Wat v Queensland College of Teachers
[2022] QCATA 105
•11 July 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
WAT v Queensland College of Teachers [2022] QCATA 105
PARTIES:
WAT (applicant/appellant)
v
QUEENSLAND COLLEGE OF TEACHERS (respondent)
APPLICATION NO/S:
APL324-20
ORIGINATING APPLICATION NO:
OCR304-18
MATTER TYPE:
Appeals
DELIVERED ON:
11 July 2022
HEARING DATE:
10 May 2022
HEARD AT:
Brisbane
DECISION OF:
Acting Senior Member Kanowski
ORDERS:
1. The appeal is dismissed.
2. Leave to appeal is refused.
3. Publication is prohibited of any information which may identify the teacher or the student involved in the matter, any members of the student’s family, and the schools and sports club involved, except to the parties to the proceeding and their legal representatives, and except that the identity of the teacher may be published to:
(a) any employer who employs, or is considering employing, him in a teaching role, or in child-related employment;
(b) his current or future health practitioners;
(c) other teacher regulatory authorities;
(d) the chief executive (employment screening);
(e) the Minister of Education; and
(f) any other entity relevant to the teacher’s practice of the teaching profession.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – where tribunal imposed a disciplinary sanction – whether sanction unjust or unreasonable
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where tribunal made findings about state of mind – whether tribunal failed to take into account relevant evidence
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b)
House v The King (1936) 55 CLR 499
Queensland College of Teachers v Ashton [2010] QCAT 80
Queensland College of Teachers v CSK [2016] QCATA 125Queensland College of Teachers v WAS [2015] QCAT 61
APPEARANCES & REPRESENTATION:
Applicant:
D R Wilson, instructed by Wilson Law
Respondent:
B I McMillan, instructed by Principal Legal Officer, Queensland College of Teachers
REASONS FOR DECISION
Introduction
[1]On 26 March 2020 the tribunal decided that a disciplinary ground had been established against a teacher referred to as WAT: behaviour in a way, whether concerned with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.[1] The tribunal cancelled WAT’s teacher registration. It prohibited him from reapplying for registration for five years from 22 August 2018, when his registration had been suspended. It required him to provide, with any future application for registration, a detailed report from a psychologist or psychiatrist.[2]
[1]Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h).
[2]The reasons were published as Queensland College of Teachers v WAT [2020] QCAT 85.
[2]WAT’s appeal concerns only the period of prohibition. WAT in his appeal form contends that the tribunal erred in law by:
(a)failing to give due weight to the mitigating features;
(b)failing to give due weight to WAT’s insight into his conduct;
(c)failing to give due weight to the remorse of WAT; and
(d)imposing a sanction that is excessive in all of the circumstances.
[3]These grounds are noted by Mr Wilson, for WAT, in his written submissions, but are then mainly addressed under a single heading: ‘Ground of appeal – Failing to take into account mitigating factors of remorse and level of insight’.[3] Mr Wilson also submits that five years’ prohibition is an unreasonable sanction, and that two years would be adequate and proper.
[3]Mr Wilson’s written submissions dated 18 March 2021, 5.
[4]The grounds of appeal, as developed in the submissions, are best encompassed under two headings:
(a)ground of appeal that the tribunal failed to take into account or to give due weight to the mitigating factors of WAT’s remorse and level of insight; and
(b)ground of appeal that the sanction imposed is excessive.
[5]An alternate ground of appeal also emerged in the course of the oral hearing of the appeal, so I will discuss that ground after considering the other grounds.
The tribunal’s reasons at first instance
[6]The conduct that gave rise to the disciplinary proceeding involved interactions between WAT and a teenage girl. She attended high school, but not the school at which WAT taught. She did, however, attend some of the evening classes he conducted as an instructor at a taekwondo academy.
[7]The conduct spanned the period 10 June to 21 August 2018. The student turned 16 during that period. Before turning 16, she contacted WAT on Facebook and they went on to exchange more than 15,000 Facebook and text messages. This included sexual content. After the student turned 16, they had a sexual relationship which included intercourse. At the time, WAT was aged 28. He had been registered as a teacher for approximately six and a half years.
[8]The tribunal acknowledged that, prior to the hearing, the parties had agreed that the disciplinary ground was established. The hearing was on the papers. In explaining its selection of sanction, the tribunal discussed aggravating and mitigating factors. One of the mitigating factors was that ‘WAT has agreed to the essential factual matters as outlined in the Joint Statement of Facts and Issues’.[4] The tribunal also compared WAT’s conduct with that involved in seven other cases that were broadly similar.
Ground of appeal that the tribunal failed to take into account or to give due weight to the mitigating factors of WAT’s remorse and level of insight
[4]Queensland College of Teachers v WAT [2020] QCAT 85, [32].
[9]Mr Wilson for WAT observes that the tribunal ‘found that [WAT] had only recently begun to … develop insight and remorse’.[5]
[5]Mr Wilson’s written submissions dated 18 March 2021, [19].
[10]The way the tribunal expressed the finding was that it ‘accepts that WAT has recently begun to develop insight and is remorseful for his conduct’.[6]
[6]Queensland College of Teachers v WAT [2020] QCAT 85, [41]
[11]Mr Wilson submits that the basis for the finding was that WAT, when responding to the QCT’s referral to the tribunal, had denied that his conduct was inappropriate and that it fell below the relevant standard.
[12]I note that the denial was in a document filed by WAT’s solicitors on 6 March 2019. Subsequently, in submissions filed on behalf of WAT on 16 June 2019, WAT acknowledged both the inappropriateness of the conduct and that it fell below the standard of behaviour expected of a teacher.
[13]Mr Wilson submits that excessive adverse weight was attached by the tribunal to the denial: ‘an initial denial, mostly likely pursuant to legal advice, should not detract from [WAT’s] high level of remorse and significant insight’.[7]
[7]Mr Wilson’s written submissions dated 18 March 2021, [20].
[14]Mr Wilson points to affidavit evidence that was before the tribunal, as outlined below.
[15]WAT in his November 2019 affidavit said he had made his best endeavours to accept responsibility and demonstrate remorse by cooperating with the investigative and disciplinary process. In particular, he had immediately ceased contact with the student; he ceased instructing students at the taekwando academy; promptly after being suspended, he reviewed relevant standards and guidelines; he instructed his lawyers to accept an agreed statement of facts and issues; he conceded that his teacher registration should be cancelled; he resigned from his teaching position; and he continued to engage in regular counselling sessions with psychologist ECR.
[16]ECR in her November 2019 affidavit noted that she had held 22 sessions of professional boundary counselling with WAT since August 2018. She described WAT as having gained significant insight into his past behaviour and why it was wrong. WAT had expressed his remorse to her on a number of occasions. She regarded him as truly remorseful. He had developed better mechanisms for the future, and was committed to ongoing treatment.
[17]The owner of the taekwando academy in his August 2019 affidavit spoke of WAT’s genuine remorse.
[18]WAT’s mother, who is a retired police officer, in her November 2019 affidavit said that WAT had developed insight into why his behaviour with the student was wrong. He had expressed remorse.
[19]Mr Wilson submits that in these circumstances the tribunal’s finding that WAT ‘had only recently begun to develop insight and remorse was plainly incorrect and the Tribunal erred in not according sufficient weight to these factors’.[8]
[8]Ibid, [25].
[20]Mr McMillan for the Queensland College of Teachers submits that while a finding of fact for which there was no evidence would involve an error of law, Mr Wilson’s submissions go more to the weight attached or not attached to particular evidence. Mr McMillan says that is a question of fact, for which leave to appeal would be required.
[21]However, in my view, at least to the extent that Mr Wilson’s submissions encompass the proposition that that the tribunal reached a finding without taking into account relevant evidence, they do raise a question of law.
[22]I do not accept Mr Wilson’s submission that there was an error of law involved in the relevant finding made by the tribunal. The finding must be considered in context. The tribunal had already discussed the affidavit evidence in some detail, including the witnesses’ references to insight and remorse. Then, after noting WAT’s March 2019 denial and his subsequent acknowledgement in the disciplinary proceeding, the tribunal continued:
Thus, until June 2019, WAT had not, in the context of these proceedings, expressed insight or remorse.
However, the witnesses corroborated WAT’s evidence in relation to his development of insight and expression of remorse. The Tribunal accepts that WAT has recently begun to develop insight and is remorseful for his conduct.[9]
[9]Queensland College of Teachers v WAT [2020] QCAT 85, [40, 41].
[23]The affidavit evidence was not particularly specific about when WAT gained insight. This is not surprising, as the gaining of insight was described, understandably, as a process rather than an event.
[24]The tribunal’s finding, taken in context, focussed on when WAT had begun to develop insight and when he had expressed remorse as demonstrated by his denial or acknowledgement of wrongdoing in the formal proceeding. The finding was open on the evidence: it was open to the tribunal to conclude, in effect, that true insight and remorse were lacking in March 2019 because they were absent from WAT’s formal response to disciplinary proceedings about the very conduct in question. That was a reasonable conclusion on the evidence. The tribunal’s reasons demonstrate that it took the various strands of evidence about insight and remorse into account in reaching its finding. A failure by the tribunal to take into account or to give proper weight to particular evidence has not been demonstrated.
[25]This ground of appeal is not established.
Ground of appeal that the sanction imposed is excessive
[26]Mr Wilson’s submissions address two of the seven broadly comparable cases that were discussed by the tribunal: WAS[10] and Ashton.[11]
[10]Queensland College of Teachers v WAS [2015] QCAT 61.
[11]Queensland College of Teachers v Ashton [2010] QCAT 80.
[27]The tribunal made the following comments about WAS:
… a 36-year-old teacher had a sexual relationship with a 16-year-old student. There was no direct student / teacher relationship. Both disclosed sexual abuse as children. Over the period of the relationship there were in excess of 10,000 Facebook messages between them. The teacher gave gifts to the student. The relationship ended because it was discovered by the teacher’s wife. While the teacher failed to report the sexual abuse suffered by the student, he cooperated with the disciplinary process and made early and frank admissions in respect of the disciplinary allegations. The teacher was not to apply for registration for a period of six years from the date of suspension and was ordered to pay costs of $2500.
We consider WAT’s behaviour to be similarly serious and damaging to the behaviour in WAS.[12]
[12]Queensland College of Teachers v WAT [2020] QCAT 85, [49, 50].
[28]Mr Wilson submits that WAT’s case is actually significantly less serious than WAS, taking into account the ‘much larger age gap’[13] in WAS, the fact that WAS’s conduct occurred within the school environment and over a considerably longer period; and that ‘WAS did not involve any evidence of insight or remorse, though there was full-co-operation with the process’.[14]
[13]Mr Wilson’s written submissions dated 18 March 2021, [27].
[14]Mr Wilson’s written submissions dated 18 March 2021, [27].
[29]It is true that there was no evidence of insight or remorse in WAS, although as Mr Wilson observes, the teacher had been cooperative. More cooperative, I note, than WAT, who initially denied in the disciplinary proceeding that his conduct had been improper. In WAS, the student attended the school where WAS taught, though most of the conduct occurred away from school. Most of the interaction occurred across only a three-month period. The conduct in question began after the student turned 16. WAS was older than WAT, but there was still a substantial age gap in WAT’s case. It is doubtless an aggravating feature in WAT’s case that, while sexual relations did not start until after the student turned 16, some of the impugned conduct happened while she was still only 15. Sixteen is, of course, an age of some significance because it is the age of consent for sex.
[30]While there are differences between WAS and WAT’s case, in my view it was reasonable of the tribunal to describe the behaviour as similarly serious. The tribunal in WAT’s case did not impose as lengthy a period of prohibition as in WAS. This could be attributable, one might infer, to weight being given to the evidence of insight and remorse.
[31]The tribunal made the following comments about Ashton:
… the 31/32-year-old teacher … had an intimate relationship with a 16/17-year-old student. The student was vulnerable, coming from a troubled background, and the teacher was aware of this. The teacher was warned by other staff that the relationship was inappropriate, but she persisted in the relationship. The teacher did not seek to explain the conduct and did not express remorse or insight. The teacher was prohibited from reapplying for teacher registration for a period of two years and three months.
We consider WAT’s behaviour to be similarly serious but consider a longer sanction period to be appropriate in this case. This decision was made at a time when the maximum prohibition period was five years. Further, as the Tribunal has observed previously:
[W]e are conscious of the evolving community appreciation … of the potential for long-term harm in young people who are sexually exploited. Some of the earlier sanctions may not match current community standards.[15]
[15]Queensland College of Teachers v WAT [2020] QCAT 85 [54, 55]. Footnote omitted.
The student in Ashton attended the school at which Ms Ashton taught. Much, though not all, of the conduct occurred at school. The relationship became well known within the school community.
Mr Wilson submits that Ms Ashton’s conduct was actually more serious than WAT’s, not similarly serious: Ms Ashton’s conduct occurred over a year, not just two to three months; it occurred in the school environment; and no insight or remorse was demonstrated. The student was vulnerable, beyond the inherent vulnerability of the student in WAT’s case as a young person with less maturity and life experience. WAT was not the student’s teacher. He was not even her taekwondo instructor. She simply showed up at some of his taekwondo classes without being enrolled. The conduct occurred outside the school environment. It did not involve a position of trust held by WAT in his professional capacity. The relationship could be said to have a much lesser impact on other students, schools or the community, Mr Wilson submits. WAT has demonstrated extensive remorse and meaningful insight, and has acted to prevent a recurrence. Further, WAT had his own psychological vulnerability (as discussed in ECR’s affidavit). Mr Wilson submits that additional prohibition of some three years upon WAT, compared with the sanction imposed in Ashton, is not warranted to reflect evolving community standards.
In my view, there are features in Ashton that were more serious. On the other hand, the conduct in Ashton did not progress as far sexually as in WAT’s case. Further, while WAT’s conduct did not persist as long, it did not stop because of some change of heart by WAT. Rather, it stopped when police charged WAT with an offence relating to his conduct with the student. (The charge was later dropped.)
It should also be noted that the tribunal in WAT’s case described the student as having ‘particular vulnerabilities’[16] beyond her inherent vulnerabilities as a 15/16-year-old student. These particular vulnerabilities related to her experience of an assault by another person, as well as anxiety and self-harm. These vulnerabilities were known to WAT. The tribunal considered the potential risk of emotional and psychological harm caused by WAT’s conduct as correspondingly significant. The tribunal found that WAT abused a position of trust notwithstanding that he did not teach the student.
[16]Queensland College of Teachers v WAT [2020] QCAT 85, [31(b)].
A feature of WAT’s case that is more serious than Ashton is the younger age of the student – only 15 and therefore under the age of consent – when the series of conduct began that led up to sex once the student turned 16.
In these circumstances, the tribunal’s description of the behaviour as similarly serious is fair.
If one were just to compare WAT’s case and Ashton, one might conclude that a leap from two years and three months of prohibition to five years outpaced developments in community understanding and standards. However, a comparison with a wider range of cases might suggest congruence with more current community expectations. Indeed, the tribunal’s discussion of WAS and several later cases does show that the sanction imposed upon WAT cannot be viewed as extraordinary.
Mr Wilson submits:
Ultimately the Tribunal it its decision did not express how, or if, [WAT’s] remorse and insight had reduced his sanction. The Tribunal fell into error in failing to apply an appropriate discount to [WAT’s] sanction given his high level of remorse and insight. Error must be inferred because the result is plainly unjust or unreasonable.[17]
[17]Mr Wilson’s written submissions dated 18 March 2021, [32].
However, the tribunal did not expressly find WAT to have a high level of remorse and insight. It is doubtful that it would have agreed with that description, having regard to its comments about insight and remorse.
In any event, there is no prescribed way for the tribunal to express its reasoning. It is not incumbent on the tribunal, or even a typical approach, to quantify a nominal sanction and then quantify a discount for some particular factor. It is sufficient that the tribunal shows that it has taken into account the relevant factors in a logical away. The tribunal did that in this case. This included a detailed explanation of how it compared WAT’s conduct with the conduct in other cases, and why it considered a greater or less sanction was warranted in WAT’s case. The tribunal’s analysis demonstrates that the conclusion was not arbitrary or idiosyncratic.
A discretionary decision, such as a disciplinary sanction, is not to be disturbed by an appellate body unless some error was made in the exercise of the discretion. Sometimes a particular error may not be discoverable, but the appellate body may infer that there must have been an error because the result is plainly unjust or unreasonable.[18]
[18]House v The King (1936) 55 CLR 499, 505.
As discussed above, the result in WAT’s case cannot be described as extraordinary, arbitrary or idiosyncratic. It is not plainly unjust or unreasonable. Accordingly, this ground of appeal is not established.
Alternative ground of appeal: error of fact
WAT’s appeal form (application for leave to appeal or appeal) indicated that leave to appeal was sought.
Leave is required only if an appeal is on a question of fact or a question of mixed law and fact. It is not required for an appeal on a question of law only.[19] Mr Wilson submitted at the oral hearing that the appeal is on questions of law only, so leave is not actually required.
[19]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).
However, Mr Wilson went on to submit that if I were to conclude that there was no error of law, then leave to appeal should be granted. I take this to mean that WAT alternatively advances the ground of appeal that the finding quoted in paragraph 10 above is a wrong finding of fact.
Leave to appeal should be granted only in limited circumstances:
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.[20]
[20]Queensland College of Teachers v CSK [2016] QCATA 125, [12].
As already explained, however, the finding in question, understood in context, was amply open on the evidence. Accordingly, no error has been shown. Leave to appeal is refused.
Non-publication order
A non-publication order was made by the tribunal at first instance. It is appropriate to make an order in in parallel terms in respect of the appeal, to preserve the efficacy of that earlier order. I adopt the reasons of the tribunal below for the making of such an order.
Conclusion
The appeal is dismissed. Leave to appeal is refused. A non-publication order is made to protect the student.
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