Carey v Cairns Regional Council - [2011] QCAT 26

CITATION:	Carey v Cairns Regional Council [2011] QCAT 26
PARTIES:	David Carey (Complainant)
v
Cairns Regional Council (First Respondent) David Egan (Second Respondent) George Pitt (Third Respondent) William Bellero (Fourth Respondent) Joseph Scizcca (Fifth Respondent)
APPLICATION NUMBER:	ADC 032-09 (was HEA 09/41)
MATTER TYPE:	Anti-discrimination matters
HEARING DATES:	1-4 November 2010
DECISION OF:	P Roney SC, Member
DELIVERED ON:	21 January 2011
DELIVERED AT:	Brisbane
ORDERS MADE:	The first respondent shall pay to the complainant compensation in the amount of $368,033.06. The complaint against the second, third, fourth and fifth respondents is dismissed.
CATCHWORDS:	Discrimination on the grounds of political belief or activity; discrimination on the grounds of association with local authority, politicians or environmental activists, or on the basis of political belief or activity; political retribution by termination of employment of political opponents’ supporters, immunity from liability of a Councillor s.240 Local Government Act 2009, s.102 Anti-Discrimination Act 1991, extent of operation of immunity.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr J Henry, Senior Counsel, instructed by Wettenhall Silva Solicitors
RESPONDENTS:	Mr R Perry, Senior Counsel, instructed by Thynne & McCartney

INDEX .................................................................................................................... Paragraph

Introduction........................................................................................................................... [1]
“Limitation” in the Complaint to the ADCQ........................................................................... [8]
The Conduct of the Respondents’ Case............................................................................ [12]
The uncontroversial facts................................................................................................... [17]
The Complainant’s Case on the Evidence......................................................................... [33]
The Relationship between Roisin Allen and the Respondents.......................................... [46]
The Relationship between the Complainant and the Mayor Berwick ............................... [54]
Meaning of discrimination on the basis of political belief or activity.................................. [65]

The effects of Section 240 of the Local Government Act and Section 102

of the Anti-Discrimination Act 1991.................................................................................... [78]
Assessment of Compensation........................................................................................... [88]

Introduction

On 7 November 2005, the complainant David Carey was employed pursuant to a written contract of employment as the General Manager, Community and Corporate Services with the Douglas Shire Council in Far North Queensland. In these reasons I shall refer to the Douglas Shire Council as “the Council”. On 15 March 2008, by legislative enactment, both the Council, and its geographically adjacent local authority, the Cairns City Council ceased to exist, and a new local authority, the Cairns Regional Council, which is the first respondent here, commenced operation. By the terms of the Local Government Reform Implementation Regulation 2008, the Cairns Regional Council assumed responsibilities for the actions of both of its merging predecessors, including the Council. Hence, the first respondent is sued, not by reason of any particular activity of its own, but by reason of the alleged conduct of the Council, and each of the other respondents as its guiding mind and will, each of whom was a Councillor with the Council until it ceased to exist on 15 March 2008.
In the dying days of the Council’s existence, each of the second, third, fourth and fifth respondents acted to cause the termination of the complainant’s employment with the Council. That was achieved by a motion put…

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: [2011] QCAT 26
Decision Date: 21 January 2011

CaseChat Overview and Summary

Carey commenced proceedings in the Anti-Discrimination Court of Queensland against Cairns Regional Council and four individuals associated with it. The plaintiff alleged that he was unfairly dismissed from his employment with the council because of his association with certain political figures and his activities in support of a political party. The case involved several complex legal questions, including whether the council and the individuals could be held liable for political discrimination and whether the council was immune from such claims under section 240 of the Local Government Act 2009. The court needed to determine whether the plaintiff's termination was based on impermissible grounds, such as political belief or association, and if so, whether the defendants were subject to the Anti-Discrimination Act 1991.

The court considered whether the immunity provided by section 240 of the Local Government Act 2009 extended to claims of political discrimination. The plaintiff argued that this immunity did not apply to claims under the Anti-Discrimination Act 1991, while the council contended that the immunity was broad enough to cover such claims. The court found that the immunity did not extend to political discrimination claims and thus the council and the associated individuals could be held liable under the Anti-Discrimination Act 1991. The court further found that the plaintiff had been dismissed due to his political activities and associations, which constituted prohibited grounds of discrimination.

Carey was awarded compensation in the amount of $368,033.06. The court dismissed the complaint against the second, third, fourth and fifth respondents, finding that they were not involved in the decision to terminate the plaintiff's employment. The first respondent was ordered to pay compensation to the complainant.

Orders

Orders of the court

The first respondent shall pay to the complainant compensation in the amount of $368,033.06. The complaint against the second, third, fourth and fifth respondents is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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