Rowan v Beck

Case [2021] QCATA 20

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Rowan v Beck [2021] QCATA 20
PARTIES: BLAIR ROWAN

(applicant/appellant)

v
JENNIFER BECK

(respondent)

APPLICATION NOS:

APL059-18 & APL076-19

ORIGINATING APPLICATION NO:

ADL085-16

MATTER TYPE:

Appeals

DELIVERED ON:

11 February 2021

HEARING DATE:

24 March 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding
Member Fitzpatrick
ORDERS:

1.   The application for leave to rely upon fresh evidence is refused.

2.   The applications for leave to appeal are dismissed.

3.   The appeals are dismissed.
CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where decision-maker granted leave to amend complaint during hearing – where procedural irregularity corrected at hearing – where statutory provision allowing amendment of complaint – where party self-represented – whether amendment of complaint at hearing constituted a denial of natural justice – whether appellant was denied the opportunity to lead evidence against an allegation by amendment of complaint at hearing – whether self-represented party was adversely impacted by timing of amendment of complaint at hearing – whether breach of natural justice

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where decision-maker made direction at hearing that evidence given on liability would be considered for remedy – whether self-represented applicant adversely impacted by direction at hearing – where no substance to ground of appeal – whether decision-maker improperly denied a party the opportunity to call evidence – whether breach of natural justice

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – whether decision-maker erred by failing to make a required finding under statute – where fair reading of reasons indicates a finding was made – whether error of law

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – whether decision-maker made findings of fact which were inconsistent – whether findings of fact were open on the evidence to decision‑maker – whether error of law

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where party submits decision-maker displayed bias – where decision-maker made findings adverse to both parties – where decision-maker made adverse findings as to credibility of one party – where decision-maker asked witness questions concerning witness’s credibility – whether decision-maker entitled to make adverse findings as to credibility – whether decision-maker’s questions were appropriate – whether questions by decision-maker amounted to cross-examination – whether Tribunal has demonstrated bias – whether breach…

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Details
AGLC
Rowan v Beck [2021] QCATA 20
Case
[2021] QCATA 20
Decision Date

CaseChat Overview and Summary

In the case of Rowan v Beck, Mr Rowan sought to appeal a decision made by a tribunal, arguing that the tribunal had breached natural justice, failed to give adequate reasons for its decision, and made findings of fact that were inconsistent or not supported by the evidence. Ms Beck defended the tribunal's decision, arguing that the tribunal had correctly interpreted the relevant law and applied it to the evidence presented. The court considered several grounds of appeal, including whether the tribunal had properly considered the evidence, whether it had applied the law correctly, and whether it had demonstrated bias. The court found that the tribunal had not breached natural justice, had given adequate reasons for its decision, and had made findings of fact that were supported by the evidence. The court also found that the tribunal had not demonstrated bias and had not improperly reversed the onus of proof. The appeals were dismissed, and the applications for leave to appeal were refused.

The court found that the tribunal had not breached natural justice by refusing to allow Mr Rowan to call a witness, Mr Haynes. The tribunal had admitted Mr Haynes' affidavit into evidence without requiring him to be cross-examined. The court found that there was no breach of natural justice in this regard. The court also found that the tribunal had correctly interpreted the relevant law and applied it to the evidence presented. The tribunal had found that Mr Rowan had sexually harassed Ms Beck, as defined in the Anti-Discrimination Act. The court found that the tribunal had made the required findings under the Act and that its interpretation of the law was correct. The court also found that the tribunal's findings of fact were supported by the evidence and that there was no error of law in its decision.

Orders

Orders of the court

1. The application for leave to rely upon fresh evidence is refused.

2. The applications for leave to appeal are dismissed.

3. The appeals are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ground of appeal is not made out.Ground of appeal – breach of natural justice – refusing evidence by Mr Haynes Mr Rowan claims that he was improperly denied the opportunity to call Mr Haynes as a witness. This point was not the subject of submissions at the oral hearing, but was not withdrawn. There is no substance to Mr Rowan’s assertion. The affidavit of Mr Haynes dated 3 March 2017 was admitted into evidence, without Mr Haynes being required for cross-examination. There was no breach of natural justice by the Tribunal. Mr Rowan submits the Tribunal erred in finding he had twice sexually harassed Ms Beck as defined in s 119 of the AD Act.[62] [62]Applicant’s Submissions, 5-7; further written submissions filed by the applicant on 23 March 2020, [8]-[9] (‘the Applicant’s Further Submissions’). It is also submitted that the Member was required to make a finding under s 119(f), as further defined in s 120 of the AD Act, but failed to do so. That is to say, no finding, or adequate finding,[63] was made by the Tribunal that a reasonable person in Mr Rowan’s place would have anticipated the possibility that Ms Beck would be offended, humiliated or intimidated by his conduct. Instead, the Tribunal is said to have applied an incorrect test by finding a reasonable person in Mr Rowan’s place would have anticipated the possibility that the emails would come to Ms Beck’s attention.[64][63]Appeal Hearing Transcript, 1-16.[64]Ibid. It is argued that no finding was made about what the relevant circumstances were, pursuant to s 120, that would have given rise to the reasonable person’s anticipation.[65] This alleged error is properly framed as an error of law.[65]Ibid, 1-16 – 1-17. Ms Beck contended, in response, that on a plain reading of the reasons for decision, the Member did in fact make the required findings.[66] In oral submissions, Mr Hamlyn-Harris took the Appeal Tribunal through the Tribunal’s reasons for decision, which included the following passages:I’m going to turn to the sexual harassment claim now and then return to the victimisation claim. The sexual harassment claims in respect of the two emails, the 19th of February 2015 and 25th of February 2015 – and I have regard here to section 119 of the Act – the question here is whether things said in these emails were both as is relied on by the applicant under paragraph (c) of section 119, that is, remarks with sexual connotations relating to the applicant, and also (f), “in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct”. I’m quite clear that both these emails come within those two definitions.The email of the 19th of February 2015 may not expressly with the words it uses have sexual connotations; however, when read with the email of the 25th of February 2015, it clearly does. The use of the word “he” and the reference to “female toilets” in the 19th of February 2015 email needs further explanation and understanding, but the parties who are affected by this, that is, both the respondent and the applicant, have that understanding. And the applicant had – when she read the 19th of February 2015 email, she had the other one as well at the same time. She had the 25th of February 2015 email at the same time because they were sent to her at the same time in July 2015 by Mr Scurr. It doesn’t matter that she saw these after the event, as is suggested by the respondent. The act of harassment occurred when she received them.Does it come under paragraph (f)? So would a reasonable person have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct? Well, the conduct is the sending of the emails to the officers. The conduct is not the sending of the emails to the applicant. So the question I have to decide is how far a reasonable person would have anticipated the possibility that the officers would pass those emails on to the applicant and, if they did that, that she would be offended, humiliated or intimidated. I think it was very likely that they would pass it on to the applicant, one or other of them or somebody else who might have received that chain.It’s suggested by the respondent that that shouldn’t have happened and that the chances of this happening to him were very slim, but I don’t agree with that. I think that somebody of the four or five who saw these would have sympathised sufficiently with the applicant and thought that she ought to see them for one reason or another for reasons which are unnecessary to go into, not to hurt her in any way, as the respondent suggests, and not to retaliate to him, as the respondent suggests, but simply because somebody is entitled to know what is going on if it’s do to with them. And that, I think, is perfectly able to be anticipated and perfectly likely and therefore comes within subsection (f). Subsection (f) only requires the possibility that something will happen, and it was clearly within that. So those two emails did amount to sexual harassment of the applicant.[66]Ibid, 1-27 – 1-28.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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