Sully v Skinner
[2012] QCATA 250
•26 November 2012
| CITATION: | Sully v Skinner [2012] QCATA 250 |
| PARTIES: | Matthew Sully (Appellant) |
| v | |
| Geoffrey Skinner (Respondent) |
| APPLICATION NUMBER: | APL005-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 26 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | ANTI-DISCRIMINATION – guide dog – whether applicant’s refusal to rent accommodation to the respondent because of his guide dog discriminatory – whether incorrect legislation applied – where appeal on mixed questions of fact and law – where findings of fact open on the evidence – where compensation ordered an exercise of discretion – whether discretion miscarried – whether reference to comparable cases appropriate Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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 Skinner is visually impaired and relies on a guide dog for mobility. In a decision of QCAT delivered on 23 November 2011 it was determined that Mr Sully had refused to rent holiday accommodation to Mr Skinner on the basis that Mr Skinner relied on a guide dog. An order was made requiring Mr Sully to pay $13,000 compensation to Mr Skinner for unlawful discrimination.
Mr Sully has filed an application for leave to appeal or appeal challenging that decision. In the documents he has filed, Mr Sully argues that the Tribunal fell into error in applying the wrong legislation, that it reached the wrong conclusion on the facts of the case and that it was in error in the way it quantified the compensation payable to Mr Skinner. As Mr Sully’s appeal is not based on a question of law only but on a question of mixed law and fact, he requires leave, or permission, to appeal under section 142(3)(b) of the QCAT Act.
Leave to appeal is granted in those cases where it is established that the decision under appeal contains a reasonably arguable error which has resulted in an appealable error[1] or that there is a reasonable prospect that the applicant will obtain substantive relief[2] or that there is a question of general importance on which further argument is required and a decision of the Appeal Tribunal would be to the public advantage[3]. If a case for leave is not made out based on one or more of these principles, the law expects the primary decision to stand recognising that it is not the role of an appeal tribunal to set aside a validly made decision merely because another tribunal might have come to a different conclusion.
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3]Glenwood Properties Pty Ltd v Frueharf Australia Pty Ltd [1989] 2 QdR 577 at 578, 580.
Mr Sully submits that his actions in January 2010 were not in breach, at that time, of the legislation dealing with the rights of persons to bring guide dogs onto private premises offered for accommodation. Mr Sully submits that the relevant legislation was amended well after the actions complained of took place. In this submission Mr Sully appears to be referring to the Guide, Hearing and Assistance Dogs Act 2009. If the Tribunal was found to have applied the wrong legal test when considering the actions of Mr Sully, an error of law would have occurred which is a basis upon which leave to appeal would be granted.
However Mr Sully is misguided in this argument. The complaint made against him was that his actions had contravened the Anti-Discrimination Act 1991. Section 85 of that Act provides that a person must not discriminate by refusing to rent accommodation to a person with an impairment who relies on a guide dog. That statutory prohibition against discrimination based on a person’s impairment was in place as at January 2010 when these events occurred.
The Tribunal correctly applied the provisions of the Anti-Discrimination Act 1991 and was obliged to do so when determining the complaint of Mr Skinner. I can find no reasonably arguable error which has resulted in an appealable error based on the submissions that the wrong legislation was applied by the Tribunal. This first ground relied on by Mr Sully for leave to appeal is rejected.
Mr Sully submits that the Tribunal wrongly reached a conclusion based on the facts in the case that he had denied Mr Skinner accommodation on the basis that Mr Skinner had a guide dog. In her reasons, the learned Member stated that the email trail sent between the parties at the relevant time was not in contention. However the interpretation of the evidence contained in those emails was central to the outcome of the complaint.
When considering the facts, the learned Member adopted the expression used by Mr Sully in his contentions that she had to determine whether the basis for the decision of Mr Sully to refuse to let his rental unit to Mr Skinner was the human and not the dog.
The relevant facts, condensed in her reasons, were that Mr Skinner and his wife wanted to book a holiday and used an on-line website which linked owners of holiday units with prospective renters. Mr Sully had listed his holiday unit with that website. An enquiry about the unit by Mr Skinner was directed by the website to Mr Sully who then engaged in direct discussions with Mr Skinner and his wife.
Mr Sully told the Skinners that the unit was available for the four week period in which they were interested at a cost of $2,772 and that a deposit needed to be paid within seven days of booking. Mr Skinner then endeavoured to complete the booking terms by paying the requested deposit but to do so he needed account details to transfer the deposit to Mr Sully. At this point, Mr Skinner informed Mr Sully that his accredited guide dog would be staying in the unit with him.
In response Mr Sully told the Skinners that he had not previously been asked about guide dogs and he would have to check with the body corporate. Mr Sully went on to say that he needed to think about how he felt about having a dog in the unit for a month.
After this Mr Skinner queried whether Mr Sully was accepting the booking. In response Mr Sully emailed that he had not yet heard back from the body corporate and he will follow this up. Mr Sully then went on to complain about Mr Skinner’s tone in his email in that he regarded it as blunt and lacked the usual courtesy of salutations and polite manners. Because of this, and despite already confirming the accommodation was available, he advised Mr Skinner that other parties who have made enquiries would be given preference for those dates.
Within a couple of hours of receipt of that email, Mr Skinner sent a polite email to Mr Sully saying he was upset at Mr Sully’s ignorance of the law and responsibilities of rental property owners where guide dogs were concerned, considered he already had an agreement about renting the accommodation and noted that Mr Sully’s attitude changed when the guide dog was mentioned. He requested, again, Mr Sully’s bank details so he could pay for the accommodation.
The last email in the evidence was a long email sent by Mr Sully in which he acknowledged that the body corporate of the complex would allow guide dogs. However, he then went on to discuss how he approaches renting the unit and how he picks and chooses prospective tenants and what he does for them. He felt that the relationship between himself and Mr Skinner was not good and they were not “bonding”. He believed he had the right to decide to whom he would rent the unit and told Mr Skinner that he was choosing not to rent the unit to him.
The learned Member made a finding that Mr Sully did not have any sufficient justification to warrant denying Mr Skinner accommodation on the basis of his questionable manners. She determined that Mr Skinner had in reality been denied accommodation because he intended to have his guide dog occupy the unit with him for the month.
The conclusion reached by the learned Member that the dog and not the man was the cause of the refusal of the accommodation by Mr Sully was open on the evidence before her. The learned Member could and did accept the evidence of Mr Skinner that he considered that the booking had been made and that he had been endeavouring to pay the deposit within the time required. The decision that had to be made by the learned Member was whether to go on and accept the assertion of Mr Skinner that the reluctance of Mr Sully to proceed with the booking was because Mr Skinner had a guide dog. If she did so, there was evidence from which such a conclusion could be reasonably drawn.
The learned Member did not accept the evidence given by Mr Sully that he had refused to rent his unit to Mr Skinner because Mr Sully had not bonded with Mr Skinner. The statement in Mr Sully’s email that he was in fact considering other enquiries from people wanting to book the unit in May and June is difficult to reconcile with his earlier unequivocal statement that the unit was available for the specific period in question. The change in his willingness to complete the rental booking to the Skinners for that particular period of time directly followed the disclosure that Mr Skinner had a guide dog eg “I also need to think about how I feel about having the dog in the apartment for one month. I hope you understand.” There was a sufficient factual basis for the Member to draw a causal link between that disclosure and Mr Sully’s decision.
The learned Member preferred the evidence of Mr Skinner over that of Mr Sully. Where evidence was in conflict, she was entitled to prefer evidence from one of the parties over the other. It is not the role of an Appeal Tribunal to substitute its own assessment of the evidence and make its own findings on the facts in a case when it is satisfied that the conclusion reached by the learned Member was reasonably open on the evidence properly before the Tribunal. The second ground relied on by Mr Sully for leave to appeal is rejected as it does not disclose any error.
The remaining ground raised by Mr Sully is that the Tribunal was in error in the manner in which it quantified the compensation that he has been ordered to pay to Mr Skinner. In particular Mr Sully submits that the Tribunal was wrong to rely on the decision of McNamara v Golonaise Pty Ltd & Janes.[4] He submits that the facts of that case were so different from his case that it should not have been used as authority by the Tribunal when considering the compensation to be ordered.
[4] [2006] QADT 7.
Mr Sully’s arguments are misguided. The use made by the Tribunal of the McNamara case was not based on the facts of that case being similar in all or most respects with the Skinner case. Rather the learned Member had noted that in McNamara the complainant had been found to have been discriminated against for the reason that he relied on a guide dog. The learned Member found that Mr Skinner had been discriminated against for the reason that he relied on a guide dog.
It was quite appropriate given the same outcome was reached in the complaints that the learned Member sought some guidance on quantum of compensation from this previously decided and published case. She was aware of the pertinent difference in the facts of the McNamara and Skinner cases as she discussed those differences, where they were relevant, in paragraphs 22 and 23 of her reasons. She exercised her discretion when assessing the quantum of a compensation award by taking into account Mr Skinner’s particular circumstances and her reliance of the McNamara case was stated to be by way of guidance only. That approach was appropriate and does not reveal any reasonably arguable error which has resulted in an appealable error.
Mr Sully also submitted that compensation had been awarded in an amount greater than the maximum allowed under the Guide, Hearing and Assistance Dogs Act 2009. This point has no merit as the award of compensation for a contravention of the Anti-Discrimination Act 1991 is not calculated by reference to the penalty for a breach of any provision in the Guide, Hearing and Assistance Dogs Act 2009. An award of compensation is not the same as a monetary penalty imposed for a breach of a statute.
Mr Sully has failed to establish that the decision of the Tribunal contains any error of law or any error of mixed law or fact upon which leave to appeal should be granted. The grounds he relied on to challenge the decision of the Tribunal do not give rise to any reasonable prospect that he would succeed in an appeal. His arguments do not raise any question of general importance.
In those circumstances, the application for leave to appeal is refused.
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