Exit Distraction Free Reading Mode
- Unreported Judgment
Queensland College of Teachers v CSK QCATA 125
Queensland College of Teachers v CSK  QCATA 125
Queensland College of Teachers
31 March 2016
Judge Sheridan, Deputy President
31 August 2016
‘It is declared that a ground of disciplinary action is established against CSK, namely that he is not suitable to teach.’
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the respondent teacher’s registration to teach was suspended by the Queensland College of Teachers (QCT) and a disciplinary matter was referred to the Tribunal – where the Tribunal found that the teacher was not suitable to teach within the meaning of s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) – where the Tribunal dismissed the referral on the basis that the teacher’s registration was not liable to be suspended under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) because the teacher did not pose an imminent risk of harm – where the QCT appeals the Tribunal’s decision – whether the Tribunal made errors of law and errors of mixed fact and law – whether the Tribunal erred in its construction of the disciplinary referral – whether the Tribunal having found the teacher was not suitable to teach erred in failing to proceed to impose a sanction on the teacher – whether a non-publication order should be made
Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 12, s 48, s 49, s 50, s 92, s 97, s 158, s 160 and s 233
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64, s 74, s 142, s 146 and s 147
Albrecht v Ainsworth & Ors  QCA 220, applied
Ericson v Queensland Building Services Authority  QCA 391, applied
Mr P Davis of Senior Counsel with Mr A J Kimmins of Counsel, instructed by McInnes Wilson
CSK, in person
REASONS FOR DECISION
- The Queensland Civil and Administrative Tribunal (Tribunal) determined an amended disciplinary Referral (Referral) under the Education (Queensland College of Teachers) Act 2005 (QCT Act) made by the Queensland College of Teachers (QCT) against the respondent, CSK. The Referral was made in accordance with s 97 of the QCT Act following the suspension of the teacher’s registration under s 49 of the QCT Act on the grounds the teacher posed on imminent risk of harm to children and immediate action to suspend was necessary to protect children. The proceeding was heard over a period of some nine days. Ultimately, the Tribunal made orders dismissing the Referral. The QCT appeals the Tribunal’s decision.
- The Referral relevantly alleged as follows:
Pursuant to s 92(1)(h) of the [QCT Act], the relevant teacher, is not suitable to teach in that his registration to teach is liable to be suspended under s 49 of the Act in respect of the following conduct:
- (a)Between 1 June 2010 and 22 November 2012 … the relevant teacher was performing duties as the Principal of … … contrary to his duties the relevant teacher:
- (i)Failed to maintain appropriate professional boundaries with students under his care and control who were all in year 7 as particularised below; and/or
- (ii)Failed to maintain objective and impartial levels of disciplinary standards for the students who were all in year 7 as particularised below; and/or
- (iii)Failed to appropriately address concerns within his knowledge in respect of alleged boundary violations with the students under his care and control who were all in year 7 as particularised below.
- The Referral set out 35 particulars of behaviour under a heading ‘Particulars of Disciplinary Matters’ which the QCT alleged established the disciplinary charges. One particular, alleging the conduct amounted to grooming behaviour towards the students, was struck out by the Tribunal at the commencement of the hearing.
- The Tribunal made findings of fact in relation to the remaining 34 particulars. It found that many of the events alleged had occurred. The Tribunal then considered whether the matters in paragraphs 1(a)(i), (ii) and (iii) of the Referral were made out, concluding that they were. It found CSK is not suitable to teach. The Tribunal then finally considered whether CSK is ‘not suitable to teach in that his registration is liable to be suspended under s 49 of the Act’.
- Despite finding that CSK’s conduct rendered him not suitable to teach, the Tribunal held that its finding and decision were constrained by the grounds for disciplinary action specified in the Referral. The Tribunal concluded that although CSK is not suitable to teach, it was not satisfied the evidence supported a finding that CSK posed an imminent risk of harm to children. The Tribunal found the Referral was framed and limited by the reference to s 49, and required a finding by the Tribunal of an imminent risk of harm. The Tribunal concluded that as an imminent risk of harm was not established, the Referral must be dismissed. It made orders accordingly.
The appeal proceedings
- The QCT filed an application to appeal and for leave to appeal in respect of the Tribunal’s decision. It appeals on five grounds.
- Three of the grounds of appeal allege errors of law by the Tribunal in its construction of the Referral and the QCT Act, in particular, as to the meaning to be attributed to the words, ‘in that his registration to teach is liable to be suspended under s 49 of the Act’ in the Referral. Those grounds of appeal may be conveniently summarised as follows:
- The Tribunal erred in finding that the Referral impliedly alleged that CSK posed an imminent danger to children;
- The Tribunal erred in holding that on a proper construction of the Referral, it should be dismissed unless the QCT proved that CSK posed an imminent risk of harm to children; and
- The Tribunal erred because, having found that CSK is not suitable to teach, it ought to have found the disciplinary ground under s 92(1)(h) of the QCT Act proved, and proceeded to impose sanction upon CSK.
- The other two grounds of appeal allege that the Tribunal erred in mixed law and fact, essentially in not finding that CSK posed an imminent risk of harm to children. In the alternative, if the appeal is not allowed, the QCT makes an application to amend the Referral to delete the words ‘in that his registration to teach is liable to be suspended under s 49 of the Act.’
- For the reasons to be explained, we have concluded that the Tribunal erred in law.
- CSK has not appealed the Tribunal’s decision, nor cross-appealed in light of the QCT’s appeal. However, in his oral submissions at the hearing of the appeal (although not in the written submissions filed beforehand), CSK sought to maintain the Tribunal’s decision in his favour by impugning three discrete factual findings made by the Tribunal, as well as the Tribunal’s finding that he is not suitable to teach. The QCT, noting that the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) do not provide for the filing of a cross-appeal or other notice of contentions to be raised, does not claim any disadvantage as a result of the late stage at which these issues were raised (nor did it seek an adjournment of the hearing as a consequence). For the reasons explained in the following paragraphs, we have concluded that CSK’s arguments must fail.
- Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), an appeal in respect of a question of law may be made without leave of the appeal tribunal. However, an appeal in relation to a question of fact or a question of mixed law and fact may only be made with the leave of the appeal tribunal.
- Leave to appeal will usually only be granted where there is a reasonable argument that the decision of the tribunal was attended by error, and it is necessary to correct a substantial injustice to the applicant caused by that error. It is not enough that the appeal tribunal comes to the view that had its members been sitting in the matter originally, they may have reached a different conclusion. It must be demonstrated that there has been a mistake in either assessing the factual evidence, like a failure to take some material evidence into account, or that the tribunal misapplied the facts to the legal test.
- An appeal on a question of law is an appeal in the strict sense, not an appeal by way of re-hearing. The appeal tribunal’s powers are those conferred by s 146 of the QCAT Act. Although the appeal tribunal may substitute its own decision by making the order that should have been made at first instance by the tribunal, it may do so only on the basis of the facts found by the original tribunal. Therefore, it may do so if the question of law entirely disposes of the proceeding. If not, it must remit the proceeding to the tribunal for reconsideration, with directions as may be appropriate.
- On the other hand, an appeal on a question of mixed law and fact must be decided under s 147 of the QCAT Act. It is an appeal by way of rehearing. New evidence may be allowed, with the appeal tribunal’s leave, on rehearing. Leave may be granted where the evidence was not reasonably available at the hearing and, had it been, an opposite result was likely; and where the new evidence is credible.
- We have concluded that the Tribunal did make errors of law as alleged in grounds (a), (b) and (c) of the grounds of appeal. In case we are wrong, we have dealt with the other grounds of appeal and the application to amend the Referral.
- Both parties sought to rely upon new evidence in the appeal proceedings. The QCT sought to rely on an affidavit of Ms Kaesehagen, a member of staff from the legal firm representing it at the hearing, which recites the basis for the Referral, and sets out her recollections of the hearing and understanding of the written submissions made by the parties. The affidavit does not provide useful information. We have the transcript of the proceedings and access to all of the documents including submissions made by the parties, which to some extent, are inconsistent with the assertions made in the affidavit. The QCT does not submit that the transcript is inaccurate. Leave might be given to a party to rely upon evidence in an appeal about events at the hearing (for example, if those are in contest with the transcript or other documents). That is not the case here. Therefore, even if we gave leave for the affidavit to be received into evidence, we would rely upon the official transcript. The affidavit would not assist the QCT’s case. Leave is refused.
- CSK sought to rely on an affidavit attaching various documents, some of which were not before the Tribunal. The affidavit, in part, goes to one of the Tribunal’s factual findings which he disputes, relating to the sleepover as discussed later. In particular, he suggests that evidence was adduced at the hearing that Mr Prior (Senior Investigator, Department of Education, Training and Employment) conspired with a teacher who is referred to in the Tribunal’s reasons as Teacher 4 to alter his witness statement in accordance with an attached email. That portion of the affidavit and the emails he refers to are relevant to his arguments raised in the appeal. We grant leave for him to rely upon it in the appeal, but refuse leave in respect of the balance of the affidavit.
- The balance of CSK’s affidavit:
- Responds to Ms Kaesehagen’s affidavit;
- Attaches an unsigned and annotated copy of an investigative report into allegations of official misconduct against him dated April 2014 and produced by the Ethical Standards Unit, Human Resources, Department of Education, Training & Employment;
- Alleges bias against Mr John Ryan, Director of the QCT, in authorising the disciplinary proceedings in breach of the requirements of procedural fairness;
- Deposes as to discussions at the compulsory conference convened by the Tribunal; and
- Alleges a breach of the Solicitors Conduct Rules by a lawyer acting for the QCT.
- The response to Ms Kaesahagen’s affidavit is not relevant because her affidavit is not admitted into evidence. The Appeal Tribunal must make its own decision about whether a disciplinary ground exists. Therefore the unsigned investigation report does not assist CSK’s case. Although Mr Ryan as an administrative decision-maker had obligations to observe procedural fairness, he did not decide the disciplinary proceeding and had no power to do so. The Tribunal has that function. We have not considered whether there is any basis for the allegation made by CSK that Mr Ryan failed to observe procedural fairness. It is irrelevant to the Tribunal’s consideration of the disciplinary Referral and our function on appeal.
- Evidence of discussions at a compulsory conference is generally inadmissible at any stage of the proceeding under s 74(1) of the QCAT Act. The exceptions provided for in s 74(2) do not apply. Therefore, the evidence may not be admitted on appeal. The alleged breaches of the Solicitor’s Conduct Rules are said to arise out of things alleged to have been said at the compulsory conference. As explained, that evidence cannot be admitted in this proceeding. In any event, any alleged breach is not a matter for this Appeal Tribunal to consider in determining the appeal (or the disciplinary proceeding on a rehearing). Therefore, it is not relevant.
The legislative scheme under the QCT Act
- In order to consider the three alleged errors of law, it is necessary to understand the statutory scheme.
- In a review proceeding, QCAT stands in the shoes of the original decision-maker. The Tribunal is generally bound by the provisions in the QCT Act that bind the original decision-maker. However, a disciplinary referral pursuant to s 92 of the QCT Act is brought in the Tribunal’s original, not its review, jurisdiction. In performing its functions under the QCT Act, the primary considerations for the QCT are the welfare and best interests of children: s 233. There is not a provision equivalent to s 233 applying to QCAT in deciding in its original jurisdiction a disciplinary referral under the QCT Act. That said, the objects of the QCT Act include protecting the public through ensuring education in schools is delivered in a professional and competent manner. As a matter of statutory interpretation, an interpretation which best achieves the purpose of the Act concerned is to be preferred to any other interpretation.
- Under s 49 of the QCT Act, the QCT may suspend a teacher’s registration if it reasonably believes the teacher poses an imminent risk of harm to children and it is necessary to suspend the teacher to protect children. Harm, to a child, is defined in s 7 of the QCT Act as being ‘any detrimental effect of a significant nature on a child’s physical, psychological or emotional wellbeing’, irrespective of how it is caused, although it may be caused by physical, psychological or emotional abuse or neglect, including sexual abuse or exploitation. If the QCT suspends a teacher’s registration under s 49, it must immediately give the teacher notice of the suspension, and must advise the teacher that it will refer a disciplinary matter to QCAT about whether a ground for disciplinary action exists.
- This may be contrasted with the procedure following a s 48 suspension. Section 48 provides for the QCT to immediately suspend a teacher’s registration or permission to teach after it becomes aware that the teacher is charged with a serious offence. In this case, the QCT must immediately give notice to the teacher of the suspension and state ‘that QCAT will review the continuation of the suspension to decide whether it is an exceptional case in which the best interests of children would not be harmed if the suspension were ended’. QCAT may review the continuation of the suspension.
- Section 97 of the QCT Act provides that if the QCT reasonably believes that one or more grounds of disciplinary action exist against a teacher, the QCT must refer the matter to a disciplinary body. In particular, under s 97(3) if the teacher’s registration has been suspended under s 49, the disciplinary matter must be immediately referred to QCAT. QCAT must then conduct a hearing and make decisions about the disciplinary matter referred.
- Disciplinary matters referred are defined as general matters which involve a ground for disciplinary action as specified in s 92(1)(b) to (j) of the QCT Act. One of those grounds is s 92(1)(h), ‘the teacher is not suitable to teach.’ Section 12 sets out matters for consideration by the QCT in determining whether a person is suitable to teach when an application is made for registration as a teacher or permission to teach. These include ‘whether the person is suitable to work in a child-related field’. Further, s 12 provides that ‘a person is not suitable to teach’ if the person either ‘behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher’, or ‘behaves in a disgraceful or improper way’ that shows the person’s unfitness to hold registration. Although in this instance, the Tribunal did not refer to these provisions in its reasons for decision, these matters have generally been considered relevant in considering whether the disciplinary ground that a teacher is not suitable to teach has been made out.
- Section 92(2) of the QCT Act provides that the ground for disciplinary action in 92(1)(h) ‘is taken to apply’ to a teacher whose registration is suspended under s 48 and s 49. Section 92(3) provides that the object of s 92(2)(a) (relating to s 48 suspensions) is to ensure that ‘the circumstances of the charge’ against the teacher ‘are examined by a disciplinary committee’. Section 92(4) provides that subsection 92(2) ‘does not limit the application of subsection (1)(h).’
- As soon as practicable after its hearing, QCAT must decide whether a ground for disciplinary action against a teacher has been established. If QCAT decides that no ground for disciplinary action has been established against the teacher, and the teacher’s registration is suspended under s 48 or s 49, it must end the suspension. If QCAT decides a ground for disciplinary action has been established against a teacher (who is an approved teacher), QCAT may do one or more specified things. The matters specified include: taking no further action in relation to the matter; ending a suspension; warning or reprimanding the teacher; cancelling or suspending the teachers registration; or making other orders as specified or as appropriate.
- The issues raised in this appeal demand close consideration, in particular to the construction of s 49 and s 92, and the relationship between those sections and s 97.
- The QCT submits that s 92(2) does no more than identify a relevant ground for disciplinary action when s 49 is engaged. It further submits that s 92(4) makes it clear that the QCT may make a disciplinary referral on the basis of a teacher’s unsuitability to teach in circumstances other than when s 92(2) applies.
- Although CSK generally accepts the submissions of the QCT about the construction of the QCT Act, he disagrees with its submissions about s 92. He submits that s 92(2) should be interpreted as requiring an imminent risk of harm for unsuitability to teach to be established: that is, importing matters relevant to a s 49 suspension. Further, he submits that harm, as defined in s 7, is a necessary element of unsuitability to teach.
- If CSK’s submission was correct, this would mean, exceptionally, that in the case of a disciplinary referral alleging that a teacher is not suitable to teach following a s 49 suspension (but not other disciplinary referrals alleging that a teacher is not suitable to teach), it must be established the teacher represents an imminent risk of harm to children. Such an interpretation would not appear to best achieve the object of the QCT Act to protect the public through ensuring education in schools is delivered in a professional manner. A teacher may generally under the legislative scheme be found not suitable to teach for behaving in a manner which does not meet a standard of behaviour generally expected of a teacher, without posing an ‘imminent’ risk of harm to children.
- Further analysis of the legislative provisions confirms the error in CSK’s argument. If ‘is taken to apply’ in s 92(2) were read literally, it could be seen as providing that s 92(1)(h) automatically exists if the QCT has suspended a teacher’s registration under s 48 or s 49. However, reading the QCT Act as a whole, it is clear that Parliament did not intend by s 92(2) to usurp the Tribunal’s role in deciding whether the ground for disciplinary action in s 92(1)(h) exists: if that was so, the QCT Act would not provide for referral to be made by the QCT to QCAT to decide whether a disciplinary ground exists. Rather, Parliament’s intention was to ensure that following a s 48 or s 49 suspension, the QCT’s disciplinary referral to QCAT must include the ground that the teacher is not suitable to teach.
- This construction is confirmed by s 92(3). Section 92(3) provides that the object of s 92(2)(a), which concerns suspensions under s 48 (which applies when a teacher is charged with a serious offence, and provides that the QCT must immediately suspend the teacher’s registration or permission to teach), ‘is to ensure that the circumstances of the charge are examined by a disciplinary committee.’ This is so, even though the teacher is convicted of an offence other than an indictable offence; is acquitted; the charge is withdrawn or dismissed; or a nolle prosequi is presented on the charge.
- Because of s 92(3), even if a teacher is not convicted of the serious offence with which he or she was charged, that is not the end of the matter. The QCT must nevertheless refer the relevant allegations as part of its disciplinary referral, so that (having regard to the relevant standard of proof), the relevant disciplinary committee determines whether the evidence about the circumstances of the charge justifies a finding that the teacher is not suitable to teach. It is relevant to observe that the standard of proof is different in disciplinary proceedings than in criminal proceedings. In criminal proceedings, the charges must be proven beyond reasonable doubt. In disciplinary proceedings, it is well established that the regulator bears the civil onus of proof, on the Briginshaw standard.
- Although there is not an equivalent provision to s 92(3) which refers to the object of s 92(2)(b), which deals with suspensions under s 49, the introductory words in s 92(2) ‘is taken to apply’ are the same. In the case of s 48 suspensions, those words can only mean that the ground of unsuitability to teach is raised (or to be raised), for consideration as a disciplinary ground. Those same words, ‘is taken to apply’, cannot have a different meaning under s 92(2)(b). When a disciplinary referral is made pursuant to s 97(3) to QCAT following a s 49 suspension, those words must mean that the ground of unsuitability to teach is raised, or to be raised, for consideration as a disciplinary ground.
- Although the QCT Act does not specifically provide that it is incumbent upon the QCT to include s 92(1)(h) as a disciplinary ground in its referral made under s 97(3), in practical terms, that must be the effect of s 92(2) and s 97(1) and (3), when they are read together.
- This interpretation sits well with the object in s 3(c) to protect the public by ensuring education is delivered in a professional and competent manner, and the legislative scheme generally. The effect is that the circumstances that led to the QCT’s suspension under s 49 are to be considered by QCAT in determining whether a disciplinary ground exists that the teacher is not suitable to teach. Its task is to determine whether the disciplinary ground that the teacher is not suitable to teach is established by considering the circumstances which led to the suspension, as well as any other relevant ground (and its particulars) raised in the referral.
- There is no power, however, for QCAT to review the original decision of the QCT to suspend an approved teacher’s suspension under s 49. While the QCT must have formed a reasonable belief that the teacher posed an imminent risk of harm to children and that immediate suspension was necessary to protect children, that is not the issue which QCAT must decide. There is no requirement for an imminent risk of harm to children to be established for a finding to be made that a teacher is not suitable to teach.
Grounds of Appeal 1, 2 and 3
- Grounds of appeal 1, 2 and 3 are conveniently dealt with together. The Referral commences with the following:
Pursuant to s 92(1)(h) of the QCT Act, the relevant teacher is not suitable to teach in that his registration to teach is liable to be suspended under s 49 of the Act in respect of the following conduct ...
- As already discussed, s 49 provides for the QCT to suspend a teacher’s registration if ‘the teacher poses an imminent risk of harm to children’ and ‘it is necessary to immediately suspend’ the registration to protect children.
- The Tribunal found that CSK is not suitable to teach but dismissed the Referral because it was not satisfied that CSK posed an imminent risk of harm to children. The Tribunal held that it had to make that finding if it was to uphold the Referral because of the reference to s 49 of the QCT Act in the Referral. That section contains a reference to imminent risk of harm to children.
- The QCT quite properly accepts that the Tribunal was bound by the terms of the Referral. It submits that having regard to the legislative scheme, the Tribunal’s construction of the reference to s 49 in the Referral is in error. It submits that it was not making an allegation or accepting the onus of establishing an imminent risk as part of the disciplinary ground alleged. It submits that it was no more than a reference to the history of the disciplinary Referral to the Tribunal.
- In the alternative, the QCT submits that if it is an allegation of an imminent risk of harm, it was irrelevant to the Tribunal’s task on the Referral, which was to determine whether the disciplinary ground, ‘the teacher is not suitable to teach,’ was established. It argues that failure to prove an extra irrelevant allegation should not result in a denial of the remedy sought, if the relevant allegations are established to the satisfaction of the Tribunal. Further, it says whether the s 49 suspension by the QCT was appropriate is irrelevant because the Tribunal had no function to review the suspension. It submits that s 50, s 92 and s 97 of the QCT Act make this clear.
- CSK submits that if the QCT’s argument is correct, he is prejudiced because he responded to the Referral as ‘pleaded.’ He says his legal representatives may have run his case differently if the words in contention had not appeared in the Referral, although he was unable to point to any way in which this would have been so.
- It is undoubtedly correct that the Tribunal was bound by the terms of the Referral. However, on a proper construction of the Referral, having regard to the legislative scheme established by the QCT Act under which it is brought, the words ‘in that his registration to teach is liable to be suspended under s 49 of the Act’ do no more than reflect the history of the Referral.
- The Referral was made to QCAT immediately following a s 49 suspension, as required by ss 97(1) and (3). The only issue for the Tribunal in those circumstances is whether the grounds under s 92(1)(h) are made out. If a teacher is suspended under s 49, s 92(1)(h) is taken to apply: see s 92(2). However, the ground ‘is not suitable to teach’ as contained in s 92(1)(h) is not limited to a suspension under s 49 (or s 48).
- The reference to s 49 in the Referral was unnecessary. The Tribunal was not required to find that CSK posed an imminent risk of harm to children and that it was necessary to immediately suspend so as to protect children, in order for it to determine whether the disciplinary ground referred to it was established. The Tribunal was in error in holding that the Referral impliedly required such a finding. That question was not relevant to the Tribunal’s function at law.
- CSK is not prejudiced by this construction. CSK responded fully to the Referral. At worst, he may have responded to and provided evidence about whether there was an imminent risk of harm to children, which was not relevant to the matters the Tribunal was required to decide. As the QCT submits, he was in fact successful on that point: the Tribunal accepted that an imminent risk of harm was not established. Further, he was represented by experienced Counsel at the hearing of the disciplinary Referral. At the commencement of the hearing, his Counsel agreed that the disciplinary ground alleged was pursuant to s 92(1)(h), ‘not suitable to teach’. The first mention that the ground alleged was broader appears to emerge in oral submissions some months after the evidence had concluded, when his Counsel submitted that the Referral as drafted required the QCT to prove an imminent risk of harm to children as referred to in s 49.
- The QCT submits that having found that CSK is not suitable to teach, the Tribunal ought to have found the disciplinary ground was proved and was required at law to make a decision pursuant to s 160 of the QCT Act. Instead, it abrogated its jurisdiction and erred in law by dismissing the Referral. We agree.
- The Tribunal found that CSK is not suitable to teach. A disciplinary referral was made for the Tribunal to hear and decide the Referral: s 97(4)(b). Its task was to decide ‘whether a ground for disciplinary action against the relevant teacher had been established’: s 158(1). If it decided that a disciplinary ground was established, then pursuant to s 160(2), it was required to do one or more of the specified things.
- If the Tribunal decided that no disciplinary ground has been established, pursuant to s 150, it was required to end the s 49 suspension. It did not, in any event, make this order either.
CSK’s submissions alleging that the Tribunal made errors of fact and mixed law and fact
- The QCT observed in its oral submissions that CSK has not cross-appealed in the proceedings. Nor do his written submissions on appeal attack the Tribunal’s conclusions about his unsuitability to teach. Therefore, in written submissions, the QCT submitted that the Tribunal’s finding that he is not suitable to teach is not challenged. It is convenient to deal next with CSK’s submissions in response, before disposing of the QCT’s appeal grounds 4 and 5.
- In his oral submissions, as discussed earlier, CSK said that he had not been aware he could make any submissions about the decision of the Tribunal. He said that had he been aware, he would have submitted that there were errors of fact. CSK then made submissions to the effect that he challenges three discrete factual findings made by the Tribunal, and its conclusion that he is not suitable to teach. He submits that the three alleged factual findings made in error form part of the basis of the Tribunal’s finding that he is not suitable to teach. In effect, he submits that if those findings fall away, the Tribunal’s conclusion about his unsuitability to teach cannot stand.
- Firstly, CSK submits that the Tribunal erred in finding that students were allowed to drive his car, because (his evidence was that) he had never owned a Hilux. However, the Tribunal did not find that he owned a Hilux. It referred to some inconsistency, vagueness and unreliability in the students’ accounts of events. However, it ultimately accepted that some of them drove CSK’s car in the vicinity of the fishing spot, without making a finding about the make or model of the car. CSK admitted (and he does not challenge the Tribunal’s finding to this effect) to allowing one of the students ‘to idle his car through the school gates,’ although he otherwise denied allowing them to drive his vehicle.
- In determining proceedings, the Tribunal must often decide which evidence it accepts and whether it prefers the evidence of some witnesses over the evidence of other witnesses. Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlying it.
- It is not enough that the appellate tribunal comes to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the appellate tribunal can interfere. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- The Tribunal was entitled, having considered all of the evidence, to prefer the evidence of the students to CSK on this issue. It considered, in essence, that this was something of particular interest to students of their then ages, and something they were likely to recall. We consider it is sufficiently clear (reading the other paragraphs of the reasons concerning the allegations of students driving his vehicle and the related paragraphs of the Tribunal’s reasons about the fishing trips) that the Tribunal accepted the driving occurred during the fishing trips. On the basis of the multiple accounts, the Tribunal was entitled to conclude that the evidence established to the requisite standard that CSK allowed students to drive his car in the vicinity of the fishing spot.
- The relevant findings of the Tribunal are made in its reasons for decision about allegation 1.1.2, which relates to CSK addressing a staff meeting and stating that any staff member raising allegations against him of favouritism towards certain students would be subject to legal action and/or employment consequences.
- In paragraph  of its reasons for decision, the Tribunal said that the question was whether CSK appropriately addressed concerns about alleged boundary violations. It found that he did not. It referred to the relevant Departmental policy requiring that incidents be reported to the Ethical Standards Unit. It found that CSK did not do so. The Tribunal went on to state that where the suspicion concerns grooming behaviours and relate to the Principal, the matter must be referred to the Principal’s supervisor. It further stated that reporting is mandatory and a written report should be sent to Ethical Standards Unit and the Queensland Police. CSK told the Tribunal he reported the incident to his supervisor but he did not provide a written report.
- In respect of allegation 1.1.2, the Tribunal was satisfied that even if CSK had reminded staff of reporting obligations, he delivered the message in a bullying way, and threatened staff with dismissal or transfer if they acted against him.
- It is not entirely clear what finding the Tribunal made, if any, about compliance with the Departmental policy. It found that CSK did not provide a written report to the Ethical Standards Unit. The Tribunal seemed to acknowledge that it was his supervisor who was obliged to make the report. In any event, the discussion and findings about that point are not significant to the overall findings about allegation 1.1.2 to the effect that CSK had threatened staff members who raised allegations against him. Accordingly, even if CSK was correct and the Tribunal erred in its comments about the policy requirements as alleged, it would not affect the finding made about allegation 1.1.2.
- Thirdly, CSK submits that the Tribunal erred in preferring Teacher 4’s evidence over CSK’s evidence, because Teacher 4 changed his evidence. In particular, he submits that the Tribunal erred in finding that no one was aware of the sleepover prior to it occurring, which he submits is incorrect. This submission appears to be based upon the Tribunal’s alleged acceptance of Teacher 4’s evidence. In particular, CSK says in his affidavit that evidence was adduced at the hearing that Mr Prior conspired with Teacher 4 to alter his witness statement, as disclosed by an email trail attached to the affidavit filed in the Appeal.
- The email trail includes a copy of an email between Teacher 4 and Mr Prior which was Exhibit 21 before the Tribunal. However, it also attaches a copy of a second email between them which does not appear to have been before the Tribunal. This second email contains another copy of the same email from Mr Prior to Teacher 4 as is contained in Exhibit 21, but Teacher 4 sent another response which is as follows:
Sorry Daryn, I meant to say at the start of the email * no knowledge of the sleepover until after it happened – David let me know on school camp but Bianca hadn’t told me until I had returned from camp.
- This issue relates to the Tribunal’s consideration of allegation 1.1.19 in paragraphs  to  of the reasons for decision. The allegation is to the effect that CSK ‘permitted and caused’ four boys to sleepover at his home as a reward for work done in the garden and games room. The issue raised on appeal by CSK is that because Teacher 4 had given inconsistent evidence about when he knew of the sleepover (a couple of days beforehand or no prior knowledge of it), the Tribunal erred in finding that no one was aware of the sleepover prior to it occurring.
- The Tribunal was cognisant of the inconsistent evidence, which it discusses in paragraphs  and . The Tribunal concluded that, whether he knew about it beforehand or not, Teacher 4 does not say that CSK asked him to assist in supervising the sleepover. The Tribunal preferred Teacher 4’s evidence over CSK’s ‘in that regard.’ On a plain reading of those words, the Tribunal is referring to the evidence about whether or not CSK asked Teacher 4 to assist in the supervision of the sleepover. Its finding did not relate to when Teacher 4 became aware of the sleepover.
- Although the argument CSK makes about collusion between Mr Prior and Teacher 4 is not entirely clear, it is apparent that it is said to arise and be evident from the email trail at Exhibit 21 and the further email attached to CSK’s affidavit in the appeal proceedings. The email from Mr Prior to Teacher 4 seeks clarification from Teacher 4 about whether he was to be in attendance at the sleepover as the other staff member, but pulled out at the last moment. Mr Prior’s email sets out an extract of CSK’s evidence to that effect and Teacher 4 is asked to respond to it.
- CSK’s submissions before the Tribunal were to the effect that Teacher 4’s position only changed after the investigator unfairly put CSK’s version of events to him, but then did not seek an explanation about why his position had changed. There is nothing in the email from Mr Prior to Teacher 4 which suggests collusion between them, nor in Teacher 4’s response contained in Exhibit 21 or the further email relied upon by CSK in these appeal proceedings. As we read it, Mr Prior’s email was no more than a request for information, and Teacher 4’s emails contain his responses. It may have been prudent for the investigator to follow-up with Teacher 4 about the inconsistency concerning when he became aware of the sleepover. However, Teacher 4’s evidence was tested at the hearing. In any event, as discussed, the Tribunal did not make a finding about when Teacher 4 knew of the sleepover, nor was it the issue in allegation 1.1.19.
- As discussed earlier, an appeal tribunal will be reluctant to interfere with findings of fact which are supported by the evidence. The Tribunal had the advantage of seeing the witnesses including CSK and Teacher 4 and ultimately preferred Teacher 4’s evidence about whether he was to be the other supervisor. Teacher 4’s evidence was consistent throughout that he was not (and in effect that he could not have been) the other supervisor. Six months beforehand he had purchased tickets for a concert in Cairns for that weekend. He had asked CSK for time off to attend it because it was a very lengthy drive. CSK was unable to give him the time off he sought, so he had to leave immediately after school on the Friday. He then met a bus in Townsville for a school camp at Magnetic Island on the following Monday morning.
- His evidence about why he could not have been the other supervisor is plausible. No doubt the Tribunal considered that it added weight to his evidence that he was not going to be in the town when the sleepover was held, and that it had been known by CSK for many months that he would not be. It was open to the Tribunal to accept Teacher 4’s evidence that he was not asked to assist to supervise the sleepover in preference to CSK’s evidence to the effect that Teacher 4 was to attend but became unavailable at short notice. There is no basis upon which we would interfere with the Tribunal’s decision to accept Teacher 4’s evidence.
- CSK further submitted that although he does not contest the Tribunal’s findings that he did not have written permission for students to do various things with him, he maintained that he always had oral permission. He says that he does not agree with the manner in which the Tribunal construed this. The Tribunal acknowledged that the evidence was that CSK (sometimes) had oral permission. CSK does not in any event allege error by the Tribunal.
- CSK conceded that the Tribunal’s findings of fact are largely correct, and there are many he did not challenge. However, those findings, he submits, do not establish that he is not suitable to teach. He argues that the three findings which he challenges led the Tribunal to conclude that he is not suitable to teach. He argues that the factual findings which remain (if he succeeds on those arguments) do not support a finding that he is not suitable to teach. In making these submissions, he argues that none of the matters referred to in s 12 of the QCT Act are established by the factual findings.
- We reject those arguments. In respect of the three errors of fact alleged by CSK, we are not satisfied that the Tribunal erred in any of the respects which CSK contends.
- Even if we were wrong, and the Tribunal did err in relation to all or any of these three factual matters, CSK cannot succeed on the argument that the remaining findings do not support the finding that he is not suitable to teach.
- The Referral alleged 35 particulars. The final particular alleged that CSK’s actions amounted to grooming behaviour. The Tribunal struck out the allegation of grooming at the commencement of the hearing. The Tribunal considered whether the 34 remaining allegations set out in the Referral were established. It accepted that a significant number of them were, although it was not satisfied that all factual aspects of the original allegations were established in all cases.
- After considering each of the allegations made, the Tribunal then separately discussed again whether CSK failed to maintain appropriate professional boundaries; failed to maintain objective and impartial levels of disciplinary standards for students under his care and control; and failed to address appropriately concerns within his knowledge about boundary violations with the students under his care and control. In each case, it summarised and discussed findings it had earlier made in relation to the specific allegations, and drew some general conclusions about CSK’s lack of judgment and lack of insight into the effect of his behaviours and their impact as it concerned each of the three categories.
- The Tribunal then considered whether he was unsuitable to teach in that his registration to teach is liable to be suspended under s 49 of the QCT Act. The Tribunal said that it found some of his activities rendered him unsuitable to teach and that it was satisfied that there was sufficient evidence that CSK was not suitable to teach. (However, the Tribunal goes on to say that because, it says, the evidence does not establish an imminent risk of harm, the Referral must be dismissed). Although the Tribunal does not consider criteria that might render a teacher not suitable to teach, it is apparent that it accepted that if the three failures alleged were established, then CSK is not suitable to teach.
- As discussed earlier, in considering whether a teacher is not suitable to teach, tribunals have regularly referred to the matters in s 12 of the QCT Act. We agree that the facts as found by the Tribunal, and the many identified failures found flowing from them, demonstrate that CSK has behaved in a way which does not satisfy the standard of behaviour expected of a teacher. We agree that he is not suitable to teach.
- Accordingly, the finding that he is not suitable to teach would be unchanged. For these reasons, CSK’s arguments in the appeal proceedings do not assist him.
- For completeness, we note that he would have been unsuccessful had he cross-appealed on these bases, because we would not have granted him leave to appeal.
Grounds of Appeal 4 and 5: Did the Tribunal err in finding that the QCT did not establish that CSK was an imminent risk of harm to children?
- Given our conclusions, we do not need to decide whether to grant leave to appeal in respect of grounds 4 and 5 of the QCT’s appeal.
- In case we are wrong, we will consider these grounds.
- The allegations (or part/s of them) which the Tribunal was satisfied demonstrated failures to maintain proper professional boundaries or appropriate professional standards included:
- Allegation 1.1.5, associating with a child on weekends other than for school activities;
- Allegation 1.1.9, driving a child without written permission to another town to mow his wife’s lawn;
- Allegation 1.1.11, removing some specific children from school to take them to hardware shops (for obtaining school supplies) and to McDonald’s, which was regarded as a treat;
- Allegation 1.1.12, removing the same specific children from school to shop for cooking class ingredients, which was regarded as a treat and created jealousy amongst other students;
- Allegation 1.1.15, requesting and allowing several children to attend his home on weekends to perform yard work, for reward and without written permission;
- Allegations 1.1.16 and 1.1.17, driving boys to another town outside of school hours to mow his wife’s lawn, then taking them to a fete and buying them drinks and hamburgers for dinner;
- Allegation 1.1.19, permitting and organising a sleepover for specific children at his home as a reward for work done on the garden and the games room;
- Allegation 1.1.20, taking students fishing after school and on weekends without written permission;
- Allegations 1.1.21 to 1.1.24, allowing unlicensed students to drive his car without parental permission; and
- Allegations 1.1.32, paying for and taking two students with him on a helicopter ride during a school camp exclusive of and separately from the activities undertaken by others attending the camp, without written permission, and as a reward for the children.
- The QCT submits that having regard to the Tribunal’s findings about these particulars, the evidence established to the requisite standard that CSK is an imminent risk of harm to children. It submits that the Tribunal became side-tracked into looking at grooming, concluding that because there was no allegation of grooming behaviour, no imminent risk of harm was established. It submits that in doing so, the Tribunal failed to consider other facts found by it, in determining whether there was an imminent risk of harm.
- The Tribunal remarked that the QCT had implicitly framed its case on the basis that it suspected CSK was grooming the students. It then went on to consider whether grooming could have been established, noting that there was no allegation of grooming (it having been struck out). It concluded that grooming could not have been established.
- We agree that the Tribunal does appear to have concluded that, absent an allegation of grooming, and any finding that the facts as found amounted to grooming behaviours, it was not open to it to conclude that there was an imminent risk of harm. On a fair reading of its reasons, it did this, as the QCT submits, without considering whether the facts as found were adequate to substantiate a finding that CSK posed an imminent risk of harm to children.
- The ordinary meaning of the word, ‘imminent’, connotes a degree of immediacy: something likely to happen soon. ‘Harm’ is defined in s 7 of the QCT Act. We have considered those matters which the QCT submits demonstrate an imminent risk of harm, but like the Tribunal, we would not accept despite the many instances as found by the Tribunal of behaviour which does not meet the standard of behaviour generally expected of a teacher, that CSK poses an imminent risk of harm to children. Our observations to this effect do not relate to whether or not there was alleged grooming behaviour. Our conclusions arise from the nature of the findings of fact referred to in some detail in earlier paragraphs, which are not repeated here. Although he is not suitable to teach, CSK does not pose an imminent risk of harm to children.
- Although our reasons would differ, we would reach the same conclusion as the Tribunal. We would not grant leave to appeal in respect of these grounds.
The QCT’s application to amend the Referral
- In view of our conclusions about the Tribunal’s errors of law, we do not need to decide whether to allow the QCT to amend its Referral to delete the words ‘in that his registration to teach is liable to be suspended under s 49 of the Act’.
- However, in case we are wrong about the grounds of appeal, we will consider this application.
- Counsel for the QCT submitted that there is no doubt the Appeal Tribunal has the power to amend the initiating document. He said the power was bestowed expressly by s 64 of the QCAT Act.
- Section 64(1) provides that:
The tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended.
‘Relevant document’ is defined in s 64(4) to include an application or referral. ‘Proceeding’ is defined to include an appeal before the appeal tribunal.
- Therefore, the Appeal Tribunal has the power under s 64 of the QCAT Act to make an order requiring the Referral to be amended. The question then becomes whether it would be appropriate in the exercise of the Appeal Tribunal’s discretion for the power to amend to be exercised.
- Counsel for the QCT made submissions about matters which he said would lead the Appeal Tribunal to exercise its discretion. Counsel referred to the fact that the amendment removes an allegation, rather than adds one; if it had been made at trial, the case would not have been conducted differently; the respondent now accepts all the factual findings; the statute is a regulatory statute designed to protect the public; and if they were not successful on grounds 1, 2 and 3, a bizarre result emerges when Parliament has dictated that persons who are not suitable to teach ought to be disciplined and regulated but through some perceived technicality discipline is avoided.
- We agree generally that these are persuasive arguments in favour of an exercise of discretion to allow the amendment. We note that CSK challenged some of the factual findings of the Tribunal in his subsequent oral submissions.
- The question that then remains is what would follow from that amendment. No submissions were made about that matter.
- It is not clear that the Appeal Tribunal would have power to proceed to make the other orders which it appears the QCT would then ultimately seek, that is, setting aside the Tribunal’s decision of 30 October 2015, and declaring that a ground of disciplinary action is established.
- Sections 146 and 147 empower the Appeal Tribunal to make orders in deciding appeals, respectively, on a question of law only or against a decision on a question of fact only or a question of mixed law and fact. The application to amend the Referral is framed as an independent application in the alternative, if the appeal and application for leave to appeal fail. It is therefore unclear whether this Appeal Tribunal could make the other orders in addition to an order requiring amendment of the Referral.
- Given that we are allowing the appeal on grounds 1, 2 and 3, it is unnecessary to decide this point.
Conclusions and orders
- In light of our findings on grounds 1, 2 and 3 that the Tribunal erred at law, we must dispose of the appeal under s 146 of the QCAT Act. In view of our findings, we make orders allowing the appeal and setting aside the Tribunal’s decision.
- For the reasons explained, we are not satisfied that the proper construction of the Referral and the QCT Act results in prejudice to CSK. Therefore, we make orders about whether a ground for disciplinary action against CSK exists. The Tribunal found that CSK is not suitable to teach. Based on the Tribunal’s factual findings, and on a proper construction of the Referral, we declare that a ground for disciplinary action has been established against CSK, namely that he is not suitable to teach.
- The Tribunal did not make observations about the action it would take under s 160 in the event that it erred in its decision about substantiation of the disciplinary ground. Accordingly, the issue of sanction must be remitted to the Tribunal for reconsideration according to law. We make orders accordingly, and for the Tribunal to make such directions as it sees fit for further evidence and submissions.
- Finally, we direct that APL489-15 travel with OCR212-14 until the proceedings are concluded to ensure the Tribunal has access to the transcript of its hearing, which is filed as part of APL489-15.
- A non-publication order was made in the earlier proceeding, prohibiting publication of the names of students referred to in the documents or other details which may identify them. We make a similar order in these proceedings. Because the school is in regional Queensland, to comply with the order, the teacher’s name was de-identified in the Tribunal’s reasons, as was the names of the teachers at the school at the relevant time. Whilst the same naming protocol has not been used in these reasons, the teacher’s name will remain de-identified.
  QCAT 426.
  QCAT 426, at  and .
 A respondent to an appeal may rely upon any ground to sustain the decision under appeal: see, for example, Osbourne & Co v Anderson  VLR 427 at 436.
 QCAT Act, s 142.
 Ibid, s 142(3)(b).
 Pickering v McArthur  QCA 294, at .
 Lovell v Lovell (1950) 81 CLR 513.
 Ericson v Queensland Building Services Authority  QCA 391, at ; Albrecht v Ainsworth & Ors  QCA 220, at .
Albrecht v Ainsworth & Ors  QCA 220, at .
 QCAT Act, s 147(2).
Greater Wollongong City Council v Cowan (1955) 93 CLR 435.
 See, for example, Palmer v Clarke (1989) 19 NSWLR 158, at 162.
 See State of Queensland v Aigner  QCATA 151, especially at -.
 QCAT Act, s 19.
 That is, in the absence of any modifying provision in an enabling Act which may constrain the review: QCAT Act, s 6 and s 7.
 QCT Act, s 3(1)(c).
 Acts Interpretation Act 1954 (Qld), s 14A.
 QCT Act, s 50(1).
 Ibid, s 50(3)(c).
 Ibid, Schedule 3, Dictionary, ‘serious offence.’
 Ibid, s 50(2)(c).
 Ibid, s 53. See also s 54 and s 55.
 ‘Disciplinary body’ is defined in s 97(2) of the QCT Act to include QCAT.
 QCT Act, s 97(4)(b).
 Ibid, Schedule 3, Dictionary, ‘disciplinary matter’, and s 93, s 95 and s 96.
 See also QCT Act, s 11 and s 12A.
 QCT Act, s 8(1)(b).
 Ibid, s 10(1)(c).
 Ibid, s 12(1)(b).
 Ibid, s 12(3)(a).
 Ibid, s 12(3)(b).
 See, for example, Queensland College of Teachers v DCG  QCAT 29; Queensland College of Teachers v BJH  QCAT 356; Queensland College of Teachers v NBC  QCAT 246; Queensland College of Teachers v DS  QCAT 373; Queensland College of Teachers v Teacher EAJ  QCAT 29; and Queensland College of Teachers v Kyei  QCAT 335.
 QCT Act, s 92(2)(b).
 Ibid, Schedule 3, Dictionary, ‘disciplinary committees’ means the PP & C committee and QCAT when undertaking disciplinary action under this Act.
 Ibid, s 158(1).
 Ibid, s 159.
 Ibid, Schedule 3, Dictionary, ‘approved teacher’.
 Ibid, s 160.
 Ibid, s 160(2)(a).
 Ibid, s 160(2)(b).
 Ibid, s 160(2)(c).
 Ibid, s 160(2)(d) and (e).
 Ibid, s 160(2)(k).
 Section 92 of the QCT Act may be contrasted with s 56, which relevantly provides for automatic cancellation of teacher registration, in circumstances of conviction for a serious offence or becoming a relevant excluded person: see QCT Act, Schedule 3, for definition of ‘relevant excluded person’.
 QCT Act, s 92(2)(a)(ii).
 Ibid, s 92(5).
 Briginshaw v Briginshaw (1938) 60 CLR 336.
  QCAT 426, at - and .
 Relying upon Legal Services Commissioner v Madden  1 Qd R 149.
 QCT Act, s 92(4).
 Transcript 18 May 2015, 1-17.
 Transcript 28 September 2015, 1-3 and 1-4.
 Transcript 31 March 2016, at 1-54 to 1-55, referring to  QCAT 426, especially at  and .
 The students’ accounts about driving are set out at -.
  QCAT 426, at  and .
 Ibid, at .
 Ibid, at .
Dearman v Dearman (1908) 7 CLR 549, at 561; Fox v Percy (2003) 214 CLR 118, at 125-126.
 Lovell v Lovell (1950) 81 CLR 513.
Chambers v Jobling (1986) 7 NSWLR 1, at 10.
 Exhibit 34 and numbered ‘DAP-13’.
 The Tribunal addresses this in its reasons for decision, at -.
 Transcript 31 March 2016, at 1-55 to 1-58.
  QCAT 426, at -.
 Exhibit 34 and numbered ‘DAP-13’.
  QCAT 426, at .
 Ibid, at .
 Ibid, at -. Regarding Teacher 4’s inconsistent evidence and the Tribunal’s treatment of it, see -, and . See also Exhibits 15, 16, 17 and 21.
 Transcript 31 March 2016, 1-58 to 1-61.
 Affidavit of CSK, at .
 Exhibit 17.
 Exhibits 15 and 16, and transcript 20 May 2015, 3-40 to 3-45.
  QCAT 426, at .
 Respondent’s outline of submissions filed 31 July 2015, at .
  QCAT 426, at  referring to Exhibit 36.
 Transcript 31 March 2016, at 1-72.
 See, for example,  QCAT 426 at , ,  and .
 Transcript 31 March 2016, at 1-72.
 Transcript, 18 May 2015, at 1-3 and 1-15 to 1-22.
  QCAT 426 at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at .
 Ibid, at .
 QCT Act, s 12(3)(a).
  QCAT 426 at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at -.
 Ibid, at .
 Ibid, at -.
 Ibid, at .
- Published Case Name:
Queensland College of Teachers v CSK
- Shortened Case Name:
Queensland College of Teachers v CSK
 QCATA 125
Sheridan DP, Member Howard
31 Aug 2016