Amundsen v Queensland College of Teachers

[2011] QCATA 2

CITATION: Amundsen v Queensland College of Teachers [2011] QCATA 2

APPELLANT:	John Howard AMUNDSEN
v
RESPONDENT	QUEENSLAND COLLEGE OF TEACHERS

APPLICATION NUMBER:   APL337-10

MATTER TYPE: Appeals

HEARING DATE:     10 January 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, Acting Deputy President

DELIVERED ON: 10 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave to appeal is dismissed.

CATCHWORDS :  APPLICATION FOR LEAVE TO APPEAL – sections 142(3)(a)(ii) or (b) of the Queensland Civil and Administrative Tribunal Act 2009 – no error of fact – no public advantage in leave for appeal being granted

APPEARANCES and REPRESENTATION (if any):

APPELLANT :	John Howard AMUNDSEN on his own behalf
RESPONDENT:	Jon GORMLEY, principal legal officer, appearing for QUEENSLAND COLLEGE OF TEACHERS

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. Disciplinary proceedings were commenced before the Teachers Disciplinary Committee against John Amundsen under the Education (Queensland College of Teachers) Act 2005 on 26 May 2006.  On 1 December 2009 the Queensland Civil and Administrative Tribunal commenced operation and the disciplinary proceedings were transferred to the tribunal as a pending proceeding.

2. Mr Amundsen had been convicted in the District Court of Queensland on 25 February 2008 after pleading guilty to certain criminal offences and the disciplinary proceedings will involve some consideration of those offences and convictions. Mr Amundsen has sought on 3 occasions to delay a hearing of the disciplinary proceedings in the tribunal on the grounds that he intends to appeal against the convictions.  It is now almost three years since the convictions were entered and Mr Amundsen is well out of time to commence an appeal against the convictions. 

3. On 14 April 2010 his request for an adjournment was granted at a time when he was in prison and he successfully argued that due to his imprisonment he was unable to proceed with gathering evidence on which he intended to base his appeal.  On 30 August 2010, after his release from prison, the tribunal made directions that required Mr Amundsen to file submissions about any further application for an adjournment of the hearing of the disciplinary proceedings.   Mr Amundsen complied with the directions and applied effectively for a stay of the disciplinary proceedings until an appeal against the criminal convictions has been completed.  

4. On 23 November 2010 the tribunal refused to stay the disciplinary proceedings and Mr Amundsen has sought leave to appeal against the refusal of his application.   He appears to contend that the tribunal member had made an error of fact in finding that Mr Amundsen had stated that he had filed an appeal against his criminal convictions.  Mr Amundsen contends that he has clearly stated to the tribunal that he is compiling evidence as part of his preparation for an appeal and not that he has filed an appeal.  

5. The written reasons for the tribunal member do not contain a finding of fact as contended by Mr Amundsen. Nevertheless, consideration has been given as to whether there are grounds to grant leave to Mr Amundsen to appeal under sections 142(3)(a)(ii) or (b) of the Queensland Civil and Administrative Tribunal Act 2009 against the decision made on 23 November 2010.  

6. The tribunal agrees with the submissions of the respondent College that leave to appeal under those particular sections should be granted if the applicant can establish one of the following principles[1]:

a)Is there a reasonably arguable case of error in the primary decision?

b)Is there a reasonable prospect that the applicant will obtain substantive relief?

c)Is leave necessary to correct a substantial injustice caused by some error?

d)Is there a question of general importance upon which further argument and a decision of the appellant court or tribunal would be to the public advantage?

[1] As outlined in Woodgate Beach Asian Pacific Realty v Gerard [2010] QCATA 64.

1. Contrary to the contentions of Mr Amundsen, there was no error of fact disclosed in the decision of the learned tribunal member made on 23 November 2010.  Accordingly there is no prospect that an appeal based on the contention that there had been an error of fact would be granted to set aside the decision of 23 November 2010.  

2. Has there otherwise been a substantial injustice caused to Mr Amundsen by some relevant error on the part of the learned tribunal member?  There is nothing before the tribunal to establish that his substantive case in response to the disciplinary proceedings has been prejudiced by the decision to refuse a stay or adjournment of those proceedings at this stage. Mr Amundsen’s argument that a successful appeal against his convictions is a factor that the tribunal should take into account when determining the disciplinary proceedings has not been rendered nugatory by the decision of 23 November 2010.  The persuasiveness of this argument on the outcome of the disciplinary proceedings is yet to be established.      

3. This leaves the question of whether it would be to the public advantage for leave to appeal to be granted in this case.  The issues raised by Mr Amundsen are of course of particular interest to him but do not in the view of the tribunal otherwise disclose any general importance to the public.  The tribunal is not persuaded that further argument on the issue of a stay or adjournment of the disciplinary proceedings will be of any relevance to the public interest nor would a decision of the appeal tribunal on the issue contribute to the advantage of the public. 

10. The tribunal considers that the public interest is better served by the substantive disciplinary proceedings being moved towards finalisation and not adjourned for some indefinite period while Mr Amundsen seeks to commence and prosecute an appeal against his convictions.  

11. There is not, for the reasons set out, any apparent error in the tribunal’s decision or the process by which it was reached. No important or novel questions are inherent in the matters raised by Mr Amundsen.   

12. Leave to appeal is refused, and the application for leave to appeal is dismissed.