Chief Executive, Department of Education, Training and the Arts v TJ [2011] QCAT 735

CITATION: Chief Executive, Department of Education, Training and the Arts v TJ [2011] QCAT 735 PARTIES: Chief Executive, Department of Education, Training and the Arts v TJ APPLICATION NUMBER: CML184-10 MATTER TYPE: Childrens matter HEARING DATE: 20 April 2011 HEARD AT: Mackay DECISION OF: Ron Joachim, Member DELIVERED ON: 10 May 2011 DELIVERED AT: Mackay ORDERS MADE: 1. The respondent, Ms TJ is prohibited from entering the grounds of the Mirani State High School for a period of one year from today’s date. 2. The Tribunal prohibits the publication of the name of the respondent and her children. 3. The application for costs is dismissed. CATCHWORDS: Where parent repeatedly threatened and abused staff and a student – when school partly locked down – costs – where non publication order made Education (General Provisions) Act 2006, s 341 Queensland Civil and Administrative Tribunal Act 2009, ss 66, 100, 102 APPEARANCES and REPRESENTATION (if any): APPLICANT: Chief Executive, Department of Education, Training and the Arts represented by Ms S Bain instructed by Mr L Byrnes -- 1 of 9 -- RESPONDENT: No appearance REASONS FOR DECISION [1] On 17 November 2010 the Queensland Civil and Administrative Tribunal (QCAT) received an application from the Chief Executive, Department of Education, Training and the Arts. The orders sought in this application are that Ms TJ be prohibited from entering the premises Mirani State High School for a period of one year and that she pay the applicant’s costs. [2] The application sought the prohibition under section 341 of the Education (General Provisions) Act 2006. [3] The applicant has alleged that Ms TJ has disrupted the good order and management of the High School by making threats against various members of staff and students and acting in an abusive, hostile and aggressive manner towards staff members. The applicant further states that unless the order is made Ms TJ is likely to cause physical harm to or apprehension of physical harm of another person when the other person is on the premises of the Mirani High School or is likely to disrupt the good order and management of the Mirani High School. [4] The application was heard in Mackay on 20 April 2011. Ms TJ was served with the application on 2 December 2010. Senior Member Endicott, on 31 January 2011, granted leave for the applicant to be legally represented. Present at the hearing in Mackay was Ms Simone Bain, Counsel instructed by Mr Liam Byrnes of Crown Law. [5] The respondent, TJ, did not attend the hearing. A notice of hearing was sent to the applicant and the respondent on 24 March 2011. The case officer for this matter had a telephone conversation with Ms TJ in relation to the hearing in which she advised him in no uncertain terms that she would not be attending. [6] The application was supported by a number of affidavits: 1. Affidavit of Scott Rolland Cage, Principal, Mirani State High School sworn on 24 February 2011. 2. Affidavit of Matthew Horton, Acting Deputy Principal, Mirani State High School sworn on 2 February 2011. 3. Affidavit of Judy Riddel, Business Service Manager, Mirani State High School sworn on 24 February 2011. 4. Affidavit of Robyn Wheeler, Administration Officer, Mirani State High School sworn on 24 February 2011. 5. Affidavit of Deborah Pearl Francis, Administrative Officer, Mirani State High School sworn on 24 February 2011. 6. Affidavit of Sandra Jane Scriha, Administrative Officer, Mirani State High School sworn on 24 February 2011. 7. Affidavit of Sheila Margaret Clarke, Acting Principal Advisor, Education Services, Longreach, sworn on 24 February 2011. -- 2 of 9 -- 8. Affidavit of Josephine Muscat, Administrative Officer, Mirani State High School, sworn on 24 February 2011. 9. Affidavit of Raymond Clarke, Acting Principal, Capella State High School sworn on 24 February 2011. 10 Affidavit of Liam Byrnes, Lawyer of Crown Law sworn on 15 April 2011. [7] The relevant legislation that applies to this application is contained in section 341 of the Education (General Provisions) Act 2006. This provides that the Chief Executive may apply to Queensland Civil and Administrative Tribunal (QCAT) for an order prohibiting a person from entering the premises of a state instructional institution for more than 60 days, but not more than one year. [8] The Tribunal may make the order if satisfied on the balance of probabilities, that unless the order is made 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 of the premises or c. To disrupt the good order or management of the institution [9] Information in the affidavits indicate that Ms TJ has a history of causing distress and upset at schools at which her sons attend. As a result the Principal at the Mirani High School had instituted methods for managing Ms TJ’s appearance at the High School. [10] On 14 October 2010 Ms TJ attended the High School for a meeting with the Deputy Principal Mr Horton. Mr Horton and the Principal, Mr Scott Cage, saw Ms TJ to discuss her son’s behaviour in class, specifically that he had been harassing a year 8 female student. Ms TJ became very loud and abusive and acted in a threatening and abusive manner towards the Principal. The affidavits attest to the fact that she yelled words to the effect “I’ll get that fucking bitch”. She also yelled words to the effect “this is not fucking over until I say it is” when responding to Mr Cage’s termination of the interview because of her behaviour. [11] Later that day Ms TJ’s son was suspended because of his behaviour and Ms TJ again attended the school to collect her son. The Principal arranged for a lock down in the administration area because of Ms TJ’s loud, abusive, aggressive and threatening behaviour so that her contact with school staff and students was minimised. Mr Cage met Ms TJ and she commenced again yelling at him in an extremely threatening, abusive and aggressive manner and called him words to the effect of a “fucking trash mongrel dickhead” and threatened him by saying words to the effect “I’ll smash the grin off your fucking face”. She also referred to the year 8 female student as a “lying piece of fucking trash”. The interview was subsequently terminated. [12] The Principal swears that Ms TJ is volatile and unpredictable and is extremely aggressive and personally threatening. He is concerned for the safety of the students, staff and himself when she attends the school. -- 3 of 9 -- The Principal issued Ms TJ with a 339 direction under the Education (General Provisions) Act 2006. This direction requires the prohibited person to immediately leave and not re enter the premises for 24 hours. [13] In his affidavit Mr Cage outlines the history of Ms TJ’s aggressive and threatening behaviour which he has either witnessed or has been reported to him. On 22 April 2010 Ms TJ told the Deputy Principal on the phone to “fuck off” and told him “I’ll be terminating your fucking head tomorrow”. On 23 April 2010 the respondent made threats toward the Deputy Principal, Mr Ray Clarke, “I’ll throw his arse out that gate, you haven’t seen angry yet. I’m waiting for Mr Clarke to stick his head out the door.” On 28 April 2010 Ms TJ called the Deputy Principal derogatory terms including “dickhead”. On 4 May 2010 she told the Principal to “go and get fucked”. On 4 June 2010 she told the Principal she was going to “nail your fucking head to the gutter”. On 9 August 2010 Ms TJ threatened to bail up a teacher outside the school. [14] Subsequent to the incident on 14 October 2010 Ms TJ has been involved in a number of serious incidences including on 24 October the Guidance Officer reported to the Principal that Ms TJ told her that there would be a blood bath at the school that day and on 28 October 2010 the Deputy Principal, Mr Matthew Horton reported that Ms TJ, when speaking to him on the phone had threatened to assault students outside the school. This was reported to the Police. [15] Mr Cage attests that he has worked for Education Queensland since 1987 and has performed in Principal roles since 2006. Prior to this he was a Deputy Principal at Glenmore High. He attests that Ms TJ’s behaviour is the worst example of persistent, aggressive and threatening behaviour of any parent in his experience. The other affidavits referred to support the Principal’s affidavit. In particular I note the following from the affidavits: Mr Horton finds that Ms TJ’s attendance on the school grounds causes significant distress to staff and the office administration and disruption to the function of the school. He also notes when the office is locked down the school administration essentially comes to a halt and students can not enter the office administration area to discuss educational, procedural or behaviour issues. Practical administration of the school is affected as office staff are confined to their respective rooms. The office administration staff raise serious concerns in their affidavits regarding Ms TJ’s foul language and behaviour. A number of them attest to feeling apprehensive and afraid when she is on the school grounds. They have felt very anxious about what would happen when Ms TJ is on the grounds. Like the Principal, in their experience with Education Queensland, most attest that they have never had to deal with a parent like Ms TJ. [16] Sandra Scriha describes feeling scared and alarmed at the volume and language used by Ms TJ. She feels apprehensive when the respondent comes to the office. Ms Sheila Clarke in her affidavit states that she has been an employee of Education Queensland since 1983 in several roles. She is currently the Principal Advisor Education Services in the Emerald -- 4 of 9 -- Region. She states, “Ms TJ is the most aggressive and abusive person I have ever dealt with.” In her affidavit she attests to being screamed at by Ms TJ when attempting to discuss her son’s exclusion from the school. In a telephone call of 4 November 2010, she used words to Ms Clarke “you fucking smart arse bitch I will come and smash your head in”. Ms Clarke further states that in December 2010 she received an email from Judi Schleger, a case manager for Ms TJ’s other son, regarding Ms TJ’s aggressive attitude towards her. [17] In a telephone interview on 18 October with Ms TJ, Ms Clarke attests to Ms TJ being extremely aggressive and threatening and yelling and screaming at her. She said of the female student alleged to have been harassed by her son, “you wait until I see her, I can’t wait until I see that fucking bitch up town. I know her, she will fucking get it”. [18] Administrative Officer Josephine Muscat swore that when the respondent comes into the school she fears for people’s safety. She states that Ms TJ is very arrogant and rude and, “I fear that one day she will throw something or hurt someone she is having a disagreement with. She makes me feel very apprehensive and sometimes I feel scared when she is at the school cause I don’t know how far she will go”. [19] The affidavit from Mr Raymond Clarke attests to the fact that he has worked in the area of education for 28 years and the respondent is the most disruptive and difficult parent he has come across in that time. He refers to the ferocity, unpredictability and regularity of the respondent’s behaviour making her very disruptive and difficult. He states that she seems to be unwilling to collaborate with school staff to develop strategies to benefit the education of her children. These are very serious matters referred to in the affidavits. [20] The orders sought follow a serious incident at the school on 14 October 2010 where staff and a student were threatened, where the school had to be placed in lockdown and where the police had to be called. This of course is not the first incident involving Ms TJ. For example she has a conviction for offending section 333 2(A) of the Act. She was fined $600 for this offence on 4/8/08 for insulting staff in the presence or hearing of a student in or about a state institution. [21] Ms TJ does not contest the affidavits that have been tendered. She has provided no written response to them or to the application and she has not appeared at the hearing. I am satisfied that the protection of persons at the Mirani State High School, the good order and management of that school can only be satisfied if an order is made prohibiting Ms TJ from entering the premises for one year. I am satisfied on the balance of probabilities that unless this order was made Ms TJ is likely to cause physical harm to or apprehension or fear of physical harm in students and staff when Ms TJ is at the premises. I am also satisfied that the good order and management of the school is considerably disrupted when she is on the premises. I make this order because of the following reasons. -- 5 of 9 -- [22] It is not appropriate behaviour for any parent to use the type of language attributed to Ms TJ within a school environment. Neither is it acceptable to have students and staff afraid for their safety. I am also very concerned that staff are apprehensive and anxious when Ms TJ visits the school. This is not an acceptable state of affairs for Education Queensland staff. It is not acceptable for the Principal to have to shut down part of his school because the attendance of a parent causes such distress and concern. The good management of the school requires a safe environment in which all students and staff can go about their business in an orderly and non disruptive way. Ms TJ has behaved in a totally disgraceful manner and must be prohibited from attending the school. [23] The threats made have necessitated police involvement such is their seriousness. Staff and children of the High School have a right to work and be educated in a non threatening environment. Ms TJ’s presence at the school is counter to this. [24] The protection of the persons located at the Mirani State High School and the good order and management of that school are paramount considerations in my assessment. The persistent pattern of behaviour of Ms TJ and the seriousness of her behaviours satisfy the Tribunal that there is a high degree of likelihood of future disruption and intimidation if Ms TJ is permitted to enter the school grounds again. [25] It has been put to me in submissions by the applicant that “There can be no doubt that her past conduct has disrupted the good order and management of the school. The years of offending conduct, and the extent of the abusive behaviour by the respondent are perhaps the most reliable indicators that she is likely to repeat her conduct”. I agree. [26] Therefore in the Tribunal’s view the maximum 12 month ban is appropriate in these circumstances. Costs [27] I now turn to the question of costs. Under the Queensland Civil and Administrative Tribunal Act 2009 section 100 provides: Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. [28] Section 102 however provides that: The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. [29] The Chief Executive has asked the Tribunal to make an order as to costs. In deciding whether to award costs the Tribunal in this matter needs to consider sections 102 subsections 1 and 3 of the QCAT Act. I need therefore to consider whether Ms TJ has acted in a way that has -- 6 of 9 -- unnecessarily disadvantaged Education Queensland in this matter, the nature and complexity of the dispute the subject of the proceedings, relevant strengths of the claims made by each party to the proceedings and anything else that the Tribunal considers relevant. I also need to consider the financial circumstances of the parties to the proceeding. In considering these matters I also need to take into account the relative strengths of the claims made by each of the parties, and the interests of justice. [30] As to relative strengths of the claims I find that the evidence is overwhelming against Ms TJ. There are no facts disputed by her and she has provided no evidence in response to the applicant’s affidavits. She has also chosen not to attend the hearing. It can be said therefore that the applicant has a very strong case. It is noteworthy in this case that the applicant was granted leave to be legally represented. The relevant section that applies for leave to be represented is section 43 of the Act, the main purpose of which is to have parties represent themselves unless the interests of justice require otherwise. [31] The Senior Member who granted leave for the applicant to be legally represented had submissions from the Chief Executive. I do not have the benefit of the Senior Member’s reasoning. I can conclude therefore that she considered that it was in the interests of justice for Education Queensland to be legally represented. I am unable to draw any other conclusions or inference from her decision. I do not consider the law or facts in this matter to be complex. It is a very straight forward matter. [32] I do not know Ms TJ’s financial situation so am unable to take this into account. Ms TJ has not sought to disadvantage Education Queensland in the prosecution of its application. She has not put any impediments in Education Queensland’s way. She has done nothing to cause Education Queensland additional costs in its application. Indeed she has been totally non engaged in the process out of her own choice. [33] I will also take into account other relevant cases, although the Tribunal is not bound by these decisions. [34] In the matter of Chief Executive, Department of Education and Training v Dean Funch the Tribunal awarded costs of $5,000 compared with total costs of approximately $17,000.00. In that matter the Deputy Principal of the Mackay North State High School was subjected to an unprovoked assault. Mr Funch, the assailant, was charged and fined $2,000 and ordered to pay $750 in compensation. The Tribunal noted there was no apology or undertaking in relation to future behaviour. Mr Funch was prohibited from entering the school for 12 months. The Tribunal commented on the public interest, the duty of the Chief Executive to provide protection and the special and unique features of this case. The Tribunal also took into account the previously similar behaviour of Mr Funch at the same school. -- 7 of 9 -- [35] In the matter of Chief Executive v Smallwood and Smallwood in the Townsville Magistrates Court, costs of around $9,000 were awarded. Total costs were said to be in the order of $39,000. [36] In the matter of Chief Executive v Jodie Tull, the Tribunal refused costs. In that matter Tull was prohibited entry of the North Mackay High School. Her behaviours at the school and disrespect for staff were similar to Ms TJ. [37] In this current application the Department’s all up costs are submitted to be approximately $23,000 of which $10,000 are sought with no time frame within which to pay. [38] The Department conceded that it was open to the Tribunal to compare this matter to Funch and consider costs of $5,000. [39] The Department submitted, however, in this matter, Ms TJ’s behaviour covered a number of schools over several years. Her behaviour involved serious threats of violence and no respect for staff with staff feeling threatened. Her behaviour, it is submitted, was ongoing and relentless as opposed to a once off event. [40] The Chief Executive of the Department has a duty to protect the teaching staff and the students at the High School. The Chief Executive had no option other than to bring this application to the Tribunal. The hearing has been brought about as a result of the disgraceful and reprehensible behaviour of Ms TJ. [41] As noted in paragraph 25 of these reasons, the starting point is that each party bears its own costs. The Tribunal, has subsequent discretion to make a costs order if the Tribunal considers the interests of justice require it to make an order. The considerations outlined in section 102(3) are factors the Tribunal may have regard to. They are not exclusive and the Tribunal could have regard to other factors. [42] The term interests of justice is not defined in the Act. In a decision of Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments, the President of QCAT said this: “Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.” [43] The Tribunal agrees with the comments made by member Beckinsale in the unreported reasons in the Tull matter that it is not appropriate “to make a costs order in a punitive way, regardless of how disgraceful the behaviour of the respondent was which resulted in these proceedings”. [44] As she points out, section 343 of the Act is designed to ensure a safe and secure school environment, not an order as to costs. -- 8 of 9 -- [45] Finally, Education Queensland chose to involve a barrister instructed by a Crown Law solicitor. There was little prospect of a defence being mounted as the respondent had filed no material countering the application. She had not sought to be represented. I cannot conclude that Education Queensland costs are justified in the circumstances of this case to achieve the outcome sought. [46] The application for costs is dismissed. Non publication order [47] The Tribunal does not consider it appropriate for the names of Ms TJ’s children to be published as they are not responsible for her behaviour. There is no public interest in their being identified nor is it in the interests of justice. It would be unfair to have them named. They had no role in this application. [48] The Tribunal has no concerns about Ms TJ being publicly identified as someone whose behaviour has caused her to be prohibited from entering a school. However, in a relatively small town her children are likely to be identified if her name is published. [49] For these reasons the Tribunal has prohibited the publication of the respondent’s name and the names of her children. These reasons are to be published in a de-identified format. -- 9 of 9 --