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
Manufactured Homes (Residential Parks) Act 2003, s 100
Queensland Civil and Administrative Tribunal Act 2009, ss 28, 29

Browne v Dunn (1893) 6 R 67
Cairns Regional Council v Carey [2012] QCATA 150, noted
CPS Management v Equal Opportunity Board [1991] 2 VR 107
Dolan v Australian and Overseas Telecommunications Corporation (1993)114 ALR 231
Harley v Department of Justice & Attorney-General [2012] QCAT 620
La Roche v President and Members of the Equal Opportunity Board (1991) EOC 92-361
Nestle v Equal Opportunity Board [1990] VR 805
Ralph M Lee Pty Ltd v Fort (1991) EOC 92-357
Sherman v Grady [2008] QADT 7

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 65
Decision Date

CaseChat Overview and Summary

Ronald John Mitchell and Jennifer Irene Mitchell (the Mitchells) brought complaints to the Anti-Discrimination Commission Queensland (ADCQ) about conduct by representatives of Kenmont Investments Pty Ltd (Kenmont), 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. The complaints were referred to the Queensland Civil and Administrative Tribunal (QCAT) for hearing. The Mitchells alleged that they were discriminated against by Kenmont on the basis of Mr Mitchell's political belief or activity and Mrs Mitchell's association with Mr Mitchell. Kenmont denied that it discriminated against the Mitchells and submitted that it took the steps it did to ban the Mitchells because they were acting contrary to its commercial interests by 'spruiking' or 'talking up' the benefits of Palm Lakes, a competitor manufactured home residential park. Kenmont also submitted 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. Whether the banning behaviour amounted to less favourable treatment under the Anti-Discrimination Act 1991 (the AD Act) required consideration, in Mr Mitchell's case, of whether his belief and/or activity was 'political' and if so, whether his political belief and/or activity was the reason for the treatment. Mrs Mitchell's case depended upon the success of Mr Mitchell's complaint. Kenmont conceded that no other residents or former residents were subject to the type of ban imposed on the Mitchells. The Mitchells submitted that all of the matters set out in their submissions, including Mr Mitchell's involvement in the rental negotiations, constituted political activity and belief. However, the Supreme Court has held that a belief or activity must bear on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government. In this case, 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 the Tribunal's view, the dealings with Kenmont could not be political activity having regard to the established case law because they did not bear on government. They were private negotiations about the terms of private site agreements between Kenmont and the home owners. The Tribunal did not accept the Mitchells' characterisation of those activities as political, notwithstanding that the Tribunal accepted 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. Even if the Mitchells were correct and the activities and beliefs were properly characterised as 'political', the Tribunal was reasonably satisfied on the evidence before it that the Puljichs had formed an adverse view of and antagonism towards Mr Mitchell, commencing from at least 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. The timing of the banning of the Mitchells by Kenmont coincided with the events as relied upon by Kenmont. The Tribunal was satisfied that it was the Puljichs' belief that the Mitchells were 'promoting' Palm Lakes that 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. 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. The Tribunal made orders dismissing the complaints of the Mitchells.

Orders