Carey v Cairns Regional Council

CITATION:

Carey v Cairns Regional Council & Ors; Cairns Regional Council & Ors v Carey [2011] QCATA 313

PARTIES:

David George Carey
(Applicant/Appellant)
v
Cairns Regional Council
(First Respondent)
David Egan
(Second Respondent)
George Pitt
(Third Respondent)
William Bellero
(Fourth Respondent)
Joseph Sciacca
(Fifth Respondent)

Cairns Regional Council
(First Applicant/Appellant)
David Egan
(Second Applicant/Appellant)
George Pitt
(Third Applicant/Appellant)
William Bellero
(Fourth Applicant/Appellant)
Joseph Sciacca
(Fifth Applicant/Appellant)
v
David George Carey
(Respondent)

APPLICATION NUMBER:   APL087-11 / APL104-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Michelle Howard, Member

DELIVERED ON: 21 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Leave for the appeal by David George Carey is granted.

2.    Leave for the appeal by the Cairns Regional Council is granted, except in relation to the ground set out at paragraph 7 of the written submissions of the Cairns Regional Council filed 8 April 2011.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – where discrimination found on basis of political belief or activity – local government – where finding of no personal liability of councillors – reasonably arguable error – question of general importance

APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – where finding that discharge of position of chief executive officer was political activity – where termination of employment by deliberative vote – where adverse inferences drawn against Council

Anti-Discrimination Act 1991, ss 7(j), 7(p), 102
Local Government Act 1993, ss 229, 240, 1130
Queensland Civil and Administrative Tribunal Act 2009, s 142

APPEARANCES and REPRESENTATION (if any):

The matter was heard and determined on the papers in the absence of the parties, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

President

1. I have read the draft reasons for decision of Ms Howard.  I agree with her reasons, and the orders she proposes.

Michelle Howard, Member

1. Mr David Carey, the applicant in an anti-discrimination proceeding has filed an application for leave to appeal the decision of the tribunal which was delivered on 21 January 2011.

2. The ground of appeal is that the tribunal erred in concluding that s 240 of the Local Government Act 1993 (LG Act) or, alternatively, s 102 of the Anti-Discrimination Act 1991 relieved the second, third, fourth and fifth respondents, who were councillors, from personal liability.

3. The Cairns Regional Council, which was the first respondent in the earlier proceeding, also seeks leave to cross-appeal the decision on the following grounds:

   (a)  The learned Member who made the decision erred in law and in fact in finding that the dismissal of Mr Carey from his employment was an act done on the basis of political activity and in contravention of the Anti-Discrimination Act 1991 for which the Cairns Regional Council was liable to him;

   (b)  The Member erred in law and in fact in the award of damages ordered to be paid by the Cairns Regional Council to Mr Carey.

1. Both applicants have set…