Douglas v CTML Pty Ltd[2018] QCAT 110

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Lisa Douglas made a complaint to the Anti-Discrimination Commission Queensland (‘the Commission’) dated 15 February 2017 about being refused the opportunity to rent an apartment at Helensvale on the Gold Coast in Queensland on 5 January 2017 because she had her young son living with her.
2. [2]
   CTML Pty Ltd is the owner of the apartment. Pinnacle Sales and Management Pty Ltd operates a real estate business, and is the letting agent for the apartment. Jon Faulder is an employee of Pinnacle Sales and Management Pty Ltd.
3. [3]
   The complaint was referred to the Tribunal by the Commission on 15 June 2017. The Commission treated the complaint as indicating discrimination on the grounds of family responsibilities and parental status in the area of accommodation as per sections 7(d), 7(o), 10, 11 and 82; and request or encourage contravention under s 122; and unnecessary information under s 124.
4. [4]
   Pinnacle Sales and Management Pty Ltd and Jon Faulder (‘the agents’) filed a Respondent’s Statement of Contentions on 18 August 2017, and sought the following Orders:^[1]

   1. These proceedings be struck out for want of prosecution;
   2. Alternatively, the Applicant’s ‘complaint’ in these proceedings be dismissed or struck out pursuant to s 47 of the QCAT Act and/or s 210 of the Act;
   3. Alternatively, the Applicant’s ‘complaint’ in these proceedings be dismissed pursuant to s 48 of the QCAT Act; and
   4. In either case, the Applicant pay the Second and Third Defendant’s costs of and incidental to these proceedings on an indemnity basis, or alternatively on a standard basis, pursuant to s 102 of the QCAT Act.
5. [5]
   The Tribunal directed on 23 August 2017 that the Respondent’s Statement of Contentions constituted an Application to Strike Out or Dismiss, and gave directions for:

   1. The filing of material in response by Ms Douglas by6 October 2017; and
   2. The Application to Strike out or Dismiss to be determined on the papers by a Member of the Tribunal, without an oral hearing, not before 6 October 2017.
6. [6]
   This is the decision on the Application to Strike out or Dismiss.
7. [7]
   Ms Douglas stated in her complaint that on 5 January 2017 she telephoned Jon Faulder, the property manager, about an apartment that was advertised on Realestate.com as being for rent for $360.00 per week. She said that she was told the apartment was available, and drove to the building where Mr Faulder also resided.
8. [8]
   She said that before Mr Faulder would show her the apartment he asked her a couple of questions, and the following exchange took place:

Jon then advised he could not show me the property because I have a child. I was shocked to hear this and very confused. I asked ‘why was it a stipulation on renting the unit?’ He advised ‘the owners are very fussy and they don’t want any children living in the unit.’ I proceeded to ask further questions as I did not want to accept this and the property suited us perfectly. I was disgraced and felt unjustly insulted.

I asked Jon why the owners didn’t want any children living at the unit? He advised ‘he owns the Dental surgery downstairs (part of the retail shops underneath) and the unit and the dental surgery use the same entrance and he didn’t want children passing by the surgery as it disrupted the business’.

I was shocked to hear this. I advised Jon I would not have children coming and going and my son would not interrupt the business by using the same corridor or entrance. He said ‘sorry there is nothing he can do and he couldn’t go any further with my application.’

9. [9]
   In a response given to the Commission, CTML Pty Ltd (‘the owner’) denied that they had given the agents instructions as described by Ms Douglas, and said:^[2]

We deny the claim that ‘owners didn’t want children living in the unit’ and that ‘we didn’t want children passing the surgery as it disrupted the business.’ We have never given the Agency instructions to this effect. In fact, we assert the contrary is more likely as the dental practice is a well-established family general practice within the Helensvale community with parents and children frequently attending the clinic.

10. [10]
    The owner denied that the agents had been given any such instructions as alleged by Ms Douglas, and denied that it was responsible for any such actions and representations, and sought that the action be discontinued against it as having no foundation.
11. [11]
    The agents in their contentions say that:

    1. Ms Douglas attended the premises around midday on 5 January 2017 without any prior arrangement;
    2. She was advised that the property was available for viewing outside business hours only;
    3. Mr Faulder asked Ms Douglas some general questions including how many people would be residing at the property, as he was aware that the apartment was quite small and that a number of prospective tenants (including but not limited to those with children) had found it inadequate for that reason; and
    4. The agents were willing to permit Ms Douglas to inspect the apartment outside business hours, and did not refuse her to complete an application form.
12. [12]
    The agents contend that Ms Douglas did not seek to pursue the rental:^[3]

1. 30.
   Moreover, after being informed that the residential unit was available for viewing only outside business hours, the Applicant did not make, or offer or attempt to make, any arrangement to inspect the Premises at an appropriate time.
2. 31.
   In the circumstances, it was by no means clear that the Applicant:

1. (a)
   wished to inspect the Residential Unit outside business hours;
2. (b)
   would have wished to rent the Residential Unit after inspecting same; or
3. (c)
   would have been assessed as a suitable tenant having regard to her previous rental history, references and financial capacity.

13. [13]
    The Tribunal has power under sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to dismiss or strike out a proceeding, or part of a proceeding, if it is variously unjustified or causing disadvantage.
14. [14]
    The Tribunal discussed the principles to be applied on a  striking out application in Yeo v Brisbane Polo Club Inc,^[4] and adopted the principles enunciated in Dey v Victorian Railways Commissioners,^[5] as follows:

[5]  Mr Yeo submits that the principles enunciated in Dey v Victorian Railways Commissioners apply. Mr Yeo submits that his application should only be dismissed if there is the clearest case that he can not succeed on the merits of his application. He suggests that the evidence before the Tribunal is scant and that at a contested hearing, the Club may provide additional evidence in support of the claimed exemption which would allow the Tribunal to more closely consider its manner of operation and therefore whether it does in fact carry out its purposes for the purposes of making a profit.

[6]  Essentially, Dey is authority for the proposition that in considering a strike out application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case. It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or futile. But if there is a real question of law or fact to be determined, then summary dismissal is not appropriate. A lack of any cause of action must be very clear. The party seeking to strike out must demonstrate a high degree of certainty about the outcome if the proceeding is allowed to continue.

[7]  A question of law may be determined on a strike out application, although not an important or difficult question or law. A question of fact may not be determined in summary proceedings. Summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.

15. [15]
    This matter includes multiple disputes of fact between a combination of the parties:

    1. The owner and the agents are in dispute as to the instructions given to the agents, and as to what the owner’s attitude to the apartment being rented to a person with children were; and
    2. The agents and Ms Douglas are in dispute as to whether Ms Douglas was invited to come to inspect the apartment at midday, and as to whether she showed any interest in pursuing the rental.
16. [16]
    Those factual issues in dispute can only be determined on a full hearing where witnesses give evidence and are available for cross-examination, and where the Tribunal has an opportunity to observe the demeanour of the witnesses, and to form a view as to credibility.
17. [17]
    There being real factual issues in dispute, it is not appropriate to strike out or dismiss the proceedings, as discussed in Yeo.
18. [18]
    The Application to Strike Out or Dismiss is dismissed accordingly.
19. [19]
    I direct that the matter be set for a Directions Hearing where directions as to the filing of statements of evidence, and steps leading towards a hearing, can be discussed.