De Soysa Walsh Pty Ltd v Gitau
[2024] QCATA 100
•17 September 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
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
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s (3)(a), s 28, s 29, s 142, s 146, s 147
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165
Body Corporate No. 1 CTS 5908 v Di Marco Investments Pty Ltd [2010] QCATA 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84
Charisteas v Charisteas [2021] HCA 29; 393 ALR 389
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, (2019) 268 CLR 76
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Duffill v Karingal Pty Ltd t/as the Marble Man ABN 7601914824 [2023] QCATA 114
Drew v. Bundaberg Regional Council [2011] QCA 359
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Friends of Stradbroke Island Association Inc v Sandunes Pty Ltd & Anor [1998] QCA 374; (1998) 101
Gitau & Ng'ang'a v De Soysa Walsh Pty Ltd, Walsh & Boles [2023] QCAT 189
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Leigh v Bruder Expedition Pty Ltd [2020] QCA 246
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Oaks Hotels & Resorts Limited v Knauer & Ors [2018] QCA 359
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023] HCA 15
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
R v Birmingham City Council; Ex parte EqualOpportunities Commission [1989] AC 1155
Re Ecovale Pty Ltd [1999] QCA 067
Rayner v Whiting [2000] 2 Qd R 552
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Robinson v Corr [2011] QCATA 302
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Shamoon v Chief Constable [2003] UKHL 11
Terera & Anor v Clifford (2017) QCA 181
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49
Wilkes v Andrew [2012] QCATA 173
Warren v Coombes (1979) 142 CLR 531Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
Introduction
Appeal on question of law and leave to appeal
Relevant treatment of findings of fact on appeal
Factual findings relevant to discrimination in the accommodation area on the basis of pregnancy and race
Factual findings relevant to the counter-complaint for sexual harassment
The specific grounds of appeal
Bias and the comparator – Ground 1
Bias and the comparator – Grounds 4 and 5
Motive for discrimination and unconscious conduct – Ground 2
Vicarious liability of the first appellant company for the conduct of Mr Walsh – Ground 3
The error of law in interpreting COVID-19 Emergency Response Regulation – Ground 6
The errors of mixed fact and law, or errors of fact – Grounds 7 to 10
Alleged errors in applying ss 28 and 29 of the QCAT Act and the counter-complaint appeal
REASONS FOR DECISION
Introduction
After a three-day hearing in April 2023, in respect of two complaints brought by the present respondents alleging discrimination on the basis of pregnancy and on the basis of race and acts of racial vilification and victimisation, and a counter-complaint of sexual harassment brought by the third appellant Ms Boles, the Tribunal delivered a judgement shortly thereafter which upheld[1] two of the complaints by the complainants but dismissed other complaints of racial vilification and victimisation, and the counter-complaint brought by the third appellant Ms Boles.
[1]Gitau & Ng'ang'a v De Soysa Walsh Pty Ltd, Walsh & Boles [2023] QCAT 189.
The complaints upheld were that both current applicants, whom I shall refer to in these reasons as the appellants, De Soysa Walsh Pty Ltd and David Walsh, directly discriminated against both respondents Jackson Gitau and Rose Ng’ang’a in the accommodation area on the basis of pregnancy by sending emails of 27 and 30 March 2020, threatening eviction proceedings if they brought their baby home to their rental property after the birth of their child.
The sending of those emails was also the basis for upholding that the appellants had directly discriminated against both respondents in the accommodation area on the basis of race.
It was also held that between 27 March and 2 June 2020, both appellants De Soysa Walsh Pty Ltd and David Walsh directly discriminated against both respondents on the basis of race by conducting a campaign against the tenants of surveillance, being constantly picked on, losing the use of a facility, being served with numerous unjustified notices, the appellants declining to assist with utilities, being spoken to in humiliating and offensive ways, and by the appellants obstructing access. I will turn to the detail shortly.
The hearing was limited to liability issues. With the benefit of hindsight, it may have been more efficient to have assessed the compensation payable or other remedy at that time as well. Orders were made so it could be listed for a directions’ hearing on a date to be fixed, to enable the Tribunal to decide the question of remedy. No remedy has yet been determined.
The respondents had a fixed term residential tenancy with the first appellant, De Soysa Walsh Pty Ltd, a company controlled by the second appellant, David Walsh. The respondents’ unit was one of six in a block of units converted from a suburban house about 60 years ago. The third appellant, Leachia Boles, is Mr Walsh’s wife and during the currency of the events was a joint owner of the block of units.
The reasons summarised the issues by identifying that about half way through the fixed lease term, Ms Ng’ang’a told the appellants that she was pregnant and that they wanted to break the lease because the family needed somewhere larger. It was agreed that if a new tenant could be found, then the tenancy would be terminated early. A new tenant was not found, and the tenants indicated to the respondents that they would need to stay to the end of the fixed term. The baby was due just over six weeks before the end of the fixed term and about a month before the baby was due, the appellants told the tenants that if the baby was brought to the unit, it would be an unauthorised occupant and eviction proceedings would be commenced.
The tenants alleged that at about the same time the appellants started to put them under surveillance, constantly picked on them, withdrew a facility, served them with numerous unjustified notices, interfered with their utilities and declined to assist with the utilities, obstructed their access, humiliated them, called them offensive names, and on one occasion physically attacked one of them.
The reasons summarised firstly the allegations of direct discrimination in the contentions as exposing them to less favourable treatment in the area of accommodation and is said to be less favourable treatment by (a) varying the terms of the accommodation and denying a benefit associated with the accommodation by:
(a)interfering with the water and electricity supply to the unit;
(b)interfering with safe access to the unit;
(c)impairing access to the unit and common areas/amenities; and
(d)seeking access to the unit on multiple occasions.
Secondly it was alleged that they had treated the tenants unfavourably in connection with the accommodation by:
(a)informing the tenants that their child, once born, would not be authorised to reside at the unit;
(b)informing the tenants that bringing their child to reside in the unit would be a serious breach of the rental agreement and would result in eviction proceedings;
(c)seeking multiple entries into the unit to intimidate and harass the tenants; and
(d)issuing multiple notices alleging breaches of the rental agreement.
Thirdly it was alleged that they had treated the tenants unfavourably in connection with the accommodation by, on 19 and 25 May 2020, using ‘racially discriminatory comments and language towards’ Mr Gitau and by association, Ms Ng’ang’a.
The first and second group of allegations were made only against the company and Mr Walsh since only they acted ‘in connection with accommodation’ and this is not said about Ms Boles. The third allegation was made only against Ms Boles. This was characterised as racial vilification and/or serious racial vilification. That claim was unsuccessful. So, the only claim against the 3rd appellant failed. She has appealed because she brought an unsuccessful claim for sexual harassment.
As can be seen, the tenants alleged that these things happened because they were expecting their baby, and because they were of African origin.
The tenants sought help from a tenant help group and lawyers. Steps were taken to protect the tenants’ rights to remain in the premises by applying to the Tribunal, bearing in mind the baby was due soon. The tenants said that despite this, the appellants continued their campaign against them. Finally, a couple of days before the end of the fixed term tenancy, and when the baby was five weeks old, the tenants moved out of the premises.
The reasons summarised the issue on the counter-complaint as one of sexual harassment by which one of the appellants, Ms Boles, says that she was subjected to unwanted comments and gestures of a sexual nature by Mr Gitau over several weeks and which she found offensive and threatening. The sexual harassment complaint appeared in a Statement of Facts and Contentions filed by Ms Boles on 5 April 2022 in ADL024-21, referring to her complaint of 13 December 2020 and her affidavit of 30 March 2022. In those documents Ms Boles says that when she was alone, and in February and March 2020, Mr Gitau would invade her personal space, look her up and down, focus particularly on her breasts and crotch area and would smirk at her as she turned away to leave. Towards the end of March 2020, the harassment became verbal, offensive and threatening and in April and May 2020 Mr Gitau would intercept her in the garden at the rear of the property and say:
(a)You're a good-looking woman. I like women who have a good figure;
(b)You’re in good shape for a woman of your age;
(c)I really like pretty black women like you;
(d)What’s wrong with you? Don’t you like a nice strong black man like me?
Ms Boles also alleged that she used to tell Mr Gitau to leave her alone when he approached her, but after that instead of speaking to her he would leer at her and make low grunting noises when he walked past her. Ms Boles also relied on incidents on 19 and 25 May 2020 as acts of sexual harassment.
The counter-complaint brought by the third appellant Ms Boles was dismissed. She has appealed that decision.
In relation to issues of credit going to the counter-complaint, the Tribunal found in relation to the respondent Mr Gitau that he had a willingness both to mislead and to manipulate the evidence before the Tribunal and that this meant the Tribunal could not wholly rely on Mr Gitau’s allegations to decide the complaint and would require his evidence to be corroborated before the Tribunal could rely on it. On the other hand, there was inconsistency in the accounts given by Ms Boles about the harassment incident and that made it impossible to find as a fact what happened to cause her to shout out that she was being threatened and whether harassment occurred.
The appellants filed an application to appeal on 19 June 2023 and also sought a stay of the decision. On 25 August 2023 the stay application was refused.
The application for appeal seeks orders that the decision be dismissed, the counter-complaint be reversed, that all claims in ADL054-20 and ADL055-20 be dismissed, and the respondent Mr Gitau pay the third appellant Ms Boles damages in an amount determined by the Tribunal, all parties bear their own costs in the original matter, and that the decision of the Tribunal be vacated.
The appellants' stated position is that the reasons and therefore final decisions in these matters are “hopelessly infected with errors of law, mixed law and fact and fact contravening QCAT Act s.146 and s.147”.[2]
[2]Appellant's submissions in support of appeal dated 15 June 2023 (Appellant September Submissions) and as noted in the Notice of Appeal, Part C dated 15 June 2023 (Notice of Appeal).
The reasons for the decision of the Tribunal were lengthy and detailed, and included numerous schedules which summarised the evidence and conducted a review, analysis and findings in respect of it. The learned Member dealt comprehensively with the evidence. The decision could not be criticised as being a limited or superficial analysis of either the evidence, how it ought to be treated, the issues which went to findings of credit, or the analysis and application of the law to those findings.
Appeal on question of law and leave to appeal
Pursuant to s 142 of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’), an appeal only lies to this Tribunal on questions of law, unless in relation to appeals on a question of fact or a question of mixed law and fact the Appellant has obtained the Appeal Tribunal’s leave to appeal.
Pursuant to s 146 of the QCAT Act, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter. By s 147 an appeal to this Tribunal on a question of fact only or a question of mixed law and fact, if leave is granted, is by way of rehearing.
The Appellant raised 10 grounds of appeal. Seven of the grounds were characterised as errors of law, with the remaining grounds said to be either errors of fact or mixed errors of law and fact.
The appellants’ submissions were prepared by one of the appellants, Mr Walsh, who has legal qualifications. The reasons identify that Mr Walsh practiced as a solicitor for about 10 years in total, and had 30 years’ experience in property letting in Queensland.
In the Court of Appeal primary submissions must be no more than 10 pages. The Notice of Appeal in the present case attaches 32 pages of submissions in support of the appeal, but none in support of leave to appeal. They then filed a further 95-page submission on 22 September 2023 (‘the Applicants' September Submissions’) and then a further 42-page submission dated 10 November 2024 which are prolix, repetitive and often not self-evident as to their meaning. The appellants’ 22 September 2024 submissions concede the submissions are repetitive, but shoots blame for this home to the Member who decided the case because of what the submissions call the “circularity of the member’s reasons”. To burden this Appeal Tribunal with submissions which are unnecessarily prolix and repetitive is scandalous and would not be tolerated in any Court or Tribunal. Sometimes the arguments on appeal cannot be dealt with succinctly because of, for example, the length of the trial, or the complexity of the issues it threw up necessitated that. This is not such a case.
Comprehending and resolving the complexly interwoven issues which are repetitiously thrown up in the appellants’ submissions is an exercise that reminds one of being thrown into one of the artist M C Escher’s famous surrealist images, like a series of staircases that crisscross in a labyrinth-like interior, at seemingly impossible angles so as to traverse them, apparently navigable, but actually not.
Despite that labyrinth-like quality, I have given full and careful consideration to all of those submissions. Many of them cross over between topics and appear to interrelate different heads of appeal with other grounds or arguments in support of the appeal. Some that started life in support of a particular ground of appeal appear in later contentions to support another. My focus in these reasons is to deal with the grounds of appeal and the arguments put forward to support them when the appeal was filed and those which respond to the submissions for the respondents.
I have also carefully reviewed the Applicants' September Submissions. Where these reasons do not specifically traverse any particular argument advanced in any or the submissions, it does not mean that I have not fully considered the submission or the contention being made.
One’s overall impression is that in large part, this appeal (which was heard on the papers and without the benefit of oral argument) was conducted by the appellants as an attempt to re-argue a multiplicity of issues which were raised at trial on which the appellants lost, both on the evidence and in law, and as to the proper interpretation to be placed upon evidence where it fell into some particular context or other.
Although some of the grounds of appeal are expressed to be against findings of fact or mixed findings of law and fact for which leave is required, they essentially relate, in one way or another, to challenging the findings of fact. Some of those said to be errors of law are not obviously so. The appellants’ submissions did not address the question of what an error of law, error of fact, or mixed errors of fact and law were. I will deal with that issue shortly.
The appellants did not seek leave to appeal in the Notice of Appeal. In the Notice of Appeal, Part E, the appellants have ticked "I do not require leave to appeal in this case" and did not tick "I am seeking leave to appeal". On this basis, the respondents submit, the appeal should only proceed on questions of law, that is, those agitated in Grounds 6 and 9. This Appeals Tribunal has previously held that where no such leave has been sought or obtained the appeal may only be brought on a question of law.[3] In fact though at page 4 of the form it was noted that leave was sought “if the tribunal finds errors of mixed law and fact”. I am prepared to treat that as seeking the leave required.
[3]Body Corporate No. 1 CTS 5908 v Di Marco Investments Pty Ltd [2010] QCATA 66, [4] (President Wilson J and Member Barlow).
No submission has been made however which addresses the reason why the appellants ought to be granted leave to appeal until the Applicants' September Submissions came in. Both parties cite the decision by Member Dr J Forbes in Wilkes v Andrew [2012] QCATA 173 (‘Wilkes’) for the proposition that in respect of the grant of leave, the following principles apply:
[19] In a case of this kind there is no appeal as of right. It is a prime object of the QCAT Act to resolve disputes, particularly minor ones, quickly and economically. Subject to justice and reason, finality of the primary decision is consonant with those aims. There are well settled principles for deciding whether leave to appeal should be granted. It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done. It must be shown that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice to the intending appellant. It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have rational, albeit debateable support in the evidence. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view. One clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits.
That is essentially a summary of what has been said in other cases.[4] but it is a fair and useful summary, although it does not focus on the specific considerations that might apply where the only appeal that is permitted without leave is on a question of law. Neither party address on that issue.
[4]For those propositions the following decisions were cited: Robinson v Corr [2011] QCATA 302 at [7]; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19]. Fox v Percy (2003) 214 CLR 118 at 125-126; Minister for Immigration andCitizenship v SZMDS & Anor (2010) 240 CLR 611 at [131].
There are other factors as well. The principal factors relevant to the grant of leave to appeal where leave is required even where one can appeal on the merits and not merely on a question of law, are well established. Leave to appeal should not be granted unless the decision from which it is sought to appeal is attended with sufficient doubt to warrant its being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused (Whiting v Rayner [2000] 2 Qd R 552 at 553; Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84 at [35]). Other factors may be relevant to the grant of leave to appeal, include whether the appellant/applicant has any interest in the point sought to be raised, whether the points raised in the appeal are merely academic (Re Ecovale Pty Ltd [1999] QCA 67) and whether the appeal raises issues of considerable public interest (Friends of Stradbroke Island Association Inc v Sandunes Pty Ltd & Anor [1998] QCA 374).
Hence a grant of leave will usually only be given in circumstances where an appeal is necessary to correct a substantial injustice, or where there is a reasonable argument that there is an error to be corrected.[5] Any contention regarding errors in findings of fact will not be disturbed unless the findings were not open on the evidence.[6]
[5]Terera & Anor v Clifford (2017) QCA 181 at [10].
[6]Duffill v Karingal Pty Ltd t/as the Marble Man ABN 7601914824 [2023] QCATA 114 at [10].
Hence appeals on grounds other than error of law will not lead to findings of fact being disturbed on appeal if the findings of fact by the original decision maker have rational, even if debateable, support in the evidence. As the decision in Wilkes makes clear, where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view. A clear purpose of a “leave” proviso is to preclude attempts to conduct retrials on the merits under the guise of claims that there was inadequate evidence to arrive at a particular finding.
Relevant treatment of findings of fact on appeal
An appeal, including by way of rehearing, which this appeal is not since (subject to leave) it is limited to on questions of law, is a procedure that is concerned with the correction of error.
An appeal on a question of law is concerned with error on questions of law, and those errors must be of such significance that they lead to a different result or that the decision should be overturned.
These principles are of longstanding acceptance and may be found in numerous authorities including High Court authority in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203, Warren v Coombes (1979) 142 CLR 531 at 538-539, Fox v Percy (2003) 214 CLR 118.
The High Court has said[7] that the distinction between questions of law and fact is ‘vital’ in many legal contexts, but it also acknowledged that ‘no satisfactory test of universal application has yet been formulated’. The clear implication was that the law-fact distinction produces different results in different fields of law.
[7]Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 394.
It has been said that a question of fact involves an inquiry into whether something happened or will happen, and is quite separate from any assertion as to its legal effect. A question of law involves the identification and interpretation of a norm which is usually of general application. That distinction quickly becomes blurred, however, by the difficulties of classifying the interactions between norm and fact. In Da Costa v R [1968] HCA 51; (1968) 118 CLR 186, at 194 Windeyer J said that
When the distinction [between questions of fact and questions of law] determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and abstract and universal character.
Having said that, it is settled that errors of law include applying an incorrect principle of law or making a finding of fact or facts on an important issue which could not be supported by the evidence.
In Vetter v Lake Macquarie City Council[8] (‘Vetter’) three members of the High Court explained the underlying principles sufficiently for the purposes of the case at hand, which concerned the scope of an appeal confined to a question of law from a trial court exercising workers compensation jurisdiction, when they stated:
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way ... whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation.
[8](2001) 202 CLR 439 at [24].
The Court went on to say:
[W]hen it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but ... the question may be a mixed one of fact and law ... [A] question exclusively of law arises ... if, on the facts found only one conclusion is open.[9]
[9]Ibid, at [27].
The three members of the High Court in Vetter explicitly drew upon the frequently cited distillation of principle by Sir Frederick Jordan in 1940 in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126. That distillation of principle by Sir Frederick Jordan had concluded as follows at 138:
a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.
That conclusion was explained by Sir Frederick to follow from four propositions he had himself extracted from the cases, the fourth of which was to the effect that a finding of fact by a tribunal that a particular set of facts comes within "an ordinary English word or phrase as used in a Statute" is one of fact which:
can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences or (c) if it has misdirected itself in law.[10]
[10]At 138.
It was for the relevant Member to decide what weight was to be given to particular considerations and the evidence which was before the Tribunal.
The general principles concerned in challenging primary findings of fact in an appeal by way of rehearing are well established, and although applicable in a different context to that here, are helpful. Neither party addressed the issue of what the proper approach to findings of fact are when the appeal is only on a question of law. But assuming leave is potentially available to challenge findings of fact or mixed law and fact, it seems to me that what has been said about the correct approach when there is to be an appeal by way of rehearing set a low benchmark which must, at a minimum, be satisfied.
It is accepted that the task of determining the primary facts may be shaped by legal requirements as to natural justice,[11] procedure or evidence, but on the assumption that there is no issue as to adherence to those requirements, fact-finders commit no legal error simply by getting their facts wrong, even drastically wrong. There are exceptions, but they are strictly limited.
[11]See, e.g., Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority(1991) 24 NSWLR 156, 186, where a mistake of fact as to the scope of a dispute led to a breach of natural justice, which was in its turn characterised as an error of law.
The High Court has made clear that findings of fact will not easily be disturbed on an appeal. The appeal is not another opportunity for the parties to re-argue the case that was before the original decision maker. The findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal. The appeal tribunal will only disturb a finding of fact if there is good reason to do so.
The High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". [footnotes omitted].
Factual findings relevant to discrimination in the accommodation area on the basis of pregnancy and race
The Member found in relation to the threat of eviction in emails of 27 March 2020 and 30 March 2020 that:
[85] The emails of 27 March 2020 and 30 March 2020 read together make the extraordinary statement that the baby when born was not authorised to be at the premises, that this would be a serious breach of the lease, and that it would result in eviction proceedings. [86] Irrespective of the precise legal rights which applied to the situation, the threat of eviction if the tenants brought their baby home after the birth was undoubtedly unfavourable treatment. As he explained when giving evidence, this threat caused Mr Gitau to seek help. He explained that he did not know how the law worked, and he was concerned that the family would be turned out of the premises. In the circumstances it was reasonable for him to seek help.
[87] On the face of it, the threat of eviction was made because of the pregnancy. It might be said that the pregnancy merely provided an opportunity to be forthright about the effect of the birth on the tenancy, but bearing in mind that at that time the tenants were clear that they wanted to leave before the end of their fixed term, there was no reason to describe that effect. In Mr Walsh’s response to contentions, it is suggested that the threat was a reservation of rights should the tenants not leave at the end of the fixed term, it being uncertain whether they would leave, or possibly to show that the respondents were not going to be intimidated in any way.45 Again there was no need to reserve such rights or to show such strength. It was the threat that was the unfavourable treatment and there was no need to make such a threat.
[88] Assessing this by applying the terms of section 10 of the AD ACT [the Anti-Discrimination Act 1991 (Qld)], it is necessary to ask whether the respondents would have made this threat to tenants in the same circumstances as these tenants, but who were not about to have a baby. The answer is clearly no.
[89] … I regard the emails of 27 and 30 March 2020 as part of the campaign and they were therefore also motivated by race. Both the fact of the pregnancy and race were ‘substantial reasons’ for those emails. In the terms of section 10 of the AD ACT, I ask whether the respondents would have made the threat in the emails to tenants without the attribute of race, and the answer is no.
The Member found in relation to what he described in shorthand as a campaign against the tenants that:
[91] I have found that there was a campaign against the tenants, and that Mr Walsh was strongly influenced by Ms Boles’ mistrust of the tenants because of their race and this is why the campaign was conducted.
[92] As explained in schedule 4[12] not all the events complained of by the tenants should be considered as part of the campaign, and not all the events are in fact relied on.
[93] It is my finding therefore that the company and Mr Walsh did directly discriminate against the tenants on the basis of race (in addition to the threat of eviction proceedings in the emails of 27 and 30 March 2020) by conducting a campaign against them consisting of a breach notice dated 29 March 2020 issued about the clothes dryer, locking the tenants out of the laundry room on 30 March 2020, issuing a breach notice about the bin collections on 1 April 2020, filming Ms Ng’ang’a on 5 April 2020, issuing a breach notice about water being thrown off the balcony on 11 April 2020, issuing a breach notice about allegedly false complaints about loss of water on 14 April 2020, not dealing quickly with the tenants’ problems with water on 14 April 2020, issuing a breach notice about repeated breaches on 16 April 2020, not dealing quickly with the tenants’ problems with water on 16 April 2020, speaking mockingly to Ms Ng’ang’a on 18 April 2020, issuing a breach notice about a visit by an NBN contractor on 20 April 2020, by an inspection of 24 April 2020 and the issue of a breach notice on 24 April 2020, filming Ms Ng’ang’a on 27 April 2020, not dealing quickly with the tenants’ problems with electricity on 7 May 2020, calling Mr Gitau a piece of shit on 19 May 2020, placing an iron sheet near the front of the car port and placing a trailer in an inconvenient position for the tenants and not responding to Mr Gitau’s emails of 19 and 22 May 2020 about this, and obstructing the car port with a trailer on 2 June 2020.
[94] By itself such discrimination is not actionable. It must come within one of the areas of the AD ACT for there to be an actionable contravention. Here it can be seen that all the acts of direct discrimination come within either section 83(b) (denying or limiting access to any benefit associated with the accommodation) or section 83(d) (treating a person unfavourably in any way in connection with the accommodation.
[95] The liability of the company arises from the provisions of section 133 of the AD ACT that is to say that when he contravened the AD ACT he was acting in the course of work or while acting as agent for the company.
[96] Agent as used in section 133 are defined in the schedule to the AD ACT as: agent means a person who has actual, implied or ostensible authority to act on behalf of another [97] Mr Walsh agreed when giving evidence that in making the residential tenancy agreement the company was acting as trustee for the De Soysa Family Trust. Since the company was the named lessor in the residential tenancy agreement and Mr Walsh was its sole director and shareholder, in anything to do with the tenancy he was obviously acting as he agent of the company, and section 133 is obviously engaged.
[98] Mr Walsh however, submits that section 133 does not apply because he was not an agent for the company, that the company’s only role was as corporate trustee of the trust. Since the company was the lessor, and therefore had given the tenants the right to occupy the unit, and a company must act through other people, I cannot see how these submissions can succeed.
[12]Which was a table setting out the evidence in considerable detail.
There is much criticism throughout the appeal submissions[13] including Grounds 7 and 8, that there has been some error in relation to the use of the word “campaign” by the Member. There is nothing to that because the word, as explained by the Member, was used to collectively describe a series of findings of fact (set out in schedule 4 to the reasons) as to the applicants’ conduct.[14]
[13]Applicants' September Submissions, [45]-[46] p 12, [63] p 16, [65]-[66] p 18, [114.4] p 38, [209] p 65.
[14]Applicants' September Submissions, [45]-[46] p 12, [63] p 16, [65]-[66] p 18, [114.4] p 38, [209] p 65.
The use of that word as shorthand is unobjectionable. The relevant question is whether the findings of fact that are caught by that descriptor were open on the evidence and based on findings of weight, probability and proper inference, and not glaringly improbable or contrary to compelling inferences, those findings of fact should not be overturned.
Factual findings relevant to the counter-complaint for sexual harassment
The Member found[15] in relation to the alleged sexual harassment of Ms Boles that:
[192] Ms Boles has been quite inconsistent describing what happened between video 1 and video 2 to cause her to shout out that she was being threatened.
[193] The first account was in a statement to the police made on 29 May 2020, just four days after the event. In that statement she said that Mr Gitau came up to her and pushed his shoulder directly into her right shoulder, forcing her backwards and her fall was broken by her car. She said that a while later, maybe a few seconds, Mr Gitau moved back towards his car. Hence, she shouted out about being threatened. She said that due to being pushed there was an exacerbation of a pain in her back from a previous injury. There was no mention of sexual harassment in the statement.
[194] The second account was in her complaint to [Queensland Human Rights Commission (‘QHRC’)] about Mr Gitau’s sexual harassment, dated 13 December 2020. She said that Mr Gitau came up to her on 25 May 2020 and was smirking and he said ‘you’re black, why don’t you like a good-looking black man like me’. She ignored him and he turned around went back to his unit and a moment later came back out and walked up to her holding his crotch and said: What’s wrong with you. Can’t handle a good piece of black meat like I have?
[195] She said in the complaint that at that point she shouted out about being threatened. There is no mention of any physical contact between Mr Gitau and Ms Boles at all and no mention of a car.
[196] Ms Boles was asked in cross examination about why the complaint did not mention any physical contact and her explanation was that the complaint was only about sexual harassment.
[197] I do not think this is a good explanation bearing in mind the gravity of the allegation as it later emerged when Ms Boles gave evidence in the hearing. She said: I walked passed him onto the boot of my car to check whatever I was checking for and as I was leaning down doing whatever I was doing I felt something coming up behind me and as I’m coming up (Mr Gitau) came to me and pushed me into the car, as he was pushing me into the car he was grabbing his private parts looking at me, sneering, and said what’s wrong with you don’t you like a good piece of black meat like I have. All of this was happening at the same time. As Mr Gitau was doing that I was saying ‘help, help, help’. By that time (the neighbour) is coming down the stairwell, I’m pushing passed Mr Gitau going where I was going, Scott was coming down the stairs and I said he’s threatening me.
[198] This account is unlikely to be true either, because if as Ms Boles told the police, the physical assault was sufficient to exacerbate pain in the back from a previous injury, merely shouting out: He’s threatening me, David, he’s threatening me would have considerably understated what happened.
[199] My conclusion is that the inconsistency in the accounts given by Ms Boles makes it impossible to find as a fact what happened to cause her to shout out that she was being threatened. This has an impact on the sexual harassment counter complaint, considered above.
[15]Schedule 3 to the reasons.
In summarising this evidence and the findings the Member held:
[131] The difficulty is that the evidence from Ms Boles is difficult to accept. In schedule 3 I referred to the quite different accounts given by Ms Boles about what happened on 25 May 2020 between video 1 and video 2, which is one of the main allegations in the sexual harassment complaint. She was asked in cross examination why she did not mention the alleged sexual harassment on that day (which is version 2 of what happened that day) to the police in the statement made on 29 May 2020. Her explanation was that she did mention the sexual harassment to the police officer who was taking the statement but was told that it was not appropriate for inclusion in the statement. This seems inherently unlikely, and it does not accord with her explanation for the delay in raising the sexual harassment at all, which was that she did not want Mr Walsh to know about it and she only felt strong enough to tell him about it towards the end of November 2020. It is much more likely that Mr Boles did not mention sexual harassment to the police officer at all, if she was trying to keep it from Mr Walsh, because he had control of preparing the evidence for the tribunal and this included her statement to the police.
[132] Ms Boles’ complaint of sexual harassment is not helped by her considerable exaggeration of what she was alleging. When asked in cross-examination why she appeared in the video to be calmly walking away from where the sexual harassment was alleged to have happened, she said: I’d just been sexually assaulted – one step away from being raped. [133] It is suggested in final written submissions written on behalf of Ms Boles that this should not affect her credibility – it ‘was obviously a statement as to how Ms Boles felt at the time’. But this is precisely the difficulty with this evidence – if at a time when Ms Boles is obliged to provide truthful evidence (to the tribunal) she says something based on how she felt at the time without explaining that she is doing so, then it casts doubt on whether the allegations describe something that actually happened.
[134] Ms Boles accepted in cross examination that she told the police that Mr Walsh did not have a golf club in his hands when he went for Mr Gitau near the end of video 2. She said that the reason for this was that she did not see the golf club. But then, in contradiction to this, she said that she saw the golf club in his hands after the fight. Further discrepancies emerged about this when asked about what she had said in her affidavit in support of the sexual harassment complaint. I did not find Ms Boles’ answers to these questions satisfactory and they tend to reduce the value of her evidence about the sexual harassment.
[135] One weakness is why the sexual harassment complaint was not made earlier. There was no hint of any such allegation until the QHRC complaint of 13 December 2020, yet this complaint referred to incidents which occurred from about March 2020 onwards. It is suggested by Mr Walsh in contentions filed on Ms Boles behalf that she did refer to the complaint before. But that is a reference to this statement: Mr Gitau ... would approach me when I was on my own in the rear garden of the property and would harass me with race-based comments on the theme of ‘why are you with that white man?’ Initially I would ignore him and walk away but found this behaviour increasingly intolerable when (they were claiming pregnancy and parenting discrimination, had made false claims about water and electricity disruption, abuse in the NBN incident and the noises they made) It can be seen it is not a good point at all to refer to this earlier material which makes no suggestion of sexual harassment.
[136] Ms Boles and Mr Walsh were aware that some explanation for the delay would be required and so an affidavit was prepared.60 The explanation in that affidavit was that she did not want to tell Mr Walsh about the sexual harassment and only felt strong enough to do so towards the end of November 2020. When asked about this when she was giving evidence, she said that she did not want to tell him about it because she would have to tell him about other aspects of her life. Although this might make some sense from an emotional standpoint,61 logically it makes no sense and further weakens the explanation.
[137] My conclusion about the sexual harassment complaint is that the evidence from the complainant Ms Boles is not sufficiently cogent or reliable to prove the basic facts of the complaint. The complaint fails and is dismissed.
The specific grounds of appeal
Bias and the comparator – Ground 1
Ground 1 asserts that the appellants have a reasonable apprehension of bias because of the Member’s reasoning or in the alternative, by not being afforded procedural fairness and or natural justice contrary to QCAT Act s 28(2) and (3)(a). They later make a submission on Grounds 1, 4 and 5 collectively under the heading “The Comparator”.
As to Ground 1, the appellants submit that a reading of the plain words of the reasons leads to the reasonable apprehension that the evidence has been interpreted to suit a predetermined outcome – discriminatory and unfavourable treatment on the base of race – in order to sustain the claim of direct discrimination on the pregnancy attribute.
Ground 4 asserts an error of law in that the Member misdirected himself as to the meaning of ‘Comparator’, how it is formulated and how it is applied. Ground 5 asserts an error of law in application of his “alternate methodology” in the decision in Petrak v Griffith University & Ors [2020] QCAT 351 (‘Petrak’) to address the issue of identifying a ‘real reason’ for unfavourable treatment is misapplied because it by-passes the need to identify a ‘Comparator’.
The second element of this point is that the Member did not identify a comparator, despite his own finding in the decision in Petrak and the observations of the appeal tribunal, and so it is objectively reasonable for this Tribunal to conclude that:
(a)Since the member was very aware of the requirement to identify a comparator;
(b)And the Member chose to by-pass this, legally required step; and
(c)The only plausible explanation for his not identifying a comparator was to “support the reasoning applied by the Member so that the Member might find in favour of the tenants”.
The appellants also assert that they have a reasonable apprehension of bias “because of the Member’s reasoning” and or in the alternative, “by not being afforded procedural fairness and or natural justice contrary to QCAT Act s.28(2) and (3)(a)”.
The appellants assert in support of Ground 1 that the bias was apparent on day one at the outset of the hearing. They introduce evidence of this in their submissions asserting that when, in response to a question from Mr Walsh, the Member stated, while looking at Mr Walsh “this is not Perry Mason” in what sounded to Mr Walsh and Ms Boles, like a derogatory tone. Additionally, they say, at the end of day two, after the Member and clerk had left the room, Mr Walsh waited for counsel to clear their files and papers before attempting to organise and pack his. A moment later the Member re-entered the room while looking at the floor, glanced up and saw Mr Walsh and stated sotto voce “Oh Christ” in what sounded to Mr Walsh as a contemptuous tone bordering on a sneer, as the Member returned to the bench and started making notes. Mr Walsh gathered his papers and as he left apologised for interrupting the Member who did not look up while he muttered something unintelligible in response.
In later submissions the appellants submitted that the “reasonable apprehension of bias started on day 1 of the hearing,” and thereafter became “more entrenched at the close of day 3 during the Member’s prolonged exposition on his capacity to make inferences”. It was submitted that the Member’s bias was founded on his “personal disapproval of and or dislike for, both Mr Walsh and Ms Boles”.
There is no sworn evidence that those things occurred. There was no challenge to the member then or anytime in the subsequent two days and no request that he recuse himself on the ground of bias. None of these matters were raised during the hearing.
This seems clearly to amount to an allegation of actual and also perhaps apprehended bias.
Actual bias requires a finding that the decision-maker was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’.[16]
[16] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532 [72] (Gleeson CJ and Gummow J) (‘Jia Legeng’).
Any such conclusion is antithetical to fair and impartial decision making, particularly in the exercise of judicial power. Accordingly, a finding of actual bias is a ‘grave matter’, which courts should ‘not lightly’ reach.[17]
[17]Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 127, 133 (Burchett J).
Claims of actual bias must also be ‘distinctly made and clearly proved’.[18] A further difficulty associated with actual bias arises from the very particular nature of its test, which is a subjective one about the actual state of mind about the actual decision-maker.[19]
[18]Jia Legeng, 531 [69].
[19]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 437–8 [33] (Gummow ACJ, Hayne, Crennan and Bell JJ).
It may be readily accepted that procedural fairness generally requires that the decision-maker must act without bias or an appearance of bias (the ‘bias rule’). To satisfy the bias rule, the decision-maker must objectively be considered to have an impartial and unprejudiced mind on the question that they are required to decide. An apprehension of bias arises in the circumstances where a fair-minded observer might reasonably suspect that the decision-maker was not impartial.
In my view the conduct asserted to have been observed did not demonstrate the Member was in fact biased nor did it demonstrate “personal disapproval of and or dislike for, both Mr Walsh and Ms Boles”.
Even were it capable of giving rise to an apprehension that he had personal disapproval of and or dislike for, both Mr Walsh and Ms Boles, it may readily be said that judicial officers are called upon daily to decide whether to accept or reject evidence on the basis of credit, and sometime based on their opinion as to the honesty or truthfulness of parties, and that may involve in some cases, “disliking them”. That does not demonstrate actual bias or apprehended bias.
As for apprehended bias, the applicable principles are also well established and are not in dispute.
The “double ‘might’” test as articulated in Ebner v Official Trustee in Bankruptcy[2000] HCA 63; 205 CLR 337 at [6] was recently reaffirmed in Charisteas v Charisteas[2021] HCA 29; 393 ALR 389 at [11]:
The apprehension of bias principle is that “a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
In Johnson v Johnson [2000] HCA 48; 201 CLR 488, the majority (consisting of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) made the following relevant remarks:
[12] ... The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Reference may also be had to what has been said in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [55], and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [37], (Kiefel CJ and Gageler J) by reference to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 to the effect that a finding of apprehended bias is not to be reached lightly and that the criterion for the determination of an apprehension of judicial bias is concerned with the real and not remote possibility a fair minded lay-observer might reasonably apprehend the judge or judicial officer might not bring an impartial mind to the resolution of the question to be decided.
In my view the conduct of the Member said to have been observed would not lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
Tribunal Members do not have an associate or an assistant to pack up what is on the Members’ hearing table although it is usually required to be removed from the court at the end of each hearing day. This means that Members usually come into the hearing room after the parties and their representatives have left. It can sometimes occur that Members think the court has been cleared, but it has not, and they walk back in to work on the material and only then find that the parties are still there or packing up. According to the version of events set out in the submissions nothing was said to or about Mr Walsh. Indeed, according to Mr Walsh, he realised that he had interrupted the Member and apologised for doing so. Whatever comment the Member made would have reflected the fact that he may have had some annoyance at having to have this encounter with only one party present. Interpreting the two words said to have been used as contemptuous, or bordering on a sneer, involves some considerable speculation as to what was in the mind of the Member at that moment. The other matters which are said to evidence bias through the next few days are described only at a level of generality and again involve the appellants’ interpretation of the basis for the Member’s stated belief that he was entitled to draw certain inferences from the evidence.
The appellants next contend that
[t]he inferences and findings made by the Member are inherently unlikely and not supportable on the evidence that was before the Member and came about as a result of the Member remaking the tenants’ case to focus only on pregnancy and race direct discrimination as the bulk of the tenants’ claims were unsupported by evidence and or unsustainable in the context of the evidence put before the tribunal.
This involves an allegation that the Member remade the tenants’ case to focus only on pregnancy and race. It also compounds notions that the Member engaged in bias in drawing inferences and findings inherently unlikely and not supportable on the evidence.
Since the Member rejected the other bases for the respondents’ claims, it is hardly surprising that the reasons were required to and did focus on the evidence and legal analysis surrounding:
(a)the events surrounding the direct discrimination against both respondents in the accommodation area on the basis of pregnancy by sending emails of 27 and 30 March 2020, threatening eviction proceedings if they brought their baby home to their rental property after the birth of their child;
(a)the events surrounding the direct discrimination against both respondents in the accommodation area on the basis of race by conducting 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.
In my view the reasoning of the Member could not be said, in and of itself, to have led a fair-minded lay observer to reasonably apprehend that the member did not or might not have brought an impartial mind to the resolution of the question he was required to decide. I do not accept either that the Member drew inferences and findings inherently unlikely and not supportable on the evidence in relation to the claims he upheld. I will deal with those inferences and findings shortly.
Next, the appellants submit that in respect of the QCAT Act s 28(2) and 3(a), the reasons show, contrary to the tenants’ evidentiary burden, that the Member has substituted his own reasoning in lieu of the tenants’ stated claims to be then able to find direct discrimination to have occurred. The tenants claimed less favourable treatment as against their identified comparator referencing ‘harassment and victimisation’ in the form of the notices served on them and other incidents, and which were claims dismissed by the Member. They did not cite a “campaign”.
It is not easy to identify with any precision exactly what this proposition entails. It seems to suggest bias again by the Member having substituted his own reasoning (or basis?) for the tenants’ claims when they did not make those claims themselves because their only claims were for harassment and victimisation.
First, it is clearly wrong to suggest that the tenants’ only claims were for harassment and victimisation. They included the claims of direct discrimination that were upheld.
Secondly, the Member did not impermissibly remake the respondent’s case to find against the appellants, nor create his own methodology to provide a novel framework in which to find against the appellants as the appellants’ September 2023 submissions contend.[20] Rather, the Member identified his reasoning, examined the evidence, assessed credibility not necessarily adversely to the appellants, and drew inferences he thought were open in reaching the decision and identified his reasoning.
[20]Applicants' September Submissions, [28], [114].
Thirdly the fact that the Member described the conduct of the appellants as a “campaign” does not reveal bias, in circumstances where the Member identified the conduct forming the campaign, and explained what use was to be made of this word, which was a shorthand way of identifying its effect.[21]
[21]Reasons, [46]-[47] and [51]-[52].
Next the appellants submit[22] that instead of assessing the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) s 7(c) and (g) direct discrimination claims by reference to the tenants' reasons (that is, their evidentiary burden), the Member substituted his own methodology, ignoring the case law requirement to identify a comparator, and created impermissible extensions of the law permitting himself to argue that he can find as fact the "real reasons" Mr Walsh acted as he did (Ms Boles' purported influence as applied to Mr Walsh to which he was "unconsciously" and "unknowingly" vulnerable).
[22]Applicants' September Submissions, [191]-[198].
Bias and the comparator – Grounds 4 and 5
Grounds 4 and 5 involve a submission[23] that there was a deliberate failure by the learned Member to identify a comparator so that the learned Member could find that Mr Walsh and De Soysa Walsh Pty Ltd directly discriminated against the respondents.
[23]Applicants' June Submissions, [52]-(65]; September Submissions, [191]-[209], [199] p 61-65.
Again, it is not easy to identify with any precision exactly what this proposition entails but it seems to suggest bias again by the Member having failed to identify a comparator and doing so deliberately. The relevant attributes were pregnancy and race. The comparator was obviously persons who did not have the attributes which the respondents had in those respects. The Member referred to the comparators in his reasons as being tenants in the same circumstances as the respondents who were not of African origin and were not about to have a baby. Since the relevant attributes were pregnancy and race, no exercise involved having to exclude from the comparator description any characteristics that a person with those attributes has.[24]
[24]Reasons, [83] and [88], cf. Applicants' September Submissions, [191]-[198].
Another asserted example is that a
reasonable consideration of the totality of the Member's reasons leads to the inevitable conclusion that the Member has demonstrated actual bias or in the alternative, the reasonable apprehension of bias. It is further submitted that this bias is understandable should the tribunal consider the above submissions in the context of an objective consideration of what is submitted, the Member's apparent personal dislike of Ms Boles and Mr Walsh.
The learned Member ultimately dismissed all the complaints of discrimination against Ms Boles because the offending words were not unfavourable treatment ‘in connection with the accommodation’ or on the basis of race and were not racial vilification and/or serious vilification. This was despite finding that Ms Boles had called Mr Gitau a "nigga" or "nigger" on 25 May 2020 in the circumstances I have just set out.
There is no basis to hold that the Member felt personal disapproval of Ms Boles, which led to inappropriate or incorrect findings in breach of ss 28 and 29 of the QCAT Act, but even if he did disapprove of some of her conduct, that does not establish any error of law, and this appeal is not an opportunity to reopen findings of credit.
There is no basis to find that this decision was a predetermined one, and that the findings were tailored to arrive at a particular result. There is no basis for contending that there was actual or apparent bias.
The reasons for the dismissal of Ms Boles’ claim in ADL024-21, the sexual harassment claim, are those set out in the judgement at [131]-[137]) concluding with "My conclusion ... is that the evidence from the complainant Ms Boles is not sufficiently cogent or reliable to prove the basic facts of the complaint.". Schedule 3 sets out the facts and I have set them out earlier in these reasons. At Schedule 3 paragraph [199], the Member concludes that the inconsistencies in her evidence “[make] it impossible to find as a fact what happened to cause her to shout out” that day, and as to whether there was an act of sexual harassment which led to it.
I have set out earlier in these reasons and just now in summary form the factual findings relevant to the counter-complaint for sexual harassment and the findings that were made in relation to her credit. Those findings are an entirely conventional analysis leading to a finding of unreliability in the evidence of a complainant.
The onus of proving the factual allegations fell on Ms Boles and she was required to do so to the so called Briginshaw standard which she did not, for various reasons, that depended upon her lack of credibility and acted in ways which were inconsistent with having been sexually harassed at the time. There was also a lack of contemporaneous objective evidence that the events occurred as she alleged that they did.
In my view the Member did not err in making the findings that he did on the counter-complaint.
It follows that, in my view, the learned Member did not err in law, or make errors of mixed fact or law, or errors in his application of the law to the relevant facts and the appeal on Grounds 1 to 10 must fail. To the extent that leave was required to appeal on any of those grounds, leave is refused.
Orders
For the reasons that I have given the challenges to the findings of fact cannot be accepted and leave to appeal on those questions of fact and/or mixed questions of law and fact is refused.
The orders that I make are that the appeals be dismissed and that the leave to appeal to the extent that it is required is refused.
I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
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