Mitchell v Kenmont Investments Pty Ltd
[2013] QCAT 65
| CITATION: | Mitchell v Kenmont Investments Pty Ltd [2013] QCAT 65 |
| PARTIES: | Ronald John Mitchell Jennifer Irene Mitchell (Applicant/Appellant) |
| v | |
| Kenmont Investments Pty Ltd (Respondent) |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 14-15 June and 14 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 29 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaints of Ronald John Mitchell and Jennifer Irene Mitchell are dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – meaning of discrimination on basis of political activity or belief – where claims on basis of political basis or belief and association – whether activities and beliefs characterised as ‘political’ – where did not bear on government – where involved private relationship and negotiations between residents and park owner of manufactured home residential park PROCEDURE – where one complainant died after hearing but before decision Anti-Discrimination Act 1991, ss 7(g), 10 Browne v Dunn (1893) 6 R 67 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Ms K Hartigan of Counsel instructed by Hall Payne Lawyers |
| RESPONDENT: | Mr J Dwyer of Counsel instructed by Hopgood & Ganim Lawyers |
REASONS FOR DECISION
Mr Mitchell and Mrs Mitchell made complaints to the Anti-Discrimination Commission Queensland which were subsequently referred to the Tribunal for hearing about certain conduct by representatives of Kenmont Investments Pty Ltd, the company which owned and operated the manufactured home park, Sapphire Gardens, in which they resided from 23 January 2007 until 22 September 2008. They also complained about actions taken on behalf of the Sapphire Gardens Bowls Club. That latter complaint was the subject of a confidential settlement prior to the hearing.
Mr Peter Puljich is a director of Kenmont. Mr Vlatko (Vlad) Puljich, Peter’s son, describes himself as the general manager of the family business. In all, the Puljich family through entities own and operate some 5 manufactured home parks.
The conduct complained about is the ‘banning’ by Kenmont of the Mitchells from the Sapphire Gardens grounds. The Mitchells had retained their membership of the Bowls Club after leaving Sapphire Gardens. On 27 January 2009, Kenmont advised the Bowls Club that it had resolved to ban the Mitchells from entering Sapphire Gardens grounds. In essence, the practical effect is that the Mitchells would no longer be able to bowl at Sapphire Gardens Bowls Club, which operated within the grounds of Sapphire Gardens on premises leased from Kenmont. However, the Mitchells continued to bowl at the Club for a time despite the ban until Peter Puljich sought to physically and forcibly remove Mr Mitchell from the bowling green on an occasion on 17 June 2009. Also, on 1 July 2010, Kenmont posted a notice on the Bowl’s Club noticeboard that the ban stands.
The alleged discrimination
Mr Mitchell says that he was discriminated against under the Anti-Discrimination Act 1991 (the AD Act) by Kenmont on the basis of his political belief or activity. A somewhat complex factual matrix said to have resulted in the banning behaviour is relied upon by the Mitchells. It is alleged that, in essence, Mr Mitchell received less favourable treatment from Kenmont because of involvement in rental negotiations on behalf of Sapphire Gardens residents and his beliefs and associated activities in seeking reform to and in respect of the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act).
In Mrs Mitchell’s case, discrimination is alleged on the basis of relationship status. She says that she received less favourable treatment because of her relationship with Mr Mitchell.
Kenmont denies that it discriminated against the Mitchells. It contends, in essence, that it took the steps it did to ban them because the Mitchells were acting contrary to its commercial interests by ‘spruiking’ or ‘talking up’ the benefits of Palm Lakes, a competitor manufactured home residential park. It claims that it was unaware until complaint was made by the Mitchells to the ADCQ, of Mr Mitchell’s political beliefs and activities about legislative reform regarding manufactured home residential parks.
Under the AD Act, direct[1] discrimination, (that is treating a person with an attribute, which includes both political belief or activity[2] and association with a person identified on the basis of the attribute,[3] less favourably than another person without the attribute in circumstances that are the same or not materially different), is prohibited in the areas of good and services[4] and club membership and affairs,[5] subject to certain limited exceptions which are not relevant in this proceeding. If there are multiple reasons for the less favourable treatment, it is sufficient that the attribute is the substantial reason for the treatment.[6]
[1] Section 10.
[2] Section 7(j).
[3] Section 7(p).
[4] Sections 45-51.
[5] Sections 96-100.
[6] Section 10(4).
Kenmont concedes that no other residents or former residents were subject to the type of ban imposed on the Mitchells. Whether the banning behaviour amounts to less favourable treatment under the Act requires consideration, in Mr Mitchell’s case, of whether his belief and/or activity are ‘political’ and if so, whether his political belief and/or activity was the reason for the treatment. Mrs Mitchell’s case depends upon the success of Mr Mitchell’s complaint.
The two proceedings were listed for hearing together. It is convenient also to deal with them together in one set of reasons for decision.
Unfortunately, Mr Mitchell passed away following a short illness on 30 November, 2012. The hearing had concluded at that time and the decision was reserved.However, his death does not prevent QCAT from determining his claim.[7]
[7] Dapontes v State of Queensland [2012] QCAT 35.
Discussion about the evidence and credibility of witnesses
Both of the Mitchells provided written statements and gave oral evidence, primarily by way of cross-examination. Mr Vlad Puljich gave a statement of evidence on behalf of Kenmont, and was also cross-examined. Kenmont also called Mr Kenneth Connor, a Sapphire Gardens resident, who did not provide a written statement. He attended under a notice to attend.
Mr Peter Puljich did not give a witness statement as to any matters although he was in attendance during the hearing. On this basis, the Mitchells submit that an adverse inference should be drawn that his evidence would not have been helpful. However, as these reasons discuss, I am not satisfied that Mr Mitchell’s belief and/or activity is ‘political’. Therefore, whether or not Peter Puljich gave evidence is irrelevant.
Mr Connor’s evidence was generally given in a circumspect and guarded manner. However, his evidence was illuminating concerning the nature of the relationship between the park owners and the home owners at Sapphire Gardens. He said that the Puljichs did not like the term ‘resident’s committee’. He said this was because the social club had no right to go to the Tribunal, whereas the resident’s committee[8] did, and it had a greater role in lobbying for residents. He was unaware of the origin of the Puljichs’ attitude, but suggested it was a known attitude when he moved to the park, saying that resident’s committees were not in place ‘not in villages under the Puljich family’.
[8]MHRP Act, s 100 provides for a home owners committee rather than a residents committee.
It was also telling that Mr Connor considered it necessary to tell Mr Vlad Puljich when the Mitchells were at the Sapphire Gardens Bowls Club in January 2009. Although he was circumspect in what he said in evidence, it appears that he was well aware of a level of antagonism directed towards the Mitchells by the Puljichs.
Mr Vlad Puljich denied ill feeling towards the Mitchells. He said he was aware that the Mitchells continued to bowl at Sapphire Gardens after moving to Palm Lakes because Sapphire Gardens residents told him when the Mitchells were at the Sapphire Gardens Bowls Club. Why such a step would be thought necessary or appropriate by the residents concerned in the absence of known issues between the Puljichs and the Mitchells is not apparent.
Mr Connor also gave evidence about things said to him by the Mitchells after they had left Sapphire Gardens to the effect that the Mitchells told him at a social event that Ron Mitchell was on the pay roll at the village to which they moved, Palm Lakes, which the Mitchells deny.
Mr Connor made it clear that it is important to him to stay on good terms with the Puljichs. He was concerned with ‘harmony’ in the park, although he attributed this term to Mr Vlad Puljich. If he does not, his lifestyle, comfort and peace at Sapphire Gardens are implicitly threatened.
Therefore, in my view, he cast his evidence in as favourable light as possible to the Puljichs so as not to antagonise them against him. Although Kenmont relies upon him as an ‘independent’ witness, I do not accept his evidence as independently and frankly given in view of the invidious position in which he was placed by being called as a witness. Although I accept much of what he says, the weight I have given his evidence is accordingly diminished.
Mr Vlad Puljich was, at times, less than forthcoming in answering questions, instead posing questions in response to questions in cross-examination. He is a lawyer, although he has been working for the family businesses. He said he had practiced law for 10 years. He sometimes provided answers in which he purported to rely on his legal knowledge or training. Incongruously, on other occasions, he made comments as though he had no legal knowledge. For example, he said he did not know the difference between evidence and submissions when asked to identify which part was his statement and which part was submissions in his filed ‘Respondent’s Statement and Submissions’.
It was apparent from his evidence that as Kenmont representatives, he and his father, Peter, take a hard line in their dealings with home owners. He considers Kenmont was entirely justified in reacting in what I consider objectively to be a surprisingly aggressive manner to some suggestions made by Mr Mitchell in the course of negotiating about the rent review.
At an early stage in the negotiations, after Mr Mitchell raised some resident issues, in what seems to me to be a reasonable and straight-forward manner on either version of events, Mr Peter Puljich advised Mr Mitchell that he refused to negotiate any further with Mr Mitchell. Soon after a letter arrived accusing Mr Mitchell of adopting an inflammatory approach and stating that little could be achieved by further negotiations.
Mr Mitchell advised residents of these events in a newsletter, again in an apparently straight-forward manner. This prompted a letter to Mr Mitchell dated 1 July 2008 which was also enlarged and published on the Sapphire Gardens noticeboard, among many other allegations, alleging defamation and damage to reputation and commercial prospects and stating that Mr Mitchell would be pursued to the full extent of the law.
At the hearing, Mr Vlad Puljich, acknowledging that negotiations resumed shortly after with / including Mr Mitchell, said this these actions were just ‘posturing,’ which was common in ‘commercial negotiations.’ He considered threatening to sue for defamation when Mr Mitchell reported back to the home owners in terms he disapproved of, and placing information on noticeboards at Sapphire Gardens that Mr Mitchell was to be sued, to be merely ‘posturing’ and quite usual in these ‘commercial negotiations’. Later, the home owners obtained a valuer’s report. Kenmont had its own. The Puljichs also threatened the resident’s valuer with action for defamation.
Further, ultimately, the withdrawal of the threatened action against Mr Mitchell and the resident’s valuer for defamation was contingent on the home owners accepting certain terms of settlement. He referred to Mr Mitchell as having developed a reputation and being a controversial figure at Sapphire Gardens. Later he sought to revisit this description saying that it was the commercial process of rent review which was a controversial episode.
After making inherently critical statements about various persons involved in the rent negotiation, including Mr Mitchell, Mr Vlad Puljich then proceeded to say how much he ‘thanked’ them (that is, including Mr Mitchell) for the negotiations, how ‘honourable’ they each were, and how grateful he was for the way the outcome was achieved. Not only did these comments in context appear disingenuous, they seemed a deliberate attempt to cast the actions towards Mr Mitchell on behalf of Kenmont during the negotiation process, which are surprisingly aggressive in the circumstances of a rent negotiation between residents and park owner (given that both parties might be expected to be concerned to preserve their ongoing relationship in this type of negotiation), in a somehow more acceptable or flattering light.
Therefore, although I accept much of what Mr Puljich reported as factual events and his motivations for threatening defamation action, I do not accept his stated opinions about and regard for Mr Mitchell.
The Mitchells themselves gave evidence in an apparently forthright manner. In cross-examination, they each referred to documents which had not been annexed to their filed statements. They were called upon to produce them overnight between 14 and 15 June 2012, which they each did. The documents were consistent with the evidence that they had each given without reference to the documents, which it seems they had not had cause to review recently. This confirmed the view I had formed of their truthfulness.
Their memories differed to some extent about the course of Mr Mitchell’s back problems following the physical attempt by Peter Puljich to evict him from the Bowls Club. However, Mr Mitchell’s recollection was broadly confirmed by the medical reports he produced on 15 June 2012. Kenmont sought to make much of Mr Mitchell’s failure to mention a pre-existing episode of back pain when relating the events, which was referred to by Mrs Mitchell. His specialist reports also fail to mention it, although the specialist referred to some existing age-related degeneration which is broadly consistent with the history which emerged. When recalled to give evidence, Mr Mitchell said that he did not mention it on 14 June 2012 because he was not asked about previous episodes of back pain. He had been asked about a previous back injury, surgery or workers compensation claim.
Attempts were also made to challenge his veracity because of the late withdrawal of assault charges against Mr Peter Puljich arising out of the attempt to physically evict Mr Mitchell from the Bowls Club. Mr Mitchell’s evidence was that the Police suggested it at the scheduled hearing date, he understood because of unexpected issues being raised by Mr Puljich. He said he was a witness only on the day and so he was not represented. He said under intense pressure he tried, but was unable, to obtain some legal advice over the telephone. He said that ultimately he followed the suggestion of the Police officers because he was told by them that going ahead may compromise his personal injuries claim arising from the same incident. I accept that this is a plausible explanation.
I accept the evidence of Mr Mitchell and Mrs Mitchell with respect to matters within their own knowledge. However, some statements were made by Mr Mitchell in particular about what he believes other people did without disclosing a basis for the belief, including relevantly a Mr Colin Bennett, who was not called. This evidence, where it is relevant, is discussed later.
The factual matrix relied upon by the Mitchells
Despite substantial statements and several days of oral evidence, many of the essential facts are not controversial.[9]
[9] See the written Outlines of Submissions from both parties.
Until September 2008, Mr Mitchell was President of the Sapphire Gardens Social Club. He also became, during the relevant time period, the elected representative of the Sapphire Gardens Home Owners Committee until September 2008. Both of the Mitchells joined the Sapphire Gardens Bowls Club while they were residents. After leaving the park, they continued as non-resident members of the Bowls Club as provided for in its constitution. This enabled them to play at the Bowls Club on a limited basis.
It is common ground that actions were taken by Kenmont to ban the Mitchells and later eject Mr Mitchell from the Bowls Club.
Mr Mitchell held the belief that senior citizens should be afforded greater legislative rights and protections through amendments to the MHRP Act and that there was an imbalance of power between park owners and park residents. He advocated to Members of Parliament, addressed public forums and made submissions about reform of the MHRP Act.
The extent of the knowledge of Kenmont’s representatives of his belief and activity is controversial, and this is discussed later.
The Mitchells’ submissions set out the essential facts surrounding Mr Mitchell’s activities which they contend are intrinsically linked to his political beliefs and activities, and these are set out below.[10] Kenmont does not challenge these events, except as discussed later.
[10]See Applicants’ Outline of Submissions, paragraph 19. I have made minor non-material alterations for the purpose of including them in these reasons for decision and without renumbering them although items (t) and (u) are in reverse chronological order.
(a)In around April 2008, Mr Mitchell met with Mr Brett Raguse, then a Federal Member of Parliament, to discuss his political beliefs regarding the MHRP Act;[11]
[11]Exhibit 6 refers to the meeting.
(b)on or around 30 May 2008, Mr Mitchell received a notice from Kenmont to all residents dated 26 May 2008, proposing to increase site rents and introduce a ‘user pays’ system for water consumption charges;[12]
[12]Exhibit 1, annexure RM3.
(c)on 11 June 2008, Mr Mitchell informed Mr Vlad Puljich that he disagreed with the method and amount of the rent increase and informed Mr Puljich of his preparedness to fight politically for reform of the MHRP Act;
(d)in correspondence dated 11 June 2008, Mr Mitchell was recognised by the Respondent as the elected negotiator on behalf of Sapphire Gardens Residents;[13]
[13]Exhibit 1, annexure RM6 being a letter from Mr Mitchell to Mr Peter Puljich also states that residents Mr Frank Muggeridge and Mr Colin Bennett are thereafter to attend meetings about the rent negotiation with Mr Mitchell.
(e)on 18 June 2008, Mr Mitchell chaired a meeting of 176 residents at which he:
(i) tabled and discussed a report critical of the proposed rent increase and water consumption policy; and
(ii) was directed by the meeting to continue negotiations with Kenmont and form a Home Owners Committee to assist him;
(f)on 24 June 2008, Mr Mitchell delivered a letter dated 20 June 2008 to the Respondent on behalf of the residents, making submissions about the proposed rent increase and alterations to site agreements, including reference to the MHRP Act and the view that would be taken by the then Commercial and Consumer Tribunal (CCT);[14]
[14]Exhibit 1, annexure RM6 and paragraph 22.
(g)Mr Peter Puljich informed Mr Mitchell on that day that negotiations were to cease;
(h)by letter to Mr Mitchell dated 24 June 2008, Kenmont expressed its disappointment about his submissions, which it regarded as ‘inflammatory’, and that it saw little benefit in further negotiations and said it would ‘consider our position and take action we consider appropriate in due course’;[15]
[15] Exhibit 1, annexure RM7.
(i)Mr Mitchell published (in Sapphire Snippets, a residents newsletter) to the residents a copy of the correspondence dated 24 June 2008 from Kenmont and a description of his dealings with Mr Puljich to the residents;[16]
[16] Exhibit 1, annexure RM8.
(j)on 30 June 2008, Mr Mitchell met with lawyers to obtain advice on behalf of the residents about the MHRP Act and the dispute at the Sapphire Gardens;
(k)on 1 July 2008, a notice was placed on the notice board by Kenmont’s representatives accusing Mr Mitchell of deceit and defamation and stating that its negotiations with him were ‘at an end’;[17]
[17] Exhibit 1, annexure RM9.
(l)on 2 July 2008, Mr Mitchell addressed the Eagleby Community Conversation public forum about the proposed rent increase and his beliefs regarding the MHRP Act, having informed many residents in advance that he intended to attend and put forward his views;[18]
[18] Exhibit 1, paragraph 29.
(m)on 3 July 2008 a letter from Mr Peter Puljich was hand delivered to Mr Mitchell enclosing an offer to settle from Kenmont;[19]
[19] Exhibit 1, annexure RM10.
(n)on 3 July 2008, Mr Mitchell chaired a meeting of 183 residents[20] which resolved that:
[20] Exhibit 1, paragraph 31.
(i) it had total confidence in him and his negotiation efforts;
(ii) a full retraction and apology be sought from Kenmont; and
(iii) negotiations resume immediately;
(o)on 7 July 2008, Mr Mitchell hand-delivered a letter to Kenmont’s representatives communicating the above resolutions and referring to the residents' potential prospects before the then CCT;[21]
[21] Exhibit 1, annexure RM12.
(p)on 9 July 2008, Mr Mitchell delivered further submissions and a proposal to Kenmont’s representatives;[22]
[22] Exhibit 1, annexure RM13.
(q)by letter dated 11 July 2008, Kenmont rejected the proposal and stated that it would no longer deal with Mr Mitchell in his capacity as elected negotiator, but only in his private capacity;[23]
[23] Exhibit1, annexure RM14.
(r)between July and September Mr Mitchell continued to:
(i) advise the residents as to negotiations and his views;
(ii) conduct votes of the residents in relation to negotiations and potential legal action; and
(iii) advise residents of his ‘political’ lobbying efforts;
(s)on 28 July 2008, Mr Mitchell met with a member of Mr Raguse's office staff to follow up on his submissions to the Eagleby Community Conversation, with greater emphasis on the specific issues involving Kenmont and Sapphire Gardens;
(t)on 6 August 2009, Mr Mitchell delivered a speech at a function at Palm Lakes Resort, to an audience including Ms Justine Elliott, then a Federal Government Minister, as to his beliefs relevant to the MHRP Act;
(u)in early August 2008, Mr Mitchell sent lengthy correspondence to Mr Raguse regarding the site-specific dispute with Kenmont, his criticisms of the MHRP Act and the connections between the two;[24]
(v)Mr Mitchell's submissions were subsequently:
(i) forwarded by Mr Raguse to Ms Tanya Plibersek, then Federal Minister for Housing;
(ii) forwarded by Ms Plibersek to the then Attorney-General for Queensland, Mr Kerry Shine; and
(iii) the subject of a response from Mr Shine to Mr Raguse dated 27 January 2009 as to the Queensland government's intention to increase consumer protection under the MHRP Act.[25]
[24]Exhibit 7. Mr Mitchell submits that he did this on behalf of residents, but this is not conceded by Kenmont. In any event, I consider whether it was or was not done on behalf of residents irrelevant to my decision.
[25] Exhibit 1, annexure RM15.
The alleged ‘spruiking’ behaviour of the Mitchells
Kenmont alleges that the Mitchells were ‘spuiking’ or ‘talking up’ Palm Lakes, contrary to its commercial interests. It relies upon the evidence of Mr Kenneth Connor in this regard. The Mitchells deny that they did so.
Mr Connor said that for the 6 months after the Mitchells left Sapphire Gardens, he assumed the role of President of the Social Club, and in this role met monthly with Mr Vlad Puljich to raise some home owner concerns and/or requests with him. He said the arrangement was the same now, although he was no longer in the role because of his wife’s illness.
The Social Club filtered the issues raised with Mr Puljich, as he knew the types of things the Puljichs were likely to respond to and ‘if we keep minor things out of their hair, things go smoother’. He said it was important to the residents for things to go smoothly. He stressed that it was important to him that there was no conflict.
He suggested that he simply raised issues, and then left it to the Puljichs to consider them. He said that at the meetings, the last question from Mr Vlad Puljich was always ‘how’s the harmony in the village’.
Mr Connor says that on one occasion at the Bowls Club, a resident pointed out a particular woman to him and asked him who she was and whether she was a real estate agent because she was trying to promote Palm Lakes. He said she pointed out Jennifer Mitchell.
Mr Connor reported this incident to Mr Vlad Puljich, apparently on the basis that it might upset the harmony in the village. He thought he had done this in January, February or March, 2009.
He also attended a social event attended by the Mitchells after they had moved to Palm Lakes. He said that at the event, the Mitchells were boasting that Palm Lakes was better than Sapphire Gardens and that ‘Ron’ (Mr Mitchell) was ‘on the payroll to the tune of $10,000’.
Mr Connor was unsure whether he had reported this to Vlad Puljich but said it was possible he had.
He said that Vlad Puljich did not respond to these comments, and he (Mr Connor) just left it with him, because ‘that’s how it worked’.
He said it was well known by residents that the Mitchells were endeavouring to build up Palm Lakes because ‘everyone knows everything in a small village’. He said he that resented someone trying to build up a different village. He denied ill-feeling towards the Mitchells from other residents while they lived at Sapphire Gardens, but suggested that after they left, he thought most people probably resented them trying to build up another village, indicating that he was aware of a lot of discussion about it.
Mr Vlad Puljich, who says non-residents are allowed to bowl only to promote and sell manufactured homes at Sapphire Gardens for purposes of deriving income, says that Kenmont initially had no concerns about the Mitchells continuing to bowl. He says that on 27 January 2009, Mr Connor told him that Mr Mitchell was playing bowls at Sapphire Gardens, and that he overheard him ‘spruiking’ Palm Lakes to non-resident bowlers at the Park, and had, on a previous occasion, attempted to solicit him (Mr Connor) into relocating to Palm Lakes.
He says that he considered these activities contrary to the commercial interests of Kenmont, and he therefore issued a banning notice on Mr Mitchell on that day. In oral evidence, he said he was unsure whether Mr Connor had even left his office before he started to write the banning letter.
Mr Connor’s and Mr Puljich’s evidence is at variance in relation to the events and in particular, whether Mr Mitchell or Mrs Mitchell made the alleged comments. That said, the events transpired some years ago and memory is not necessarily reliable. The unifying factor is that Mr Connor is said to have reported that one of the Mitchells were promoting Palm Lakes.
Both of the Mitchells said they were circumspect about what they said about Palm Lakes, and did not initiate discussion about it. However, they both said that if directly asked, they said they were happy at Palm Lakes. Both of the Mitchells denied that Mr Mitchell was or had been on the payroll for anything at Palm Lakes or entitled to receive commission for sales.
I am satisfied that from time to time, Mr and Mrs Mitchell both told residents of Sapphire Gardens that they were happy at Palm Lakes and made other comments in conversation about why they liked it. Given the marked sensitivity which Mr Connor displayed to the ‘building up’ or ‘promoting ‘ of any other park, I am satisfied that these innocently-made comments were erroneously interpreted as attempts to induce residents of Sapphire Gardens to consider moving to Palm Lakes.
The ban on the Mitchells
On 27 January, 2009 Vlad Puljich authored a misdated[26] letter[27] to the Bowls Club which advised that after ‘careful deliberation’ the park owner had resolved to ban the Mitchells from entering park grounds with immediate effect. It continues ‘This means that Mr and Mrs Mitchell are no longer permitted to enter the Country Club or to use the Bowling Green’, on account of them ‘being considered persons hostile to the park owner and its commercial interests here.’ The letter requested that the Bowls Club notify the Mitchells ‘of this development as soon as possible’.
[26] Mistakenly dated 27 January 2008.
[27] Exhibit 1, annexure RM 17.
Mr Puljich said that he could not to wait to write this letter after Mr Connor reported to him about the ‘spruiking’ activities at the Bowls Club.
The Mitchells were made aware of Mr Puljich’s letter. They considered it, the constitution of the Bowls Club and took some legal advice, and then disregarded the purported ban. They continued to bowl regularly at the Bowls Club up until 17 June 2009, except during periods when they were away on holidays.
On 19 June 2009, the Bowls Club wrote to the Mitchells advising them that it was suspending their memberships ‘pending resolution of your dispute with the lessor.’ Subsequently, on 13 July 2009, the letter was withdrawn.
The attempt to evict Mr Mitchell from the Bowls Club on 17 June 2009
On 17 June 2009, the Mitchells were at the Bowls Club. Mr Vlad Puljich attended the Bowls Club and directed Mr Mitchell to leave. He did not. Later, Mr Peter Puljich attended the Bowls Club. He firstly called out loudly words to the effect of ‘where’s Ron, where’s Ron’. When he located Mr Mitchell, there was a physical interaction between them instigated by Mr Puljich although those who witnessed it who gave evidence (namely, Mr Mitchell, Mrs Mitchell and Mr Connors) each described it a little differently.
Mr Mitchell’s initial account was that Mr Peter Puljich dragged him out of his chair and swung him around twice violently, resulting in being hospitalised and requiring back surgery, that is, a double laminectomy. Further when Mr Puljich grabbed his bowls jacket, his elbow hit Mr Mitchell’s eye resulting in a bruise. When recalled he clarified his evidence by saying that he was spun around 90 degrees twice, not two 180 degree turns as his initial evidence might have suggested.
He said that his back became progressively more painful over 4-5 days at which stage he was taken by ambulance to hospital.
Mrs Mitchell and Mr Connor were both present. Both reported seeing Mr Puljich pull Mr Mitchell from a seated position to his feet by his shirt or lapels. Mrs Mitchell said Mr Puljich swung him but that he did not fall. Mr Connor says Mr Puljich loudly told Mr Mitchell to leave but he refused and sat down. He says Mr Mitchell was not swung around. Mrs Mitchell says there was a slight bruise to Mr Mitchell’s eye.
For the reasons discussed earlier, I give Mr Connor’s evidence reduced weight. I accept on the basis of the broadly consistent evidence of Mrs Mitchell and Mr Mitchell that Mr Peter Puljich pulled Mr Mitchell out of his chair by the lapels of his jacket and then twice shook or swung him around on his feet from side to side.
Mr Puljich was charged with assault, but as discussed earlier, the charges were withdrawn on the scheduled hearing date. Mr Mitchell made a personal injuries claim which settled on a confidential basis.
Medical reports were produced by Mr Mitchell regarding his attendances at doctors, hospitals and eventual surgery.
The Puljichs’ knowledge of Mr Mitchell’s beliefs and activities
In submissions, the Mitchells concede that some of the activities listed in paragraph 36 may not have been known by Kenmont’s representatives until ‘after the event’. In particular, they make this concession about those matters set out at sub-paragraphs 36(a), (l), (u) and (v). Regarding 36(j), they submit that as Mr Mitchell was not cross-examined about the assertion that Mr Bennett told Kenmont representatives, that it should be accepted that Kenmont knew of it.
In respect of 36(j), Mr Mitchell’s evidence is that on 30 June 2008, he met with lawyers to obtain advice on behalf of the residents. He says that Mr Colin Bennett, a resident assisting as part of the negotiating committee, (although Mr Mitchell himself was the elected negotiator for residents) accompanied him to the meeting. He says he told Mr Bennett that he was going to see a politician immediately afterwards. He further says that Mr Bennett reported this information to Mr Puljich and a few days later came back to the negotiating committee with a joint proposal from him and Mr Puljich. Further, he says until this time, the negotiating committee was unaware Mr Bennett had been liaising with Mr Puljich in this manner.
He says that it was after this that the notice referred to in paragraph 36(k) was placed on the noticeboard accusing him of deceit and defamation and stating that negotiations with him were at an end. In his oral evidence, he suggested that he thought Mr Puljich threatened to sue him because he was prepared to work towards reform and he was not happy about it and would have been impacted. He also says that many residents were aware that he intended to and did address a Public Forum on 2 July 2008 about the proposed rent increases and his ‘political’ beliefs. He says that several residents were also present at the forum.
The notice, which is dated 1 July 2008, on its face says the Puljichs placed it on the noticeboard because of Mr Mitchell’s report to the residents in Sapphire Snippets, a newsletter about events to that stage which is referred to in paragraph 36(i).
Mr Vlad Puljich says that he was unaware of Mr Mitchell’s alleged ‘political’ beliefs and/or activities. He says essentially that he became frustrated by Mr Mitchell’s inflammatory and defamatory conduct and that he thought he had developed a prejudice, perhaps racial, against Kenmont, its directors and staff. He says the ‘respondent’, referring as I understand him to himself and his father, began to question Mr Mitchell’s integrity and character.
Kenmont submits that in respect of 36(j), there is no evidence to suggest that its representatives knew of the event. If accepted, it submits then, having regard to the matters conceded by the Mitchells as not within Kenmont’s knowledge, the only matter which Kenmont’s representatives knew which could be relevant in the claim arises from Mr Mitchell’s comment during the initiating conversation about the rental increase on 11 June 2008 when he told Vlad Puljich of his preparedness to fight ‘politically’ for reform of the MHRP Act. Mr Vlad Puljich did not deny that Mr Mitchell told him this, but his evidence was that he did not recall it. Under cross-examination, Mr Mitchell conceded that his comments to Mr Vlad Puljich on 11 June 2008 may be the only knowledge of his political beliefs that the Puljichs had.
Having accepted Mr Mitchell as a truthful witness, I accept that the comment was made to Mr Vlad Puljich about his preparedness to fight ‘politically.’
However, there is more to be said regarding the assertion by Mr Mitchell that Mr Bennett told ‘Mr Puljich’ about Mr Mitchell taking legal advice.[28] Although not submitted by Mr Mitchell as an essential fact upon which his case is based, his evidence also suggests he told Mr Bennett he was, after the meeting with the lawyer going to meet with a politician and that Mr Bennett also reported this to Mr Puljich.[29]
[28] Exhibit 1, paragraph 26.
[29] Ibid.
Mr Mitchell’s evidence does not reveal the basis for the belief that Mr Bennett told ‘Mr Puljich’ about the matters detailed at paragraph 68. However, as discussed, Mr Mitchell submits that as he was not cross-examined about his stated belief, that Kenmont is not entitled to challenge the veracity of the assertion. Although not articulated, it appears that this submission is based on the rule in Browne v Dunn. Kenmont does not concede the truth of the assertion, and does not accept that there is any evidence that Kenmont’s representatives were aware of the activities.
The rule of evidence enunciated in Browne v Dunn[30] provides that any matter upon which a party proposes to contradict the evidence-in-chief of a witness must usually be put to the witness so that the witness has the opportunity to explain the contradiction. Failure to do so may imply acceptance of the evidence-in-chief. Of course, QCAT is not bound by the rules of evidence.[31]
[30] (1893) 6 R 67.
[31]QCAT Act, s 28(3)(b). However, it is clear from that sub-section that the Tribunal may adopt rules of evidence if it considers it appropriate in a particular case.
That said, the rule has also been applied in Tribunals[32] which are not bound by the rules of evidence, and (although it seems to me that this would depend on the nature of the particular assertion in the circumstances of the case) has been considered an aspect of natural justice,[33] which QCAT must observe. It is fundamental to natural justice that a party know the case against them, and has the opportunity to respond to it. Every adverse, credible and relevant allegation against a party must be put to the party for response.
[32]It was applied in QCAT in Harley v Department of Justice & Attorney-General [2012] QCAT 620.
[33]For example, see Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231; Harley v Department of Justice & Attorney-General [2012] QCAT 620.
Also, s 29 of the QCAT Act imposes obligations on the Tribunal to take reasonable steps to ensure a party understands the nature of assertions made and the legal implications. Where, as in this case, parties are represented by lawyers, and indeed, by counsel at hearing, it appears to me that the represented party, and the Tribunal, is entitled to rely upon the party’s lawyers to keep parties informed about such matters and to cross-examine about relevant matters.
In this instance, Mr Mitchell has made the allegation but there is no counter-allegation made by Kenmont. It has not dealt with the issue, other than to say there is no evidence that Kenmont’s representatives knew of the activities as alleged. What, if anything, is the relevance of Kenmont’s failure to cross-examine about it?
Mr Mitchell makes a bare assertion that Mr Bennett told the Puljichs certain things. He does not profess to make this statement from his own knowledge. Nor, does he disclose any basis for his belief, and infers by it that because a notice was subsequently placed on the notice board that Mr Bennett did so. If the rules of evidence were applied, Mr Mitchell’s evidence to this effect would not be admissible.
Although those rules do not apply before the Tribunal, the bare assertion that Mr Bennett reported these things without any basis disclosed for the allegation, has no probative value, and should be given no weight in any event. That being the case, the rules of natural justice would not require cross-examination of Mr Mitchell about the assertion. I reject the Mitchells’ submission that the failure to cross-examine about this unsupported statement should result in acceptance of Mr Mitchell’s evidence about it. A complainant has the onus of proving his or her case on the balance of probabilities, by presenting evidence with probative value.[34]
[34] Anti-Discrimination Act 1991, s 204.
It is of course, open to me to draw inferences as I may see fit which are supported by the evidence. Should I infer from the sequence of events that Mr Bennett did report to the Puljichs about Mr Mitchell taking legal advice and his meeting with a politician?
It is clear that Mr Bennett had some contact with the Puljichs at the relevant time, because he brought a proposal from them to the committee a short time later. The Puljichs were prompted by something to make a proposal through him, rather than directly to the elected negotiator, Mr Mitchell and effectively chair of the committee.
Also, Mr Connor’s evidence, as well as the evidence of Mr Vlad Puljich himself, suggests that residents who want to keep the Puljichs on side, may report to them about activities of persons who may be of interest to the Puljichs are doing.
On balance, I consider that it is reasonable to infer that Mr Bennett did tell a Kenmont representative about Mr Mitchell seeking legal advice and meeting with a politician. Therefore, I accept that the Puljichs knew not only from Mr Mitchell that he was prepared to fight for reform, but also that he had sought legal advice about the rent negotiation and the MHRP Act, and met with a politician.
Was Mr Mitchell’s belief and activity ‘political’ within the meaning of the AD Act?
The Mitchells submit that all of those matters set out in paragraph 36, including Mr Mitchell’s involvement in the rental negotiations, constitute political activity and belief.
What is meant by discrimination on the basis of political belief or activity? The Mitchells relied heavily on the decision of the Queensland Anti-Discrimination Tribunal in Sherman & Anor v Grady & Anor,[35] the facts of which they argue were similar. However, there a number of state Supreme Court decisions in relation to its meaning.
[35] [2008] QADT 7.
The actions of employees said to have been active in seeking improved conditions, speaking up at union meetings or being a shop steward in an industrial dispute were not considered to be capable of demonstrating the holding of political belief or engaging in political activities by Vincent J in Nestle v Equal Opportunity Board.[36] He considered that the term ‘political’ was ‘concerned with the process of Government’[37] whereas, the complainant’s activities related to matters affecting the terms and conditions under which employees were engaged.
[36] [1990] VR 805.
[37] [1990] VR 805, 815.
In CPS Management v Equal Opportunity Board[38] Marks J held that a belief that the public administration of money should be ethical, responsible and regulated, was not a political belief. He agreed with Vincent J in Nestle, adding that for a belief or activity to be political, it must bear ‘on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government.’[39] In particular, it ‘is to be understood … to refer to beliefs of a political kind which differ in kind from beliefs which underpin the existing social structure, such as beliefs in honesty, …on which our social structures including government are built…’[40] He considered the activities described did not put ‘pressure on the government’, which might have implied that they were political.[41]
[38] [1991] 2 VR 107.
[39] [1991] 2 VR 107, 112.
[40] [1991] 2 VR 107, 112.
[41] [1991] 2 VR 107, 115.
In La Roche v President and Members of the Equal Opportunity Board,[42] an ambulance officer contended that his prior submissions to government inquiries about the Ambulance Service and his public involvement in seeking to reform that service led to discrimination against him in a selection process for an ambulance officer position. Gobbo J accepted Vincent J’s views in Nestle. He held that the activities were not sufficiently connected with government to be ‘political’ since seeking reform of the Ambulance Service does not sufficiently involve the relationship between ordinary people and those that control the State.
[42] (1991) EOC 92-361.
Gobbo J went on to say:
…Vincent J distinguished between those actvities within the existing framework of government and those activities that are directed in some way or other to affecting its framework, altering its structure or the balance of forces….Similar observations were made by Marks J in the CPS case. In this case counsel for the service contended that the activities by the applicant were within the existing framework of government and, on that basis, could not be regarded as political. I accept that argument, for it appears clear that the making of public submissions to a government inquiry established by parliament is operating well within the existing framework of government.[43]
[43] (1991) EOC 92-361, 78-477-78,478.
He held that the applicant should fail since neither his beliefs nor activities related to or affected the framework of government.
In Ralph M Lee Pty Ltd v Fort,[44] Anderson J held that a
….complainant alleging discrimination on the ground of his political conviction is required to show that the conviction possessed by him and shown to have been ground for his disadvantageous treatment by the respondent, was a conviction which had to do with government- the policies of government, the structure, composition, role, obligations, purposes or activities of government.[45]
[44] (1991) EOC 92-357.
[45] (1991) EOC 92-357, 78,466.
In Sherman v Grady, the complainant was a resident of Sanctuary Cove. The Tribunal observed that Sanctuary Cove, uniquely, at least at that time, was separately governed by its own piece of State legislation.[46]
[46] [2008] QADT 7, 72.
The Tribunal considered that as the resident’s activities involved advancing the interests of residents surrounding the issue of the Minister’s approval or not of the proposed development control by-laws and his commitment to his beliefs about how the community should be shaped into the future leading to an application for heritage listing, bore on government. Therefore, it was considered political activity, ‘most particularly his involvement in the application for Sanctuary Cove to be Heritage listed, amounted to ‘political activity.’[47] Ultimately, the narrower meaning ascribed to ‘political’ as taken in the Supreme Court decisions was adopted.[48]
[47] [2008] QADT 7, 72.
[48] [2008] QADT 7, [11-22].
After the hearing in this proceeding had concluded, but before my decision, a consistent narrow approach was adopted by the Appeal Tribunal in Cairns Regional Council v Carey.[49] I did not seek submissions from the parties following the decision as I do not rely upon it, and in any event, it adopts the approach taken in the existing authorities.
[49] [2012] QCATA 150.
The Mitchells submit, in effect, that Kenmont’s representatives were aware of Mr Mitchell’s ‘political’ belief and activity because of their dealings with him in the rental negotiations. They rely upon Mr Mitchell’s involvement in the rent negotiation as ‘political’ activity. Further, they say, Mr Mitchell had advised Mr Vlad Puljich of his preparedness to advocate for statutory reform. I have also drawn the inference that they were aware that he took legal advice about the MHRP Act and the rent dispute and also met with a politician.
It is clear that the dealings between Mr Mitchell and Kenmont’s representatives about the rental negotiations for Sapphire Gardens residents, occurred independently of his other activity relied upon. In my view, the dealings with Kenmont can not be political activity having regard to the established case law discussed above because they do not bear on government. They are private negotiations about the terms of private site agreements between Kenmont and the home owners. I do not accept the Mitchells’ characterisation of those activities as political, notwithstanding that I accept that Mr Mitchell was motivated by his belief about the imbalance of power between home owners and park owners and the desirability of legislative change to nominate as spokesperson.
Were his beliefs and associated activities in meeting with Federal parliamentarians, writing to them, attending and speaking at public forums with a view to advocating for legislative change to and in respect of the MHRP Act, ‘political’? In my view, they are not having regard to the established case law as they do not bear on the government. They are belief about and activity directed to advocating for legislative change about the relationship between home owners in manufactured home residential parks and park owners. They are not concerned with the process of government and do not involve the relationship between ordinary people and those that control the State.
Leaving aside the issue of Kenmont’s limited knowledge of the belief and activity, it follows that Mr Mitchell’s belief and activity directed to and associated with advocating to politicians can not ground a successful claim for discrimination on the basis of political belief and/or activity.
Accordingly, the complaints of both Mr Mitchell and Mrs Mitchell must be dismissed.
If the beliefs and/or activities are properly characterised as ‘political’, would the outcome be different for the Mitchells?
If I am wrong, and Mr Mitchell’s belief and/or activitity are properly characterised as political, there would still be an issue about whether Kenmont acted less favourably towards him because of them.
I have accepted that Mr Mitchell told Mr Vlad Puljich that he was prepared to fight for reform of the MHRP Act on 11 June 2008. Further, I have drawn the inference that Mr Bennett told the Puljichs that Mr Mitchell went to seek legal advice about the MHRP Act and the dispute and met with a politician. Other than that, the activities relied upon relate to the rent negotiations themselves. Did knowledge of these matters prompt the ‘banning’ treatment?
There was no certainty that Mr Mitchell would succeed in his advocacy efforts, nor that, even if some changes were made, they would impact adversely on Kenmont. The Puljichs may have been unconcerned by the knowledge of his preparedness to fight ‘politically’ for reform, take legal advice on one occasion and speak with a politician on one occasion.
I make the observation that the efforts were, to some extent, it appears misdirected. In addition to advocating for a national scheme, Mr Mitchell sought change to the MHRP Act. The MHRP Act is Queensland legislation, yet Mr Mitchell was advocating exclusively to Federal parliamentarians. Some of his comments were eventually passed to the Queensland Attorney-General, but not directly through the efforts of Mr Mitchell himself. That said, the apparent misdirection of effort was not known by the Puljichs, on the basis of their limited knowledge of Mr Mitchell’s activities.
The aggressive actions of Kenmont representatives directed towards Mr Mitchell personally, began early in the rent negotiations and it seems to me shortly after discussions between them and Mr Mitchell began raising issues. It is clear from Mr Connors’ evidence that things go more smoothly if the Puljichs are approached with kid gloves. It may be that Mr Mitchell was more robust in his dealings with them. This would explain Mr Vlad Puljich’s description (which on the evidence before me is unwarranted) of Mr Mitchell’s behaviour as inflammatory and defamatory. He considered that Mr Mitchell had developed a prejudice against Kenmont representatives. I am reasonably satisfied on the evidence before me that the Puljichs had formed an adverse view of and antagonism towards Mr Mitchell, commencing from at latest 24 June 2008 when Mr Puljich first told Mr Mitchell that negotiations were to cease.
The antagonism intensified as the negotiations progressed, resulting in an ongoing hostility towards Mr Mitchell. This prompted later personal threats against him during the negotiations. Although Mr Vlad Puljich considered them usual in ‘commercial negotiations’, it seems to me that such a step would more likely be taken in the early stages of negotiation, as it was, in a pre-emptive manner, in circumstances where some ill-feeling had already developed. As this developed, further threats ensued.
The rent negotiations finished. The Mitchells moved to Palm Lakes in September 2008 but no ‘banning’ action was taken by the Puljichs until January 2009, despite the Mitchells continuing to attend the Bowls Club. Their ongoing attendance at the Bowls Club was known to the Puljichs because, Mr Vlad Puljich said, residents told them. If the Mitchells’ arguments were correct that the ‘banning behaviour’ occurred because of Mr Mitchell’s involvement in the rent negotiation and the Puljichs’ knowledge of his belief and activity, it might reasonably have been expected that further action would be taken promptly after the Mitchells moved to Palm Lakes. The timing, instead, coincides with the events as relied upon by Kenmont.
It was not until Mr Connors’ comments to Mr Vlad Puljich, that the Puljichs became aware in January 2009, that one of the Mitchells, was alleged to have ‘promoted’ Palm Lakes while at the Bowls Club. Both Mr Vlad Puljich and Mr Connors exhibited a peculiar sensitivity to positive comments regarding any manufactured home residential park, other than Sapphire Gardens. On the basis of Mr Connors’ evidence, it seems this sensitivity also extends to other residents, given his comments that it was well known by residents at Sapphire Gardens that the Mitchells were trying to ‘build up’ Palm Lakes. It is reasonable to infer, on the basis of Mr Vlad Puljich’s acknowledgment that residents reported information to him about the Mitchells, that other residents also conveyed their impressions to the Puljichs that the Mitchells were trying to ‘build up’ Palm Lakes.
As unreasonable or unwarranted as the sensitivity exhibited by both Mr Vlad Puljich and Mr Connor may be, I am satisfied that it, together with the Puljichs’ propensity towards reacting in an aggressive manner to what they perceive as opposition to their commercial interests and their existing acrimonious attitude towards Mr Mitchell, motivated Mr Vlad Puljich to write the letter in January 2009 banning the Mitchells from the grounds upon being advised that one of the Mitchells was ‘promoting’ Palm Lakes while at the Bowls Club.
In Mr Mitchell’s statement to the Police regarding the events of 17 June 2009,[50] he told Police when interviewed shortly after the incident that Peter Puljich particularly referred during the incident to him (Mr Mitchell) as promoting another resort. I accept that this belief held by the Pulljichs, as misguided and objectively unreasonable it may have been, together with the dislike which they had developed for Mr Mitchell, prompted the unfortunate actions taken on 17 June 2009 by Mr Vlad Puljich and Mr Peter Puljich. I accept that similar motivations prompted the letter of 1 July 2010.
[50] Exhibit 10, especially paragraph 6.
Therefore, even if Mr Mitchell’s activities and beliefs were characterised as ‘political’, they were not the basis, or even the substantial basis, for the treatment by the Puljichs of the Mitchells. They were poorly treated by the Puljichs, but the treatment is not discrimination under the AD Act.
I make orders dismissing the complaints of the Mitchells.
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