Chief Executive, Department of Education, Training and Employment v Mt

[2012] QCAT 607

CITATION: Chief Executive, Department of Education, Training and Employment v MT [2012] QCAT 607

PARTIES:	Chief Executive, Department of Education, Training and Employment (Applicant)
v
MT (Respondent)

APPLICATION NUMBER: CML176-12

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 15 November 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.   The application by The Chief Executive, Dept of Education, Training and Employment for an Interim Order is refused.

2.   Leave is not granted to the Chief Executive of the Department of Education, Training and Employment to be legally represented in this proceeding.

3.   Leave is granted to the Chief Executive of the Department of Education, Training and Employment to appear by a government legal officer employed by that department.

CATCHWORDS:

PROHIBITING ENTRY ONTO SCHOOL PREMISES – where interim order being sought – where direction already in place prohibiting entry onto school premises – where leave for legal representation sought – where interests of justice not found to require legal representation – where leave sought for State Agency to appear via a government legal officer

Queensland Civil and Administrative Tribunal Act 2009, ss 43, 58
Education (General Provisions) Act 2006, ss 340, 341

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. MT[1] was found to have assaulted a student of a State school on 11 May 2012.  It is further alleged that MT made verbal threats of physical harm against students of that school on 14 May 2012, 23 July 2012, 24 July 2012 and 4 September 2012.  It is alleged that MT was verbally abusive towards and threatened physical harm to the acting Principal of that school on 24 July 2012.  MT pleaded guilty and was convicted on 7 August 2012 of assault occasioning bodily harm on 11 May 2012.  She was placed on probation for a period of 12 months.   

   [1]On 23 November 2012, subsequent to this decision but prior to the reasons being published, the Tribunal made an order prohibiting the publication of the name of the respondent and her children.

2. The Chief Executive of the Department of Education, Training and Employment has applied to QCAT to make a direction under section 341 of the Education (General Provisions) Act 2006 to prohibit MT from entering the premises of the State school for a period of up to one year.  That application will come on for hearing on 23 November 2012.

3. The Chief Executive applied for an interim order to prohibit MT from entering the school premises before the hearing. Under section 58 of the QCAT Act, the tribunal can make an interim order in a proceeding if it considers it appropriate in the interests of justice. An interim order can be made for example to protect a party’s position for the duration of the proceeding or to secure the effectiveness of the exercise of the tribunal’s jurisdiction in the proceeding.[2]

   [2] Section 58(1) of the QCAT Act.

4. According to evidence provided to QCAT, a direction had been given on 25 September 2012 by a delegate of the Chief Executive to MT under section 340 of the Education (General Provisions) Act 2006 not to enter the school’s premises for a period of 60 days from that date.  MT is required to comply with that direction.  The period of prohibition brought into being by the direction given by the Chief Executive will not expire until 25 November 2012.

5. As the hearing of the application brought to QCAT will take place prior to the expiry of that particular period of prohibition, there was no need established on the evidence provided to QCAT for any interim order to be made.  MT was already lawfully prohibited from entering onto the school’s premises until 25 November 2012.  Making an interim order prohibiting her from entering the same premises until 23 November 2012 would be futile.  The application for an interim order was dismissed. 

6. If the tribunal finds that it cannot finalise its consideration of the application on 23 November 2012, then the tribunal can at that time on its own initiative make an interim order at the conclusion of the hearing to have effect until a final decision is handed down. 

7. The Chief Executive applied for leave to be legally represented in the proceeding.  Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.[3] Section 43 of the QCAT Act sets out some factors that the tribunal may have regard to when considering if in a particular case the interests of justice require leave for legal representation.

   [3] Section 43(1) of the QCAT Act.

8. While the Chief Executive is an officer of a State Agency, I was not convinced that this factor gave rise to a requirement that leave be granted.  The Department would have government legal officers in its employ who provide legal advice and support on a wide range of action taken by government to implement its responsibilities under the Education (General Provisions) Act 2006. Those government legal officers would be familiar with the provisions in that Act and could assist the tribunal with clarification of any points raised at the hearing. 

9. The tribunal can achieve its objects to deal with matters in a way that is accessible, fair, just, economical, informal and quick by having the parties directly inform the tribunal about the issues to be determined and by placing into context the evidence provided to the tribunal.  MT has been found guilty of the assault on 11 May 2012 and the tribunal cannot go behind that conviction.  The past conduct of MT in violently attacking a student at the school cannot be disputed.  The only issues are whether or not the circumstances warrant the tribunal from prohibiting her entry onto the school premises for a period of up to one year.

10. On that basis, the issues to be determined will not involve complex questions of fact or law.  The facts to be relied on are to be revealed before the hearing.  A direction has been made that no party will be allowed to present any evidence that is not contained in a filed statement.  There will be limited scope for cross examination of the Department’s witnesses.  The only relevant evidence that is open for challenge relates to the reasonableness of the apprehension that MT will cause further harm or will disrupt the good order and management of the school if she were to be permitted to enter back onto the school premises.  Even if MT appears at the hearing, there is likely to be little she can say on this point.    

11. After taking all the submissions put forward on behalf of the Chief Executive into account, I was not persuaded that I must depart in this case from the starting point of the clear legislative mandate that parties are expected to represent themselves at QCAT.  The interests of justice do not require me to give the leave sought.  The application for leave to be legally represented was dismissed. 

12. Submissions were also made that QCAT should give leave for a government legal officer from the Crown Law Office to appear for the Chief Executive in this proceeding.  I am quite prepared to give leave for the Chief Executive to appear via a government legal officer employed by the Department as the appearance at the hearing of such a person would be of assistance to the tribunal.  I am not prepared to give leave for the appearance to be via a Crown Law officer as such an outcome is tantamount to giving leave for legal representation.  It would permit the Chief Executive to be legally represented by lawyers from outside the relevant State Agency and would be inconsistent with the reasons set out above.