Queensland College of Teachers v A Teacher

[2011] QCAT 329

CITATION: Queensland College Of Teachers v A Teacher [2011] QCAT 329

PARTIES:	Queensland College Of Teachers
v
A Teacher

APPLICATION NUMBER:   OCR086-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Margaret McLennan – Presiding Member
Michelle Howard   -  Member
Beverley Day       - Member

DELIVERED ON: 8 JULY 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Leave is given to the Queensland College of Teachers to withdraw its application to the tribunal in OCR086-10.

2.    In relation to OCR086-10 the tribunal prohibits the publication of:

a)    the contents of any document produced to the tribunal and contained in  the tribunal file;

b)   any information that may enable identification of:

(i)      the complainant;

(ii)     the respondent teacher;

(iii)     the school; and

(iv)     the town where the alleged incidents occurred

other than to the applicant, the respondent, the respondent’s employer being the Department of Education and Training and their respective legal representatives.

c) That these reasons be published in a de-identified format in compliance with this order.

CATCHWORDS : 

Education (Queensland College of Teachers) Act 2005; approved teacher; Queensland Civil and Administrative Tribunal Act 2009 s.46(1) withdrawal of application; s.66(2)(e) non-publication order.

APPEARANCES and REPRESENTATION (if any):

ON THE PAPERS

REASONS FOR DECISION

1. In an application dated 10 May 2011 and received in the Queensland Civil and Administrative Tribunal (“the tribunal”) on 12 May 2011, the Queensland College of Teachers (“the QCT”) sought leave to withdraw its application dated 8 April 2010 for disciplinary proceedings in the tribunal.  Accompanying the application to withdraw were submissions filed subsequent to a compulsory conference conducted on 4 May 2011 in relation to the matter.

2. The QCT had received a complaint on 1 February 2007 pursuant to s.87 of the Education (Queensland College of Teachers) Act 2005 (“the Act”). The complainant also lodged a complaint.An investigation ensued and a report was prepared. Under s.97 of the Act where the QCT reasonably believes a ground for disciplinary action against a teacher exists, it is required to commence disciplinary proceedings by referral to the relevant disciplinary body. There is, after that referral is made by application to the tribunal, no statutory discretion available within the Act to discontinue the referral.

3. Based on the deficiencies in evidentiary matters, the QCT can no longer substantiate a “reasonable belief” as to a ground for disciplinary action existing.  The QCT submits that inevitably in this application, the tribunal would have regard to the Longman[1] issues.  For example, the alleged conduct dates back 37 years and there are issues going to reliability and credibility of the only available corroborative evidence.  The corroborating witness in an unsigned police statement initially corroborated certain aspects of the complainant’s version.  This witness in QCT interviews subsequently retracted those corroborating statements.  There is difficulty because of the effluxion of time for the respondent teacher to find witnesses.

   [1] Longman v R (1989) 168 CLR 79

4. Section 46(1) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides for a withdrawal of an application to the tribunal with the leave of the tribunal.

5. The QCT in support of its withdrawal application also submits that in relation to the complainant’s evidence, there are issues of credibility and reliability. It bases these submissions on the progress notes obtained from the relevant clinic where the complainant was treated in multiple admissions for major depression. The assertion of unreliability and lack of credibility rely upon brief hand-written notations in the complainant’s progress notes that included:

   “instances of repressed memory therapy exploring issues of childhood  sexual abuse . . . ;

   Clinical progress notes indicating a number of sexual abusers during the complainant’s life.”

6. The QCT asserts that inferentially the clinical comments could be construed as indicating possible inaccuracy or distortion in identifying a perpetrator and certainly taint the reliability and credibility of the complaint’s version.

7. The tribunal rejects these assertions of the QCT.  For these submissions to be considered as relevant by the tribunal, it would have required a statement from the treating psychiatrist addressing the likely reliability and credibility of the complainant. The credibility of a person with a mental illness cannot be assumed to be compromised on the basis of the notation relied upon in the progress notes regarding therapy and clinical history. That is, the tribunal does not accept these assertions without psychiatric substantiation.

8. However, that aside, based on the significant issues identified in the QCT’s submissions referred to in paragraph 3 above and the respondent teacher’s consent dated 18 May 2011, the tribunal gives leave from the date of this decision for the withdrawal of the QCT’s application in OCR086-10.

9. On 18 May 2011 the respondent teacher’s legal representative Macrossans Lawyers applied for a non-publication order pursuant to s.66 of the QCAT Act. It was submitted that the allegation of serious sexual misconduct, emphatically denied by the respondent teacher, dates as far back as 1974. Following a police investigation, there had been no preferment of charges. It would not be appropriate for the allegations against the respondent teacher to be published based on the mere fact of the QCT’s referral to the tribunal, now being withdrawn prior to hearing.

[10]  The QCT in its response dated 25 May 2011 to the respondent’s non-publication application, stated that a large volume of very sensitive material had been produced to the tribunal, there was no scrutiny of evidence in a hearing and no definitive finding.  The risk of potential injustice resulting from publication provides a basis for non-publication.

[11]  The tribunal agrees with the non-publication submissions.  It would be a substantial injustice to the respondent teacher were any of the material received in the tribunal to be published.

[12] Pursuant to s.66(2)(e) the tribunal considers it is necessary in the interests of justice to make the following non-publication orders:

In relation to OCR086-10 the tribunal prohibits the publication of:

a)    the contents of any document produced to the tribunal and contained in  the tribunal file;

b)    any information that may enable identification of:

(i)the complainant;

(ii)the respondent teacher;

(iii)the school; and

(iv)the town where the alleged incidents occurred

other than to the applicant, the respondent, the respondent’s employer being the Department of Education and Training and their respective legal representatives.

c)    These reasons are to be published in a de-identified format in compliance with this order.