Department of Education and Training v Kay [2011] QCAT 432

CITATION: Department of Education and Training v Kay [2011] QCAT 432 PARTIES: Chief Executive, Department of Education and Training v Sharon Kay APPLICATION NUMBER: CML091-11 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 15 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave is not granted for the applicant to be legally represented in this proceeding. CATCHWORDS: LEGAL REPRESENTATION – whether in the interests of justice for leave for legal representation Queensland Civil and Administrative Tribunal Act 2009, s 43 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Longreach State School held a disco for its students on 5 April 2011. High school students were not permitted to attend the disco following incidents of vandalism at the school during a swimming carnival. The Principal asked a high school student to leave the disco and about 15 minutes later, his mother, Sharon Kay, came into the school and began shouting at the Principal and struck the Principal with an open hand across her face. [2] The incident was witnessed by students, parents and teachers and the police came and removed Ms Kay from the school. Ms Kay subsequently -- 1 of 4 -- 2 pleaded guilty to offences of common assault and wilfully disturbing the good order or management of a state educational institution. [3] The Chief Executive of the Department of Education and Training issued a direction on 15 April 2011 prohibiting Ms Kay from entering the school for 60 days. An application has been made to QCAT under section 341 of the Education (General Provisions) Act 2006 for an order prohibiting Ms Kay from entering the school for one year. [4] The Chief Executive applied to QCAT 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.1 QCAT has an unfettered discretion when determining whether to grant a party leave to be represented. The Queensland Civil and Administrative Tribunal Act 2009 sets out, however, some factors that QCAT may consider as supporting the giving of leave. [5] In this case the status of the applicant as a State Agency was one factor that was open to be considered when QCAT exercised its discretion as well as the possible presence of complex questions of law or fact. The primary focus of QCAT is required to be in the interests of justice which is a wider concept than the relative interests of either party to a proceeding. [6] For the following reasons, leave was not granted. State Agency [7] The Department is a State Agency. It has been given responsibilities for the good order and management of schools. The assault made on the Principal of Longreach State School was particularly egregious as it took place in the presence of students at a school function. [8] The State through the courts of law has already responded to this assault on the Principal by holding Ms Kay accountable through the criminal justice system. The State through the Chief Executive of the Department prohibited Ms Kay from entering into the school for a period 60 days shortly after the incident occurred. The ramifications of this assault have already been very serious for Ms Kay and undoubtedly very serious for the Principal and her staff at the school. [9] The State is now seeking to be able to prohibit Ms Kay from entering the school for one year. It was submitted that the State in this proceeding is seeking orders directed to the safety of staff and children within the education system and that it is in the public’s interest that the community, through the mechanism of the State, is properly represented in seeking to uphold that protection. [10] It is not an unreasonable proposition to hold that the State should be provided with appropriate resources to discharge its responsibilities. The State should not be unduly hindered in the proper discharge of its responsibilities in the interest of the community. However the State is subject to the laws of Queensland in the same manner as members of the community. The State was not given an entitlement to representation in 1 Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 4 -- 3 QCAT proceedings but, as is the case with the general community, the State has to satisfy QCAT that it is in the interests of justice that leave for representation is granted. 2 [11] There has been no suggestion made that the Department would be unable to carry on with the proceeding if it was not legally represented. Submissions in those terms, if accepted, would no doubt result in QCAT being satisfied that the interests of justice would require the Department to be represented. Submissions in those terms would however be very surprising. [12] The State through its various Departments has human and financial resources to use to discharge its responsibilities. There was no suggestion made that the Department could not seek to appear in the proceeding by one of its employee government lawyers. On the other hand, Ms Kay is an individual living in regional Queensland. She is not represented in this proceeding. She has expressed an intention to challenge the sought after prohibition. Even though the Department has the onus of proof, the task Ms Kay faces in opposing a prohibition will be difficult when she lacks legal training or legal support. [13] The Department submitted that in the interests of efficiency it would be preferable that the application was conducted by a lawyer and that there was “something to be said for having the State represented by a lawyer”3 rather than have an employee of the Department carry out cross- examination of witnesses and Ms Kay. If it were to be considered beyond the capabilities of a non legal employee to conduct the application before QCAT, the Department can appear in the proceeding by its own government legal officers with the leave of QCAT. [14] The submissions of the Department appear to equate the interests of one party in the proceeding with the interests of justice when that position may not inevitably be the case. QCAT must be accessible and deliver justice fairly to all parties. [15] The interests of justice are served by QCAT discharging its statutory objects to deal with matters in a way that is accessible, fair, just, economical, informal and quick.4 The focus of the interests of justice must be on achieving the right result in a fair and just manner. [16] I have not been convinced in this case that QCAT would require one party, just because it is a State Agency, with resources far more extensive than an individual such as Ms Kay, to be legally represented in order to achieve the right result about the safety of staff and children within the education system and to achieve the delivery of that result in a fair and just manner. The Queensland Civil and Administrative Tribunal Act 2009 implements an expectation in section 43 that QCAT is a tribunal where parties deal directly with each other to achieve accessible, fair and just outcomes even when the State itself is one of the parties. 2 Except for the specific categories of persons set out in section 43(2)(b)(i)to(iii) of the Queensland Civil and Administrative Tribunal Act 2009 3 Paragraph 23 of written submissions by the Chief Executive. 4 Section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009. -- 3 of 4 -- 4 Whether complex questions of fact or law [17] The Department did not directly submit that this application involves complex questions of law or fact. The submissions correctly referred to the discretion that lies within QCAT whether to prohibit Ms Kay from the school or not and the need for that discretion to be exercised in accordance with the principles of administrative law. [18] The Department submitted that this is a developing area of the law which warranted the input of experienced legal representation in the interests of justice. QCAT had in August 2010 been of that view and had granted leave for the Department to be legally represented.5 The decision in the Funch case was decided less than one year after the commencement of QCAT and the particular outcome that was being sought had not previously been considered by the tribunal. [19] Since then, applications under section 341 of the Education (General Provisions) Act 2006 have been determined by QCAT and the principles to be applied are now more familiar to QCAT. I consider for that reason that reliance on issues relevant at the time before the Funch case was determined is misguided. [20] I have not been able to identify complex questions of fact or law that would require the Department to be legally represented in the interests of justice in this case. Conclusion [21] As I have not been satisfied that the interests of justice require the Department to be legally represented, I refuse the application for leave made under section 43 of the Queensland Civil and Administrative Tribunal Act 2009. 5 Chief Executive Department of Education and Training v Funch [2010] QCAT 604. -- 4 of 4 --