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Bero v Wilmar Sugar Pty. Ltd.[2016] QCAT 371

Bero v Wilmar Sugar Pty. Ltd.[2016] QCAT 371

CITATION:

Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371

PARTIES:

Peter Christopher Bero

(Applicant)

v

Wilmar Sugar Pty Ltd

(First Respondent)

Graham Powell

(Second Respondent)

Gregory James Chatfield

(Third Respondent)

Stephen Luke

(Fourth Respondent)

Salvatore Russo

(Fifth Respondent)

APPLICATION NUMBER:

ADL008-15

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

7 August 2015

17 March 2016

18 March 2016

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

12 October 2016

DELIVERED AT:

Townsville

DECISION MADE:

  1. The Applicant’s application is dismissed.
  1. The Respondents’ application for a non-publication order is dismissed.
  1. That the Respondents’ application for a costs order against the Applicant for the adjournment on 7 August 2015 is dismissed.
  1. That there be no further order as to costs on the hearing.

DISCRIMINATION – direct discrimination – comments of a racial connotation – whether treatment of employee is less favourable or not materially different – whether statements were capable of amounting to discrimination – whether insensitive and bad mannered comments are capable of being discriminatory – whether offensive comments are discriminatory in nature

VICARIOUS LIABILITY – legal relationship between employer and employee – liability imposed upon employer for actions of an employee

VICTIMISATION – whether victimisation undertaken by an employer – invitation for employment – threats – physical altercation within workplace – refusal to re-employ because of breach of discipline policy – remedies sought – whether nexus established between discrimination complaint and employer terminating employment – onus of proof 

RACIAL VILIFICATION – whether comments of objectionable nature within private employment amounts to a public act – whether comments of racial connotation are capable of being vilification if not communicated to the public

JOINDER OF PARTIES – directions to allow amendment of complaints by the Tribunal – discretion to allow amendment to complaint

EVIDENCE – onus of proof – Tribunal not bound by rules of evidence – every attempt to be made to administer substantial justice – Tribunal to act fairly – witness altering evidence – untruthfulness of witness – weight placed upon contemporaneous notes later altered – similar fact events – substantial justice  

NON-PUBLICATION ORDER – broad discretionary power on decision maker – principle of open justice – openness and transparency – fair and accurate reporting – proceedings exposed to public scrutiny and criticism – interests of justice – embarrassment to litigants – requirement for special circumstances – onus rests with party seeking order     

COSTS – LEGAL REPRESENTATIVE – whether conduct unnecessarily disadvantaged a party – whether adjournment of proceedings caused by withdrawal of legal representation – presumption of each party bears its own costs – whether rebuttal of presumption made out

Anti-Discrimination Act 1991 (Qld), s 4A, s 6(1), s 7(g), s 9, s 10, s 10(1), s 10(3), s 15, s 124A (1), s 129, s 130, s 133, s 133(1), s 178, s 191, s 191(1),

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(b), s 28(3)(c), s 48(1)(a),            s 48(1)(b), s 48(1)(c), s 48(1)(d), s 48(1)(e),                   s 48(1)(f), s 48(1)(g), s 66(1), s 66(2), s 66(2)(e),         s 66(3), s 90, s 100, s 102(1) and s 102(3).

Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) s 1339 and s 1343.

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228.

Qantas Airways v Gama [2008] 167 FCR 537.

Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16.

Park v State of Queensland & Anor [2013] QCAT 183.

Malone v Pullen & Hungry Jacks Pty Ltd [2004] QADT 11.

Qantas Airways v Gama [2008] 167 FCR 537.

TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48.

Damiano & Anor v Wilkinson & Anor [2004] FMCA 891.

Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170.

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89.

Nash v Von Doussa [2005] FCA 660.

Foran v Bloom (No. 2) [2007] QADT 33.

Russell v Russell (1976) 134 CLR 495

X v Australian Prudential Regulation Authority (2007) 226 CLR 630.

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47.

Russell v Russell (1976) 134 CLR 495.

Harman v Secretary of State for the Home Department [1983] 1 AC 280.

Whittle and Hughes v Paulette and Specific Pools [1994] QADT 5.

JM v QFG and GK and State of Queensland [1997] QADT 5

H v H & HS [2001] QADT 5.

SE & ME v State of Queensland [2014] QCATA 022.

Latoudis v Casey (1990) 170 CLR 534.

McEwen v Barker Builders Pty Ltd [2010] QCATA 49.

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601.

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364.

Singh v Shafston Training [2013] QCAT 8.

Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16.

Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd [1997] QADT 27.

APPEARANCES and REPRESENTATIONS:

 

APPLICANT:

Mr S M Geeves of Counsel instructed by Ms M A Shepperd of Purcell Taylor Lawyers on 7 August 2015.

Mr R Armstrong of Counsel instructed by Mr G W Scott of the Aboriginal & Torres Strait Islander Legal Service (Qld) Limited on 17 March 2016 and 18 March 2016. 

RESPONDENT:

Mr D Williams, Solicitor and Ms S McRostie, Solicitor of Minter Ellison.

REASONS FOR DECISION

 

THE PARTIES

The Applicant

  1. [1]
    The Applicant identifies as a Torres Strait Islander.  He was born in Ayr in North Queensland.  From 2011 to 2014 he was employed by the First Respondent as a seasonal mill hand.  His role was a Bagasse[1] Handler at the Kalamia Sugar Mill.  His employment with the First Respondent was during the sugar cane crushing season.  The description of his position was the B Shift Spareman.

The First Respondent

  1. [2]
    The First Respondent is duly incorporated Australian proprietary company.  Its registered place of business is in Sydney.  It owns and operates a number of sugar mills in North Queensland, including four within the Burdekin locality.  Those mills are the “Invicta” Mill at Giru, the “Pioneer” Mill at Brandon, the “Kalamia” Mill at Ayr and the “Inkerman” Mill at Home Hill.

The Second Respondent

  1. [3]
    The Second Respondent is employed by the First Respondent.  He started work with the First Respondent and its predecessor companies in 1992.  Since 1997 he has been responsible for the auxiliary equipment for both boilers at the “Kalamia” Mill.    During the crushing season his position is the B Shift Assistant Water Tender at that Mill.

The Third Respondent

  1. [4]
    The Third Respondent has been employed by the First Respondent since 2005.  He fulfils the role as a fitter.  During the crushing season he works shift work, and in the off season he works ordinary hours.  When on shift for the crushing season he is the B Shift fitter.   

The Fourth Respondent

  1. [5]
    The Fourth Respondent has been employed by the First Respondent and its predecessor companies for 39 years.  He has worked in position of boiler operator since 1996.  Prior to that, he was a milling train operator and fulfilled other roles on the cane locomotives.  During the crushing season his duties involve being the B Shift boiler console room computer operator.  He controls the Mill’s boilers. 

The Fifth Respondent

  1. [6]
    The Fifth Respondent is of Sicilian heritage.[2]  He has been employed by the First Respondent and its predecessor companies since 1999.  He started out as a labourer and then worked as a boiler operator.  Since 2011 he has occupied the role of a trainer and assessor at the First Respondent’s “Pioneer” Mill.  His main role now is to perform plant, equipment and machinery training, fire training and induction training.  In 2012 he attained the qualifications of an Equal Employment Opportunity Officer.   

Joinder of Fifth Respondent to the complaint

  1. [7]
    The Fifth Respondent was the subject of a separate complaint to the Anti-Discrimination Commission Queensland (“ADCQ”) by the Applicant.  The Applicant said that he was concerned about the Fifth Respondent being joined to the proceedings as he wanted a conference to take place with him.  The Fifth Respondent was very good friends with the Applicant’s brother and the Applicant wanted to resolve things with the Fifth Respondent without the need for the complaint to proceed to a hearing.[3]  
  1. [8]
    The process of joining the Fifth Respondent does not appear to have been resisted.[4]  Notwithstanding that, the Anti-Discrimination Act 1991 (“Anti-Discrimination Act”) provides the Tribunal with the discretion to allow the Applicant to amend his complaint even if the amendment contains matters not included in the complaint.[5]  The provision to allow the Tribunal the authority to amend a complaint was introduced by amendments to the Anti-Discrimination Act in 2009.[6] 

BACKGROUND

The Complaint

  1. [9]
    The Applicant complained that within the workplace he was discriminated against because of his race, colour and nationality.  In his complaint[7] to the ADCQ, he said that he was subjected to racial comments, racial behaviour, and discrimination because of his racial heritage.  He also complained of being victimised and subjected to vilification by the First Respondent when the company refused to re-employ him.  He said that their decision to not re-employ him was because he had complained to the ADCQ.
  1. [10]
    The Applicant alleged that the discrimination dated back to when he first started working for the First Respondent in 2011.  He allegedly found a swastika sign painted on the floor at work.  Some four years after he found this sign, he made a complaint to the ADCQ.  In writing to the ADCQ he provided a photograph of the sign.[8] 
  1. [11]
    It is unknown why that swastika was within the workplace.  A swastika symbol by itself is not a racial symbol.  It has to be accompanied by some other racially motivated event, connotation, comment or action. 
  1. [12]
    In many Western countries, the swastika has been highly stigmatized because of its use in and association with Nazism.  This differs from its origins.  It is an ancient religious symbol and is considered to be a sacred and auspicious symbol in Hinduism, Buddhism, and Jainism.  It dates back to before the second century BC.  It continues to be commonly used as a religious symbol in Indian religions such as Hinduism, Buddhism, and Jainism. 
  1. [13]
    Although there is no suggestion that any of those religions are practised at the Kalamia Mill, equally there is no suggestion or proof that the swastika was purposely directed at the Applicant, or any other person for whatever reason.     
  1. [14]
    The ADCQ rejected the Applicant’s application relating to the swastika.  Apart from the single photo and the complaint made by the Applicant, there was no other evidence to substantiate the allegation. 
  1. [15]
    In regard to the matters relating to these proceedings, the Applicant told the Tribunal that for the first two seasons he worked for the First Respondent, half of his work colleagues at the Kalamia Mill did not talk to him.  It was only when he went into the third season did these people start to say hello to him.  He perceived this as his colleagues having racist attitudes towards him.[9]  He said that he tried not to let the racist attitudes of the others get to him as he need a job to provide for his family.  A significant observation of this issue is that the Applicant grew up in Ayr which is within the Burdekin agriculture area.  The Burdekin area is not an overly large area and has approximately 17,000 residents. 
  1. [16]
    The seasonal workers employed at the Sugar Mills within that locality, including the Kalamia Mill predominately are residents of the Burdekin area, including the township of Ayr which has a population of approximately 8,000.  Undeniably, there would have been some employees who knew him well, some who knew him not so well and others who possibly did not know him at all.  There may have been a myriad of reasons why someone did not say hello to him.   
  1. [17]
    In May 2014 the Applicant returned to work for the 2014 crushing season at the Kalamia Mill.  He was required to undertake training.  When he attended that training, comments were made to him by the Fifth Respondent which he alleged was racists and discriminatory.  The comment was that the Applicant looked like a Nigerian Scammer (“the Nigerian Scammer comment”).
  1. [18]
    There appears to be some confusion about the exact timings when this incident took place.  The Applicant said that the course ran between 5 May 2014 and 16 May 2014, whereas the Fifth Respondent said the comment took place on 20 May 2014.[10]  The Tribunal accepts that that it occurred on 20 May 2014. 
  1. [19]
    The Applicant complained to his supervisor about an incident at work on 8 June 2014 (“the boiler room incident”).  In that incident the allegations relate to the Second, Third and Fourth Respondents being involved in making comments and gestures of a racial connotation. 
  1. [20]
    The Applicant said that the Third Respondent said to the Second Respondent "breakout the clapstick".  The Second Respondent then replied "it's a kanaka stick and Pete can play the didge”.[11]   The Second Respondent then made the action of an aboriginal man dancing and singing as he hit two shifting spanners together.  The Applicant said that he ignored them, put on his ear phones to listen to music, but he heard the Fourth Respondent say to everyone in the room, "Pete can’t hear you because he’s listening to Charley Pride.”[12] 
  1. [21]
    The Applicant later complained to the ADCQ about the boiler room incident involving the Second, Third and Fourth Respondents.  It was not until quite some time later that he complained about the Nigerian Scammer comment made by the Fifth Respondent at the training session.
  2. [22]
    The Applicant continued to work at the Kalamia Mill in the same position until the end of the 2014 crushing season.  The Applicant complains that prior to the start of the 2015 crushing season, the First Respondent undertook victimisation action against him and refused to re-employ him because he made a complaint to the ADCQ.  Victimisation is discussed in detail later in these reasons. 

Direct Discrimination

  1. [23]
    There is a mandatory requirement that a person[13] must not discriminate against a person in the work or work-related area.[14]  A person is prohibited[15] from treating, or proposing to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.[16]  The person's motive for discriminating is irrelevant.[17]  To satisfy the Tribunal that discrimination within the workplace has occurred, the general principle is that the onus rests upon the Applicant to prove, on the balance of probabilities[18] that the Respondents contravened the Anti-Discrimination Act.[19]  If the Applicant achieves this, then there are a number of means by which the Tribunal may deal with the matter.[20]
  1. [24]
    In regard to the allegation of direct discrimination, there are two separate incidents to be discussed.  Those incidents are referred to as the “Nigerian Scammer comment” on 20 May 2014 and the “The boiler room incident” on 8 June 2014.

Nigerian Scammer comment

Applicant’s complaint

  1. [25]
    The Applicant complained about the Nigerian Scammer comment to the ADCQ on or about 19 January 2015.  The incident occurred some eight months earlier.  There was quite some delay before the complaint was accepted by the ADCQ on 24 July 2015.[21]  The Fifth Respondent has since apologised to the Applicant for what he said. 
  1. [26]
    The Applicant and the Fifth Respondent are well known to each other. They had both worked for the First Respondent as far back as 2011, although over time there had been less and less contact between them.  The Fifth Respondent had obtained qualifications as a trainer/assessor and had moved into another field of work within the First Respondent’s organisation. 
  1. [27]
    When the Applicant was re-hired by the First Respondent for the 2014 crushing season, he re-commenced work at the First Respondent’s Kalamia Sugar Mill.[22]  His employment was categorised as a seasonal general mill worker. 
  1. [28]
    As part of his employment, he was required to participate in a Bobcat Refresher training course.  When he arrived at the training room for the refresher course, the Fifth Respondent called out to him and referred to him as a "Nigerian Scammer".   He also said "You look like a Nigerian Scammer".  The Fifth Respondent was laughing at the time.  There were other people entering the room at the time.[23]  The Applicant found the comment to be very offensive[24] and racist.[25] 
  1. [29]
    The Applicant went on to say that this was not the first time that the Fifth Respondent had said something like this to him.  There had been at least two or three prior occasions when the Fifth Respondent told him that he looked like a Nigerian Scammer.[26]  He could not recall the specific dates of when this happened, but he did recall seeing him sometime in 2013 when the Fifth Respondent conducted training and assessments at the Kalamia Mill.[27] 
  1. [30]
    When the Fifth Respondent referred to him as looking like a Nigerian Scammer, the Applicant respondent by saying back to the Fifth Respondent “Get fucked Rocky”,[28] referring to him by his nickname.[29]  The Applicant had deposed in an affidavit that he did not know that the Fifth Respondent was Italian.  He said that he called him by that nickname because that is what he was known by at High School[30] and he looks like the actor Sylvester Stallone.[31]
  1. [31]
    This differs from his evidence at the Tribunal.  When cross-examined at the hearing about the “Rocky” comment, he said that he thought that the Fifth Respondent was Italian.[32]  He then changed his evidence a short time later to say that he thought that the Fifth Respondent was just a normal white fellow from Australia.[33]  He denied that he knew that any reference to the Fifth Respondent being known as Rocky was a reference to his Italian heritage.[34]
  1. [32]
    The Applicant’s evidence was that the Nigerian Scammer comment was very offensive to him[35] and he found it to be racist.  It was later put to the Fifth Respondent that the Applicant was upset by what was said, however this was denied by the Fifth Respondent.
  1. [33]
    The Fifth Respondent told the Tribunal that he was not a racist person.  His wife’s heritage is South Sea Islander and Aboriginal and they have a daughter.[36]  He has many indigenous friends.  He has known the Applicant’s parents for many years and has always understood that the Applicant’s family were of Torres Strait Islander heritage.[37]  He knew the Applicant’s older brother because they were the same age.
  1. [34]
    The Tribunal had an opportunity to observe the evidence given by both the Applicant and the Fifth Respondent.  The Applicant contradicted himself when questioned about the comments made between him and the Fifth Respondent. 
  1. [35]
    The exchange between the Fifth Respondent and the Applicant and the Applicant’s response when he told the Fifth Respondent to “get fucked Rocky” was not accompanied with a statement that is expected when someone refers to another by a name that upsets them.  The Applicant did not appear to the Tribunal as a person who was unafraid to voice his opinion if something was said that he did not agree with. 
  1. [36]
    Notwithstanding the Applicant’s evidence that this was not the first time that the “Nigerian Scammer” phrase had been used by the Fifth Respondent to describe him, there is no evidence of or any suggestion of previous disharmony between the Fifth Respondent and the Applicant.  The inference drawn by the Applicant of the Fifth Respondent making similar prior comments were, in the Tribunal’s view, only said to bolster the credibility of what took place on 20 May 2014. 
  1. [37]
    Despite this incident being the first in time for the complaints, the Fifth Respondent was only joined late into the proceedings.  His joinder could only be considered as an afterthought, a means for the Applicant to support his overall allegations of victimisation against the First Respondent, in particular the suggestion that there was a culture of racism amongst the First Respondent’s employees. 
  1. [38]
    The Fifth Respondent’s use of the phrase Nigerian Scammer towards the Applicant and the Applicant’s response by calling the Fifth Respondent Rocky was, in the Tribunal’s view, banter between two work colleagues.  The point should not be lost that one party is of Torres Strait Islander heritage, the other is of Italian heritage with a wife and child of South Sea Islander and Aboriginal heritage. 
  1. [39]
    For the Applicant to succeed in his argument, there must have been direct discrimination within the meaning of the Anti-Discrimination Act.  The Tribunal is of the view that the conduct of the Fifth Respondent does not constitute an act of direct discrimination within the meaning of that expression as defined in the Anti-Discrimination Act.  Further reasons for this decision are discussed later in these reasons.

Boiler room incident

  1. [40]
    The allegations are that at approximately 5:40am on 8 June 2014 the Applicant was waiting to be relieved by the next shift.  He was sitting down in the locker room.  He saw the Second Respondent approach his own locker to put his tools away.  The Third Respondent was present and he said to the Second Respondent "breakout the clapstick". 
  1. [41]
    The Second Respondent replied "it's a kanaka stick and Pete can play the didge”.   The Second Respondent then made the action of an aboriginal man dancing and singing as he hit two shifting spanners together. 
  1. [42]
    Other employees were present, including the Fourth Respondent.  The Applicant became upset.  He found those comments to be racist.  He was the only indigenous employee there at that time.  Unlike the Nigerian Scammer comment made to him by the Fifth Respondent a month earlier, he did not respond.  He ignored them by putting his earphones into his ears and listened to music on his mobile phone.  Although the music was playing through the earphones, he could still hear what was being said. 
  1. [43]
    The Fourth Respondent then said to everyone in the room, "Pete can’t hear you because he’s listening to Charley Pride".  This comment drew laughter from those in the room, except the Applicant who was upset with the racial comments being made.  He then stood up and went over and sat in a different part of the room. 
  1. [44]
    The Applicant said that the comments that were made by the Second, Third and Fourth Respondents to him and about him during the boiler room incident had a significant impact upon him.  This is further compounded by the First Respondent requiring him to continue to work with the other three Respondents for the remainder of the 2014 crushing season, notwithstanding that he had made a complaint to the ADCQ, and he had made requests to be reassigned to a different role or be relocated within the workplace. 
  1. [45]
    The Applicant alleged that there was limited or no assistance provided by the First Respondent to appropriately manage his complaint. The First Respondent’s response had been hurtful and distressing as he expected his employer to thoroughly investigate his complaint objectively and in a confidential manner.[38]
  1. [46]
    The Applicant’s complaint was made to the ADCQ on 3 July 2014.  After the matter was referred to the Tribunal, the Respondents have either provided affidavits themselves, or have provided affidavits from other people employed by the First Respondent.

Second Respondent

  1. [47]
    During the boiler room incident, he said that he was in the boiler console room with the Applicant, the Third Respondent, the Fourth Respondent and another employee, David Brown.[39]  Everyone was either standing around chatting or collecting their personal belongings from their lockers while we waited for the next shift to arrive.  He did not specifically remember where the Applicant was in the boiler console room or what he was doing.
  1. [48]
    Although he remembered hearing the Third Respondent say words to the effect of “break out the clapstick” he denied that he responded by saying “It's the Kanaka Stick and Pete will play the didge”.  He also denied the allegation that he hit two shifting spanners together as he sang and danced.  He could not recall any laughter coming from anyone and nor did he remember hearing the Fourth Respondent say “Pete can't hear you 'cause he is listening to Charley Pride”.
  1. [49]
    On 18 August 2014 the Second Respondent drafted an apology.[40]  In that document he said that he was at loss to explain anything about the incident as he played no part in the actions described by the Applicant.  He went on to say that he did not deny making a comment about Charley Pride, but this took place months prior to the boiler room incident and was made in jest when talking to the Applicant about his choice of music.  When making the apology he said that he hoped that he and the Applicant could continue to work together and enjoy the good relationship that they had. 
  1. [50]
    The Second Respondent told the Tribunal that he respected the Applicant.  He thought that he was “a good bloke”.[41]  He also said that the Applicant was good at his job and he was not lazy.[42]
  1. [51]
    The Second Respondent’s oral evidence and his answers to the questions put to him under cross-examination were consistent with his affidavit.[43]

Third Respondent 

  1. [52]
    The Third Respondent deposed[44] that he was in the boiler console room with the Fourth Respondent, the Second Respondent, David Brown and the Applicant.  He was making a cup of coffee at the time and chatting with the others.  It was the end of the shift.  They were all having the next couple of days off.  Everyone was in a jovial mood, they were laughing and makes jokes. 
  1. [53]
    He recalled that he said in front of the others “bring out the chapstick”.  He meant to say “bring out the clapsticks”.  He did this because they should be celebrating that the shift was over and they had the next few days off work.  He did not remember the Second Respondent saying the words that he has been accused of, that is “It's the Kanaka Stick and Pete will play the didge”.  Nor does he remember the Second Respondent singing or dancing.  In regard to the Charley Pride comment, he does not recall those words being said.  He also denied that the Second Respondent stuck two shifting spanners together and imitated an aboriginal dance.[45]
  1. [54]
    He later learnt that the Applicant made a complaint about the events of that day.  He wrote an apology to the Applicant.[46]  In that apology he acknowledged that his comment was insensitive and could have offended the Applicant.  He also wrote that it was not his intention cause any offense or harm to the Applicant.  Since the comment was made, he and the Applicant have worked together amicably.     

Fourth Respondent

  1. [55]
    The Fourth Respondent’s evidence at the Tribunal was consistent with his affidavit.[47]   He said that during the 2014 crushing season, he worked on B Shift with the Second Respondent, the Third Respondent and the Applicant.  They were often in the boiler console room during their shift.  The boiler console room is also their crib room, it has lockers, a table and chairs and it is a place where the workers make their tea or coffee.  He told the Tribunal that he never heard the Third Respondent say “break out the clapsticks” or “break out the chapsticks”, and he never heard the Second Respondent say “it's kanaka sticks and Pete will play the didge”.  Nor had he ever seen the Second Respondent dance or hear him sing in an attempt to imitate a traditional aboriginal dance.[48]
  1. [56]
    The Fourth Respondent is familiar with Charley Pride’s music.  The radio at work is dialled into the ABC radio station.  Occasionally the ABC play Charley Pride songs.  He remembered on one occasion he made a comment to the Applicant about listening to Charley Pride music.  He could not recall whether he made that comment on the day in question or at some other time.  His explanation for making that comment was because the Applicant listened to music at work during his shifts and on his breaks.  He places his ear phones in his ears and the music is recorded on his phone.  His “Charley Pride´ comment was not meant to offend, and not meant to be racist.  It was meant as a joke because the Applicant is constantly listening to music at work.  After becoming aware that the Applicant had raised with the ADCQ the reference to Charley Pride, the Fourth Respondent wrote a hand written apology to the Applicant.[49]    

David Brown

  1. [57]
    Mr Brown works for the First Respondent.  His role is as a Platform Attendant.  He works with the Milling trains, meaning that he works in a separate area to the Applicant and the Second, Third, Fourth and Fifth Respondents.  Although he knew the Applicant, he did not know him very well or have and interaction with him at work.  He only visited the boiler console room occasionally,[50] although he conceded that it was likely that he was in the boiler console room on the day question.
  1. [58]
    He was not able to recall hearing any of the words “break out the clapsticks”, “it’s the kanaka stick and Pete will play the didge” or hear any reference to the Applicant listening to Charley Pride.  He could not recall seeing the Second Respondent breaking into a dance.

DISCUSSION

  1. [59]
    The Applicant found the Nigerian Scammer comments and the boiler room incident offensive and said that both of these incidents occurred within the First Respondent’s workplace.
  1. [60]
    With respect to both incidents, the Applicant suggests that there should be a positive finding in his favour, and in doing so, the Tribunal should make monetary remedies against all Respondents, including the First Respondent because it was vicariously liable for the actions of its employees.
  1. [61]
    Vicarious liability is imposed upon an employer for the wrongful act of an employee on the basis of the legal relationship between them.  That provision applies within the meaning of the Anti-Discrimination Act, and an employer is liable, unless it took reasonable steps to prevent the contravention.[51]  If the contravention is proved, then the employee is jointly and severally liable.[52]
  1. [62]
    The Anti-Discrimination Act provides that direct discrimination,[53] that is, treating a person with an attribute, including race,[54] less favourably than another person without the attribute in circumstances that are the same or not materially different is prohibited in the areas of a work related area.[55]  The Anti-Discrimination Act[56]  also provides that “work” includes work in a relationship of employment, including full-time, part-time, casual, permanent and temporary employment. 
  1. [63]
    The First and Fifth Respondents do not dispute that the Nigerian Scammer comment took place within the First Respondent’s workplace.  Clearly the evidence shows that a training program was established at the Kalamia Mill by the First Respondent, and the Applicant was a participant in that program.
  1. [64]
    There is an argument mounted by the Second, Third and Fourth Respondents with respect to the boiler room incident.  They say that the Tribunal should carefully examine the structure of the legislation, and in doing so, the Tribunal would be satisfied that there was no connection with any work being undertaken at that time of the boiler room incident.  The shift had finished. 
  1. [65]
    The Tribunal does not agree with that suggestion.  When the boiler room incident happened, the members of that shift, which included the Applicant, were waiting for the replacement shift to arrive. 
  1. [66]
    The Tribunal does not accept the argument that the comments in the boiler room incident made were not connected to the Applicant’s work.  For example, had some emergency occurred prior to the next shift arriving, it would reasonably be assumed that the Applicant would have been called upon to fulfil his role within his area of responsibility.      

Nigerian Scammer incident

  1. [67]
    The position of the Fifth Respondent with respect to the Nigerian Scammer comment was that this was merely banter within the workplace between two employees who had known each other for some time.  If the comment made by the Fifth Respondent to the Applicant was found to be offensive, unwarranted and inappropriate, then the same could be said about the Applicant’s response back to the Fifth Respondent. 
  1. [68]
    The Applicant argues that the Fifth Respondent’s conduct was limited to breaches of sections 7(g)[57] and 10[58] of the Anti-Discrimination Act.  Although the Fifth Respondent had provided an apology, the Applicant’s position is that the comment was of greater humiliation than the conduct of the other Respondents in the boiler room incident.
  1. [69]
    The Applicant claimed that the Nigerian Scammer comment and the boiler room incident were not isolated occurrences of him being treated less favourably within the workplace of the Kalamia Mill.  There were other issues that he complains of.  Examples are the location of the swastika, which had already been discussed in these reasons. 

Boiler room incident

  1. [70]
    The Applicant seeks a monetary remedy from the Respondents.  To support this, the Applicant relied upon Singh v Shafston Training [2013] QCAT 8 as a comparable decision.  In Singh v Shafston Training the Tribunal found that there had been three breaches of the Anti-Discrimination Act.  The Applicant seeks an award comparable to that amount awarded to Mr Singh. 
  1. [71]
    In that matter, Mr Singh had enrolled in a packaged program consisting of Certificate III and Diploma courses offered by Shafston Training One Pty Ltd in commercial cookery and hospitality.  Mr Singh was treated less favourably than other students because he was of an Indian background.  He was discriminated against because he had made complaints about the chef and cookery trainer, Mr Kevin Casey.  Mr Casey was not prepared to ‘sign off’ on his competency records to allow him to attain his Certificate III. The Tribunal found that on three occasions and Mr Singh was treated less favourably.   
  1. [72]
    In regard to the boiler room incident, and despite the Third Respondent providing an apology, the Applicant said that this Respondent’s conduct was limited to breaches of section 7(g)[59] and section 10[60] of the Anti-Discrimination Act. 
  1. [73]
    The argument mounted in response by the Third Respondent was that the Applicant could not have heard the comment because he was listening to music through his earphones.  The evidence of the Applicant was that he was able to hear the comments.  The Tribunal accepts that it was possible for the Applicant to hear what was being said.  
  2. [74]
    The Applicant said that the conduct of the Fourth Respondent included breaches to sections 7(g) and 10 of the Anti-Discrimination Act and his conduct also breached of section 130[61] of the Anti-Discrimination Act.[62]  The Applicant proposed separate awards of modest amounts of not more than $2,000 for humiliation, however the Third Respondent’s culpability is less than that of the Fourth Respondent.[63]
  1. [75]
    In regard to the Second Respondent, the Applicant said his conduct was more extensive than that of the Third and Fourth Respondents and also involved breaches of section 130 of the Anti-Discrimination Act.  This Respondent did not admit to the alleged conduct and actively opposed the Applicant’s ongoing employment.  Because of those factors, the Applicant proposed a more substantial award against the Second Respondent.[64] 
  1. [76]
    In regard to the First Respondent, the Applicant’s position is that if separate awards are to be made, then the First Respondent must be held jointly and severally liable, and a corresponding reduction of the award against the First Respondent must be made to ensure that there is not double compensation.  The Applicant suggests that notwithstanding any claim for remedies, his claim is limited to any conduct that occurred within the twelve months prior to his complaint being made.  The Applicant asked the Tribunal to take notice of similar fact evidence of past offensive racial comments and activities to support his argument. 
  1. [77]
    In dealing with this point, the Queensland Civil and Administrative Tribunal Act 2009 (Qld)[65] (“QCAT Act”) provides that the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.  However, the Tribunal must act fairly and according to the substantial merits of the case.[66]  The High Court has previously recognised the risks associated with Tribunals not being bound by the rules of evidence and has said that –

“…..although not bound any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account.  After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth.  No Tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily disadvantage the opposing party”.[67]  

  1. [78]
    In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.
  1. [79]
    The Applicant provided evidence of letters[68] he had written to the First Respondent dated 19 January 2015, 20 March 2015, 4 May 2015 and 11 May 2015 where he made allegations of racial comments made by various employees.  He said that he had to “blow the whistle” on how prejudice senior management and some of his former colleagues were because of the colour of his skin.  In his letter to the ADCQ dated 4 May 2015 he said that he did not make a complaint as far back as 2011 because he was overwhelmed with his employment.  It was his first year working for the First Respondent.  These complaints are of a serious and repetitive nature, of which the First Respondent was entitled to know of at the time so that it could adequately address the alleged concerning behaviour.  To raise them at such a late stage disadvantaged the First Respondent.  Notwithstanding that, the Tribunal does not accept the veracity of the allegations raised in those documents.       
  1. [80]
    The Tribunal had the opportunity to closely observe the Applicant during the hearing, in particular under cross-examination.  He did not appear to be a person who was overwhelmed by any situation, he often spoke over the top of the questioner and he was forceful and sometimes aggressive in his answers. 
  1. [81]
    The Tribunal has been asked by the Applicant to accept that the First Respondent’s workplace has a culture of inappropriate racial behaviour, there is a likelihood that the First Respondent’s employees were not trained or instructed in a racially appropriate manner, and it was likely that the behaviour denied by the Second and the Third Respondents did occur.  Without evidence to the contrary, the Tribunal does not accept that there is a culture of inappropriate racial behaviour, or that the employees were not trained or that the evidence of the Respondents about the events during the boiler room incident were unreliable or untruthful.       
  1. [82]
    It was noticeable that there was no evidence of any comments of a similar nature made to the Applicant prior to, or after the boiler room incident by any of the Respondents.  There is lack of evidence of any prior behaviour by the Respondents consistent with the events of the boiler room incident.  Once the Applicant identified to the Respondents that the comments were inappropriate, the almost immediate reaction by those Respondents was to provide written apologies for their involvement.  They have never repeated the words or said anything further to the Applicant of an offensive nature.      
  1. [83]
    In regard to the allegation that reference was made to the Applicant listening to Charley Pride, the Tribunal is satisfied that the evidence supports the Applicant’s complaint that the Fourth Respondent said “Pete can't hear you 'cause he is listening to Charley Pride”.  Although the Fourth Respondent could not specifically recall saying those words on that day, he did acknowledge that he had said that the Applicant listens to Charley Pride.[69]  He wrote an apology for making those comments.   
  1. [84]
    The Tribunal is also satisfied that the evidence supports the claim that the Third Respondent said words to the effect of 'break out the clapstick'.  The allegation is supported by the Second Respondent who acknowledged that it was said.  The Third Respondent wrote an apology for making that comment.[70]    
  1. [85]
    However, the Tribunal is not satisfied on the evidence that the Second Respondent said the words “It's the Kanaka Stick and Pete will play the didge” or that the Second Respondent hit two shifting spanners together as he danced and sang like an aboriginal man.  Despite others in the boiler room acknowledging that some comments were made referencing Charley Pride and Clapsticks, there was no support for the allegations made against the Second Respondent. 
  1. [86]
    By what context were the “clapstick” and “Charley Pride” comments made, and did those comments invoke direct discrimination; that is the issue.  The Applicant said that the comments were nothing less than direct discrimination, whereas the Respondents claim that the Tribunal should view it in the context of the work environment, the comments were made amongst work colleagues at the end of a shift and the comments should be accepted as an innocent or substantially innocent remark.[71]  The Tribunal is inclined to agree.
  1. [87]
    The matter of Singh v Shafston Training was earlier referred to.  The circumstances of that case can be distinguished from the facts of this matter.  Mr Singh was placed in a position whereby he was treated less favourably than the treated given to other students.  He had enrolled in a package program offered by Shafston Training.  Despite being competent in his tasks, his supervisor[72] told other chefs not to signed off in Mr Singh’s training book so as to give an impression that his work performance was unsatisfactory.  There was clear evidence that he was treated less favourably than others within the workplace, whereas in this matter, there is no evidence of the Applicant being treated less favourably.     
  1. [88]
    The Tribunal was also referred to Qantas Airways v Gama [2008] 167 FCR 537 where reference was made to the making of remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or nationality or ethnic origin.  The Court said that such comments are capable of having a very damaging impact on that person’s perception of how that person is regarded by their fellow employees and their superiors.  It was suggested that the comment may even affect that person’s sense of self-worth and thereby appreciably disadvantage them in their conditions of work.  However, the comment will depend upon the nature and circumstances of the remark.[73] 
  1. [89]
    In distinguishing Qantas and Gama from this matter, the Tribunal is not satisfied that the comments made during the boiler room incident were calculated to humiliate or demean the Applicant.  The comments made in both incidents were perhaps insensitive and bad mannered, but in the Tribunal’s view they were not deliberately offensive. 
  1. [90]
    The remarks are comparable to the remarks made in Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16 and Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd [1997] QADT 27 where it was said that remarks which no doubt bore direct reference to the Applicant’s race, and in no doubt caused offense, can be said in circumstances where they were not meant to offend.  The comments made by the Respondents in this matter are not of a less favourable treatment of the Applicant, but rather they lacked sensitivity on behalf of the Respondents which caused offense to the Applicant.
  1. [91]
    The Tribunal’s view is that in the absence of any prior consistent behaviour, or any subsequent behaviour, the Tribunal is not satisfied that the comments made during the boiler room incident or the Nigerian Scammer comment were calculated to humiliate or demean the Applicant.  The comments were inconsistent with the good working relationship enjoyed by the parties, and were consistent with the remorse shown by the Respondents when they apologised to the Applicant.
  1. [92]
    Words which are patronising,[74] insulting,[75] offensive,[76] insensitive,[77] bad-mannered[78] or politically incorrect[79] will not constitute unlawful discrimination if the words used did not amount to less favourable treatment of the Applicant.  In respect of this matter, the Tribunal is also of that view. 
  1. [93]
    The use by Third Respondent of the words referencing a “clapstick” can be said to be many of the points raised immediately above.  However, for it to be direct discrimination, the words used must be accompanied by some other action to bring it within the ambit of prohibition as prescribed within the legislation.  Similarly, the Fourth Respondent’s comment about the Applicant listening to Charley Pride.  Despite the Applicant finding it offensive, it must also be accompanied by a particularised activity prohibited by the legislation. 
  1. [94]
    In Park v State of Queensland & Anor [2013] QCAT 183, the issue of whether statements made were capable of amounting to direct discrimination or vilification was discussed.  This matter is not dissimilar to the facts of that case.  In this matter, there is no evidence that either the Second, Third, Fourth or Fifth Respondent treated or proposed to treat the Applicant less favourably than a person not of the age or race of the Applicant. 
  1. [95]
    The Tribunal is satisfied that the statements alleged to have been said the Third and Fourth Respondent do not amount to a less favourable treatment of the Applicant in any material way.  The words were indeed inappropriate, they may have been insulting and on the Applicant’s version, they caused offense, but this does constitute a treating of him in any particular way.  The words used by the Third and Fourth Respondent do not amount to any particular treatment of the Applicant.  Accordingly, there cannot be any direct discrimination.
  1. [96]
    Turning now to the issue of the First Respondent’s vicarious liability, because of the Tribunal’s findings on the principle issues, it is not necessary to consider vicarious liability.                 

VILIFICATION

  1. [97]
    For vilification to occur, three distinct points must be satisfied.  Firstly, the unlawful discrimination must occur on the grounds of either race, religion, sexuality or gender identity.  Secondly, a person contravening the Anti-Discrimination Act must engage in an activity to either incite hatred, serious contempt or severe ridicule of a person or group of persons on the basis of their race, religion, sexuality or gender identity.  Thirdly, the inciting of the hatred, serious contempt or severe ridicule must be a public act.[80]
  1. [98]
    A public act[81] is described as any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
  1. [99]
    The Applicant argues that the use of the words “break out the clapsticks”, “it’s the kanaka stick and Pete will play the didge”, “listens to Charley Pride” and “Nigerian Scammer” convey hatred or serious contempt towards him because he identifies as a Torres Strait Islander.  The Respondents adopted the opposite argument and say that the remarks were innocent banter between employees.
  1. [100]
    The obvious question for the Tribunal to answer is, do comments or conduct of an objectionable nature involving racial connotations, regardless of how distasteful they are, automatically fall within the ambit of vilification?  To reach a determination on that question, there is a requirement for the Tribunal to explore the definition of vilification and apply each part to the circumstances being complained of. 
  1. [101]
    The prohibition as prescribed in the definition implies that the threshold for vilification is that it has to be by a public act.  For there to be any basis in the Applicant’s argument, there must be evidence of a public act.  For it to be a public act, there must be a communication to the public.  This includes conduct observable by the public.
  1. [102]
    It is accepted that the comments said to the Applicant on 20 May 2014[82] and 8 June 2014[83] were made within the First Respondent’s workplace.  The people involved in both instances were the First Respondent’s employees.  Although there is evidence of the comments and conduct occurring twice, those incidents were approximately six weeks apart, and both incidents involved separate parties.
  1. [103]
    It is for the Applicant to show that there was a public act undertaken in either the boiler room incident or the Nigerian Scammer incident, and those activities incited hatred, serious contempt or severe ridicule of the Applicant on the grounds of his race.  The evidence does not support the existence of any of those characteristics.        
  1. [104]
    On the evidence, the Tribunal is not convinced that either of the incidents incited hatred, serious contempt or severe ridicule towards the Applicant, and nor was that communicated in any way to the public.  The comments or conduct involved in the incidents in the training room on 20 May 2014 and the locker room on 8 June 2014 were not racial vilification and the Applicant’s argument to the contrary is rejected.      

Victimisation

  1. [105]
    The Applicant was granted leave[84] at the hearing to amend[85] his complaint to include a complaint that the First Respondent engaged in conduct which victimised the Applicant when a decision was made to not allow the Applicant to return to work for the 2015 crushing season.  That decision was made by Mr Motti[86] and the Applicant contends that the First Respondent is vicariously liable for Mr Motti’s conduct.    

First Respondent’s decision not to re-employ the Applicant

  1. [106]
    On or about 30 January 2015 the First Respondent posted a memo[87] to the Applicant.  The same memo was sent out to all other seasonal workers at each of the First Respondent’s four Sugar Mills in the Burdekin area.  Attached to the memo was a form for the Applicant to complete if he wished to be considered for re-employment for the 2015 crushing season.  He was required to confirm by 13 February 2015 if he wished to return to work for the next season.  The Applicant completed the notification within the prescribed timeframe and in doing so he indicated that it was his desire to be re-employed and he nominated his first employment preference as an Assistant Loco Driver.  He returned that notification to the First Respondent.[88]
  1. [107]
    On 13 February 2015 the Applicant received from the First Respondent a letter[89] which outlined the First Respondent’s concerns of an incident involving the Applicant and the Second Respondent within the workplace on 15 September 2014.  The incident was first brought to the First Respondent’s attention by the Applicant during a conciliation conference for the Applicant’s discrimination complaint.  The letter outlined that the incident took place when the Second Respondent asked the Applicant to light up the boiler fires, the Applicant refused and a disagreement took place.  The Applicant then threatened physical violence to the Second Respondent and said to him words to the effect of “let's take it out on the road and have it out” and “I will see you after work”.  The incident had been witnessed by other employees. 
  1. [108]
    The First Respondent also told the Applicant in the letter –      

“Threatening another employee with physical violence is unacceptable and wholly inconsistent with the standards of behaviour that Wilmar expects of its employees.

I understand that you are intending to return to work for the 2015 crush if work is available. Before we consider you for available work for the 2015 crush, could you please respond to these allegations in writing within the next 10 days. Threatening another employee with physical violence is defined as an intolerable breach in our People Information Pack and may be grounds for not allowing you to return for the 2015 crush”.

  1. [109]
    On 20 February 2015 the Applicant responded.[90]  He did not specifically deny the allegation as outlined in the First Respondent’s letter.  In part he wrote – 

“…..the Work Place incident that Graham Powell and I was involved in is false and misleading because Graham Powell did failed (sic) to mention why I reacted in such ways (sic)”.

  1. [110]
    The tone of the Applicant’s letter changed towards the latter part of the document.  In defending himself, he appeared to adopt an aggressive tone in what he wrote, particularly when he wrote –

“….you and Graham Powell need to get your facts right before you sent (sic) me this nonsense letter”.

“But I do thank you for your letter and Graham Powell's misleading statement which will be used against you and Graham”.

  1. [111]
    On 24 March 2015 the First Respondent wrote back to the Applicant[91] and said that it was not satisfied that the Applicant’s behaviour was justified, or satisfied that he was provoked by the Second Respondent.  Violence, and threats of violence, for any reason was unacceptable and wholly inconsistent with the standards of behaviour the First Respondent expects of its employees. 
  1. [112]
    The First Respondent then wrote –

“Based on the information available to me including your written response, I am satisfied you threatened Graham Powell with physical violence during the night shift on 15 September 2014 without provocation. I am satisfied your behaviour is an intolerable breach as defined in our People Information Pack and is grounds for not allowing you to return for the 2015 crush”.

  1. [113]
    On 8 April 2015 the Applicant wrote back to the First Respondent saying –

“I am writing in response to your letter about an incident that you and Graham Powell said that I threatened him with physical violence during a night shift on 15th of September 2014 at Kalamia Mill.

I wasn't at Kalamia Mill on a night shift on 15th of September 2014, I don't know where you got that information from because I have my shift roster and my Lawyer has a copy stating that C shift was on shift that night”.[92]

  1. [114]
    The Applicant did not deny in that letter that he wrote into the log book the words “Work with a bunch of sooks (when you don’t help them out)”, and then signed it “Peter Bero”.  The applicant told the First Respondent that he wrote those words because “Graham[93] is a sook when he needs a hand”.
  1. [115]
    In response to the Applicant’s assertion that he was not working on 15 September 2014, the First Respondent wrote back to the Applicant advising that their records indicated that he was rostered to commence a shift at 7:00pm on Sunday 14 September 2014, and that shift finished at 7:00am on Monday 15 September 2014.  A copy of the roster was provided to the Applicant.[94] 
  1. [116]
    The above exchange of letters relates to an incident which occurred at the Kalamia Mill on 15 September 2014.  It is common ground that both the Second Respondent and the Applicant were working the same shift on that date. 

Second Respondent’s evidence about the 15 September 2014 incident

  1. [117]
    The Second Respondent deposed[95] that towards the end of the shift[96] on the morning of 15 September 2014, two boilers at the Kalamia Mill stopped working. There had been a power outage. 
  1. [118]
    This set off the smoke alarm in the shift room.  It was a serious problem when the boilers stop working.  Unplanned stoppages of the boilers usually only occur a few times during a crushing season and it takes a lot of hard manual work to get the boilers up and running again.  It was his role to restart the boiler fires.  It is the Spareman's role to help with lighting and blowing the boiler fires.  The Applicant was the Spareman for that shift.
  1. [119]
    During their shift, all employees carry hand held two-way radios.  While he was trying to restart the fires, the Second Respondent heard on his two-way radio the Fourth Respondent calling the Applicant. 
  1. [120]
    He was asking the Applicant if he was away from the nine belts.  He did not hear the Applicant answer the Fourth Respondent.  Once he managed to relight both boiler fires, he tried calling the Applicant on the two-way radio for assistance.  There was no response from the Applicant. 
  1. [121]
    The quickest way to get from number one boiler to number five boiler was through the boiler console control room.  This meant that the Second Respondent was walking back and forth through the boiler console room to restart both boiler fires.  At one point after he had tried calling the Applicant on the two-way radio, he saw the Applicant sitting down in the boiler console room.  He had his earphones on and he was listening to music.[97]  He shouted at the Applicant in words to the effect of “How about instead of sitting on your arse, you get out here and help me”. 
  1. [122]
    The Applicant then got to his feet and followed the Second Respondent onto the firing floor near number five boiler. As the Second Respondent was working to keep the fires burning, the Applicant said to him “You didn't call me up”.  The Second Respondent replied “I did but you don't listen to your two-way.  You are supposed to help me.  Part of your job is to offside me”.
  1. [123]
    At this point the Applicant puffed his chest up and said words to the effect of “Let's go out into the car park”.  The Second Respondent responded by repeating words to the effect of “You are supposed to help me”.  The Third Respondent then came over and said words to the effect of “That's okay Powelly, I will help you now”.
  1. [124]
    The Second Respondent then went over to number one boiler.  The Applicant followed him.  It is there that the Second Respondent alleged that the Applicant threatened him again by saying “Let's go out into the car park” to which the Second Respondent queried “Are you threatening me?”.  The Applicant then said “Yes l am, let's go out into the car park”.
  1. [125]
    The Second Respondent acknowledged that by that time he was already very stressed because the Mill had two boilers out of action.  He was also angry at the Applicant, firstly for not helping him, and secondly for arguing with him when he asked for assistance.  He also acknowledged that he spoke abruptly at the Applicant, but did so because he was angry and did not think that he should have had to call the Applicant to ask for help when the boilers stop working. 
  1. [126]
    The Applicant had been in the role of Spareman for a long period of time and knew that his help would be required when such a situation arose.  The Second Respondent felt that the Applicant should have offered assistance straight away.  He was also angry at the time because although there were attempts made to call the Applicant on his radio, he would not answer.[98]  The matter was made worse because the Applicant wanted to fight him in the car park.  Because he thought the Applicant’s behaviour was unacceptable he later wrote notes of what took place.  He also reported the incident to the Site Manager.[99] 
  1. [127]
    When cross-examined about his recollection of the events that day, he accepted that he was pretty angry at the time because the Applicant did not help him.  He also accepted that he shouted at the Applicant and told him to “get up off your arse”.  However, what he did not accept was the proposition that he had misinterpreted what the Applicant said to him.  He was firm in his response that “it was a threat.  He offered me out in the car park twice”.[100]
  1. [128]
    After that shift, the Second Respondent had a rostered break of a couple of days.  On his first shift back at work after this incident, he had a meeting with the Site Manager[101] and the Production Manager.[102]  He showed them the statement that he wrote on 15 September 2014.  He told the Site Manager that he no longer wanted to continue working with the Applicant.
  1. [129]
    Like all the other employees, at the start of the 2015 crushing season he received a letter from the First Respondent with regards to whether or not he wanted to return to work at the Kalamia Mill.  When he completed the form and returned it to his employer, he indicated that he did not want to work with the Applicant.[103]

Fourth Respondent’s evidence about the 15 September 2014 incident

  1. [130]
    The Fourth Respondent deposed a more condensed version of the incident, primarily because he was not as involved in the incident as the Second Respondent and the Applicant were.  He corroborated the Second Respondent’s evidence about attempting to relight the boilers, the Applicant being called on the two-way radio and the Second Respondent saying to the Applicant “How about getting off your arse and helping me”.  He saw the Applicant follow the Second Respondent onto the firing floor and both of them appeared to be hostile towards each other, although he was unable to hear any conversation between them. 

Mr Motti

  1. [131]
    The witness most relevant to the issue of victimisation was Mr Motti.  He is the First Respondent’s Workplace Relations Manager and has held that position since about 2000.  He is responsible for managing all employee and industrial relations issues.[104]  In his evidence he spoke of a number of issues, such as the Applicant’s employment with the First Respondent, the induction process, the company’s equal employment opportunity and diversity policy, the employee handbook, the people information pack, the re-employment of seasonal workers and the decision not to re-employ the Applicant. 
  1. [132]
    Mr Motti told the Tribunal that in the initial stages of the Applicant’s complaint to the ADCQ he was not aware of the allegation of a threat made by the Applicant towards the Second Respondent.  When he did become aware of the threat he undertook an investigation.  He acted upon the findings of that investigation.[105]  One of the findings was that the Applicant told him that he had made the threat.  The investigation supported the allegation that the threat had been made.[106]
  1. [133]
    During the investigation he became aware that the Second Respondent did not want to work with the Applicant.  He was not sure as to the sequence of when he became aware of that information in regard to his letter to the Applicant on 13 February 2015.  He absolutely rejected the Applicant’s suggestion that the First Respondent’s decision not to re-employ the Applicant was because the Second Respondent told the First Respondent that he did not want to work with the Applicant again.  He further rejected any suggestion that the reasons for the Applicant no longer wanting to employ the Applicant at the Kalamia Mill was because the Applicant had an unresolved complaint before the ADCQ.      
  1. [134]
    Mr Motti said that the decision not to re-employ the Applicant for the 2015 season was founded on the Applicant’s intolerable breach of discipline by threatening the Second Respondent on 15 September 2014.  This was something that the Applicant had not denied.

Applicant’s evidence about the 15 September 2014 incident

  1. [135]
    In saying that he was directly discriminated against, the Applicant said that he had been treated less favourably by the First Respondent on the basis of his race.  He went on to say that he was treated less favourably than another person who was non-indigenous would have been treated in circumstances that were the same or not materially different.[107]  
  1. [136]
    The Applicant made notes of the incident.[108]  He had those notes typed into a word document.[109]  In the typed version of the incident[110] he said that he was resting in the boiler console room after doing his rounds.  He saw the Third and Fourth Respondents walked past him towards the number one boiler.  The Second Respondent then approached him and said to him in a loud and disrespectful manner to get outside and help light the boilers.
  1. [137]
    The Applicant’s typed notes reflect that his immediate response to the Second Respondent’s remark was to react instantly, point to his shoulder where the two-way radio was and say “What’s that, call me if you want a hand”.  The Second Respondent then walked out the door towards the boiler and the Applicant went after him, caught up with him and confronted him.  The typed notes also indicate that after confronting the Second Respondent he had to go for a walk to calm down.  When he returned he was still furious at the Second Respondent and he confronted him again.     
  1. [138]
    During the hearing, the Applicant was asked about the incident and he gave his version of the event similar to what he had deposed in his affidavits.[111]  In relaying to the Tribunal his recollection, he said the Second Respondent had never spoken to him like that before.
  1. [139]
    The Applicant was subjected to lengthy cross-examination about whether or not he threatened the Second Respondent during this incident.  The Applicant said on a number of occasions under cross-examination that he did not threaten the Second Respondent.
  1. [140]
    The Applicant made contemporaneous hand written notes of his observations and interactions with his colleagues during various occasions, including the events of 15 September 2014.  He later had those notes typed into a word document.  The hand written notes of this incident, particularly in regard to any reference to a threat towards the Second Respondent, are at odds with the answers he gave under cross-examination.
  1. [141]
    In regard to this incident, the flavour of the hand written notes clearly show that the Applicant was upset and angry with the Second Respondent.  His recorded comments were not particularly flattering towards the Second Respondent, and on one occasion he told another employee that the Second Respondent was a “cunt”.[112]  The hand written notes show that the Applicant wrote the words “I did threaten him” and “you wait till I get this shirt off”.[113]  Much of that comment was omitted from the typed version of the notes and the reference to the shirt was changed to read “Bud, Lucky I got this shirt on which I respect”.  This is at odds with his testimony and his veracity about whether or not he threatened the Second Respondent is questionable and for this reason the Tribunal does not accept the Applicant’s evidence that he did not threaten the Second Respondent.
  1. [142]
    It is accepted by the Tribunal that the Second Respondent did shout at the Applicant and tell him “How about instead of sitting on your arse, you get out here and help me”.  The Tribunal prefers the evidence of the Second Respondent above that of the Applicant as to the remainder of what transpired afterwards and the words that were exchanged between them.  The Second Respondent’s initial words to the Applicant were vented out of frustration, made more difficult by the stressful situation which arose when the two boilers ceased to operate.  Knowing the gravity of that situation, and not being able to contact the Spareman (the Applicant), or the Spareman not being able to assist, only heightened the anxiety and stress in that moment. 

Was the Applicant victimised?

  1. [143]
    The applicant is motivated by hatred towards the Respondents.  He told the ADCQ that he has this hatred because of the way he was treated during his employment.[114]  The Applicant’s also told the ADCQ that it was his view that the First Respondent used a statement he made in a conciliation conference in September 2014 to terminate his seasonal employment.  Over time, that dislike for the Respondents has not diminished. 
  1. [144]
    The Applicant engaged in discussion under cross-examination by the Respondents’ legal representative regarding whether or not he had accepted the apologies given by the Second, Third, Fourth and Fifth Respondents.  He said that what the Second, Third and Fourth Respondents said was wrong.  He went on to say that “we wouldn’t even be here if they accepted what they’d done and apologised”.[115]  He accepted that they had provided him with written apologies but would not accept them, he added that “I never will”.[116] 
  1. [145]
    It is accepted by the Tribunal that in arriving at its decision not to re-employ the Applicant for the 2015 crushing season, the First Respondent would have known that the Applicant was generally considered to be good at his job and he was not a lazy person.[117]  It is also accepted that after considering the circumstances surrounding an altercation between the Applicant and the Second Respondent on 15 September 2014, the First Respondent arrived at the conclusion that the Applicant was in breach of the company’s discipline policy.  The Applicant did not deny his involvement in that altercation, and his own hand written notes support the First Respondent’s argument as to his involvement.  
  1. [146]
    If the Applicant’s argument was to be accepted that the comment he made at the conciliation conference is the overriding feature for the First Respondent not re-employing him, then that proposition does to explain why the First Respondent wrote to him and invited him to indicate his intentions for the upcoming crushing season. 
  1. [147]
    It would be a nonsensical argument to say that an employer intends to victimise an employee because that employee made a complaint to the ADCQ, yet that employer then writes to the employee and invites them to come and work for them the next crushing season. 
  1. [148]
    It is an employer’s prerogative who they employ, subject of course to whether the means undertaken to employ someone is not contrary to the Anti-Discrimination Act.  When engaging a workforce, that employer has the obligation to protect the health and safety of its employees.  The rightness or wrongness of the First Respondent’s decision not to re-employ the Applicant can only be decided by the Tribunal on the issue of victimisation.  Any argument relating to whether or not the First Respondent’s actions were or were not a reasonable management decision it not within the province of the Tribunal.
  1. [149]
    It is the Tribunal view that the First Respondent’s decision not to accept the Applicant back into the workforce was undertaken because the Applicant threatened the Second Respondent.  This was contrary to their policy.  When asked by the First Respondent to show cause why he should be employed, he failed to do so.  Those circumstances do not lend themselves to victimisation.
  1. [150]
    For the provisions of victimisation[118] to operate, three elements must be shown.  Firstly, the First Respondent did something or threatened to do something.  Secondly, that what the First Respondent did was to the detriment of the Applicant.  Thirdly, there is a causal nexus between any detriment suffered by the Applicant and the matters stated in section 130 of the of the Anti-Discrimination Act.[119]
  1. [151]
    In respect to this matter, victimisation would have occurred if the First Respondent did an act, or threatened to do an act, to the detriment of the Applicant because the Applicant was involved in anti-discrimination proceeding against the First Respondent.[120]  It is for the Applicant to prove, on the balance of probabilities, that this happened. 
  1. [152]
    In order to establish those factors, there must be evidence that the Applicant was substantially placed under a disadvantage, or suffered a material difference in treatment which was real and not trivial.[121]  The evidence must also show that a nexus existed between those factors and the First Respondent denying the Applicant re-employment.  Ultimately, there must be evidence that the First Respondent’s rejection of the Applicant’s application for the 2015 crushing season was because he had commenced anti-discrimination proceedings which involved his employer. 
  1. [153]
    The Applicant placed a great deal of emphasis upon the First Respondent not affording him natural justice when reviewing whether or not to re-employ him.  Those submissions are rejected because is not the role of the Tribunal to determine whether the position adopted by the First Respondent was harsh, unjust or unreasonable.  The Tribunal’s role is to determine whether or not there is evidence to satisfy the Tribunal on the balance of probabilities that the Applicant was victimised within the workplace. 
  1. [154]
    The Tribunal is not satisfied that the decision by the First Respondent to not re-employ the Application involved any suggestion of a nexus between that decision and the anti-discrimination proceedings.  Trust and confidence is a necessary ingredient in any employer and employee relationship and those concepts eroded during the exchange of the correspondence between the parties and the ultimate conclusion reached by the First Respondent.  That conclusion was that the Applicant had threatened his work colleague and his behaviour on that occasion did not conform with the required standard.  
  1. [155]
    The Tribunal’s determination is that the Applicant was not victimised by the First Respondent and this complaint is rejected.

Medical Reports

  1. [156]
    Evidence was given at the hearing of the Applicant’s stress related illness.  The question for the Tribunal is whether the evidence of that illness persuades the Tribunal to make a positive fining in the Applicant’s favour. 
  1. [157]
    The disclosed Purcell Taylor Lawyers file notes[122] indicate that there had been discussions between the Applicant and his former legal representatives on or about 18 June 2015[123] regarding a lack of medical evidence to support his application and the need for the Applicant to obtain an expert report.  It seems that the Applicant was happy to proceed on the basis that he did not have that expert evidence in terms of his medical or psychological state.  It was not until after the matter was adjourned that the Applicant consulted with a mental health practitioner.[124] 
  1. [158]
    The Applicant did not seek out professional assistance in the form of psychological and emotional distress in relation to the comments made by the Second, Third and Fourth Respondents, and the response by the First Respondent.  He did not seek that assistance because of his culture.  He relied upon the strength of his immediate and extended family to discuss these issues.[125]  His partner deposed that the Applicant had on occasions discussed his concerns with her when he came home from work.[126]
  1. [159]
    In May 2015 the First Respondent made an offer for the services of a counsellor to the Applicant that his partner.  The Applicant declined the offer primarily for two reasons, he no longer worked for the First Respondent and he did not trust anyone associated with the First Respondent.[127]  

Dr Riccardo Caniato

  1. [160]
    Dr Caniato is a psychiatrist and a member of the Royal Australian College of Psychiatry (Section of Forensic Psychiatry).  He has comprehensive forensic experience having previously held the position of Director of the Forensic and Secure Services for North Queensland.  He has experience in most areas of forensic psychiatry, including fitness for trial, mental health defence, assessment of malingering, testamentary capacity, personal injury assessment, risk assessment and risk management.  Clinically he treats patients with a range of psychiatric conditions.
  1. [161]
    Dr Caniato became involved in this matter when the Applicant initially consulted with him in relation to his worker’s compensation claim.  This consultation took place on 8 December 2015, some four months after the proceedings had been adjourned.  By this time, the Applicant had engaged new legal representation.  It was reported that the Applicant engaged well with Dr Caniato.[128]  Arising from that consultation, Dr Caniato has completed the first of his two reports, dated 15 December 2015 (“first report”).[129]  In that first report he concluded that it was his opinion that the Applicant developed an Adjustment Disorder secondary to workplace issues.[130]  Dr Caniato made reference in his report that the Applicant felt[131] that people would regularly make racist statements.  People would refer to him as “Charley Pride” then make references to things such as “break out the clapstick” or would say something like “It’s the kanaka stick and Pete will play the didge”.  There was also a reference to him being called a “Nigerian Scammer”.
  1. [162]
    The Tribunal heard evidence of words or terms such as “Charlie Pride”, “break out the clapstick”, “it’s the kanaka stick”, “Pete will play the didge” and “Nigerian Scammer” being said directly to or within the close proximity of the Applicant.  The Respondents accept that some of those comments were said and have in their own terms provided explanations or apologies for what was said. 
  1. [163]
    On 11 March 2016 the legal representatives for the Respondents wrote to Dr Caniato.  They sought to clarify some issues.  On 14 March 2016 Dr Caniato completed an additional report (the “second report”).[132]  In his second report, Dr Caniato concluded that the exchange between the Applicant and the Fifth Respondent did not significantly cause the Applicant’s adjustment disorder.[133] 
  1. [164]
    Dr Caniato’s evidence was that neither the Nigerian Scammer comment or the comments arising out of the boiler room incident contributed to the Applicant suffering a stress related illness.  He said that it was not for him to comment on whether any of the comments were considered racially motivated.  From a psychiatric point of view, he accepted that the Applicant’s symptoms, as told by the Applicant, began in 2011 and he attributes this to multiple work incidents.[134]    
  1. [165]
    In regard to his present condition, Dr Caniato’s opinion was that because the Applicant was involved in the legal process of his application it would be very difficult for him to move on until the legal matter was resolved.  It would be unlikely that the Applicant’s symptoms would significantly change until it was resolved and the prognosis would depend on how the issue is resolved.  If it were resolved in the Applicant’s favour, it could be concluded that the prognosis would be better.  He would be more satisfied.  On the other hand, if it were not resolved in his favour, the prognosis may or may not be worse.  He went on to say that ultimately, he was of the view that it was unlikely that the Applicant’s symptoms would significantly improve until the matter was legally resolved.[135]

Alexander Bonyhai – Psychologist

  1. [166]
    Psychologist Alexander Bonyhai provided an affidavit and a report.[136]  He has been a registered psychologist since 2001.  He has a degree in psychology from the Monash University at the level of Master of Psychology.[137]  He deposed that following a referral from Dr Alroe, the Applicant consulted with him on three occasions in early 2016.[138]  His engagement with the Applicant was as his counsellor.[139]  He said that the Applicant engaged well in therapy and the diagnosis was that he displayed symptoms of clinical depression and high levels of anxiety, which Mr Bonyhai believed to be moderate at that stage.
  1. [167]
    Mr Bonyhai accepted that because the Applicant was his client, it was his role as the Applicant’s counsellor to be as empathic as possible with the Applicant’s concerns.  He has accepted what the Applicant told him about the matters.  He added that he had no information apart from what the Applicant told him which would allow him to evaluate whether or not the information provided was correct.  He did not challenge the Applicant about what he said because that was not his role as a Psychologist.[140]   

Other Medical Evidence

  1. [168]
    The Applicant has not previously disclosed to any medical practitioner his concerns about what was allegedly taking place at work.  He is reported to have not felt comfortable in doing that.  Disclosed to the Tribunal were the Applicant’s medical records from the Family Practice.[141]  Apart from undergoing a physical test with his medical practitioner in late April – early May 2014, the Applicant consulted with a doctor at the medical centre on numerous occasions during the time that he was employed by the First Respondent. 
  1. [169]
    The Applicant’s medical records[142] were produced to the Tribunal.  The medical records during the period of his employment with the First Respondent show the Applicant presented to the medical practice in Ayr for medical treatment on a number of occasions suffering from occasional chest pains and also suffering pain to his knees.  His association with that medical practice extends as far back as 2008.  None of the medical records reveal any suggestion of the Applicant experiencing difficulties at work, and the only reference to his employer appears to have been when he was required to undergo a physical examination.  The notes suggest that sometime prior to 30 April 2014 the Applicant failed a fitness test for work and he went to the doctor to get himself examined.

Discussion

  1. [170]
    Despite the Applicant’s evidence that he did not seek assistance for his mental health because of his culture, and he relied upon the strength of his immediate and extended family to discuss these issues, the Tribunal has to consider all of the medical evidence and determine whether there is a nexus between the condition suffered by the Applicant and the allegations raised by him with regards to racial discrimination, racial vilification and victimisation.  
  1. [171]
    Dr Caniato’s evidence of the Applicant’s metal state is accepted above the evidence of Mr Bonyhai.  That is not to say that Mr Bonyhai’s evidence is discounted in its entirety, however the independence and balance of Dr Caniato’s evidence as a whole is far more acceptable, particularly when considering the significance and importance of the causation of the Applicant’s condition.    
  1. [172]
    If the Applicant’s case is that the comments by the Respondents in the Nigerian Scammer and boiler room incidents contributed to his stress related illness, then Dr Caniato does not accept that proposition.  He said that neither incident contributed to the Applicant suffering that illness, there were multiple work incidents which were contributing factors.  Dr Caniato also told the Tribunal that because the Applicant was involved in litigating his application, the legal process involved in this was a contributing factor to his stress related illness. 
  1. [173]
    In conclusion, the Tribunal is not satisfied that there is a definitive nexus between the allegations raised and the Applicant’s stress related illness.  There have been multiple incidents impacting upon the Applicant, exacerbated by the legal process involved in the prosecution of his own application.
  1. [174]
    The Applicant submitted a range of monetary remedies sought from the First Respondent for non-economic loss, economic loss, future loss of earnings and interest totally $123,736.  The Tribunal is satisfied that the Applicant has failed to establish a nexus between his stress related illness and the matters complained of arising out of the Nigerian Scammer comment and the boiler room incident.  The Applicant’s remedy as described above is rejected.      

CONCLUSION

  1. [175]
    Applicant submitted that the Tribunal should be comfortably satisfied about accepting the Applicant’s evidence about racial epithets in the time that he worked for the First Respondent.  That proposition is rejected by the Tribunal.
  1. [176]
    The Tribunal is not satisfied on the balance of probabilities that those prior allegations of racial discriminatory conduct complained of occurred within the workplace.   
  1. [177]
    The Applicant suggests that he is a truthful witness, and because of his low level of education, his deteriorated mental state, and ultimately, his failure to complain at an earlier time is explained by his fear of losing his employment, stoicism and cultural values.  The Tribunal does not accept that he was a completely truthful witness.  His own disclosures about the 15 September 2014 incident is at odds with his testimony. 
  1. [178]
    Nor does the Tribunal accept that his failure to disclose earlier discriminatory activity was because he feared losing his job, or he was stoic.  He demonstrated on a number of occasions when giving evidence that he was not afraid or shy to be quite forceful when answering some questions, he was not restrained in voicing his opinion when he thought that the cross-examiner was attacking him, and at times was aggressive in his mannerism in the witness box.  His explanation that he failed to complain is inconsistent with those features just identified, and certainly not consistent with the aggressive and prolonged nature of the altercation between him and the Second Respondent on 15 September 2014 and the sometimes aggressive flavour of his letters to the First Respondent when called upon to justify why he should be re-employed.    

NON-PUBLICATION ORDER

  1. [179]
    The hearing of Anti-Discrimination matters in the Tribunal are conducted by way of public hearings, unless the Tribunal exercises its discretion to direct that the hearing, or part thereof, be heard in private.  Historically, the Anti-Discrimination Act[143] required proceedings to be public, unless there was a reason for the hearing to be conducted in private.  Since the enactment of the QCAT Act, that provision was removed from the Anti-Discrimination Act and now falls within the powers of the Tribunal under the QCAT Act.[144]   
  1. [180]
    The Tribunal may make a non-publication order on its own initiative, or on the application of a party.[145]  The matter of a non-publication order was first raised when the Tribunal asked the parties if they had turned their mind to this issue.[146]  The Respondents indicated that they would make an oral application.  The Applicant sought more time to consider the matter.  Both parties later outlined their individual positions in their written submissions. 
  1. [181]
    The Anti-Discrimination Act[147] provides a discretion to the Tribunal that if in the reasonable opinion of the Tribunal that the preservation of anonymity of a person who has been involved in a proceeding under that Act is necessary to protect the work security, privacy or any human right of the person, the Tribunal may make an order prohibiting the disclosure of the person's identity if that person’s involvement was inter alia, a party to the proceedings or a witness.[148] 
  1. [182]
    Those provisions are similar to the non-publication provisions as provided within the QCAT Act.  It is for the Tribunal’s discretion whether or not it makes a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.[149] 
  1. [183]
    In their application for a non-publication order, the Respondents argued that because the Applicant prosecuted his case in bad faith or for an improper purpose of misconceived motive,[150] it would not be in the interests of justice,[151] nor would it promote the purpose of the Anti-Discrimination Act for the public to know the identity of the Respondents and the other people who appeared in, and gave evidence to the Tribunal.[152]  The Respondents stress that they are members of a tight knit and racially diverse community and if they were identified, there would be a likelihood that they may be punished or embarrassed.  They also say that any publication of their identity will likely have a detrimental impact on their relationships within the community, and in the case of the Fifth Respondent, his immediate family.[153]
  1. [184]
    The phrase “in the interests of justice”, along with the exercise of the Tribunal’s discretion to make a non-publication order was discussed in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 (Cutbush).  Although Cutbush refers a number of times to “courts”, there can be no reason why that same principle cannot be applied to the Tribunal.[154] 
  1. [185]
    The term “in the interests of justice” itself is not defined in the QCAT Act, however it generally confers a broad discretionary power on the decision-maker.[155]  That discretion is not to be exercised lightly, and is to be exercised only if the Tribunal considers the order is necessary.[156]  Any discretion exercised is reinforced by the very important legal principle of open justice,[157] which aims to ensure that not only are Tribunal proceedings fully exposed to public scrutiny and criticism, but to also maintain confidence in the integrity and independence of the Tribunal.[158]
  1. [186]
    The Applicant’s position is that the Respondents’ application for a non-publication order should be dismissed because of the open justice principle.[159] 
  1. [187]
    Open justice is a principle characterised by openness and transparency.  For it to prevail, the fair and accurate reporting of what takes place in the Tribunal should be encouraged, subject of course to whether the particular matter is one which allows for the identification of the parties to be suppressed.   
  1. [188]
    Every day, in courts and Tribunals, parties and witnesses must disclose their names and identities.  Although this is doubtless often uncongenial and even damaging, it is part of the strong tradition of open justice that characterises those courts and Tribunals of this country.[160]  It is only by the maintenance of a principle of open justice that justice can, in the long run, be served.[161]
  1. [189]
    Orders for the de-identifying of parties and witnesses in these types of proceedings are sometimes made because of the serious and personal nature of the complaints made.[162]  However, the Anti-Discrimination Act[163] allows the Tribunal to take into account the “work security, privacy or any human right” of a person seeking an anonymity order.
  1. [190]
    Before making a decision to make a non-publication order, the Tribunal should first form a reasonable opinion that the preservation of the anonymity of the people involved is necessary.  In arriving at that position, the Tribunal must also have regard to the objects of the Anti-Discrimination Act which are to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.[164] 
  1. [191]
    However, in arriving at a “reasonable opinion” as required by the Anti-Discrimination Act, the Tribunal is required to take into account the fundamental principle that these types of proceedings in the Tribunal are open to the public.[165] It is a fundamental principle of justice that court proceedings are open and an order for anonymity is only made where there is some clear reason to depart from that general rule.[166] 
  1. [192]
    The onus rests with the Respondents to show that special circumstances exist which justify the making of a non-publication order.  In exercising its discretion whether or not to make a non-publication order, the Tribunal should only do so where there is some supporting material or evidence before it to show that it is reasonably necessary to prohibit the publication. 
  1. [193]
    Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce embarrassment is generally not a sufficient reason to prohibit publication.[167]  In the absence of any evidence to the contrary, the Respondents have not discharged that onus.
  1. [194]
    It is for those above reasons that the Respondent’s application for a non-publication order is refused.

COSTS

  1. [195]
    There is a well-known principle in the realm of costs that costs are not awarded by way of punishment of the unsuccessful party.  They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.[168]  There are two issues to consider with regards to costs in this matter.  Firstly, the cost application made by the Applicant for an adjournment on the first day of the hearing, and secondly, whether to make any other award of costs to either of the parties.  

The Adjournment

  1. [196]
    This matter commenced on 7 August 2015.  The Tribunal had earlier given leave to parties to be legally represented.[169]  The Applicant was initially represented by Purcell Taylor Lawyers who had instructed Counsel.[170] The Respondents had collectively engaged Minter Ellison to represent them.  Mr Williams, a partner in that firm, appeared. 
  1. [197]
    Part way through the morning, the Applicant was being cross-examined when he made a comment which was critical of his legal representatives.  This related to whether or not the Applicant wanted the Fifth Respondent joined into these proceedings.[171] 
  1. [198]
    In regard to the Fifth Respondent, the Applicant told the Tribunal that “He should have went through the same process too”.[172] 
  1. [199]
    It was about that point that the Applicant’s Counsel raised with the Tribunal that a conflict had arisen between the Applicant’s evidence and his signed instructions to his Solicitor.  His legal representatives sought leave to be excused and withdraw because of that conflict.  That leave was granted.  Upon leaving the Tribunal, they took with them the entire brief of evidence.
  1. [200]
    The Applicant asked for and adjournment.  He was no longer represented and he was not in possession of any of the material relating to the matter because his former legal representatives had taken it with them.
  1. [201]
    The Respondents resisted the adjournment.  The Tribunal was told that they were distraught, as were the witnesses, at the prospect of the matter not being dealt with on that day.  They would make an application for costs for the adjournment where he caused the adjournment.  However, they acknowledged that an adjournment might be granted.  They also acknowledged that the Applicant did not sack his legal representatives, they chose to make the application to withdraw, and they departed with the brief of evidence.[173]    
  1. [202]
    The Tribunal explained to the Applicant the legislative basis for the making of a costs order against him should that adjournment be granted.  Prior to granting and adjournment, great care was taken by the Tribunal in ensuring that the Applicant fully understood the risk he exposed himself to with regards to a cost application by the Respondents.  He acknowledged that he understood the gravity of the situation.  In granting the adjournment, the Tribunal reserved its decision with regards to costs on the adjournment and told the Applicant that his new legal representatives would be afforded the opportunity to make submissions on why costs should not be awarded against him.[174] 
  1. [203]
    The Tribunal later ordered[175] that Purcell Taylor Lawyers to produce to the Tribunal certain documents, including file notes, correspondence and other records relating to conferences and discussion between the Applicant and that firm.  Recorded in a file note[176] was a comment that the Applicant preferred the complaint against the Fifth Respondent to be heard at the same time as the complaints against the other Respondents.  This supports the application made by the Applicant’s former legal representatives and is completely contrary to what the Applicant told the Tribunal.  
  1. [204]
    The Respondents argued that the Applicant caused the adjournment because of the comments he made under cross-examination.  Furthermore, he understood the risks of a cost order against him and he unnecessarily disadvantaged the Respondents. 
  1. [205]
    The Respondents sought a costs order on the adjournment to the amount of $7,168.  This amount was made up from –

Date

Description

Fees

06-Aug-15

Conferences (4 hours) with eight witnesses.

$976.00

06-Aug-15     to 07-Aug-15

Absence of 2 solicitors from their place of business in excess of 8 hours.

$1,920.00

06-Aug-15    to 07-Aug-15

Travelling expenses (transporting 2 solicitors to the hearing).

$2,686.00

07-Aug-15

Attendance at the hearing for 2 solicitors at 3.2 hours

$1,586.00

TOTAL AMOUNT CLAIMED

$7,168.00

  1. [206]
    In his submissions, the Applicant argues that the Tribunal should resist visiting the Respondents’ application for costs on the adjournment.[177]  He submitted that the hearing had originally only been listed for a day, it was unlikely that the matter would have concluded within that timeframe, and only a half day was lost because of the adjournment.
  1. [207]
    For matters determined in the Tribunal, the starting position in relation to costs under the QCAT Act is the principle that, other than as provided under the Act or an enabling Act, each party to a proceeding must bear its own costs for the proceeding.[178]  In McEwen v Barker Builders Pty Ltd,[179] Wilson J said –

The language of s 100 of the Queensland Civil and Administrative Tribunal Act plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.   

  1. [208]
    That presumption may be displaced if the Tribunal considers it in the interests of justice[180] to order a party to pay all, or part of, the costs of another party.[181]  If there is a departure from the usual order that each party pay its own costs, then the interests of justice must be considered according to its ordinary or plain meaning which confers a broad discretionary power on the Tribunal.   
  1. [209]
    In making that departure, there are certain considerations[182] that the Tribunal must have regard to when exercising its discretion to make a costs order.  In determining whether it is in the interests of justice to award costs against another party, the Tribunal may consider the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.[183]  These considerations are not grounds for awarding costs, but are factors to be taken into account whether in a particular case, the interests of justice require the Tribunal to make a costs order.[184] 
  1. [210]
    In regard to any order relating to costs for the adjournment in this matter, the Tribunal is required to turn its mind to the whether it is in the interests of justice to make that order.  Consideration must be given whether or not relevant circumstances have arisen to exercise that discretion inherent in the phrase ‘the interests of justice’, and whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.[185] 
  1. [211]
    The Tribunal must have consideration to whether the Applicant unnecessarily disadvantaged to Respondents, and if there was a disadvantage, was the Applicant acting deliberately, and if so, to what extent did that disadvantage occur. 
  1. [212]
    The costs sought by the Respondents are for their legal costs.  The legal representatives engaged by the Respondents are Brisbane based and they travelled to Townsville for the hearing.  That hearing was originally listed for a single day.  There were a significant number of witnesses to give evidence, including the six parties involved.  The hearing eventually concluded on its third day.  It was somewhat optimistic for this matter to be concluded in one day, which seems to have been a point that both parties and the Tribunal overlooked when it was originally listed.[186]            
  1. [213]
    The Tribunal is satisfied that there are no compelling circumstances why the Tribunal should depart from the presumption as provided within the legislation[187] and make any order for costs on the adjournment.  The application by the Respondents is refused.

The Hearing

  1. [214]
    Similarly, with regards to the comments above relating to the application for costs for the adjournment, there are no compelling circumstances why the Tribunal should depart from the presumption that each party must bear its own costs for the proceeding.  Therefore, the applications made by each party against the other for a costs order on the hearing are individually refused.  

DECISION

  1. [215]
    The Tribunal’s decision with regards to the applications in this matter are –
  1. The Applicant’s application is dismissed.
  1. The Respondents’ application for a non-publication order is dismissed.
  1. That the Respondents’ application for a costs order against the Applicant for the adjournment on 7 August 2015 is dismissed.
  1. That there be no further order as to costs on the hearing.

Footnotes

[1] Bagasse is the fibrous matter that remains after sugarcane is crushed to extract its juice.  It is used as a fuel for the boilers.

[2] Fifth Respondent’s affidavit sworn on 5 August 2015 at paragraph 11.

[3] Applicant’s affidavit sworn 18 September 2015 at paragraph 7.

[4] Directions of Senior Member Endicott on 31/07/2015 to join the Fifth Respondent.

[5] Anti-Discrimination Act 1991 (Qld) s 178.

[6] Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) s 1339.

[7] Complaint form signed 3 July 2014.

[8] Applicant’s affidavit sworn 23 February 2016 at paragraph 5.

[9] Applicant’s affidavit sworn 23 February 2016 at paragraph 6.

[10] The Fifth Respondent’s affidavit at paragraph 5.

[11] The word didge is the abbreviated version of didgeridoo. 

[12] Charley Pride is an African-America country music singer. 

[13] Being any of the Respondents.

[14] As provided in the Anti-Discrimination Act 1991 (Qld), s 15.

[15] Ibid., s 9.

[16] Ibid., s 10(1).

[17] Ibid., s 10(3).

[18] Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[19] Anti-Discrimination Act 1991 (Qld) s 204.

[20] Ibid., s 209.

[21] Applicant’s affidavit sworn 30 July 2015 at paragraph 3 and annexure PB-01.

[22] Situated at Ayr in the Burdekin area.

[23] Applicant’s contentions at paragraph 6.

[24] Transcript of Proceedings (Day 1) at page 40, line 44.

[25] Ibid., at page 41, line 6.

[26] Applicant’s contentions at paragraph 8.

[27] Applicant’s affidavit sworn 30 July 2015 at paragraph 15.

[28] Ibid., at paragraphs 7 – 8.

[29] Applicant’s contentions at paragraph 5.

[30] Applicant’s affidavit sworn on 30 July 2015 at paragraph 9.

[31] Transcript of Proceedings (Day 1) at page 41, line 22.  The actor Sylvester Stallone is well known for playing the lead role in a sequence of movies depicting a boxer called Rocky Balboa.

[32] Ibid., at page 39, lines 40 – 41.

[33] Ibid., at page 40, lines 1 – 2.

[34] Ibid., at page 41, lines 43 – 44.

[35] Ibid., at page 40, line 44.

[36] Fifth Respondent’s affidavit sworn on 5 August 2015 at paragraph 13.

[37] Fifth Respondent’s affidavit sworn on 5 August 2015 at paragraph 15.

[38] Applicant’s affidavit sworn 18 June 2015 at paragraph 44.

[39] Exhibit 6.  Second Respondent’s affidavit sworn 16 July 2015 at paragraphs 11 – 16.

[40] Second Respondent’s affidavit sworn 16 July 2015 at Annexure GP-1.

[41] Transcript of Proceedings (Day 2), page 85, lines 14 – 15.

[42] Ibid., at page 84.

[43] Transcript of Proceedings (Day 2) at pages 80 – 81.

[44] Exhibit 7.  Third Respondent’s Affidavit sworn 16 July 2015 at paragraphs 7 – 13.

[45] Transcript of Proceedings (Day 2) at page 93, lines 16 – 20. 

[46] Annexure GC-1 attached to the Third Respondent’s Affidavit sworn 16 July 2015. 

[47] Exhibit 5.  Fourth Respondent’s affidavit sworn 21 July 2015.

[48] Ibid., at paragraphs 9 and 10 and Transcript of Proceedings (Day 2) at page 72, lines 29 – 47.

[49] Exhibit 5.  Fourth Respondent’s affidavit sworn 21 July 2015 at Annexure SL-1.

[50] To make a cup of tea and to chat with his colleagues. 

[51] Anti-Discrimination Act 1991 (Qld) s 133.

[52] Ibid., s 133(1).

[53] Ibid., s 10.

[54] Ibid., s 7(g) and Schedule ‘race’.

[55] Ibid., s 15.

[56] Ibid., Schedule – Dictionary. 

[57] Discrimination on the basis of the Applicant’s race.

[58] Direct discrimination.

[59] Discrimination on the basis of the Applicant’s race.

[60] Direct discrimination.

[61] Victimisation.

[62] Applicant’s written submissions dated 12 April 2016 at paragraph 160.

[63] Ibid., at paragraph 161.

[64] Ibid., at paragraph 162.

[65] Section 28(3)(b) and (c).

[66] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2).

[67] The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228 at 256.

[68] Exhibit 2(b).  Applicant’s affidavit sworn 23 February 2015 at annexure “PB5”.

[69] Exhibit 5.  Fourth Respondent’s affidavit at paragraph 11.

[70] Exhibit 7.  Third Respondent’s affidavit at Annexure GC-1.

[71] Transcript of Proceedings (Day 3) at page 49, lines 29 – 33.

[72] Mr Kevin Casey.

[73] Qantas Airways v Gama [2008] 167 FCR 537 at 564 per French and Jacobson JJ.

[74] Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16 at [20].

[75] Park v State of Queensland & Anor [2013] QCAT 183 at [20].

[76] Ibid.

[77] Malone v Pullen & Hungry Jacks Pty Ltd [2004] QADT 11 at [17].

[78] Ibid.

[79] Qantas Airways v Gama [2008] 167 FCR 537.

[80] Anti-Discrimination Act 1991 (Qld) s 124A(1).

[81] Ibid., s 4A.

[82] Nigerian Scammer comment.

[83] “break out the clapsticks”, “it’s the kanaka stick and Pete will play the didge”, “listens to Charley Pride”

[84] Leave granted pursuant to the Anti-Discrimination Act 1991 (Qld) s 178. 

[85] Exhibit 15.  Amendment to the Applicant’s complaint.

[86] First Respondent’s Workplace Relations Manager.

[87] Applicant’s affidavit sworn 18 June 2015 at paragraph 37 and Annexure PB-04.

[88] Ibid., at paragraph 38 and Annexure PB-05.

[89] Ibid., at paragraph 39 and Annexure PB-06.

[90] Applicant’s affidavit sworn 18 June 2015 at paragraph 40 and Annexure PB-07.

[91] Ibid., at paragraph 41 and Annexure PB-08.

[92] Ibid., at paragraph 42 and Annexure PB-09.

[93] The Second Respondent.

[94] Applicant’s affidavit sworn 18 June 2015 at paragraph 43 and Annexure PB-10.

[95] Exhibit 6.  Second Respondent’s affidavit at paragraphs 30 – 48.

[96] Approximately 4:30am.

[97] Transcript of Proceedings (Day 2), page 87, lines 29 – 30.

[98] The Tribunal had heard of a tendency by the Applicant to have his earphones on his ear and listen to music during his shift.

[99] Exhibit 6.  Second Respondent’s affidavit at Annexure GP-2.

[100] Transcript of Proceedings (Day 2), page 83, lines 36 – 37.

[101] Mr John Dal Ponte.

[102] Mr Glen Griggs.

[103] Exhibit 6.  Second Respondent’s affidavit at paragraphs 49 – 52.

[104] Exhibit 4.  Affidavit of Eric Motti at paragraph 2.

[105] Transcript of Proceedings (Day 2), at page 63 at lines 26 – 30.

[106] Ibid., at page 64 at lines 24 – 28.

[107] Applicant’s Supplementary Contentions at paragraph 15.

[108] Applicant’s affidavit sworn 23 February 2016 at Annexure 3.

[109] Ibid., at Annexure 2.

[110] Ibid., at page 4 of Annexure 2.

[111] Transcript of Proceedings (Day 2) at page 13, line 18 to page 14, line 26.

[112] Applicant’s affidavit sworn 23 February 2016 at Annexure 2, page 4 and Annexure 3, page 33.

[113] Ibid., at Annexure 3, page 31.

[114] Exhibit 1(a).  Applicant’s affidavit sworn 30 July 2015 at Annexure PB-1, ADCQ letter at page 2.

[115] Transcript of Proceedings (Day 1) at page 39, lines 1 – 5.

[116] Ibid., at page 39, line 12.

[117] Transcript of Proceedings (Day 2), page 84, lines 5 – 7.  Evidence of Second Respondent.

[118] Anti-Discrimination Act 1991 (Qld) ss 129 and 130.

[119] TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48 at [109].

[120] Anti-Discrimination Act 1991 (Qld) s 130.

[121] Damiano & Anor v Wilkinson & Anor [2004] FMCA 891 at paragraph 23.

[122] Disclosed under Orders of the Tribunal dated 9 December 2015 and 22 January 2016.

[123] Seven weeks prior to the commencement of the hearing.

[124] Dr Riccardo Caniato and Alexander Bonyhai.

[125] Applicant’s affidavit sworn 18 June 2015 at paragraph 46.

[126] Affidavit of Maxine Charlie at paragraph 6.

[127] Applicant’s affidavit sworn 18 September 2015 at paragraph 4.

[128] Dr Caniato’s first report at page 6.

[129] Ibid., attached to the Applicant’s affidavit sworn 23 February 2016 at Annexure “PB6”.

[130] Dr Caniato’s first report at page 8.

[131] Ibid.

[132] Dr Caniato’s second report is attached to his affidavit sworn 15 March 2016.

[133] Ibid., at page 5 and Transcript of Proceedings (Day 3), page 15, lines 43 – 45.

[134] Ibid., at page 5 at part 5.3.

[135] Transcript of Proceeding (Day 3) at page 13, lines 1 – 21.

[136] Exhibit 14.

[137] Transcript of Proceeding (Day 3) at page 24, lines 4 – 22.

[138] 16th and 30th January 2016 and 16th February 2016.

[139] Transcript of Proceeding (Day 3) at page 25, lines 35 – 36.

[140] Ibid., at page 26, lines 5 – 25.

[141] A medical centre at Ayr.

[142] Burdekin Family Medical Practice at Ayr and Healthlink Family Medical Centre at Townsville.

[143] Formerly s 203 of the Anti-Discrimination Act 1991 (Qld).

[144] Queensland Civil and Administrative Tribunal Act 2009 s 90.  The Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) s 1343 provided for the omission of s 203 from the Anti-Discrimination Act 1991 (Qld).

[145] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(3).

[146] Transcript of proceedings, page 2-73 at line 20.

[147] Anti-Discrimination Act 1991 (Qld) s 191(1).

[148] Anti-Discrimination Act 1991 (Qld) s 191(3).

[149] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(1).

[150] Respondent’s Supplementary Submissions dated 13 April 2016 at paragraph 2.

[151] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2)(e).

[152] Respondent’s Supplementary Submissions at paragraph 2 and paragraphs 65 to 68.

[153] Respondent’s Supplementary Submissions dated 13 April 2016 at paragraph 67.

[154] In Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170 at [49] the Court of Appeal said that despite the Tribunal’s nomenclature, it is a Queensland court, albeit an inferior court of summary jurisdiction.  The Court of Appeal arrived at that conclusion after taking into account factors such as, the Tribunal is a court of record, it is an independent Tribunal resolving disputes between parties and the Tribunal’s decisions bind the parties and are enforceable.

[155] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [7] to [10] per Wilson J.

[156] Queensland Civil and Administrative Tribunal Act 2009, s 66(2).

[157] Nash v Von Doussa [2005] FCA 660; Foran v Bloom (No. 2) [2007] QADT 33.

[158] Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J and cited in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8] per Wilson J.

[159] Applicant’s Submissions dated 12 April 2016 at paragraph 174.

[160] X v Australian Prudential Regulation Authority (2007) 226 CLR 630; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 53, 58-59, referring to Russell v Russell (1976) 134 CLR 495 at 520; Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 316.

[161] Nash v Von Doussa [2005] FCA 660 at [7].

[162] Whittle and Hughes v Paulette and Specific Pools [1994] QADT 5; JM v QFG and GK and State of Queensland [1997] QADT 5; H v H & HS (above).

[163] Anti-Discrimination Act 1991 (Qld) s 191.

[164] Ibid., s 6(1).

[165] Subject to the considerations as provided in the Anti-Discrimination Act 1991 (Qld) s 90(2).

[166] H v H & HS [2001] QADT 5, per Member Wyvill QC; Nash v Von Doussa [2005] FCA 660; SE & ME v State of Queensland [2014] QCATA 022 at [72].

[167] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [9].

[168] Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ.

[169] Leave granted on 24 March 2015.

[170] Mr Scott Geeves.

[171] Transcript of Proceedings (Day 1) at page 43, line 43 to page 44, line 27.

[172] Transcript of Proceedings (Day 1) at page 44, lines 15 – 16.

[173] Ibid., at page 56, lines 5 – 17.

[174] Ibid., at page 67, lines 5 – 14.

[175] On 22 January 2016. 

[176] Order of Senior Member Endicott dated 29 July 2015.

[177] Applicant’s Submissions dated 12 April 2016 at paragraph 165.

[178] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.100.

[179] McEwen v Barker Builders Pty Ltd [2010] QCATA 49 at [17].

[180] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1).

[181] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [4] and McEwen v Barker Builders Pty Ltd [2010] QCATA 49 at [13] referencing Kirby J in Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613.

[182] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).

[183] Ibid., s 102(3), including those considerations as mentioned in s. 48(1)(a) to (g).

[184] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].

[185] McEwen v Barker Builders Pty Ltd [2010] QCATA 49 at [17] per Wilson J.

[186] The Tribunal’s directions of 2 February 2016 listed the matter on two additional hearing days. 

[187] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.

Close

Editorial Notes

  • Published Case Name:

    Bero v Wilmar Sugar Pty. Ltd.

  • Shortened Case Name:

    Bero v Wilmar Sugar Pty. Ltd.

  • MNC:

    [2016] QCAT 371

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    12 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd (1997) QADT 27
2 citations
Jump To
Cite 1 - (1997) QADT 27
Cite 2 - (1997) QADT 27
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
5 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Cite 3 - [2010] QCATA 89
Cite 4 - [2010] QCATA 89
Cite 5 - [2010] QCATA 89
Damiano and Another v Wilkinson and Another [2004] FMCA 891
2 citations
Jump To
Cite 1 - [2004] FMCA 891
Cite 2 - [2004] FMCA 891
Foran v Bloom (No. 2) [2007] QADT 33
2 citations
Jump To
Cite 1 - [2007] QADT 33
Cite 2 - [2007] QADT 33
H v H & HS [2001] QADT 5
2 citations
Jump To
Cite 1 - [2001] QADT 5
Cite 2 - [2001] QADT 5
Harman v Secretary of State for the Home Department (1983) 1 AC 280
2 citations
Jump To
Cite 1 - (1983) 1 AC 280
Cite 2 - (1983) 1 AC 280
Herron v Attorney-General for N.S.W. (1987) 8 NSWLR 601
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 601
Cite 2 - (1987) 8 NSWLR 601
JM v QFG and GK and State of Queensland [1997] QADT 5
2 citations
Jump To
Cite 1 - [1997] QADT 5
Cite 2 - [1997] QADT 5
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11
2 citations
Jump To
Cite 1 - [2004] QADT 11
Cite 2 - [2004] QADT 11
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
4 citations
Jump To
Cite 1 - [2010] QCATA 49
Cite 2 - [2010] QCATA 49
Cite 3 - [2010] QCATA 49
Cite 4 - [2010] QCATA 49
Nash v Von Doussa [2005] FCA 660
4 citations
Jump To
Cite 1 - [2005] FCA 660
Cite 2 - [2005] FCA 660
Cite 3 - [2005] FCA 660
Cite 4 - [2005] FCA 660
Owen v Menzies[2013] 2 Qd R 327; [2012] QCA 170
2 citations
Jump To
Cite 1 - [2012] QCA 170
Cite 2 - [2012] QCA 170
Park v State of Queensland & Anor [2013] QCAT 183
3 citations
Jump To
Cite 1 - [2013] QCAT 183
Cite 2 - [2013] QCAT 183
Cite 3 - [2013] QCAT 183
Qantas Airways Ltd v Gama (2008) 167 FCR 537
5 citations
Jump To
Cite 1 - (2008) 167 FCR 537
Cite 2 - (2008) 167 FCR 537
Cite 3 - (2008) 167 FCR 537
Cite 4 - (2008) 167 FCR 537
Cite 5 - (2008) 167 FCR 537
R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228
2 citations
Jump To
Cite 1 - (1933) 50 CLR 228
Cite 2 - (1933) 50 CLR 228
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
2 citations
Jump To
Cite 1 - (1985) 2 NSWLR 47
Cite 2 - (1985) 2 NSWLR 47
Russell -v- Russell (1976) 134 CLR 495
4 citations
Jump To
Cite 1 - (1976) 134 CLR 495
Cite 2 - (1976) 134 CLR 495
Cite 3 - (1976) 134 CLR 495
Cite 4 - (1976) 134 CLR 495
Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT 16
4 citations
Jump To
Cite 1 - (1998) QADT 16
Cite 2 - (1998) QADT 16
Cite 3 - (1998) QADT 16
Cite 4 - (1998) QADT 16
SE & ME v State of Queensland [2014] QCATA 22
2 citations
Jump To
Cite 1 - [2014] QCATA 22
Cite 2 - [2014] QCATA 22
Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8
2 citations
Jump To
Cite 1 - [2013] QCAT 8
Cite 2 - [2013] QCAT 8
TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48
2 citations
Jump To
Cite 1 - [2013] QCAT 48
Cite 2 - [2013] QCAT 48
Whittle and Hughes v Paulette and Specific Pools [1994] QADT 5
2 citations
Jump To
Cite 1 - [1994] QADT 5
Cite 2 - [1994] QADT 5
X v Australian Prudential Regulation Authority (2007) 226 CLR 630
2 citations
Jump To
Cite 1 - (2007) 226 CLR 630
Cite 2 - (2007) 226 CLR 630

Cases Citing

Case NameFull CitationFrequency
Bero v Wilmar Sugar Pty Ltd [2018] QCATA 1045 citations
Bond v State of Queensland (Department of Justice and Attorney-General) [2023] QIRC 1482 citations
Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 442 citations
Curran v yourtown & Anor [2019] QIRC 592 citations
Michalakellis v LMM Holdings Pty Ltd (No. 4) [2023] QIRC 2482 citations
Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 1363 citations
1

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