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- Appeal Determined (QCA)
Payne v APN News & Media QCATA 140
Payne v APN News & Media  QCATA 140
APN News & Media (Australia Regional Media)
22 August 2016
Dr J R Forbes, Member
27 September 2016
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS – FUNCTIONS OF APPELLATE COURT – IN GENERAL – whether error of law in fact finding – test for such error – no error found – principles for granting leave to appeal – leave refused
HUMAN RIGHTS – DISCRIMINATION – GENERALLY – Anti-Discrimination Act 1991 (Qld) – where the applicant was a lawfully employed sex worker – where the applicant placed advertisements in the respondent’s newspapers – where the applicant alleges that she was discriminated against by the charging of higher amounts for advertising – where the applicant claims the respondent unlawfully published advertisements – whether direct discrimination – whether indirect discrimination – whether victimisation
Anti-Discrimination Act 1991 (Qld) ss 7, 10, 11, 130, Schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 28, 29, 111, 142, 183, 214, 216, 217, 218
Prostitution Act 1999 (Qld) ss 99, 139A
Prostitution Regulation 2014 (Qld) s 15
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Drew v Bundaberg Regional Council  QPELR 350;  QCA 359
Felton and Anor v Raine and Horne Real Estate  QCATA 330
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
JM v QFG and KG  QCA 228
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Lawless v The Queen (1979) 142 CLR 659
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Myers v Medical Practitioners Board (2007) 18 VR 48
Parramatta City Council v Pestell (1972) 128 CLR 305
Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority)  VSC 597
Pearce v Western Australia  WASCA
Pickering v McArthur  QCA 294
R v Ashley  QCA 293
R v Sharkey  QCA 259
Robinson v Corr  QCATA 302
S v Crimes Compensation Tribunal  1 VR 83
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
W (an infant,) In re  AC 682
APPEARANCES and REPRESENTATION:
Mr C Payne as lay representative for the applicant
Mr C Murdoch of Counsel instructed by Minter Ellison
REASONS FOR DECISION
- I have had the benefit of reading a draft of Dr Forbes’ reasons for decision. I agree with them entirely and having nothing to add to what he has said in refusing leave to appeal the tribunal’s decision.
Dr J R Forbes, Member
- In the late 20th century the hitherto neutral word “discriminate” acquired pejorative overtones as the gist of novel legislation, including the Anti-Discrimination Act 1991 (Qld) (“ADA”). Section 7 thereof prohibits discrimination against various “attributes”, including “lawful sexual activity”. “Lawful sexual activity” denotes a person’s status as a lawfully employed sex worker, whether or not he or she is self-employed.
Circumstances of this case
- At all material times the applicant was a self-employed and self-described “sex worker”. From October 2013 until late January 2015 she advertised her services in various provincial newspapers published by the respondent (“APN”). Such advertising is regulated by the Prostitution Act 1999. It is not alleged that the applicant’s advertisements were unlawful.
- The applicant complaints that APN unlawfully discriminated against her, directly and indirectly, in its placement of, and charges for her advertisements in the respondent’s “Personal” columns. She also alleges that APN victimised her for reporting the company to the Anti-Discrimination Commissioner.
- Direct discrimination occurs when a person treats, or proposes to treat, another person with a prescribed “attribute” less favourably than another person, without that attribute, is or would be treated in similar circumstances.
- The offence of “victimisation” occurs when a person, in good faith, alleges or intends to allege that another party has contravened the ADA, and the latter acts, or threatens to act, to the detriment of the complainant.
- The primary application was heard on 27 July and 9 September 2015 and was dismissed on 24 December 2015.
Gross amount of errors of fact, errors of law and breaching the QCAT Act sections 214, 216, 217, and 218 and the Tribunal failing to offer Mrs Payne the right to a fair hearing by having only one (1) Non-Judicial Member (…) presiding that I believe either disregarded Mrs Payne’s exhibits and testimony or was just to [sic] inexperienced.
- The applicant seeks orders in these terms, which I quote verbatim:
- (i)To strike out the decision of the Tribunal and Non Judicial Member (…) made on 24 December 2015.
- (ii)To have the case re-heard by Judicial Members excluding (…) as she is a Non-Judicial Member, giving more experience, fairness and an opportunity for Mrs Payne to be heard and to receive a fair hearing without prejudice, bias, discrimination, victimisation, defamation and negligence.
- (iii)I would like the Tribunal to be able to deal with numerous accounts of perjury, but obviously the closest the Tribunal can do is errors of fact.
- (iv)Furthermore, to allow new evidence to be submitted in the hearing to prove unequivocally what you class as errors of fact.
- (v)To request and arrange a curator from the Justice Department, DPP or the Australian Federal Police to hear and deal with all the serious criminal offences involving APN News and Media (Australian Regional Media), Minter Ellison, and barrister Mr Christopher Murdoch, as any legal representation’s [sic] first duty is to the court.
- Proposed order (iii) is an allegation rather than an order; although it backs away from prior claims of perjury in favour of factual error, that restraint is merely temporary. Allegations of perjury reared their unattractive heads again in other documents and in oral argument.
- As to proposed order (iv), no acceptable fresh evidence was adduced, and proposed order (v) is manifestly beyond our jurisdiction. References to the Federal Circuit Court Rules 2001 and the Administrative Decisions (Judicial Review) Act 1977 (Cth) are so plainly misconceived as to require no comment.
- The applicant complements her application for leave with a farrago of bald assertions, some scurrilous, and all signally free from particulars. That document repeats allegations of perjury against witnesses for the respondent and impugns the impartiality and competence of the primary decision maker. There are vague, swingeing allegations of “hatred, contempt, spite, belligerence, discrimination and victimisation” for attempting to follow orders and procedures of the Tribunal.
Constitution of the Primary Tribunal
- The applicant’s contention that the primary tribunal should have included, or have been constituted by a judicial member has no support in the QCAT Act. Judicial members of the Tribunal could not possibly deal with the hundreds of primary and secondary applications that come before it. Appellate as well as primary panels may be constituted by a single non-judicial member, at the discretion of the President. It is only necessary that the member or members presiding possess the prescribed professional qualifications and are duly appointed to sit in the Tribunal by the executive government. Clearly those requirements are met in this case.
Allegations of bias
- The assertion of bias is expressed abruptly and disrespectfully, thus: “[The Member] failed to offer and allow the applicant the right of a fair and honest hearing”.
- That allegation is as lacking in substance as it is in particulars. The trial was set down for one day, but was extended to two, so as to accommodate diffuse and lengthy cross-examination of the respondent’s witnesses by the applicant’s lay advocate.
- In preparing her detailed reasons for decision, the Member examined some 200 pages of evidence and argument, as well as voluminous exhibits. The Member was solicitous to ensure that the applicant had all her desired material before the Tribunal, and patiently explained Tribunal procedures, according to the letter and spirit of the QCAT Act. At all stages, the Member treated the applicant and her advocate with respect. The reasons for decision are comprehensive, with specific references to the evidence, and explanations of findings made.
- The allegation of bias is rejected. It is regrettable that some disappointed litigants seem to feel free to make such allegations with impunity.
- The same applies to the scattergun charges of perjury. Just as an adverse decision is no evidence of bias, the giving of evidence that is unpalatable to a disappointed party falls far short of perjury. As a matter of law, prudence and fairness, such serious and pejorative allegations should only be made after careful consideration, supported by precise particulars and temperate reasons. Regrettably that is not the case here.
“Breaching the QCAT Act sections 214, 216, 217, and 218”
- Section 214 refers to witnesses who fail to attend or to give evidence. Section 216 penalises false or misleading evidence. Section 217 prohibits improper pressure upon parties, witnesses and Tribunal members, while section 218 deals with contempt of the Tribunal. All four sections are directed at misconduct by third parties, not at legal error on the part of the Tribunal. Offences defined by these sections are the business of criminal courts; the Tribunal has no criminal jurisdiction.
“Gross amount of errors of fact, errors of law”
- Absent any suggestion of statutory misinterpretation, one assumes that the complaint of “gross ... errors of fact [and] law” means that there are findings of fact or inferences so unreasonable, and so bereft of supporting evidence, that they amount to errors of law. Certainly, findings entirely unsupported by evidence, or glaringly improbable, are errors of law. The ultimate question, of course, is whether the applicant has exposed such errors in this case.
- Assisted by the appeal tribunal, in the letter and spirit of the QCAT Act, the applicant’s representative sought to identify errors of that kind. For reasons that follow, he was not successful.
- The Member found that location of the applicant’s advertisements in “Personal” columns was appropriate. The applicant suggested, irrelevantly, that other categories were cheaper, but plainly her entries could not sit comfortably with “Employment”, “Motoring”, “Real Estate”, “Buy and Sell”, or “Trades”. Comparisons with rates for other categories were beside the point, because, according to uncontradicted evidence, “personals”, as matters of some delicacy, required more careful scrutiny by APN staff.
- The applicant complained that she was charged for the placement of her advertisements on the internet as well as in the newspapers. However, she was by no means singled out in that respect. There was evidence, which the Member accepted, that customers generally expect and welcome internet coverage, and that the applicant raised no objection to it until 29 December 2014. The respondent’s staff then made the desired alteration.
- Principal witnesses for the respondent were Ms Kym Sullivan and her senior, Ms Jodie Graham. Where their evidence conflicted with the applicant’s, the Member preferred the Sullivan-Graham versions, as she was entitled to do. For reasons given by the Member, she did not consider that some inconsistencies in Graham’s evidence showed that she was generally unreliable. After all, as Keane JA (as he then was) observed in R v Ashley:
“[I]f anybody is asked to recount events on two or three different occasions, it is almost inevitable there will be some difference in the recital on those three occasions. [I]n the same way if a number of people are asked to give an account of a particular event, it is almost inevitable that you will get a number of different versions of that event. And that is not being dishonest, that is just behaving as human beings behave. And, in fact, perfect consistency is not something that you would ever come across normally and, if you ever did ... it would be as much a cause for suspicion as for anything else.”
- And speaking of Ms Sullivan, who dealt more frequently and directly with the applicant than Ms Graham, the Member found: “She was thoughtful and frank in her evidence. The Tribunal accepts Ms Sullivan’s evidence without reservation.”
- The Member concluded:
“The Tribunal is not satisfied that ... Mrs Payne has been treated less favourably than any other person without the [sex worker] attribute who places an advertisement in the classifieds section of APN’s newspapers. ... [T]here has been no direct discrimination by APN of Mrs Payne in terms of s 10 of the Act.”
- The Member found that there was no legal or practical barrier to the applicant’s complying with “a term”, namely advertising on the internet, with which non-sex workers complied or were able to comply. Indeed, as became apparent on 29 December 2014, the applicant did not want to comply with that term, and, as the Member found, was not obliged to do so.
- Accordingly, the Member reasonably concluded that there was no indirect discrimination.
- The applicant alleged that on several occasions the respondent failed to publish her advertisements because she had reported it to the Commissioner as a discriminator. Ms Sullivan freely admitted that one advertisement was omitted (or, rather, postponed) because she (Sullivan) missed a deadline amid the Christmas-New Year rush. The advertisement in question appeared shortly afterwards, at a discount for omission of it from the internet.
- The Member accepted the evidence of Graham and Sullivan that, while they knew of the applicant’s complaint, that was not disclosed to other members of staff who received orders and entered advertisements. Transcripts of conversations between the applicant and APN staff bore no evidence that they were aware of the complaint at any material time. Graham gave evidence, which was accepted, that she had nothing to do with the pricing or placement of the subject advertisements at any time.
- Consequently the Tribunal found no evidence of detrimental conduct by the respondent towards the applicant because of her report to the Commissioner, and the complaint of victimisation was dismissed.
Fact-finding and error of law: a strict test
- A review of the record does not disclose any material finding of fact or inference that lacks support, in accepted and acceptable evidence. Still less is any material finding glaringly improbable. That being so, it is immaterial that, on some points at least, there is evidence to the contrary. Findings of fact and credit are peculiarly the province of the primary tribunal. As Pincus JA observed in JM v QFG and KG:
“[I]t appears to me that a factual conclusion cannot be infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.”
- And in the words of another judge of appeal:
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. That is his function.
- There is a wealth of authority consistent with these dicta. Where there are disputes of fact, it is not legal error to prefer the evidence of witness “A” to that of “B”, or the credit of “C” to that of “D”. (Incidentally, a finding as to credit does not necessarily mean that a witness is deliberately untruthful, but merely that other evidence is more probable.) Findings of fact will seldom be disturbed, even if another reasonable view is available. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one view has been preferred to another.
Leave to appeal – proper limits
- An application for leave to appeal is not an occasion for a retrial, or for “second guessing” questions of fact or credit that are the province of the primary decision maker. It is not an opportunity to introduce evidence or argument which might have been led in the first place, but in fact was not. It is not nearly enough for a would-be appellant to express disappointment, or to entertain a subjective feeling that justice has not been done. If it were otherwise, the policy of finality of litigation – a policy reinforced in the QCAT Act – would soon be set at naught.
- The question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant. Occasionally leave is granted so as to test, at a higher judicial level, some question of general public interest, but decisions that turn on the facts of a particular case seldom qualify for this category.
- Here there is no reasonably arguable case of erroneous fact-finding, and no question of general public interest arises. The application for leave to appeal should be refused.
- Leave to appeal is refused.
 ADA s 7(l).
 ADA Schedule.
 Prostitution Act 1999 ss 99, 139A; Prostitution Regulation 2014 s 15.
 ADA s 10(1).
 “Term” includes condition, requirement or practice, whether or not written: ADA s 11(4).
 ADA s 11(1).
 ADA s 130(1)(a)(ii) and (iii).
 Submission in support of application for appeal or leave to appeal filed 31 May 2016.
 Application filed 1 February 2016, Part D.
 Evidence tendered for the first time on appeal must either have been non-existent at the time of trial, or not then discoverable by reasonable diligence: Lawless v The Queen (1979) 142 CLR 659 at 674-676; R v Sharkey  QCA 259 at ; Pearce v Western Australia WASCA 156 at -. The suggested new evidence does not satisfy these conditions.
 QCAT Act s 111. An enabling Act may provide otherwise, but not here.
 Ibid ss 183(2),(4), (5).
 Likewise the appeal tribunal heard the applicant’s advocate from 10am to about 12.40pm, and the respondent’s counsel from 12.40 to 1.20 pm.
 Particularly s 29 thereof. Examples of sympathetic assistance to articulate the applicant’s case may be seen on pages 1-104 and 1-105 of the record.
 Obligations to comply with attendance notices, answer questions and produce documents.
 Fox v Percy (2003) 214 CLR 118 at 128.
 Parramatta City Council v Pestell (1972) 128 CLR 305 at 327; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 640.
 QCAT Act ss 4(e), 28(3)(d),(e), 29.
 Reasons for decision at , .
 Ibid at .
 Ibid at 
 Ibid at -, .
 Ibid at ,  and .
 Ibid at .
 Evidence of Sullivan, accepted by the Tribunal: Reasons at .
 Reasons at .
  QCA 293 at .
 Ibid at .
 Ibid at  – .
 Ibid at ,.
 Ibid at , .
 Ibid at , , , .
 Ibid at .
 Ibid at , .
 Ibid .
 Ibid .
  QCA 228 at p 21.
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P, emphasis added.
 See e g Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at ; S v Crimes Compensation Tribunal  1 VR 83 at 89-90; Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority)  VSC 597 at ; Myers v Medical Practitioners Board (2007) 18 VR 48; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359 per Mason CJ.
 Fox v Percy (2003) 214 CLR 118 at 125-126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at ; In Re W (an infant)  AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1025.
 Robinson v Corr  QCATA 302 at .
QCAT Act ss 3(b), 4(b), (c), 142(3)(b).
 Drew v Bundaberg Regional Council  QPELR 350;  QCA 359 at ; Pickering v McArthur  QCA 294 at ; Felton and Anor v Raine and Horne Real Estate  QCATA 330 at .
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577 at 578, 580.
- Published Case Name:
Payne v APN News & Media
- Shortened Case Name:
Payne v APN News & Media
 QCATA 140
Carmody J, Member Forbes
27 Sep 2016
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCATA 140||27 Sep 2016||-|
|Notice of Appeal Filed||File Number: Appeal 11065/16||25 Oct 2016||-|
|Appeal Determined (QCA)|| QCA 16||22 Feb 2017||Applications struck out as wrongly constituted|