Mitchell v Aveo Live Well
[2013] QCATA 295
•1 November 2013
| CITATION: | Mitchell v Aveo Live Well [2013] QCATA 295 |
| PARTIES: | Ian Mitchell (Appellant) |
| v | |
| Forest Place Group Ltd (trading as Aveo Live Well) (Respondent) |
| APPLICATION NUMBER: | APL304-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 1 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RETIREMENT VILLAGES – whether appellant threatened with removal from retirement village or threatened with deprivation or restriction – whether, if any such threat, it was reasonably justified – whether appellant entitled to public apology, compensation and costs – whether interim consent order a determination of the merits - whether appellable error shown in decision to dismiss the appellant’s original application – whether leave to appeal should be granted – leave refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 32, 142 Ex parte Britt [1987] 1 Qd R 221 Muckermann v Skilled Group Limited and Anor (No 2) [2013] QSC 194 Brown v Marine Contracting Pty Ltd (No 2) [2012] QSC 345 Griffiths v Kerkemeyer (1976) 139 CLR 161 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Introduction
On 10 May 2012 Ian Mitchell (the Appellant) commenced proceedings[1] against the Respondent (Aveo) under the RVA[2] seeking orders that:
(i) [Aveo] and their servants and agents be restrained from:
(i.a) Preventing Ian Mitchell from interacting with staff members and other residents at Aveo Taringa Retirement Village (“the retirement village”) in any way; and
(i.b) Restricting Mr Mitchell’s movements within the retirement village in any way.
(ii) Forest Place and/or Aveo provide to Mr Mitchell copies of all documents in their possession or under their control relating to an alleged complaints made against him by the retirement village staff or residents, including copies of all correspondence allegedly sent by Forest Place and/or Aveo to [him] with respect to such complaints.
(iii) Forest Place and/or Aveo provide a public written apology to Mr Mitchell for their handling of the matters the subject of this application.
(iv) Forest Place and/or Aveo pay to Mr Mitchell an amount of compensation for distress and inconvenience.
[1]Application for a tribunal hearing – Retirement Villages Act 1999 (Qld) s 167 (“the RVA”).
[2] RVA ss 169, 192, 210.
The primary hearing was conducted on the papers on 30 May 2013, when the Appellant’s applications for an apology, compensation and costs were dismissed.
Proposed Grounds of Appeal
From that decision the Appellant now seeks leave[3] to appeal on these grounds:
a)That the Member erred in (i) finding that the respondent had provided a satisfactory explanation of its behaviour and/or (ii) giving undue weight to the respondent’s explanation in dismissing the Appellant’s application;
b)That the Member erred in finding that “no claim [for damages] has been established by [the Appellant]” in the absence of “any independent evidence”.
c)That the Member erred in finding, in relation to costs, that (i) “the substantive matters raised in the [Appellant’s] application were determined by the consent orders made by the Tribunal on 21 September 2012”; and (ii) “the interests of justice do not point compellingly to a departure from the position set out in s 100 of the QCAT Act”.
[3] QCAT Act s 142(3)(b).
Orders are now sought for a public written apology, compensation, and costs of and incidental to this application and the proceedings at first instance.
The Meetings in June 2011
The Appellant became an occupant of Aveo’s Taringa premises (“the village”) in February 1999. In or about March 2011 he was invited to join the residents’ financial sub-committee (“the committee”). He attended meetings of the committee, comprising members of Aveo staff and co-residents of the village, on 4 May, 12 May and 9 June 2011.[4]
[4] Affidavit of Ian Mitchell filed 18 October 2012.
At the meeting on 9 June 2011, according to the Appellant, he sought certain financial information but did not receive satisfactory answers. Those present “became quite animated at various points”.[5]
[5] Ibid paragraph 6.
The Appellant says that on 10 June 2011 he received a telephone call from Justin Laboo, executive director of Aveo, who said, in effect, that the Appellant’s conduct at the meeting on the day before was “sufficiently unacceptable to justify an AVO [an apprehended violence order] being taken out”.[6] However, any such application would be a matter not for Aveo but for the aggrieved individual.[7]
[6] Ibid paragraph 7.
[7] As recognised in Aveo’s letter to the solicitors for the appellant, 11 November 2011,
page 4.
There followed a meeting on 16 June 2011, attended by the Appellant, Mrs Given[8], Mr Laboo, and Andrew Macintosh.[9] According to the Appellant, Mr Laboo again alluded to an AVO, adding that there were “multiple written complaints against me from ... staff members”, including reports of “loitering and stalking around staff members’ cars at night and engaging in behaviour which made staff members feel threatened and fearful for their safety”.[10]
[8] Chairman of the committee.
[9] Macintosh was then the State Manager of Aveo.
[10] Affidavit of Ian Mitchell filed 18 October 2012, paragraph 9.
In response, the Appellant, according to Mr Macintosh, “reluctantly (and without any admission of wrongdoing) agreed not to talk to staff on [his] nightly walk, through the car park or otherwise, and not to interact with staff unless by email, fax or post, absent an emergency.”[11]
[11] Ibid paragraph 13.
An Interim Consent Order
On 21 September 2012 the Tribunal ordered, by consent, that Aveo should not prevent “interaction” between the Appellant and staff, and/or restrict his movements within the village in any way.[12]
[12] Decision and directions 21 September 2012 paragraph 1.
The Appellant’s Case
At the primary hearing the Appellant submitted[13] that Aveo’s omission to draw certain complaints to his attention forthwith indicated that Aveo and it did not experience “any reasonable or genuine concern ... for the welfare of its staff, third parties or residents”, and that, accordingly, those complaints “did not provide reasonable justification for the threats”. The possibility that Aveo was showing patience in unpleasant circumstances was apparently not considered.
[13] Submissions of appellant 21 January 2013, paragraphs 14-15, 18.
The Appellant also submitted that the consent orders made on 21 September 2012 “vindicate[d his] actions in bringing the subject application”.[14]
[14] Ibid paragraph 21. See also the appellant’s submissions filed on 30 August 2013,
paragraph 15.
The Appellant’s submissions on appeal[15] embellish the original complaint. They allege, for example, that Aveo “threatened (successfully) in part to remove the [Appellant] or alter his rights”,[16] issued a “threat of removal”[17], and made “criminal allegations” against the Appellant.[18]
[15] Filed 30 August 2013.
[16] Submissions filed 30 August 2013 paragraph 9.
[17] Ibid paragraphs 14, 18.
[18] Ibid paragraph 36.
Aveo adduced evidence of “workplace harassment complaints made against the [Appellant] by past staff members of the village”.[19] (That material will be considered in due course.) Aveo perceived “that the significant distress and hurt expressed ... was real and needed to be addressed”. As an employer, it submitted, it could not lawfully ignore the apparent effects of the Appellant’s alleged misconduct on the health and safety of its employees.[20] A legislative code of practice[21] prohibited “workplace harassment” by a client or customer,[22] and it seemed proper to “take reasonable steps to prevent or control exposure [sic] employees to the risk of workplace harassment from the [Appellant]”.[23]
[19] Submissions of Aveo dated 21 January 2013.
[20] Referring to the Work, Health and Safety Act 2011 ss 19, 20, and 35.
[21] Prevention of Workplace Harassment Code of Practice 2004.
[22] Submissions of Aveo dated 21 January 2013 paragraphs 17-20.
[23] Ibid paragraph 21.
The Appellant contends that the interlocutory consent order made on 21 September 2012 is an admission of liability by Aveo,[24] as distinct from a temporary measure to preserve the peace which broke out in November 2011. Aveo rejects that assertion, saying that the relevant order was merely a “commercial resolution”, acceptable to it pending the trial, because from November 2011 to September 2012 the Appellant had minimal and inoffensive contact with village staff.[25] (The last complaint in evidence was made in October 2011.[26])
[24] 21 January 2013 paragraphs 1-15; 30 August 2013 paragraph 15.
[25] Ibid paragraphs 6 and 11.
[26] By Hayden Walsh, an Aveo employee, dated 27 October 2011.
Not a Decision on the Merits
I do not accept the Appellant’s interpretation of the interim order. It appears to be an inartifically drawn interlocutory injunction, designed not to determine the merits[27], but as a holding measure until a final decision could be made.[28] But in any event the interim order amounts to no more, at the highest, than an admission that, prior to the order, Aveo threatened to impose restrictions upon the Appellant if the conduct in question continued. It decides nothing about reasonable justification.[29]
[27] Ex parte Britt [1987] 1 Qd R 221.
[28] Muckermann v Skilled Group Limited and Anor (No 2) [2013] QSC 194 at [9]; Ley v
Woolworths Limited (No 2) [2013] QSC 193 at [4]; Brown v Marine Contracting Pty Ltd (No 2) [2012] QSC 345 at [12].
[29] RVA s 192(2)(b).
The learned Member’s reasons refer briefly to the consent order, and to Aveo’s explanation for accepting it.[30] It is true, as the Appellant suggests,[31] that the primary decision is somewhat elliptical, but inadequacy of reasons[32] is not one of the grounds of appeal. It is plain enough that the Member did not regard the interim order as a decision on the merits.
[30] Decision 30 May 2013 paragraphs 6 and 15.
[31] Submissions of the appellant filed 30 August 2013 paragraphs 35, 37.
[32] Griffiths v Kerkemeyer (1976) 139 CLR 161 at 163; Sharman v Evans (1977) 138 CLR
563 at 572. But superior court standards are adjustable to the circumstances of tribunals and other decision makers: Sydney United Football Club v Soccer New South Wales [2005] NSWSC 474 at [54]; Re Martin; Ex parte Dipane (2005) 30 WAR 164 at [91]; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187.
The crux of this case, then, is whether or not, in the light of events that allegedly occurred in the period June 2006 to October 2011, Aveo took “reasonable and necessary steps ... to prevent or control exposure to [sic] village staff members to the risk of workplace harassment by the appellant”.[33] Section 169 of the RVA does not envisage absolute liability. Was Aveo “reasonably justified”[34] in requesting the Appellant to minimise his contacts with village staff, particularly in the village car park?
[33] Submissions of Aveo dated 27 September 2013 paragraph 35.
[34] RVA s 192(2)(b).
Aveo’s Case
Andrew Macintosh, then State manager of Aveo, recorded that on 23 June 2006, in a meeting of some 60 residents, an “angry and shaking” Appellant pointed at him and shouted: “You and your manager [Gillian Roe, also present] are hopeless.” Macintosh says that: “Gillian was very upset afterwards – tears etc. I sent her home”.[35]
[35] Diary note, Andrew Macintosh, 23 June 2006.
On 30 January 2008 Gillian Roe noted a conversation said to have taken place between the Appellant and a fellow employee, Suzie Stephens. According to Stephens the Appellant -
“... bailed her up for approx 30-40 minutes demanding [why] she was turn [sic] on the lights under the building ... He went on and on about smoking ... Suzie said she felt quite threatened and uncomfortable at the time and she hadn’t experienced this sort of conversation with a resident here before”.
On 22 September 2009 another member of staff, Sharyn Foster, wrote:
“I had a visit from [the Appellant], wanted to know why we hadn’t put the rate rebate on the invoice July ... I apologised but he didn’t want to listen ... I will certainly be glad to see the back of him, sorry, Tina, but he upset me”.
Following that report John Limpus, the village manager, wrote to the Appellant on 24 September 2009:
“Your alleged conduct caused [Sharyn Foster] quite a lot of distress. Any behaviour that contravenes harassment and bullying laws offends my staff and is of concern to me ... Should there be any repeat of the behaviour I will be forced to consider other measures to protect my staff”.[36]
[36] Letter Limpus to appellant 24 September 2009.
It appears that on that occasion, at least, there was no “threat” beyond a warning that “other measures” might become necessary. Contrary to the Appellant’s submission[37] the same may be said of Aveo’s letter of 11 November 2011. It mentions “some suggestions ... to improve the situation”, offers to discuss “the issues” further, and concludes that if conciliation fails, it “will have no alternative but to make an application to the Tribunal”. That falls far short of a threat to impose any significant restriction, let alone eviction.
[37] 2 January 2013 paragraph 17.
On 25 September 2009 Mr Limpus received a telephone call from the manager of the village’s catering company, “saying that he had been subjected to a 30 minute tirade of personal and professional abuse from [the Appellant].”
On 28 June 2010 Jennifer Sweeney (acting manager from March 2009 to September 2010) states that on or about that day the Appellant “burst into [her] office and shouted in front of two other staff: `You are the worst manager we have ever had at this village’.” Again Mr Macintosh contacted the Appellant and told him that “his behaviour was unacceptable and that it should cease”. [38]
[38] Letter Justin Laboo, executive director to appellant’s solicitors, 11 November 2011
paragraph 5.
In a Record of Resident Consultation dated 15 December 2010 Jennifer Smith, the then village manager, states:
“Mr Mitchell said he wanted a reply to [budgetary] information he requested verbally a couple of weeks ago. I said to him the reason there was a delay was because I was still trying to gather the secondary information he required (most were issues I had already answered ... ) He keeps asking the same questions over and over. ... Each time ... his conversation carries on for 20-30 minutes of repeated requests for information and complaints about the village. He hasn’t once said anything nice about anyone or anything. I feel he is trying to intimidate me and bully me. ... I was very offended by his remarks. I felt [he] was again trying to intimidate me and he was doing a very good job. ... I got off the phone shaking and visibly upset by the call.”
About a week later a power failure interfered with television reception at the village. The Appellant’s reaction to this inconvenience was “extremely rude, loud and condescending ... [saying, inter alia] `I don’t care if it takes till midnight. You get this fixed now’ ... in a very blunt and nasty manner.”[39]
[39] Record of Resident Consultation 24 December 2010.
On 9 June 2011 Jennifer Smith recorded that at a finance committee meeting that day the Appellant was –
“... interacting regularly and becoming hostile when he didn’t like an answer ... [He] thumped his fist on the desk and repeated [sic] raised his voice angrily and offensively and yelling at the top of his voice at both Jo [Thomason] and myself. He repeated [sic] pointed his finger in my face and I asked him to refrain ... [He] was threatening in his manner and aggressive in his demeanour. Jo said to him that his behaviour was inappropriate and with that he continued more.”[40]
[40] Record of Resident Incident by Jennifer Smith, village manager 9 June 2011.
Later that day, when she went to her car in the underground park, Jennifer Smith found the Appellant waiting for her there.[41]
[41] Email Jo Thomason (operations manager) to Macintosh, Laboo and another, 9 June
2011, 7.02 pm.
Ms Thomason, the operations manager also wrote an account of the meeting on 9 June 2011:
“During the course of the meeting [the Appellant] became increasingly hostile and started yelling at Jennifer and myself. I asked everyone present if we could have some calm ... At his point [he] stood and leaned over the table pointing and shaking his finger in Jennifer’s face, calling [her] names and ... abusing her character. Jennifer started crying. ... [H]e leaned over the table and slammed his fist down on the desk very close to my face ... [B]ack in her office ... I asked if they could provide ... counselling for Jennifer due to the experience she had been put through. At this point I broke down and started crying.”[42]
[42] File notes, Jo Thomason, 8 June 2011.
At a staff meeting on 16 June 2011 Macintosh noted that the Appellant –
“... would acknowledge that his behaviour was unacceptable, but only if the staff ... acknowledge that their behaviour was an over-reaction ... [He] has indicated that he does not normally interact with staff and doesn’t want to ... he agreed not to approach staff in or around their cars.”[43]
[43] Macintosh, Record of conversation with resident at Taringa Ian Mitchell 16 June 2011.
On 10 August 2011 Hayden Walsh, the village gardener and handyman, complained in a handwritten note to Jennifer Smith:
“When I have been working [the Appellant] has been spying on me making me feel very uneasy. When he walks through the underground car park he stops, stares at me hard for a good minute before walking away. This started at the end of July [2011] and now has been happening more often than normal.”
On 21 October 2011 Jenny Sweeney, then manager of Aveo’s Manly premises, emailed Andrew Macintosh, repeating her earlier statement about his bursting into her office and verbally abusing her. She added:
“[The Appellant] was in the habit of waiting in the basement car park until I left the office, and would then approach my car on the way out and stop me from going by standing in front of the car and then proceed to yell at me about the shortfalls ... in ... the company – most of it not under my control. I did try to listen although it was usually well after office hours.”
Hayden Walsh wrote again on 27 October 2011:
“On Monday 24th October around 1.30-2.00 pm ... I noticed when Ian Mitchell left his unit and observed me spraying ... I continued to spray, only to notice that [he] had returned with his camera taken [sic] photos of me through the trees ... This has made me feel very intimidated, unsafe by [his] actions.”
In September 2012 Ms Sweeney recalled her time at the village again:
“Between March 2008 to September 2009 there were many occasions where Ian Mitchell was extremely rude to myself, other staff ... He once knocked on my door and then burst in shouting `You are the worst manager we have ever had ... ‘ [H]e was in the habit of waiting in the basement car park ... until I left the office and then would approach my car on the way out and stop me from leaving by standing in front of the car and then proceed to yell at me about shortfalls ... Then I would have to inform him that I was not going to tolerate rudeness and would drive off.”[44]
[44] Letter Sweeney to Macintosh 26 September 2012.
On 1 October 2012 Gillian Roe recalled:
“[The Appellant] had previously been on the Resident Committee and I was informed had resigned in unhappy circumstances. He stood for re-election in 2004 ... where his verbal outbursts at meetings became embarrassing to all ... He called Andrew Macintosh, Geri Taylor, members of the committee, other resident and myself liars and incompetent on numerous occasions.”[45]
[45] Letter Gillian Roe (no addressee)1 October 2012.
To her credit as a witness Ms Roe added:
“On my last day [at Taringa] I met Mr Mitchell in the car park as I was leaving, where he thanked me for the work I had done, and the time I had spent listening to him.”
Exacting, if not overweening demands for particulars are sometimes a reflex defence. It is true that some of the statements tendered by Aveo are not well particularised, but they seem to have been written without the professional help that can elucidate details of events or utterances. It is not unlikely that some of the witnesses felt a reticence to repeat, verbatim and in writing, some of the verbal abuse alleged. Nevertheless, accounts of several unpleasant meetings, as well as the gardener’s experiences, are sufficiently vivid.
Conclusions
Clearly the Member preferred the evidence of Aveo’s several witnesses to that of the Appellant. As the judge of fact and credit, that was a decision he was well entitled to make.
There is a significant aspect of this case to which the Member did not expressly refer, but may well have taken into account. The Appellant had the benefit of legal advice, and it is evident that he himself was ever ready to assert what he deemed to be his rights, and to object to perceived wrongs. Yet he made no attempt to cross-examine even one of the adverse witnesses.
It is no answer to say that the hearing was conducted on the papers. The Appellant’s experienced advisers knew, or could easily have ascertained that an “on the papers” order will not be made, or, if already made, will be amended if either party requires a viva voce hearing. The Appellant made no such request, and the Member could properly consider that remarkable omission when weighing the competing stories. He could also take into account the Appellant’s grudging admission that his behaviour on one occasion,[46] at any rate, was “unacceptable”. It is true that he sought a reciprocal admission that some of Aveo’s witnesses “over-reacted”. But the Appellant’s expectations of fortitude on their part are an odd companion to his estimate that his own hurt feelings are worth $50,000.[47] Furthermore, if the evidence of Mr Macintosh is accepted, as evidently it was, it lends some support[48] to Ms Sweeney’s accounts of the Appellant’s appearances in the car park.
[46] 16 June 2011.
[47] Submissions of appellant 21 January 2013 paragraph 30.
[48] Memorandum of conversation with Ian Mitchell re meeting on 16 June 2011: “IM said
he would continue his walks around the village but agreed not to approach staff in and around their cars”.
The Member was satisfied that, if Aveo threatened to restrict the Appellant’s rights as alleged, or at all, Aveo established a defence of reasonable justification. That is a judgment of credit, fact and degree that he was entitled, indeed required to make, and it is not a matter for retrial on an application for leave to appeal. The evidence of repeatedly improper, and at times bizarre conduct on the Appellant’s part amply supports his decision. Some incidents, in isolation, may not suffice to establish reasonable justification, but in combination they clearly do. “Workplace safety” legislation aside, Aveo had a duty at common law to curb the Appellant’s gross and distressing discourtesy, particularly towards female members of staff. In persistently trying circumstances, Aveo and the individuals affected acted (and initially refrained from acting) with patience and moderation.
On an application for leave to appeal the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[49] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling justice has not been done.[50] The requirement to obtain leave to appeal is to preclude attempts to retry cases on the merits,[51] or to introduce evidence or argument that might have been led in the first place, but was not. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should have received. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[52] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[53] Occasionally leave is granted so as to ventilate some question of general public interest[54], but decisions that turn on the facts of a particular case seldom qualify.
[49] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[50] Robinson v Corr [2011] QCATA 302 at [7].
[51] Distinguish QCAT Act s 20 (review jurisdiction).
[52] Fox v Percy (2003) 214 CLR 118 at 125-126.
[53] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[54] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580; Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at 372.
I can discern no error in the finding that there is no basis for an order against Aveo under section 169 of the RVA. It follows that the Appellant’s claims for compensation, apology and costs were properly dismissed, and that leave to appeal should be refused.
ORDER
Leave to appeal is refused.
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