Bero v Wilmar Sugar Pty Ltd - [2018] QCATA 104

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104

PARTIES:

PETER BERO
(applicant/appellant)

v

WILMAR SUGAR PTY LTD

(first respondent)

GRAHAM POWELL
(second respondent)

STEPHEN LUKE
(third respondent)

GREGORY CHATFIELD
(fourth respondent)

SALVATORE RUSSO
(fifth respondent)

APPLICATION NO/S:

APL374-16

ORIGINATING APPLICATION NO/S:

ADL008-15

MATTER TYPE:

Appeals

DELIVERED ON:

20 July 2018

HEARING DATE:

20 September 2017

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Browne, Presiding
Member Fitzpatrick

ORDERS:

1.   Leave to amend the application for leave to appeal or appeal to include a further ground of appeal (Ground 6) on a question of law is refused.

2.   Leave to appeal is granted.

3.   The application for leave to appeal or appeal filed 8 November 2016 is dismissed.

4.   There is no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where application referring complaint of discrimination – where the tribunal found no breach of the Anti-Discrimination Act 1991 (Qld) – where the Tribunal dismissed the application – where the applicant appeals the decision – where leave to amend the application for leave to appeal or appeal to include a further ground of appeal – whether leave to appeal required – whether the Tribunal made errors of mixed fact and law

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – whether application for leave to appeal or appeal raises questions of mixed fact and law – where appeal raises questions of mixed fact and law only – whether leave to appeal should be granted according to established principles

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – where complaint referring allegations of discrimination concerned comments made in the workplace – where Tribunal made findings about the comments – where Tribunal found that there was no breach of the Anti-Discrimination Act 1991 (Qld) – whether error in the Tribunal’s findings

Anti-Discrimination Act 1991 (Qld), s 6, s 7(g), s 10
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29, s 100, s 102, s 142(3)(b)

Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd (1997) QADT 27
Barney v State of Queensland and Anor [2012] QCAT 695
Browne v Dunn (1893) 6 R 67
Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371
Cachia v Grech [2009] NSWCA 232
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
Chesson v Buxton (1990) EOC 92-295.
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2012] QCATA 115
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11
Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCATA 104
Decision Date: 20 July 2018

CaseChat Overview and Summary

In the case of Bero v Wilmar Sugar Pty Ltd, the appellant, Bero, sought to appeal against the Queensland Civil and Administrative Tribunal's (QCAT) decision which dismissed his complaint of discrimination under the Anti-Discrimination Act 1991 (Qld). The tribunal found that there was no breach of the Act in relation to comments made by Bero's colleagues during the course of employment. Bero applied to amend his application for leave to appeal or appeal to include a further ground of appeal, and the tribunal refused this application. Bero appealed the tribunal's decision, and the court was required to determine whether the tribunal made errors of mixed fact and law and whether leave to appeal should be granted.

The court found that the tribunal's findings were not erroneous, and the appeal was dismissed. The court held that the tribunal was entitled to find that the comments made by Bero's colleagues were not discriminatory, and the exchange of words between Bero and his colleagues was considered as banter in the context of their relationship outside of the working environment. The court also held that the tribunal's reference to Qantas' case was appropriate in characterising the comments in the context in which they were made. The court found that the appeal raised questions of mixed fact and law only and that leave to appeal should be granted according to established principles.

No order was made as to costs, as the court found that it was not in the interests of justice to award costs against Bero. The court considered the complexity of anti-discrimination matters, which justifies the engagement of legal representatives, and the fact that Bero's case, although not successful, was arguable. The court also noted that Bero was a man of not unlimited means, whereas Wilmar Sugar Pty Ltd at least was a party with means. The court concluded that on balance, no order was made as to costs.

Orders

Orders of the court

1. Leave to amend the application for leave to appeal or appeal to include a further ground of appeal (Ground 6) on a question of law is refused.

2. Leave to appeal is granted.

3. The application for leave to appeal or appeal filed 8 November 2016 is dismissed.

4. There is no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We accept the Respondents submissions. If the learned Member’s finding had been overturned we would have made orders as sought by Mr Bero for compensation for humiliation and interest in the amounts claimed.Conclusion In relation to the ‘Nigerian scammer’ comment, we have found no error in the Tribunal’s findings. The transcript shows that Mr Bero was cross-examined about Mr Russo’s comment. The Tribunal’s finding that the exchange of words between Mr Bero and Mr Russo was banter was made in the context of the circumstances surrounding the making of the comment, such as the relationship between Mr Bero and Mr Russo who were known to each other outside of the working environment. The Tribunal preferred Mr Russo’s evidence that the comment was made by him in a ‘light-hearted way’. It was open to the Tribunal to find that the conduct does not constitute an act of discrimination as defined in the Act. In relation to the ‘boiler room’ incident, there is no error in the learned Member’s findings that comments do not amount to less favourable treatment for the purposes of the Act. It was open to the learned Member to make findings about the context in which the comments were made. There has been no error in the Tribunal’s reference to Qantas’ case. The reasons show that the learned Member referred to the ‘intention’ of the respective Respondents for the purpose of characterising the comments in the context in which they were made. The Appellant has not succeeded in his appeal. The appeal is dismissed. Costs Mr Bero submits that if he is not successful in the Appeal, it is not appropriate to award costs against him. The usual rule is that each party bears its own costs.[157] In relation to the interests of justice, the ‘Nigerian scammer’ comment is said to be of particular gravity; it happened in front of others and caused hurt and humiliation. The matter affected Mr Bero deeply. In those circumstances it is said that it would be inappropriate to award costs against him.[157]QCAT Act, s 100. The Respondents submit in response that Mr Bero’s purpose in the litigation, including the appeal was to punish, to teach and expose. They say that they are improper purposes because the purpose of litigation should be to vindicate rights. In the circumstances they seek their costs of the appeal. We decline to order costs in favour of the Respondents. We do not consider it to be in the interests of justice that the usual rule under s 100 of the QCAT Act not be applied.[158][158]See QCAT Act, s 102. In particular, having regard to the matters set out in s 102(3) of the QCAT Act we are of the view that there is a degree of complexity in anti-discrimination matters which justifies the engagement of legal representatives. The cost of that engagement has not diminished the value of the Respondent’s success. Mr Bero’s case, although not successful was arguable. Mr Bero, as conceded by the Respondents is a man of not unlimited means, whereas Wilmar Sugar Pty Ltd at least is a party with means. On balance no order is made as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104
PARTIES:	PETER BERO (applicant/appellant)
v
WILMAR SUGAR PTY LTD (first respondent) GRAHAM POWELL (second respondent) STEPHEN LUKE (third respondent) GREGORY CHATFIELD (fourth respondent) SALVATORE RUSSO (fifth respondent)
APPLICATION NO/S:	APL374-16
ORIGINATING APPLICATION NO/S:	ADL008-15
MATTER TYPE:	Appeals
DELIVERED ON:	20 July 2018
HEARING DATE:	20 September 2017
HEARD AT:	Brisbane
DECISION OF:	Acting Senior Member Browne, Presiding Member Fitzpatrick
ORDERS:	1. Leave to amend the application for leave to appeal or appeal to include a further ground of appeal (Ground 6) on a question of law is refused. 2. Leave to appeal is granted. 3. The application for leave to appeal or appeal filed 8 November 2016 is dismissed. 4. There is no order as to costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where application referring complaint of discrimination – where the tribunal found no breach of the Anti-Discrimination Act 1991 (Qld) – where the Tribunal dismissed the application – where the applicant appeals the decision – where leave to amend the application for leave to appeal or appeal to include a further ground of appeal – whether leave to appeal required – whether the Tribunal made errors of mixed fact and law APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – whether application for leave to appeal or appeal raises questions of mixed fact and law – where appeal raises questions of mixed fact and law only – whether leave to appeal should be granted according to established principles APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – where complaint referring allegations of discrimination concerned comments made in the workplace – where Tribunal made findings about the comments – where Tribunal found that there was no breach of the Anti-Discrimination Act 1991 (Qld) – whether error in the Tribunal’s findings Anti-Discrimination Act 1991 (Qld), s 6, s 7(g), s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29, s 100, s 102, s 142(3)(b) Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd (1997) QADT 27 Barney v State of Queensland and Anor [2012] QCAT 695 Browne v Dunn (1893) 6 R 67 Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 Cachia v Grech [2009] NSWCA 232 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 Chesson v Buxton (1990) EOC 92-295. Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2012] QCATA 115 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11 Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT…