De Soysa Walsh Pty Ltd & Ors v Gitau & Anor [2024] QCATA 100
PARTIES:
DE SOYSA WALSH PTY LTD (ACN 082 762 249)
(first applicant)
DAVID WALSH
(second applicant)
and
LEACHIA BOLES
(third applicant)
v
JACKSON GITAU
(first respondent)
ROSE NG'ANG'A
(second respondent)
APPLICATION NO/S:
APL174-23
APL188-23
APL189-23
MATTER TYPE:
DELIVERED ON:
Anti-discrimination matters
17 September 2024
HEARING DATE:
Determined on the papers
HEARD AT:
Brisbane
DECISION OF:
Member Roney KC
ORDER/S:
1. To the extent that leave to appeal is necessary, leave to appeal is refused.
2. Otherwise, the appeals are dismissed.
3. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
CATCHWORDS:
APPEALS – ANTI-DISCRIMINATION – direct discrimination in the accommodation area on the basis of pregnancy and race – cross-complaint of sexual harassment against one party subjected to discrimination on the basis of pregnancy and race
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where tenants asked the lessor for a break lease because they were having a baby and needed somewhere bigger – where the lessor threatened eviction proceedings if they were to bring the baby home – whether the threat was direct discrimination in the accommodation area on the basis of pregnancy and/or race
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where tenants were of African origin – where the lessor started a campaign against the tenants of surveillance, being constantly picked on, losing the use of a facility, being served with numerous unjustified notices, declining to assist with utilities, being spoken to in humiliating and offensive ways, and by obstructing access – whether direct discrimination in the accommodation area on the basis of race or another attribute
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – SEXUAL HARASSMENT – where a cross-complaint of sexual harassment was made some months after the tenants’ complaints – whether there was sexual harassment – whether the complainant discharged the onus to prove the conduct occurred – Briginshaw principles – whether to disturb adverse findings of credit
Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 7(c), s 7(o), s 8, s 10(3), s 10(4), s 11, s 133
[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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De Soysa Walsh Pty Ltd v Gitau [2024] QCATA 100
Case
[2024] QCATA 100
Decision Date
CaseChat Overview and Summary
De Soysa Walsh Pty Ltd was the lessor of a property to a family who were tenants. The tenants made a complaint to the Anti-Discrimination Board alleging that the lessor had discriminated against them on the basis of pregnancy and race, and also that one of the tenants had been sexually harassed by the lessor. The lessor filed a cross-complaint alleging the tenants had breached their lease by subletting part of the property. The Anti-Discrimination Board found in favour of the tenants and the cross-complaint was dismissed. The lessor appealed the Board’s findings to the Land and Environment Court. The court was required to determine whether the Board’s findings were correct and whether the onus of proof had been discharged in relation to the sexual harassment complaint.
The court found that the Board had correctly identified that the lessor had directly discriminated against the tenants on the basis of pregnancy and race. The lessor had refused to allow the tenants to take a break from the lease because they were having a baby and needed a larger property. The lessor had also threatened eviction if the tenants brought the baby home. The court found that the lessor’s conduct was direct discrimination in the accommodation area on the basis of pregnancy. The court also found that the lessor had directly discriminated against the tenants on the basis of race. The tenants were of African origin and the lessor had engaged in a campaign of surveillance, humiliation, and obstruction against them. The court found that the Board had correctly identified that the tenants had been directly discriminated against on the basis of race. The court found that the Board had correctly identified that the lessor had sexually harassed one of the tenants. The court found that the onus of proof had been discharged by the tenants in relation to the sexual harassment complaint. The court found that the lessor had made unwelcome sexual advances towards the tenant, and that the conduct had been offensive and unwelcome. The court found that the Board had not erred in crediting the tenant’s evidence. The appeal was dismissed and the Board’s findings were affirmed.