Walsh v Ng'ang'a[2025] QCA 41

SUPREME COURT OF QUEENSLAND

1. [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. [2]
   On 17 September 2024, the Appeal Tribunal of QCAT (QCATA) refused leave to appeal and otherwise dismissed appeals from those orders.
3. [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. [4]
   The complaints arose out of events said to have taken place between March and June 2020, whilst the respondents were tenants in a residential unit complex under a fixed term residential tenancy agreement with the corporate applicant, a company controlled by the male applicant.
5. [5]
   The respondents alleged, against the corporate applicant and the male applicant, direct discrimination in the area of accommodation because of the attributes of pregnancy and race, with less favourable treatment by varying the terms and benefits of the accommodation; informing them their child, once born, would not be authorised to reside in the accommodation and if the child did, they would face eviction for breaching the rental agreement; and issuing notices of alleged breaches and using entry requests to intimidate and harass.
6. [6]
   In finding the complaints of unfavourable treatment on the grounds of pregnancy and race proven, QCAT found that the corporate applicant and the male applicant had engaged in a pattern of behaviour, described as a “campaign” against the respondents, their tenants.  That campaign included placing them under surveillance, picking on them, serving them with unjustifiable notices, ignoring reasonable requests for assistance, speaking to them in humiliating and offensive ways and attempting to impede access to and from their unit.
7. [7]
   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

8. [8]
   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.
9. [9]
   Relevantly, QCATA found:

   1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 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.
   6. The QCAT findings of fact were consistent with the evidence.  None were glaringly improbable.
   7. 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

10. [10]
    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]
11. [11]
    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

12. [12]
    The proposed ground of appeal, as framed, does not identify errors of law.  At best, it seeks to identify legal principles said to have been improperly applied in the context of factual considerations.  For example, the doctrine of privity of contract is of no relevance to the determination of the complaint of direct discrimination by the applicants against the respondents.
13. [13]
    That the applicants’ contentions, in respect of this alleged error, involve questions of mixed fact and law, is apparent from the applicants’ assertion of alleged errors in findings as to the relationship of his partner to the property and the terms of the lease.  Not only were there no such errors in the factual findings, those matters are likewise irrelevant to a determination of whether there had been direct discrimination of the respondents in the area of accommodation.
14. [14]
    The applicants’ contention of an error of law in the finding of vicarious liability by the corporate applicant for the conduct of the male applicant, is equally misconceived as any determination of it requires a consideration of the factual findings, such that it is not a question of law.  The factual finding that the male applicant, in his dealings with the respondents was the agent of the corporate applicant, was plainly consistent with the evidence.  Bird v DP^[2] and Oak Hotels & Resorts Limited v Knauer,^[3] have no application having regard to those factual findings.  There is also no substance in a contention that QCATA erred in its application of s 7(c) of the Act.  That contention is no more than an attempt to reagitate factual findings, plainly open on the evidence.  Similar considerations apply in respect of the alleged error in relation to s 10 of the Act.
15. [15]
    Finally, the alleged error in dismissal of the sexual harassment complaint misconceives the basis for that dismissal.  That complaint failed because it was not established factually to the requisite standard.  That conclusion was plainly consistent with the evidence as accepted at the hearing.

Ground 2

16. [16]
    This ground asserts an error of law in QCATA’s rejection of the applicants’ appeal on the basis of a reasonable apprehension of bias.  The reasonable apprehension of bias is said to arise from the terms of QCATA’s judgment when referring to the male applicant and the male applicant’s submissions.
17. [17]
    Whilst a finding of bias would amount to an error of law, a consideration of QCATA’s reasons supports a conclusion that there is no basis upon which a fair-minded lay observer could conclude that QCATA did not bring an impartial mind to the determination of the appeal.  References to the male applicant’s conduct and submissions, whilst sometimes in unflattering terms, were relevant and necessary when addressing convoluted and poorly articulated grounds of appeal.  Importantly, QCATA’s reasons provide a careful, detailed and reasoned analysis of the applicant’s complaints, and of the basis for the refusal of leave and the dismissal of the appeal otherwise.  Further, the basis for the dismissal of those complaints is equally measured and reasoned by QCATA.
18. [18]
    The applicants’ assert a second jurisdictional challenge namely, a denial of procedural fairness in the rejection of the sexual harassment complaint, due to a focus on attitudes to the respondents and their tenancy, rather than a focus on her claim of sexual harassment.  It is also submitted that QCATA misdirected itself in upholding QCAT’s findings as there was a mistake in the member’s reasons and the evidence.
19. [19]
    A consideration of the record supports the conclusion that there was no denial of procedural fairness.  QCAT’s findings in respect of the sexual harassment claim were based on findings as to the reliability and credibility of the claims of sexual harassment.  QCATA’s rejection of the appeal against that finding was based on a conclusion that the rejection of the evidence as lacking credibility, was open on a consideration of the evidence as a whole.
20. [20]
    There is no basis upon which this Court could conclude that QCAT’s findings as to credibility and reliability were glaringly improbable or contrary to the evidence.  Accordingly, QCATA’s rejection of the appeal from those findings was not erroneous.

Conclusions

21. [21]
    The applicants have not established any error of law warranting a grant of leave.
22. [22]
    At the conclusion of the hearing, the parties were invited to make submissions on whether costs should follow the event.  The respondents supported that proposal.  The applicants opposed any costs order being made against them, if they were unsuccessful, as they claimed impecuniosity.  That is a consideration which is of more relevance to the enforcement of a costs order by a party, rather than whether the Court makes an order for costs in the first place.  In the circumstances of this application where the prospects of the applicants succeeding in this Court were extremely poor because an appeal is limited to questions of law, it is appropriate that costs follow the event.

Orders

23. [23]
    The Court orders:

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