Mitchell v Aveo Live Well

Case [2013] QCATA 295
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
Retirement Villages Act 1999 (Qld), ss 167, 169, 192, 210

Ex parte Britt [1987] 1 Qd R 221

Muckermann v Skilled Group Limited and Anor (No 2) [2013] QSC 194
Ley v Woolworths  Limited (No 2) [2013] QSC 193

Brown v Marine Contracting Pty Ltd (No 2) [2012] QSC 345

Griffiths v Kerkemeyer (1976) 139 CLR 161
Sharman v Evans (1977) 138 CLR 563
Sydney United Football Club v Soccer New South Wales [2005] NSWSC 474
Re Martin; Ex parte Dipane (2005) 30 WAR 164
D’Amore v  Independent Commission Against Corruption [2013] NSWCA 187
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
Robinson v Corr [2011] QCATA 302
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Paradis v Settlement Agents Supervisory Board  (2007) 33 WAR 361

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
In Re W (an infant) [1971] AC 682
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

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

  1. 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…

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Details
AGLC
Mitchell v Aveo Live Well [2013] QCATA 295
Case
[2013] QCATA 295
Decision Date

CaseChat Overview and Summary

Mitchell v Aveo Live Well is a case that revolves around the dispute between Mitchell, a resident of Aveo, a retirement village, and Aveo Live Well, the management of the retirement village. The Appellant, Mitchell, contends that the interlocutory consent order made on 21 September 2012 is an admission of liability by Aveo, as distinct from a temporary measure to preserve the peace. Aveo rejects this 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. The Appellant seeks a public apology, compensation and costs, claiming that the order was an admission of liability. The legal issues in this case are whether Aveo threatened the Appellant with removal from the retirement village or threatened with deprivation or restriction, whether any such threat was reasonably justified, and whether the Appellant is entitled to a public apology, compensation and costs. The court was also required to decide whether the interim consent order was a determination of the merits and whether there was an appellable error shown in the decision to dismiss the Appellant’s original application.

The court found that the interim consent order was not a decision on the merits, but an inartifically drawn interlocutory injunction, designed as a holding measure until a final decision could be made. The court held that the 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. The court found that the primary decision is somewhat elliptical, but inadequacy of reasons is not one of the grounds of appeal. The court held that it is plain enough that the Member did not regard the interim order as a decision on the merits. The court held that the crux of this case 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”. The court held that Aveo was “reasonably justified” in requesting the Appellant to minimise his contacts with village staff, particularly in the village car park.

In conclusion, the court held that the interim consent order was not a decision on the merits, but an inartifically drawn interlocutory injunction, designed as a holding measure until a final decision could be made. The court held that the primary decision is somewhat elliptical, but inadequacy of reasons is not one of the grounds of appeal. The court held that Aveo was “reasonably justified” in requesting the Appellant to minimise his contacts with village staff, particularly in the village car park. The court held that the Appellant is not entitled to a public apology, compensation and costs. Leave to appeal is refused.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 CLR563 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

Ratio Decidendi

Legal Principle Established

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