(a) and (b) of the QCAT Act, whether a party acts in a way that unnecessarily disadvantages another party and the nature and complexity of the dispute, respectively, there is no allegation of disadvantage and the matter is neither more nor less complex than equivalent disciplinary matters.
- [57]In relation to s 102(3)(c), the relative strengths of the claims made by each of the parties, clearly the Tribunal has found that the allegation made have been substantiated and the ground for disciplinary action established. The factor at s 102(3)(d) of the QCAT Act relates to review proceedings and is not applicable to the present matter.
- [58]In relation to s 102(3)(e), the financial circumstances of the parties, the respondent states he has not worked as a teacher since 2019 and has limited financial resources. However, there is no indication as to whether or not he is presently employed and as to what is meant by ‘limited’ financial resources. No details are provided. The QCT states that it is funded by registration fees of approved teachers in Queensland and not from consolidated revenue for the State of Queensland and submits: ‘It would be unreasonable to expect approved teachers in good standing to subsidise the respondent’s misconduct’.
- [59]In relation to s 102(3)(f) of the QCAT Act, anything else the Tribunal considers relevant, the respondent submits that he has cooperated with the QCT in relation to its submission seeking an order for indefinite cancellation of his teacher registration. It is noted that that concession was made in March of this year. Prior to that, the respondent has consistently denied the allegations made, at least since late 2019 when he was interviewed in relation to those allegations.
- [60]In the circumstances, and in particular the considerations outlined relevant to s 100 and s 102(3)(e) and (f) of the QCAT Act, the factors in favour of making a cost order outweigh those against the making of an order for costs. The QCT has itemised its costs, which total $5,220.50. Costs are awarded in that sum.
Non-publication order
- [61]Pursuant to s 66(1)(c) of the QCAT Act the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative.[31]
- [62]The QCT submits that a non-publication order is not necessary. While it is stated that such orders should not be lightly made,[32] there is no given rationale for that submission in the context of the circumstances of the present case. In fact, it is noted in the submissions that the student has been consulted in relation to a non-publication order and ‘she indicated she would not be opposed to one being issued’. The respondent briefly submits:
The respondent support’s the students view that it is appropriate for a non-publication order to be made. The student has indicated she does not oppose a non-publication order and for the protection of her identity, the Respondent supports the order being made.
- [63]The student was under 16 years of age at the time that some of the conduct occurred and was a student for much of the relevant time. There are other third parties who agreed to be interviewed in relation to this matter, including former students. In the circumstances, it is appropriate to make a non-publication order to protect the student and relevant third parties. That should be extended to the relevant school, as identification of the school may lead directly to the identification of those persons.
- [64]The respondent does not make any submission in relation to non-publication in relation to himself. In the interests of the principle of open justice, the non-publication order does not extend to the respondent.
- [65]We are satisfied that it would be contrary to the public interest for information to be published that may identify any relevant student, former student, third party, or school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
ORDERS
- [66]The following orders are made:
- The disciplinary ground in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
- Pursuant to section 160(2)(d) of the Education (Queensland College of Teachers) Act 2005 (Qld), the respondent’s teacher registration is cancelled.
- Pursuant to section 160(2)(j) of the Education (Queensland College of Teachers) Act 2005 (Qld), the respondent is prohibited from reapplying for registration or permission to teach indefinitely.
- Pursuant to section 160(2)(f) of the Education (Queensland College of Teachers) Act 2005 (Qld), the respondent must pay the applicant’s costs, fixed at $5,220.50.
- Other than to the parties to the proceedings and until further order of the Tribunal, publication is prohibited of any information that may identify any relevant student, former student, third party, or school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education (Queensland College of Teachers) Act 2005 (Qld).
Footnotes
[1] ‘Relevant teacher’ is defined at Schedule 3 of the Education Act to mean either an approved teacher or a former approved teacher.
[2] Education Act, s 97(2)(a)-(b).
[3] Briginshaw v Briginshaw (1938) CLR 336, 361-2 (‘Briginshaw’).
[4] (1957) 96 CLR 261, 267.
[5] (1960) 105 CLR 188, [9].
[6] [1988] VR 289 (‘Nicholas’).
[7] [2010] QCA 380, [110]-[116].
[8] Ibid [112].
[9] Ibid [116].
[10] [2010] QCAT 709, [33]. See also Queensland College of Teachers v PPK [2019] QCAT 59.
[11] [2019] QCAT 59, [36] (‘PPK’).
[12] Queensland College of Teachers v DGM [2018] QCAT 194.
[13] Education Act, s 3.
[14] Briginshaw (n 3) 361-362.
[15] [2021] QCAT 401.
[16] [2019] QCAT 143.
[17] [2020] QCAT 59.
[18] As to more recent decisions, see Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107; Medical Board of Australia v TXA (No 4) [2023] QCAT 360; Crime and Corruption Commission v NDZ [2024] QCAT 21; Neller & Anor v Queensland Building and Construction Commission (No 2) [2024] QCATA 46; Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors [2023] QCAT 40; Consolidated Gold Coast Holdings Pty Ltd v Body Corporate for Kirrikilli Heights [2024] QCATA 42.
[19] [2023] QCATA 107.
[20] [2024] QCAT 21 (‘Crime and Corruption Commission v NDZ’).
[21] As to the objects of those Acts, see South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8 and, in relation to Victoria, see (as per fn. 17 of Pound) Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441, [13]. It is noted that there is no provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) equivalent to s 3 of the QCAT Act.
[22] It is also noted that s 4(c) of the QCAT Act provides that to achieve the objects of the Act, the tribunal must ‘ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice’.
[23] It is noted that the decision in Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101 concerned a dispute in relation to the construction of a house and where damages were awarded against Tamawood Limited.
[24] Crime and Corruption Commission v NDZ (n 20).
[25] [2017] QCA 42, [37] per McMurdo JA, with whom Morrison JA and Mullins J agreed (‘Wong’).
[26] (2016) 213 LGERA 81, [49] (citations omitted). See also per Martin CJ at [9].
[27] (2006) 41 SR (WA) 343, [44].
[28] [2005] WASAT 81(S), [30].
[29] [2007] WASCA 97, [35]-[38].
[30] [2012] WASCA 112, [81]-[82].
[31] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).
[32] Citing AB v Queensland Building Services Authority [2013] QCATA 187, [26].