Chief Executive Department of Education and Training v Funch [2010] QCAT 604

CITATION: Chief Executive Department of Education and Training v Funch [2010] QCAT 604 PARTIES: Chief Executive Department of Education and Training v Dean FUNCH APPLICATION NUMBER: CML099-10 MATTER TYPE: Childrens matters HEARING DATE: 10 August 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 10 August 2010 DELIVERED AT: Brisbane ORDERS MADE: The Applicant is granted leave to be legally represented in this proceeding CATCHWORDS : LEGAL REPRESENTATION – State Agency – where interests of justice require representation – where substantial interference with access to property generally accessible by the public. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 Section 341 of the Education (General Provisions) Act 2006 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 4 -- REASONS FOR DECISION 1. On 10 June 2010 an application was lodged with the tribunal seeking leave for the applicant, Chief Executive of the Department of Education and Training, to be legally represented in proceedings commenced in the tribunal that day in which orders were sought to prohibit the respondent, Dean Funch, from entering onto the grounds of Mackay North State High School for a 12 month period. 2. It is stated in section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. 3. Section 43 where relevant provides as follows: (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding, a party— (a) may appear without representation; or (b) may be represented by someone else if— (i) the party is a child or a person with impaired capacity; or (ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or (iii)an enabling Act that is an Act, or the rules, states the person may be represented; or (iv)the party has been given leave by the tribunal to be represented. (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave— (a) the party is a State agency; (b) the proceeding is likely to involve complex questions of fact or law; (c) another party to the proceeding is represented in the proceeding; (d) all of the parties have agreed to the party being represented in the proceeding…….. 4. According to section 43(2) (b) (iv) of the Act, the applicant, the Chief Executive of the Department of Education and Training, will require the leave of the tribunal to be legally represented as the applicant does not satisfy the provisions in sections 43(2) (b) (i) to (iii). The tribunal exercises its discretion when considering whether to grant leave for a party to be represented in the context of the requirement to comply with the interests of justice and in addition the Act sets out in section 43(3) some factors that -- 2 of 4 -- the tribunal may, but not must, take into account when deciding whether or not to give leave. 5. In this case the applicant comes within the category of a State Agency. It was contended by the applicant in written submissions that it is in the interests of justice that State Agencies seeking to invoke the application of the laws of the State are legally represented. This proceeding involves the State seeking to invoke provisions in section 341 of the Education (General Provisions) Act 2006 to prohibit a person, who appears to be a member of the parent community at a specified school and who has been convicted of assault occasioning bodily harm to a teacher at the school, from entering those school premises for 12 months. In the event that such a prohibition were to be ordered by the tribunal, the person in question would be excluded from accessing school premises for a significant period of time when other members of the parent community and the public would not experience any such limitation. 6. In the written submissions, the applicant stated that an order made under section 341 of the Education (General Provisions) Act 2006 is the most serious of the consequences available under that Act. Before making such an order the tribunal must be satisfied that the respondent is likely to cause physical harm to, or apprehension or fear of physical harm to, another person when that other person is at the school premises, or is likely to damage the school premises or property at the school premises, or is likely to disrupt the good order or management of the school. 7. In deciding whether to exercise its discretion to invoke the provisions of section 341 of the Education (General Provisions) Act 2006 the tribunal has to balance complex important and competing policy considerations: protection of staff and students at the school against the interests of a parent as a member of the parent community having access to the school premises. It was submitted by the applicant that it was in the interests of justice that the tribunal receive meaningful submissions as to the factors to take into account when exercising its discretion whether or not to prohibit the respondent from the school premises. 8. The tribunal found the submissions made by the applicant to be cogent particularly in circumstances where there is not a depth of settled law on the application of section 341 of the Education (General Provisions) Act 2006. The tribunal accepted the submission that this is an area of developing law and that the tribunal would gain benefit in resolving the complex competing policy considerations inherent in section 341 from having input from experienced legal representation. 9. The proceeding involves an important issue of public interest and serious consequences could arise for the respondent in the event that the tribunal is persuaded to prohibit him from entry onto the school premises for 12 months. On the other hand, serious consequences could arise for the staff and student body at the school in the event that the tribunal is not persuaded to invoke the provisions in section 341 of the Education (General Provisions) Act 2006 given the circumstances that the assault for which the respondent has been convicted took place at the school in the presence of students. -- 3 of 4 -- 10. The tribunal is persuaded that it is in the interests of justice that the applicant, as a State Agency, seeking to invoke the application of a law designed to protect staff and students at a school is permitted to be represented by a legal practitioner in this case. Granting leave in this case where the law is not settled and where there are important and competing public interest considerations will promote the objects of the Queensland Civil and Administrative Tribunal Act 2009 in ensuring the quality of tribunal decisions and the delivery of an outcome that is fair and just to the parties. -- 4 of 4 --