Mitchell v Forest Place Group Ltd trading as Aveo Live Well
[2013] QCAT 297
| CITATION: | Mitchell v Forest Place Group Ltd trading as Aveo Live Well [2013] QCAT 297 |
| PARTIES: | Ian Mitchell (Applicant) |
| v | |
| Forest Place Group Ltd trading as Aveo Live Well (Respondent) |
| APPLICATION NUMBER: | OCL038-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 30 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The application that the Respondent provide a public written apology to the Applicant is dismissed; [2] The application that the Respondent pay to the Applicant an amount of compensation for distress and inconvenience is dismissed; and [3] The application that the Respondent pay the Applicant’ costs of and incidental to the application is dismissed. |
| CATCHWORDS: | Costs, apology, damages Queensland Civil and Administrative Tribunal Act 2009 s100, 102 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Ian Mitchell has been a resident at the Aveo Taringa Retirement Village since February 1999. In June 2011 he attended a meeting of the resident’s financial subcommittee to assist with the budget. Following the meeting Mr Mitchell was informed by a senior manager, Mr Laboo that his behaviour had been unacceptable and might justify an apprehended violence order being taken out against him.
This then led to a series of exchanges culminating in Mr Mitchell being informed that there had been multiple complaints from other staff about his behaviour that made staff feel threatened and fearful for their safety.
On 10 May 2012, Mr Mitchell filed an application in the Queensland Civil and Administrative Tribunal (the Tribunal) seeking the following orders:
1. Forest Place Group Ltd (‘Forest Place’) and Aveo Live Well (‘Aveo’), and their servants and agents, be restrained from:
1.1Preventing Ian Mitchell from interacting with staff members and other residents at Aveo Retirement Village (the ‘retirement village’) in any way; and
1.2Restricting Mr Mitchell’s movements within the retirement village in any way.
2. Forest Place and/or Aveo provide to Mr Mitchell copies of all documents in their possession or under their control relating to any 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 Mr Mitchell with respect to such complaints.
3. Forest Place and/or Aveo provide a public written apology to Mr Mitchell for their handling of the matters the subject of this application.
4. Forest Place and/or Aveo pay to Mr Mitchell an amount of compensation for distress and inconvenience.
On 21 September 2012 the Tribunal made the following orders by consent:
1. Forest Place Group Ltd (‘Forest Place’) and Aveo Live Well (‘Aveo’), and their servants and agents, be restrained from:
1.1Preventing Ian Mitchell from interacting with staff members and other residents at Aveo Retirement Village (the ‘retirement village’) in any way; and
1.2Restricting Mr Mitchell’s movements within the retirement village in any way.
2. Forest Place Group Ltd t/as Aveo Live Well must provide to Mr Ian Mitchell copies of all documents in their possession or under their control relating to any alleged complaints made against him by the retirement village staff or residents, including copies of all correspondence allegedly sent by Forest Place Group Ltd t/as Aveo Live Well to Mr Ian Mitchell with respect to such complaints.
Mr Mitchell now seeks orders as follows:
That the Respondent:
(a) provide a public written apology to the Applicant;
(b) pay to the Applicant an amount of compensation for distress and inconvenience; and
(c) pay the Applicant’ costs of and incidental to the application (on an indemnity basis).
He claims that the Respondent’s consent to the orders made by the Tribunal on 21 September 2012 vindicates his actions in bringing the subject application. He argues that “(i)n circumstances where the Respondent abandoned its threats in response to the application, this is an appropriate case in which the balance of the relief sought by the Applicant should be ordered”.
In paragraph 23 of his submissions the Applicant provides terms of an apology that he deems suitable. He suggests that the wording reflects the conduct of the parties and the consent orders.
Mr Mitchell also seeks an amount of compensation for “distress and inconvenience”. In essence he contends that the raising of “multiple historical alleged complaints” against him together with “unjustified threats” to restrict his use of the retirement village and/or terminate his residency caused him considerable anxiety, inconvenience and expense.
Further he submits that because of a “perceived imbalance of power’ between him and the Respondent, he considered that it was necessary to obtain legal representation to protect his interests.
He argues that he was forced to obtain legal representation and commence these proceedings because of the Respondent’s conduct. He claims that the Respondent is a well resourced organisation with legally qualified officers. Finally he contends that the fact that the Respondent abandoned it’s threats and consented to the relief sought completely justifies his application.
Mr Mitchell claims that an amount of $50,000.00 is an appropriate amount to be awarded for damages and that the costs that should be paid by the Respondent should be fixed at the total sum he has actually incurred to the conclusion of the matter or alternatively assessed pursuant to r87 of the Queensland Civil and Administrative Tribunal rules 2009.
The Respondent opposes the orders sought by the Applicant. In relation to the proposed apology the Respondent says that it has not informed any resident, staff member or any other person of the allegations made against the Applicant. In the Respondent’s view only those persons informed by Mr Mitchell would be aware of the allegations. The Respondent submits that a public apology is not warranted and would only serve to make the allegations widely known and could even seriously harm the positive relationships that Mr Mitchell has created with residents and staff alike.
The Respondent claims that it only acted in relation to the workplace harassment complaints because of its obligations under the Workplace Health and Safety Regulation 2011(Qld). It argues that it was a statutory requirement to protect its staff by taking reasonable steps to prevent or control exposure of its employees to the risk of workplace harassment.
With respect to the claim for compensation, the Respondent submits that there is no evidence of any distress or inconvenience suffered by the Applicant.
The Respondent claims that in the period from November 2011 until 21 September 2012 the Applicant had minimal interactions with staff members and that staff members had advised that all exchanges had been courteous and it was for this reason alone the Respondent proposed the consent orders that were made on that date.
Mr Mitchell submits that the failure by the Respondent to bring the alleged complaints to his attention prior to June 2011 means that “such complaints were unsubstantiated and/or trivial” and insufficient to reasonably justify the Respondent’s threats. The Tribunal accepts that “the truth and veracity” of the alleged complaints was not tested in these proceedings.
Decision
Mr Mitchell wants a public written apology “for (the Respondent’s) handling of the matters the subject of this application”. The Respondent has provided a satisfactory explanation of it’s behaviour in that it had a statutory obligation to it’s staff to address the complaints which had been made and in the period leading up to the date of the consent orders the issues regarding Mr Mitchell appeared to have been addressed.
With respect to the claim for damages, Mr Mitchell did not provide any independent evidence in support of his claim except for a vague allegation that he suffered “distress and inconvenience”. On this basis he believes that $50,000.00 “is an appropriate compensatory and aggravated or exemplary damages sum”. The Tribunal accepts the submission of the Respondents that no claim has been established by the Applicant.
Turning then to the issue of costs Tribunal finds that the substantive matters raised in the application were determined by the consent orders made by the Tribunal on 21 September 2012.
In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; the financial circumstances of the parties, whether a party has acted in a way that unnecessarily disadvantages another party, and anything else the Tribunal considers relevant: QCAT Act, s 102(3).
Notwithstanding the exceptions provided for in section 102 of the QCAT Act the Tribunal must have regard to the fact that an award of costs is the exception rather than the rule. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [No.2] [2010] QCAT 412 the President of the Tribunal stated, in relation to the relevant costs provisions:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
Having regard to the factors identified in section 102 and any other considerations identified by the parties as relevant, the interests of justice do not point compellingly to a departure from the position set out in section 100 of the QCAT Act. Each party to this proceeding will bear its own costs.
Therefore the Tribunal makes the following orders:
(a) The application that the Respondent provide a public written apology to the Applicant is dismissed;
(b) The application that the Respondent pay to the Applicant an amount of compensation for distress and inconvenience is dismissed; and
(c) The application that the Respondent pay the Applicant’ costs of and incidental to the application is dismissed.
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