Walsh v Ng'ang'a

Case [2025] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

Walsh v Ng’ang’a [2025] QCA 41

PARTIES:

DAVID WALSH
(first applicant)
LEACHIA BOLES
(second applicant)
DE SOYSA WALSH PTY LTD
ACN 082 762 249
(third applicant)
v
ROSE NG’ANG’A
(first respondent)
JACKSON GITAU
(second respondent)

FILE NO/S:

Appeal No 13751 of 2024
QCATA No 174 of 2023
QCATA No 188 of 2023
QCATA No 189 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2024] QCATA 100 (Member Roney KC)

DELIVERED ON:

28 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2025

JUDGES:

Mullins P and Boddice JA and Davis J

ORDERS:

1.   Leave to appeal be refused.

2.   The applicants pay the respondents’ costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Queensland Civil and Administrative Tribunal (QCAT) found that the applicants had directly discriminated against the respondents in the accommodation area – where complaints of indirect discrimination were dismissed – where a counter-complaint of sexual harassment by the male applicant was dismissed – where the Appeal Tribunal of QCAT (QCATA) refused leave to appeal and dismissed appeals from those orders – where the applicants seek leave to appeal QCATA’s orders – where the applicants contend that QCATA erred in law as to the parties’ contractual obligations and by denying procedural fairness – whether leave to appeal should be granted

Anti-Discrimination Act 1991 (Qld), s 10(3), s 10(4), s 133

Allen v Queensland Building and Construction Commission[2024] QCA 24, cited
Bird v DP (2024) 98 ALJR 1349; [2024] HCA 41, cited
Oak Hotels & Resorts Limited v Knauer [2019] 3 Qd R 232; [2018] QCA 359, cited

COUNSEL:

D J Walsh appeared on his own behalf, and on behalf of the second and third applicants
L M Dawson for the first respondent
D M Marckwald, with S R Montgomery, for the second respondent

SOLICITORS:

D J Walsh appeared on his own behalf, and on behalf of the second and third applicants
Legal Aid Queensland for the first respondent
DWF (Australia) Law for the second respondent

  1. THE COURT:  On 22 May 2023, the Queensland Civil and Administrative Tribunal (QCAT) found that the applicants had directly discriminated against the respondents in the accommodation area on the basis of pregnancy and race.  Complaints of racial vilification, victimisation and indirect discrimination were dismissed.  A counter-complaint of sexual harassment by the male applicant was also dismissed.

  2. On 17 September 2024, the Appeal Tribunal of QCAT (QCATA) refused leave to appeal and otherwise dismissed appeals from those orders.

  3. The applicants now seek leave to appeal QCATA’s orders.  The applicants contend that leave ought be granted, as QCATA erred in law as to the parties’ contractual obligations and as to the vicarious liability of the corporate applicant.  It is also contended that QCATA erred in law by denying procedural fairness.

    QCAT hearing

  4. The complaints arose…

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Details
AGLC
Walsh v Ng'ang'a [2025] QCA 41
Case
[2025] QCA 41
Decision Date

CaseChat Overview and Summary

In the case of Walsh v Ng'ang'a, the applicants, who are also the appellants, sought to appeal the orders of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCATA). The tribunal had dismissed appeals against findings made by the Queensland Civil and Administrative Tribunal (QCAT) that the applicants had directly discriminated against the respondents in the area of accommodation, and had also dismissed their counter-complaint of sexual harassment. The applicants sought leave to appeal the QCATA’s orders on several grounds, including that QCATA erred in law in its interpretation of the parties' contractual obligations and by denying procedural fairness.

The court considered whether the applicants had demonstrated that there was an error of law in the QCATA’s decision that would justify an appeal. The applicants argued that QCATA erred in its reasoning and made errors of fact and law. The court found that the QCATA’s reasoning was sound, and that the tribunal had correctly interpreted the evidence and applied the relevant provisions of the Anti-Discrimination Act 1991. The court held that the applicants had not demonstrated that there was an error of law that would justify an appeal.

The court also considered whether the applicants had demonstrated that there was a substantial injustice that warranted leave to appeal. The court found that the applicants had not demonstrated that the QCATA’s decision had caused them a substantial injustice. The court held that the applicants had not demonstrated that there was a substantial injustice that would justify an appeal.

Finally, the court considered whether the proposed appeal raised a question of law of general or public importance. The court found that the proposed appeal did not raise a question of law of general or public importance. The court held that the applicants had not demonstrated that the proposed appeal raised a question of law of general or public importance.

ORDERS:
1. Leave to appeal be refused.
2. The applicants pay the respondents’ costs.

Orders

Orders of the court

1. Leave to appeal be refused.

2. The applicants pay the respondents’ costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

QCAT found that that conduct constituted less favourable treatment in the area of accommodation on the ground of race, with the direct threat to evict also constituting less favourable treatment on the grounds of pregnancy.QCATA decision The applicants appealed on multiple grounds. Relevantly, they included a reasonable apprehension of bias and/or a denial of procedural fairness; a misdirection as to the comparator and its application; an improper use of motive for the unfavourable treatment; a misapplication of provisions of the Anti-Discrimination Act 1991 (the Act); errors of fact and law; and a failure to act fairly and according to the merits when dismissing the counter-complaint of sexual harassment. Relevantly, QCATA found:(a)That the reasoning of QCAT, in and of itself, could not be said to have led a fair-minded lay observer to reasonably apprehend that the member did not or might not have brought an impartial mind to the resolution of the question he was required to decide.(b)That QCAT did not substitute its own reasoning in lieu of the respondents’ stated claims of less favourable treatment. The reasoning was identified, after examining the evidence and assessing the credibility of witnesses and drawing inferences reasonably open on the accepted evidence.(c)There was no deliberate failure by QCAT to identify a comparator finding that the corporate applicant and the male applicant had directly discriminated against the respondents.(d)That QCAT did not impermissibly extend the meaning of s 10(3) of the Act. The relevant, less favourable treatment was done on the basis of race. It was not a determination on the basis of motive or intent.(e)That QCAT did not misdirect itself as to the proper application of ss 10(3) and (4) and 133 of the Act. The corporate applicant, in all relevant dealings with the respondents, acted through the male applicant who had actual, or at least ostensible authority as its agent.(f)The QCAT findings of fact were consistent with the evidence. None were glaringly improbable.(g)That QCAT did not err in dismissing the counter-complaint. The female respondent had the onus of proof of an act of sexual harassment, dependent upon an assessment and acceptance of evidence as reliable and credible. QCAT’s finding as to a lack of credibility was open on the evidence.Leave to appeal An appeal to this Court is only open, with leave, on a question of law. Leave to appeal will not be granted lightly as an applicant for leave has already had the benefit of two hearings in QCAT. This Court needs to be persuaded that there is an error of law to be corrected which, if corrected, would justify the claim for relief. As such, leave will generally only be granted where it is necessary to correct a substantial injustice and the proposed appeal raises a question of law of general or public importance.[1][1]Allen v Queensland Building and Construction Commission [2024] QCA 24 at [23]. Applying those principles, a consideration of the applicants’ proposed grounds of appeal supports the conclusion that leave to appeal ought to be refused.Ground 1

Ratio Decidendi

Legal Principle Established

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