Mills v Department of Education and Training
[2016] QCAT 423
•8 November 2016
CITATION: | Mills v Department of Education and Training [2016] QCAT 423 |
PARTIES: | Jeffery Ian Mills |
| v | |
| Department of Education and Training (Respondent) | |
APPLICATION NUMBER: | GAR015-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 6 October 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O’Callaghan |
DELIVERED ON: | 8 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for disclosure of documents is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – application for production of documents – whether sufficiently particularised – whether relevant – whether in control or control of the respondent Education (General Provisions) Act 2006 (Qld), s 34(1), s 340 |
APPEARANCES: | |
APPLICANT: | Jeffery Ian Mills |
RESPONDENT: | A Lossberg of Counsel, instructed by Crown Law |
REASONS FOR DECISION
Mr Mills seeks to review a decision of the Director-General of the Department of Education and Training (‘DET’) of 16 March 2016 confirming a decision of the Regional Director made on 12 December 2015 to issue a direction pursuant to s 340 of the Education (General Provisions) Act 2006 (Qld) (‘the Act’), prohibiting him from entering the premises of a state school for a period of 60 days.
As is required by the QCAT Act s 21(2), DET lodged in the Tribunal a statement of reasons for the decision and copies of the documents in its possession or control relevant to the Tribunal’s review.
Mr Mills has applied for the production of further documents which he says the Tribunal needs to have in regard to the review.
Section 340 of the Act allows a school Principal to give a person written direction requiring that person not to enter the school for up to 60 days if the Principal is reasonably satisfied that, unless the direction is given, the person is likely:
a)to cause physical harm to, or apprehension or fear of physical harm in, another person when the other person is at the premises; or
b)to damage the premises or property at the premises; or
c)to disrupt the good order or management of the institution
Mr Mills had been the subject of an earlier direction by the Principal Ms Pozzi under the Act. In August 2015, as a result of an incident Ms Pozzi had given Mr Mills a direction imposing conditions on his access to school premises.
The incident in October 2015 which resulted in the s 340 notice involved a verbal altercation with Ms Pozzi at the school gate.
Ms Pozzi did not issue the s 340 notice. It was issued by the Regional Director.
Mr Mills’ application for production of documents is drafted in broad terms.
He asked for:
1. Any documents including but not limited to file notes, telephone messages, emails, internal memos and letters between all or any of the following:
a) Stanthorpe State School including Ms Pozzi, Ms Mann and all others;
b) Regional office staff including but not limited to Greg Dickman, Kylie Dowdle, Tracey Hudson-James and any others;
c) Oakleigh State School including Mr Grant Baker;
d) Queensland Police including any communications with Officers from The Gap or Ferny Grove Stations;
e) DET office including Dr Jim Watterson, Ms Launa McMaster and any other person who has had responsibility for this matter;
f) The legal and administrative branch of DET;
g) Ashgrove electorate office of Kate Jones MP;
h) Ministerial Office of Kate Jones including any staff memos;
i) The Office of the Premier and Cabinet;
j) The Office of the Attorney General;
l) All and any others that have been contacted regarding the entirety of this matter;
2. Any letter of advice relating the above;
3. Personal file of Ms Pozzi;
4. Copies (redacted to ensure privacy of parties) of all s 340 decisions from July 2014 to the date of the Tribunal’s determination of this review;
5. Any other documents reasonably able to be seen in assisting the Tribunal in making a fully informed decision as to the entirety of the conduct of the DET in this matter, which such decision including referring any legal profession act, model litigant or public service ethics act to the appropriate investigative body.
The application for production of documents was set down for oral hearing.
Mr Mills, at the oral hearing, clarified that he did not seek disclosure of all documents between the entities listed, but only those documents that made reference to him.
DET opposed the application for production of documents. It said the application was made without particularity in that it did not identify documents, the documents sought (to the extent identified) were irrelevant, and a large number of the documents were not in its possession or control.
Mr Mills explained that in essence he wanted to establish the background to how the documents already lodged by DET, for example the statements of witnesses who witnessed the conduct, came to be produced.
It would seem that this desire is based on Mr Mills belief that the decision to issue the s 340 directive was not based on any apprehension of physical harm or disruption to the good order or management of the school,[1] but rather, in effect, in retaliation for complaints he had previously made and was in effect victimisation of him by Ms Pozzi and DET.
[1]As provided in s 34(1) of the Act.
DET says this concern is unfounded and the decision to issue the direction was based on the event in October, but that in any event even if there was an improper motive this is irrelevant in a merits review.
I accept that submission. The Tribunal in conducting the review stands in the shoes of the decision maker and decides the matter afresh.[2] The reasons for the decision at first instance are not under review. The Tribunal will consider the evidence concerning the event in October, and decide whether the correct and preferable decision was to issue the notice.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 21.
The material before the decision-maker (including statements of witnesses to the incident) should be available to the Tribunal. Mr Mills will have the opportunity to cross-examine those witnesses and put to them what he says occurred on the day.
To the extent that any of the classes of documents are sought on the basis that they may disclose an ulterior motive for the issuing of the direction, I consider that the documents (even if specified) are not relevant to these proceedings.
DET also notes that certain categories of documents sought are not in their possession or control, namely documents from:
· Ashgrove Electoral and Ministerial Office of Kate Jones;
· Office of the Premier and Cabinet;
· Office of the Attorney-General.
I accept that Mr Mills has failed to identify in these categories any specific documents and their relevance to the application. Further, even if he had, any such documents would be unlikely to be in the possession or control of DET.
Mr Mills also asked for the production of Ms Pozzi’s personal file, including her complaints history. He explains that these documents are relevant because they:
Will allow the Tribunal to determine whether there has been a pattern involving her attempting to discredit anyone who makes a formal complaint against her indicating that the decision was not one made with ‘reasonable satisfaction’ as required by the law.
This confirms, as previously noted, Mr Mills’ desire to establish an ulterior motive to the issuing of the notice. As discussed above, in a full merits review any motive of the original decision-maker is irrelevant.
I am not satisfied, without Mr Mills’ referring me to any particular documents that Ms Pozzi’s personal file would contain documents relevant to the Tribunal’s review of the decision.
Mr Mills’ also seeks copies of all s 340 directions issued by DET from July 2014.
He explained that these documents would give the Tribunal guidance as to the sort of behaviour that warrants the issuing of a notice.
I accept DET’s submission that other departmental decisions in this regard would not assist the Tribunal in determining whether the conduct the subject of this direction justified the issue of the direction. The Tribunal must look at the conduct the subject of this direction and determine whether, applying the test set out in the legislation, that conduct justified the issuing of the notice.
If there are other decisions of the Tribunal where reviews have been sought of such directions and the Tribunal has given guidance of any test to be applied then they would be of assistance.
In summary, I do not consider that Mr Mills has identified in this application any documents that DET may have in its possession or control which may be relevant to the Tribunal’s review of the decision to issue the s 340 notice to Mr Mills.
The application for production of documents is dismissed.
0
0
2