Chief Executive, Department of Education and Training v Funch [2010] QCAT 434

CITATION: Chief Executive, Department of Education and Training v Funch [2010] QCAT 434 PARTIES: Chief Executive, Department of Education and Training v Mr Dean Funch APPLICATION NUMBER: CML099-10 MATTER TYPE: Childrens Matters HEARING DATE: 30 August 2010 HEARD AT: MACKAY DECISION OF: Alexander Brands DELIVERED ON: 30 August 2010 DELIVERED AT: MACKAY ORDERS MADE: 1. The Respondent, Mr Dean Funch, is prohibited from entering the grounds of Mackay North State High School for a period of one (1) year from today’s date. 2. The Respondent pay the Applicant’s costs of, and incidental to, the application in the amount of $5,000.00 within 28 days of today’s date. APPEARANCES and REPRESENTATION (if any): APPLICANT : Chief Executive, Department of Education and Training represented by Mr Handran and Mr Burns. RESPONDENT: Mr Dean Funch -- 1 of 6 -- CML099-10 / Page 2 of 6 REASONS FOR DECISION 1. This is the formal part of the hearing where I will now give you the oral Reasons for my decision today and the Orders themselves. 2. This is an application to the Queensland Civil and Administrative Tribunal for an order, pursuant to section 341 of the Education (General Provisions Act) 2006, that the respondent, Mr Funch, be prohibited from entering the premises of Mackay North State High School for a period of one year. 3. This hearing is before me, Alexander Brands as Presiding Member of the Tribunal today. The matter number is CML099-10, the applicant is the Chief Executive of the Department of Education and Training, the respondent is Mr Dean Funch and the date today is the 30 th of August 2010. 4. The application was heard in the absence of the respondent. Now the Tribunal, as a preliminary port of call, has to be satisfied that the respondent did in fact have notice of the hearing. A notice was sent to all the parties, including the applicant, on the 18th August this year. Subsequent to that date, the registry of QCAT made further enquiries, unsuccessfully, to make sure that Mr Funch had had notice of the hearing. The solicitor present at the hearing today, Mr Byrnes, said he had also contacted the respondent to inquire if he had had notice of the hearing and Mr Funch said that he did. In an abundance of caution the Tribunal’s hearing support officer also attempted to phone the respondent earlier this morning. He wasn’t at home but his wife answered the phone and confirmed that Mr Funch had received notice of the hearing. 5. So the Tribunal therefore proceeded in the absence of the respondent. Mr Gavin John Handran appeared for the applicant. He was assisted by Mr Liam Byrnes. 6. The incident in question was a very serious one. The orders are sought following an unprovoked assault committed on the 9 th of February 2010 by the respondent on the Deputy Principal of the Mackay North State High School, Mr Condren, during which the respondent “slammed Mr Condren up against a wall hard enough for his head to ricochet off the concrete and to cause Mr Condren to lose consciousness temporarily, and to cause blood to start flowing from Mr Condren’s face”. 7. That wasn’t the end of the matter. It was followed by the respondent, Mr Funch, hurling abuse and threats at Mr Condren and by Mr Funch grabbing Mr Condren around the throat with both hands and slamming him into the brick wall outside the office. Another teacher, Mr Luck, came to assist, but the respondent continued to scream abuse and threats. As he left, the respondent violently pushed papers, a bell and other items off the Deputy Principal’s desk. The Deputy Principal required medical treatment and attended the Mackay Base Hospital by ambulance. He had lacerations and bruising to his face, bruising to his throat and soreness at the back of his head. His affidavit tells the Tribunal that he now has difficulty sleeping, early wakening and nightmares. -- 2 of 6 -- CML099-10 / Page 3 of 6 8. The applicant was subsequently charged and pleaded guilty to one count of assault occasioning bodily harm and he was sentenced in the Magistrates Court in April 2010 to a $2000 fine. No conviction was recorded and he was ordered to pay $750 in compensation. 9. The application today is supported by affidavits from the following: a) Affidavit of Scott Savage, sworn the 11 th May 2010; b) Affidavit of Ian Luck, sworn 5 th May 2010; c) Affidavit of Timothy John Condren, sworn 5 th May 2010; d) Affidavit Dennis John Bailey, sworn 18 th May 2010; e) Affidavit of Manaka Wickramasinghe, sworn 6 th May 2010; f) Affidavit of Catherine Elizabeth Scott, sworn 26 th August 2010; g) Affidavit of Kelly Cooper, sworn 26 th August 2010; h) Affidavit of Liam Byrnes, sworn 26 th August 2010. 10. The respondent, who is not present today, does not contest the accuracy of these affidavits which have been tendered and the affidavits are accepted by the Tribunal in evidence. 11. The relevant section of the Education (General Provisions)Act 2006 is Section 341: Prohibition from entering premises. That section says that an application may be made by the Chief Executive of the Department of Education to QCAT for an order to prohibit a person, in this case the respondent, from entering the premises of a State School, a State instructional institution, for more than 60 days, but not more than one year. 12. The Tribunal may make this order if it is satisfied, on the balance of probabilities, that unless the Order is made, the person (Mr Funch), is likely (a) to cause physical harm to, or apprehension of 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. 13. In deciding whether to order that the respondent not enter the premises of Mackay North State High School for a period of 1 year, the Tribunal finds that section 341 (3)(a), (b) and (c) are satisfied. 14. Having regard to section 341, the Tribunal is satisfied that the protection of persons and property located at Mackay North State High School and the good order and management of that school are paramount considerations to be kept in mind. 15. The assault in question was a very serious one. As mentioned, the respondent has already been sentenced for that offence. It took place in the presence of the respondent’s son and it involved threats, verbal abuse, physical assault and the infliction of bodily harm. It also occurred on the school grounds in the office of the Deputy Principal and the respondent had further threatened the Deputy Principal that “there was more coming” for him. 16. The fact that the assault took place in the presence of the respondent’s son is particularly concerning to the Tribunal because this fact alone goes to section -- 3 of 6 -- CML099-10 / Page 4 of 6 341(3) (c) of the Act in a very thoroughgoing way. Such an assault in the presence of the respondents son, a student at the school, is sending the son a very unfortunate message to do with discipline. 17. The assault also has the possible effect of intimidating the victim, and other teachers witnessing such an assault. It could also undermine their resolve to keep good order in the school. The son had been warned about not smoking on several occasions and that was the cause of the student’s father taking the action he did. It’s also significant that the respondent hasn’t sought to explain his actions. He has made a decision not to attend the hearing today. 18. The facts of the assault are not in question. The court has already decided that the assault did take place and the respondent has been sentenced for that assault. So there was no need to hear from the applicant’s witnesses in person. 19. There is also evidence that the respondent has not formally apologised for his violent assault and has not offered any undertaking in relation to his future behaviour in the school grounds. 20. The Tribunal is also taking into account that the respondent was previously involved in a similar incident at the same school in 2006 involving another son. 21. So in all of these circumstances the Tribunal is satisfied that unless a Prohibition Order is made, the respondent, on the balance of probabilities, is likely to cause physical harm to persons or property located at the school or to cause fear of physical harm or to disrupt the good order or management of the school. The likely degree of the probability of future disruption and intimidation and the severity, in its circumstances, of the recent serious assault, justifies, in the Tribunal’s view, a twelve month ban on the respondent from entering the school grounds. 22. The application is therefore granted and the Tribunal makes an Order that the respondent is prohibited from entering the premises of Mackay North State High School for a period of one year from today. Costs 1. Turning now to the question of costs, under the Queensland Civil and Administrative Tribunal Act 2009 the rule is that each party usually bears its own costs. However, under section 102 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal may make an order requiring, in this case, the respondent, to pay all or a stated part of the costs of the Department of Education in bringing this application. 2. The Tribunal notes that the respondent has had notice of the intention of the applicant to ask for costs. In deciding whether to award costs against the respondent, Dean Funch, the Tribunal may have regard to subsections of section 102(3). Subsections (b), (c) and (f) are focused on, as being relevant in this case. -- 4 of 6 -- CML099-10 / Page 5 of 6 3. Firstly, whether the nature and complexity of the dispute are such that warrant costs being ordered. The Tribunal also needs to consider the relative strengths of the claims made by each of the parties and thirdly the Tribunal may consider whether any other factors are relevant. 4. In relation to whether this proceeding is complex, the Tribunal notes that Senior Member Ms Endicott, on the 10 th of August this year, granted leave for the applicant to be legally represented. The Tribunal’s practice is that parties should represent themselves unless the interests of justice require otherwise. In deciding whether to give a party leave to be represented in a proceeding, the Tribunal considers, among other things, whether the proceeding is likely to involve complex questions of fact or law. That’s the relevant consideration in this case. The Tribunal can therefore find, implied in the granting of leave by Ms Endicott to the applicant to be legally represented, that Ms Endicott is very likely to have turned her mind to whether or not the proceeding was likely to involve complex questions of fact or law and on that basis the application was granted. In relation to costs, the Tribunal is satisfied that the nature and complexity of the proceeding is such that the awarding of costs is warranted. 5. As to the relative strength of the claims made by each of the parties to the proceeding, the Tribunal can only find that the evidence is overwhelmingly against the respondent. As mentioned, the facts of the matter are not in dispute - a court has already decided on Mr Funch’s guilt and has sentenced him accordingly. In addition the respondent has provided no evidence in response to the applicant’s submissions. He has also chosen not to attend the hearing, and, as mentioned, he has already been convicted of the assault. The applicant has a very strong case when compared with the respondent’s case. 6. The Tribunal also considers the following to be very relevant in this case in deciding whether or not to award costs against the respondent. There is a public interest component, namely, that participants in the education system must feel safe in the execution of their duties, and further, that there is always a danger that when unprovoked assaults like this occur on teaching staff in the performance of their duties, that teaching staff may be reluctant to discipline students in the usual way. They may be fearful of parents taking matters into their own hands and in this sense the good order of a high school, as in this case, may be compromised. 7. The Tribunal also considers that the Chief Executive of the Department of Education and Training has a duty to protect the teaching staff who are employed in the education system and it was therefore incumbent on the Chief Executive to bring this application. Because of the special and unique features of this case the Tribunal considers it would be unfair for the Department of Education to bear the costs incurred for the hearing today: this hearing has been brought about after all by the violent and reprehensible conduct of the respondent. 8. The Tribunal is also taking into account that the respondent was previously involved in a similar incident at the same school in 2006 involving another son. 9. A similar matter, Chief Executive, Department of Education and Training v David Smallwood and Marcia Smallwood, was heard in the Townsville -- 5 of 6 -- CML099-10 / Page 6 of 6 Magistrates Court on 25 th September 2009 before Magistrate Mr Ross Mack. The total costs in that case were around $39,000 and the applicant in that case was awarded approximately $9,000. 10. In this case the submissions are that total costs are approximately $17,000, but the costs being asked for are between $5,000 and $6,000. 11. The Tribunal orders that costs be awarded in the amount of $5,000 to the applicant. 12. That concludes the hearing for today. -- 6 of 6 --