State of Queensland v Barney
[2013] QCATA 8
•10 January 2013
| CITATION: | State of Queensland and Anor v Barney [2013] QCATA 8 |
| PARTIES: | State of Queensland Wendy Petersen (Applicants) |
| v | |
| George Fleetwood Barney (Respondent) |
| APPLICATION NUMBER: | APL418-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 10 January 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member David Paratz, Member |
| DELIVERED ON: | 10 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Until further order of the Tribunal the decision made on 1 November 2012 is stayed. |
| CATCHWORDS: | Discrimination – Stay of Order – Matters to be considered on a stay application – whether the applicant has an arguable case on appeal – effect of stay – balance of convenience – power to award interest on the award of damages – respondent having previous debt mediation Queensland Civil and Administrative Tribunal Act 2009, s 145(2) Cook’s Construction Pty Ltd v Stork Food Systems (Aust) Pty Ltd [2008] 2 Qd R 543 |
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
Mr Oliver
I have read the reasons of Mr Paratz and agree with his reasons, his conclusions, and the order he proposes.
Mr Paratz
This is an application for a stay of an Order of the Tribunal made on 1 November 2012 that the State of Queensland pay to George Fleetwood Barney the amount of $76,704.81.
Mr Barney is a Residential Care Officer (support worker) employed by the Accommodation Support and Respite Service which is part of the Department of Communities, Child Safety and Disability Services.
Mr Barney brought an application against the State of Queensland as First Respondent and Wendy Petersen as Second Respondent in 2011 claiming damages for pain and suffering and economic loss as a result of discrimination against him in the workplace.
On 3 December 2012 the State of Queensland filed an application for leave to appeal or appeal the Tribunal’s decision as well as the application to stay that decision. Directions were made for the filing of submissions in respect of the application for the stay.
Directions were also made in the substantive appeal. The appeal is listed for hearing in Brisbane on 15 April 2013.
Section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 provides that:
145 (2) However, the tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
The fundamental principle governing application for a stay is that the successful party is prima facie entitled to the fruits of his judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position: Berry v Green [1999] QCA 213.
The matters to be considered on a stay application in a matter of this type were discussed by the President, Justice Alan Wilson, in Q v X [2010] QCAT 297 at [9] where he said:
Before a stay may be granted in a matter the applicant must demonstrate that it is an appropriate case for an order of that kind. The questions affecting the exercise of the discretion to grant a stay will, here, revolve around Q’s prospects in the appeal itself, and whether it has an arguable case: any risk that its appeal may prove abortive or nugatory if the stay is not granted; and the balance of convenience.
In Quinn v Queensland Law Society [2012] QCAT 274 the President at [26] considered the factors that would ordinarily be considered in a stay application, being the matters referred to in s 22(4) of the QCAT Act as to a stay in a review proceeding together with the basic relevant tests identified by the Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems (Aust) Pty Ltd [2008] 2 Qd R 543.
The President described the basic relevant tests in Cook’s Construction Pty Ltd v Stork Food Systems (Aust) Pty Ltd as follows:
that is, the applicant’s prospects of success; whether or not the appeal might be rendered irrelevant if a stay is not granted; and, whether irremediable harm might be suffered by the applicant if the stay is not granted.
Does the applicant have an arguable case on appeal?
The State of Queensland has raised 4 grounds of appeal:
1.The tribunal erred in law in treating the onus of proof with respect to causation of loss on the respondents.
2.The Tribunal erred in requiring the respondents to lead evidence distinguishing the causal impact on the applicant of the matters found to be contraventions of the Anti-Discrimination Act 1991 from the impact of those matters that were not found to be contraventions.
3.The Tribunal erred in its assessment of damages in that the award was manifestly excessive in light of the limited matters found to be contraventions of the Anti-Discrimination Act 1991, and is not substantiated by the evidence.
4.The Tribunal erred in awarding as economic loss the applicant’s entire claimed past economic loss when only a limited amount of matters complained of were found to be contraventions of the Anti-Discrimination Act 1991.
It is not appropriate to consider the issues related to the grounds of appeal in depth on an application for a stay. That is the task for the Appeal Tribunal.
The question to be considered on this application is whether the State of Queensland has credible prospects. This is a preliminary consideration to determine whether the appeal is well founded, or is frivolous or has no realistic prospects of success.
The first two grounds of appeal are as to the onus of proof.
The learned member found that Mr Barney had developed a moderate depressive illness of long duration with associated alcohol abuse and suicidal ideations, where the symptoms largely abated over a period of about 20 months to the extent that he returned to work but still affect him after 5 years [133].
A live issue was as to causation of that illness.
Mr Barney had complained of other actions relating to his workplace. The learned member found that the State of Queensland had not asked the doctors who give evidence to comment about the issues of causation [139] and that he could not be satisfied that it was appropriate to apply any discount to Mr Barney’s economic loss [143].
The legal issue is whether the onus was on Mr Barney to show that his illness was solely caused by the actions of Ms Peterson; or whether the onus was on the State of Queensland to disprove that.
The State of Queensland in its submissions refers to the decision of Barwick CJ, Kitto and Taylor JJ in Purkess v Critenden (1965) 114 CLR 164 where they held that once there was evidence that the effects on the plaintiff may have been caused by another cause, that it is was for the plaintiff to satisfy the tribunal of fact of the extent of loss caused by the compensable injury.
The decision in Purkess v Critenden has been subsequently followed.
There is therefore a valid question as to whether the learned member did correctly regard the onus of proof with respect to causation, and this question raises a substantial question of law which had a profound outcome on the eventual finding of the Tribunal.
The other two grounds of appeal relate to questions of assessment of damages.
The State of Queensland argues that the assessment of damages was manifestly excessive, and allowed Mr. Barney’s entire claimed past economic loss.
The question of the amount of damages is one for determination by the Tribunal having regard to the facts before it.
The learned member found that an appropriate award for damages would, in the absence of issues of causation be $55,000 [133]. He found in relation to general damages that:
In relation to Mr Barney’s general damages the Tribunal accepts that the issues it has found to be not discriminatory play some part in the causation and seriousness of his depressive illness.
He then went on to assess the general damages, saying at [145] that:
Doing the best it can the tribunal assess Mr Barney’s general damages caused by those matters found to be discrimination at $40,000.
The element of causation therefore played a significant part in the learned member’s assessment of damages. Given that I have found that a valid question arises as to the correctness of the causation question, this casts doubt on the validity of the assessment of the quantum of damages.
I therefore find that the State of Queensland has valid grounds on which to appeal, and has prospects of success.
Balance of Convenience
The State of Queensland argues that there is a risk that if the full monies under the order are paid that Mr Barney will not have the capacity to repay those monies in the event that the award of damages is reduced.
It refers to Mr Barney having undergone debt mediation previously. The implication is that Mr Barney may act imprudently in relation to the monies and inappropriately divest them.
Mr Barney describes this proposition in his submission as follows:
50. The Respondent contends that harm was caused by the actions of the Appellants and therefore to stipulate that rightful compensation should be withheld, on the grounds that the Respondent may not be in a position to reimburse potential losses, sounds like wishful thinking.
Mr Barney does not directly address the contention that he has questionable money management skills, and that he may be unable to repay any excessive funds paid to him.
There does appear to be a valid question as to the recoverability of excess funds from Mr Barney. The State of Queensland may be required to engage in difficult and potentially fruitless steps to recover any excess funds from Mr Barney.
Balanced against this is Mr Barney’s entitlement to the fruits of the judgment in his favour. The hearing of the appeal will be conducted in April 2013. The question that arises is whether a further delay of 3 months (or until the determination of the Appeal) would cause him irremediable harm.
Section 209(1)(g) of the Anti-Discrimination Act 1991 provides that the Tribunal may make an order requiring a party to pay interest on an amount of compensation.
The Appeal Tribunal may under s 147(3) of the QCAT Act amend the decision.
It would therefore be open to the Appeal Tribunal to allow an award of interest at a suitable commercial rate which would compensate Mr Barney for not having use of the amount previously awarded.
The balance of convenience would therefore favour the granting of the stay until the appeal is determined.
Conclusion
Having regard to the State of Queensland having valid prospects of success on the appeal; and that Mr Barney can be compensated for any loss caused by a stay by an award of interest; and the balance of convenience favouring a stay; I am satisfied that it is appropriate for a stay to be ordered.
I order that the order of the Tribunal made on 1 November 2012 that the State of Queensland pay to George Fleetwood Barney the amount of $76,704.81 be stayed until the decision in the appeal in this matter (APL418-12) is given or until further order.
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