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Bero v Wilmar Sugar Pty Ltd[2018] QCATA 104

Bero v Wilmar Sugar Pty Ltd[2018] QCATA 104

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104

PARTIES:

PETER BERO

(applicant/appellant)

 

v

 

WILMAR SUGAR PTY LTD

(first respondent)

GRAHAM POWELL
(second respondent)

STEPHEN LUKE
(third respondent)

GREGORY CHATFIELD
(fourth respondent)

SALVATORE RUSSO
(fifth respondent)

APPLICATION NO/S:

APL374-16

ORIGINATING APPLICATION NO/S:

ADL008-15

MATTER TYPE:

Appeals

DELIVERED ON:

20 July 2018

HEARING DATE:

20 September 2017

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Browne, Presiding
Member Fitzpatrick

ORDERS:

  1. Leave to amend the application for leave to appeal or appeal to include a further ground of appeal (Ground 6) on a question of law is refused.
  2. Leave to appeal is granted.
  3. The application for leave to appeal or appeal filed 8 November 2016 is dismissed.
  4. There is no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where application referring complaint of discrimination – where the tribunal found no breach of the Anti-Discrimination Act 1991 (Qld) – where the Tribunal dismissed the application – where the applicant appeals the decision – where leave to amend the application for leave to appeal or appeal to include a further ground of appeal – whether leave to appeal required – whether the Tribunal made errors of mixed fact and law

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – whether application for leave to appeal or appeal raises questions of mixed fact and law – where appeal raises questions of mixed fact and law only – whether leave to appeal should be granted according to established principles

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – where complaint referring allegations of discrimination concerned comments made in the workplace – where Tribunal made findings about the comments – where Tribunal found that there was no breach of the Anti-Discrimination Act 1991 (Qld) – whether error in the Tribunal’s findings

Anti-Discrimination Act 1991 (Qld), s 6, s 7(g), s 10

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29, s 100, s 102, s 142(3)(b)

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

Barney v State of Queensland and Anor [2012] QCAT 695

Browne v Dunn (1893) 6 R 67

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

Cachia v Grech [2009] NSWCA 232

Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748

Chesson v Buxton (1990) EOC 92-295.

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2012] QCATA 115

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

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

Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT 16

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

Qantas Airways v Gama (2008) FCR 537

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Sailor v Hubbucks and Black and White (Quick Service) Taxis Ltd (No. 2) [2008] QADT 33

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr R J Armstrong of Counsel, instructed by Aboriginal & Torres Strait Islander Legal Service

Respondent:

Mr D Williams, Solicitor, of Minter Ellison

REASONS FOR DECISION

  1. [1]
    In 2014, Peter Bero made complaints of unlawful racial discrimination, vilification and victimisation against his employer, Wilmar Sugar Pty Ltd. Mr Bero also made complaints of discrimination against other employees during his employment as a ‘spare man’ in the sugar crushing industry. Mr Bero is of Torres Strait Islander heritage and worked for Wilmar Sugar Pty Ltd in North Queensland over four seasons from 2011 until the end of 2014. Mr Bero claimed that he was treated less favourably because of his race and the colour of his skin during his employment.
  2. [2]
    Mr Bero’s application referring his complaint proceeded to a hearing in Townsville over three days before a Member of the Queensland Civil and Administrative Tribunal. On 12 October 2016, the Tribunal dismissed Mr Bero’s application referring the complaint and made no order as to costs of the hearing.[1]
  3. [3]
    Mr Bero filed an Application for leave to appeal or appeal in response to the findings made by the Tribunal.[2] Mr Bero says that the findings made by the Tribunal are wrong in fact and law. Mr Bero also says that the Tribunal should have preferred his evidence about the complaint and should have found as a matter of law that Wilmar Sugar Pty Ltd was vicariously liable in respect of the conduct.
  4. [4]
    The Appeal Tribunal’s sole duty is to determine whether there is an error in the primary decision.  It is not our task to decide where the truth lay as between competing versions given by the parties.[3] The Appeal Tribunal will not usually disturb the findings made by the Tribunal at first instance where the findings made are capable of supporting its conclusions and ‘there is evidence capable of supporting any inferences underlining it’.[4]
  5. [5]
    Although there are five grounds of appeal with many sub-grounds of appeal, Mr Bero has confined the grounds of appeal to alleged errors in the Tribunal’s findings in respect of two discrete incidents of alleged discrimination. For Grounds 1 and 2 of the appeal, the relevant incident is ‘the Nigerian scammer comment’ made on 20 May 2014 concerning Salvatore Russo, and for Grounds 3 and 4 of the appeal, ‘the boiler room incident’ which occurred on 8 June 2014 concerning Gregory Chatfield, Graham Powell and Stephen Luke. Mr Bero says that there was an error in the Tribunal’s findings of fact and law in respect of comments made during both incidents. Mr Bero says that there was an error in the Tribunal’s ultimate finding that comments made did not result in contraventions of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).[5]
  6. [6]
    Mr Bero also raises a ground of appeal in relation to the compensation claimed for humiliation against Mr Luke, Mr Chatfield and Mr Russo (Ground 5). Mr Bero says that the Tribunal ought to have assessed compensation for humiliation, for which he says Wilmar Sugar Pty Ltd is vicariously liable.[6]
  7. [7]
    On the hearing of the appeal, Counsel for Mr Bero submitted that the central issue in the appeal is whether Mr Chatfield, Mr Luke and Mr Russo treated Mr Bero less favourably in connection with his work because of the colour of his skin than another person without that skin colour. We have proceeded, in dealing with the appeal, on that basis.
  8. [8]
    Counsel for Mr Bero brought an application to add a further ground of appeal, now identified as Ground 6, which raises a question of law. It was submitted that the learned Member made findings about the evidence relevant to the ‘Nigerian scammer’ incident in breach of the rule in Browne v Dunn.[7] In particular the learned Member made findings that an exchange of words between Mr Bero and Mr Russo was ‘banter’ in circumstances where it was not put to Mr Bero during cross-examination that the relevant words exchanged were ‘banter’. It was submitted by Mr Bero’s Counsel that the failure by the Tribunal to put this (the words ‘banter’) to Mr Bero during cross-examination was a breach of procedural fairness and an error of law. The application for leave to add a further ground of the appeal was contested by the legal representative for the respondents. For reasons given below, we have refused leave to amend the appeal to include the further ground of appeal.
  9. [9]
    Mr Bero also seeks final orders that the appeal be allowed and the Tribunal’s order that Mr Bero’s application is dismissed be set aside and the following orders be made by the Appeal Tribunal including costs:[8]
    1. (a)
      Wilmar Sugar Pty Ltd implement programs to eliminate unlawful discrimination;
    2. (b)
      Mr Luke pay Mr Bero the sum of $1,000.00 for humiliation and interest at 4% for three years, being $120.00, a total $1,120.00;
    3. (c)
      Mr Chatfield pay Mr Bero the sum of $1,500.00 for humiliation and interest at 4% for three years, being $180.00, a total of $1,680.00;
    4. (d)
      Mr Russo pay Mr Bero the sum of $2,500.00 for humiliation and interest at 4% for three years, being $300.00, a total of $2,800.00;
    5. (e)
      Wilmar Sugar Pty Ltd pay any amount awarded for humiliation and interest that is unpaid by any of the other respondents; and
    6. (f)
      Wilmar Sugar Pty Ltd pay Mr Bero’s costs of and incidental to the appeal, such costs to be assessed in accordance with the rates agreed between the lawyers acting for Mr Bero or the District Court Scale, whichever is the less.

What is discrimination for the purposes of the Act?

  1. [10]
    It is unlawful to treat a person ‘less favourably’ in the workplace on the basis of his or her race.[9] Relevantly, s 10(1) of the Act provides that direct discrimination on the basis of an attribute such as race happens if a person ‘treats, or proposes 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’. Section 10 requires the application of what is commonly referred to as a comparator. This requires a comparison between a person with an attribute and a person without that attribute with reference to a certain set of circumstances being the circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person.[10] The person’s motive for discriminating is irrelevant and the employer is vicariously liable for a contravention of the Act by any worker or agent.[11] One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.[12]
  2. [11]
    Treatment of a person that is found to be less favourable treatment on the basis of an attribute such as race may be conduct in the form of comments made and amount to a contravention of the Act. In an earlier decision of the Tribunal it was held that comments found to be racial epithets ‘without more’ in terms of conduct to a person is capable of constituting discrimination.[13] A comment made in the course of supplying goods and services may also amount to a contravention of the Act[14] and it is relevant if the comment was made in circumstances where it was not intended to be heard by the applicant.[15]
  3. [12]
    Turning now to the application for leave to appeal or appeal, the grounds of appeal are confined solely to the allegations of direct discrimination concerning comments made in the workplace. This required the Tribunal at first instance, in determining whether there was a contravention of the Act, to be satisfied that there was less favourable treatment of Mr Bero because of his race than another person who is not of the same race would have experienced in circumstances that are the same or not materially different. The Tribunal was required to make findings about the evidence of Mr Bero and the respective respondents. As provided under s 10 of the Act, it is not necessary that the person (the respective respondent) who discriminates considers the treatment less favourable and the respective respondent’s motive for discriminating is irrelevant. As found in earlier decisions of this Tribunal, a comment found to be a racial epithet can constitute less favourable treatment and amount to a contravention of the Act.[16] We have summarised below some of the relevant cases that have been referred to by the parties in addressing the grounds of appeal and some of which were also cited by the learned Member in the Tribunal’s reasons.
  4. [13]
    In Barney v State of Queensland and Anor (‘Barney’s case’),[17] allegations of racial discrimination under the Act in the course of the applicant’s work were found to be in contravention of the Act and the applicant was awarded damages. The complaints involved conduct by an employee, specifically, comments made by an employee to another co-worker about the applicant that were found by the Tribunal to contain an inappropriate racial epithet.[18] The Tribunal in applying the decision in Chesson v Buxton[19] found that the use of racial epithets, without more, to a person is capable of constituting discrimination.[20] In Barney’s case the Tribunal found that the less favourable treatment of the applicant also encompassed the refusal by the employee (who made the comments found to be a racial epithet) to swap a shift with another co-worker because it would lead to her working with the applicant.[21] The Tribunal found that the employee who made the racial epithet treated the applicant less favourably because of his race and she would not have treated another co-worker without that attribute in the same way.[22] The Tribunal ultimately found that the applicant was subsequently diagnosed with depression and had a period of time off work. The Tribunal found that the applicant’s depression and anxiety was significantly caused by learning of the employee’s discrimination against him, and then contributed to by the employee’s apology.[23] The Tribunal awarded a sum of money to the applicant for damages for the contravention of the Act payable by the respondents.[24]
  5. [14]
    Remarks made in connection with the supply of taxi services were found to be a contravention of the Act. In Sailor v Hubbucks and Black & White (Quick Service) Taxis Ltd (No. 2) (‘Sailor’s case’),[25]  the Tribunal found overall the applicant to be a truthful witness,[26] and that an employee or a representative of Black & White Taxis called the applicant a ‘black bastard’ and a ‘black cunt’.[27] The Tribunal found that there was insufficient evidence to find that the applicant called the employee certain offensive words in response. The Tribunal also found that the remarks do not constitute racial vilification under s 124A of the Act.[28] In relation to the complaints of discrimination, the Tribunal found that there is no basis for any allegation by the applicant of direct discrimination because none of the areas in Chapter 2, Part 4 of the Act (areas of activity in which discrimination is prohibited) apply to the conduct. In Sailor’s case, the applicant was an occupier of land onto which the employee drove his taxi and made an enquiry of the applicant about the location of a unit. That enquiry was connected with his supply of taxi services. The Tribunal ultimately found that the conduct constituted unfavourable treatment of the applicant in connection with the supply of the taxi services in contravention of s 46(1(d).[29]
  6. [15]
    In Malone v Pullen and Hungry Jacks Pty Ltd (Malone’s case),[30] the Tribunal considered whether comments made in the course of supplying goods and services about the applicant’s gender amounted to a breach of the Act. The Tribunal found that the comment made was attributable to the applicant’s gender identity and that the applicant found the comment to be offensive.[31] The Tribunal observed that in determining whether or not there has been less favourable treatment of the applicant, the fact that the comment was made in circumstances where it was not intended to be heard by the applicant and that the comment was not ‘inherently nasty’ was relevant.[32] The Tribunal in dismissing the complaint referred to the other comparable cases,[33] such as Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd (Moffat’s case)[34] and Abo El Wafa v England and Kennedy Taylor (Qld) Pty Ltd (Abo’s case).[35] The Tribunal observed that in Moffat’s case the Tribunal was not satisfied that comments described as ‘ham fisted’ were less favourable treatment because the remarks had been made.[36] In Abo’s case, the Tribunal observed that comments had been made which no doubt bore directly on the complainant’s race and caused offence but were not meant to be offensive and was found to be not less favourable treatment.[37] In Malone’s case the Tribunal ultimately found that the circumstances of each alleged background comment can neither be proved or tested.[38]
  7. [16]
    It was previously held by the Tribunal in Singh v Shafston Training One Pty Ltd and Anor[39] that comments made on the basis of the applicant’s national origin was less favourable treatment than the treatment of students who were not of the same national origin in circumstances that are the same or not materially different.[40] In Singh’s case the applicant alleged that he was treated less favourably than other students because he is of Indian background and that he was discriminated against because he made complaints about the treatment. The Tribunal found that the applicant had been directly discriminated by the respondent in the making of the comments. The Tribunal also found, amongst other things, that the applicant was victimised and awarded him an amount of money for compensation.
  8. [17]
    In Park v State of Queensland & Anor,[41] the Tribunal was not satisfied having preferred the evidence of the second respondent, that the applicant was discriminated against by the respondent on the basis of race. The Tribunal found that words or comments alleged to have been said to the applicant, even if they were said, do not amount to discrimination under the Act.[42] The Tribunal found that if the words were said they may be ‘insulting or such to cause offence’ but did not amount to any particular treatment of the applicant and that there cannot be any direct discrimination under the Act.[43]
  9. [18]
    The Full Court of the Federal Court found that the making of a remark or comment in the workplace is an ‘act’ and, depending on the circumstances in which the remark was made, may be a contravention of the relevant Commonwealth legislation, the Racial Discrimination Act 1975 (Cth).  In Qantas Airways v Gama (‘Qantas’ case’),[44] the Court observed that a ‘linkage may be drawn’ between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or ‘the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic’.[45] In addressing a ground of appeal concerning the learned Magistrate’s finding that a remark or comment made in the workplace was capable of giving rise to a contravention of the Commonwealth Act, the Court found that it was open to the learned Magistrate to make findings about the remarks, including being satisfied that the making of them impaired Mr Gama’s employment or the exercise of his right to work and to just and favourable conditions of work.[46] In answering the question as to whether two or three racist remarks can impair a person’s enjoyment of his or her right to work or to just and favourable conditions of work, for the purposes of s 9(1) of the Commonwealth Act, the Court said that much will depend upon the nature and circumstances of the remark -‘[o]ccasional politically incorrect banter will be unlikely to have the requisite purpose or effect’.[47]

Summary of the Tribunal’s findings relevant to the grounds of appeal

  1. [19]
    The Tribunal’s reasons identify the evidence given by Mr Bero and the respective respondents relevant to the incidents of alleged discrimination concerning the ‘Nigerian scammer comment’ and the ‘boiler room incident’. The Tribunal made findings under separate headings about the complaints of ‘vilification’ and ‘victimisation’. The Tribunal also made findings about the medical evidence and costs of the application referring the complaint.
  2. [20]
    The Tribunal’s observations about Mr Bero and Mr Russo’s evidence in relation to the ‘Nigerian scammer comment’ are set out in paragraphs [25] to [39], inclusive. The reasons also set out the background of Mr Bero’s complaint giving rise to the ‘Nigerian scammer’ incident that took place on 20 May 2014. The relevant extract of the Tribunal’s reasons is as follows [footnotes emitted]:[48]

As part of his employment, [Mr Bero] was required to participate in a Bobcat Refresher training course. When he arrived at the training room for the refresher course, [Mr Russo] called out to him and referred to him as a "Nigerian Scammer". He also said "You look like a Nigerian Scammer". [Mr Russo] was laughing at the time. There were other people entering the room at the time. [Mr Bero] found the comment to be very offensive and racist.

  1. [21]
    The reasons show that Wilmar Sugar Pty Ltd and Mr Russo do not dispute that the ‘Nigerian scammer’ comment took place within the workplace.[49] Notwithstanding the fact that the comment was made in the workplace, the learned Member ultimately found that the words exchanged between Mr Russo and Mr Bero was ‘banter’ between two work colleagues. The Tribunal observed that Mr Russo was only joined late into the proceedings and that this could only be considered ‘as an afterthought’.[50] The Tribunal said at [37]:

Despite this incident being the first in time for the complaints, [Mr Russo] was only joined late into the proceedings. His joiner could only be considered as an afterthought, a means for [Mr Bero] to support his overall allegations of victimisation against [Wilmar Sugar Pty Ltd], in particular the suggestion that there was a culture of racism amongst [Wilmar Sugar Pty Ltd].

  1. [22]
    The Tribunal found that the conduct of Mr Russo does not constitute an act of direct discrimination within the meaning of the expression defined in the Act. The relevant extract of the reasons at paragraphs [38] and [39] is as follows:

[Mr Russo’s] use of the phrase Nigerian Scammer towards [Mr Bero] and [Mr Bero’s] response by calling [Mr Russo] 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.

For [Mr Bero] 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 [Mr Russo] 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.

  1. [23]
    The Tribunal summarised Mr Bero’s contentions in relation to ‘Nigerian scammer comment’, the ‘boiler room incident’ and an earlier complaint made by Mr Bero concerning the same employer, Wilmar Sugar Pty Ltd. The Tribunal observed that although Mr Russo had provided an apology to Mr Bero, Mr Bero’s position is that the comment, meaning the ‘Nigerian scammer comment’, was ‘of greater humiliation than the conduct of the other Respondents in the boiler room incident’.[51] 
  2. [24]
    The reasons show that Mr Bero contended that both the ‘Nigerian scammer comment’ and the ‘boiler room incident’ were ‘not isolated occurrences’ of him being treated less favourably within the workplace.[52] The Tribunal identified the ‘examples’ (of the other occurrences) as contended by Mr Bero as being the ‘location of the swastika’ (‘the swastika allegation’).[53] The Tribunal also made observations about the swastika allegation in addressing Mr Bero’s earlier complaints of discrimination. The learned Member observed that Mr Bero made an allegation of discrimination when he first started working for Wilmar Sugar Pty Ltd in 2011.[54] The learned Member observed that Mr Bero claimed that he found a swastika sign painted on the floor at work and made a complaint to the Anti-Discrimination Commission some four years later. The learned Member observed that that complaint was rejected by the Commission.[55]
  3. [25]
    The Tribunal summarised Mr Bero’s evidence about his work and relationships with other employees. That is, Mr Bero contended that for the first two seasons of work at Wilmar Sugar Pty Ltd, half of his work colleagues at the Mill did not talk to him; and, it was only when he went into the third season that ‘these people’ would say ‘hello’ to him; and, he tried to not let the ‘racist attitudes’ of the others get to him.[56]
  4. [26]
    In relation to the ‘boiler room incident’ that took place on 8 June 2018, the Tribunal summarised the evidence and made findings at paragraphs [40] to [84], inclusive, of its reasons. The incident happened at the end of a shift and involved an exchange of words between certain employees (Mr Chatfield and Mr Powell) and as alleged by Mr Bero when the words were said some gestures were made together with a comment by another employee (by Mr Luke). The learned Member found that it was possible that Mr Bero heard the words that were alleged to have been said by the other employees.[57]  The relevant extract from the Tribunal’s reasons is as follows [footnotes emitted]:[58]

The allegations are that at approximately 5:40am on 8 June 2014 [Mr Bero] was waiting to be relieved by the next shift. He was sitting down in the locker room. He saw [Mr Powell] approach his own locker to put his tools away. [Mr Chatfield] was present and he said to [Mr Powell] "breakout the clapstick".

[Mr Powell] replied "it's a kanaka stick and Pete can play the didge”. [Mr Powell] then made the action of an aboriginal man dancing and singing as he hit two shifting spanners together.

Other employees were present, including [Mr Luke]. [Mr Bero] 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 [Mr Russo] 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.

[Mr Luke] 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 [Mr Bero] 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. [27]
    The Tribunal found that the words ‘Pete can't hear you 'cause he is listening to Charley Pride’ were said by Mr Luke and that he (Mr Luke) wrote an apology to Mr Bero for making those comments.[59] The Tribunal found that Mr Chatfield said words to the effect of 'break out the clapstick' and that he (Mr Chatfield) wrote an apology for making that comment.[60] The Tribunal was not satisfied, however, that Mr Powell said the words ‘it's the Kanaka Stick and Pete will play the didge’ or that Mr Powell hit two shifting spanners together as he danced and sang ‘like an aboriginal man’.[61] The reasons show that the learned Member accepted the submissions made on behalf of the respondents.[62]  The learned Member found that ‘the comments’ were made amongst work colleagues at the end of the shift and the comments should be accepted as ‘an innocent or substantially innocent remark’.[63]
  2. [28]
    The Tribunal considered relevant decisions concerning comments made and whether there had been less favourable treatment and a breach of the Act. The Tribunal distinguished Singh’s case from the facts before it and found that in this matter ‘there is no evidence of [Mr Bero] being treated less favourably’.[64] The Tribunal also distinguished the matter from Qantas’ case. The Tribunal was not satisfied that the comments made during the ‘Boiler room’ incident were calculated to ‘humiliate or demean [Mr Bero]’ and found that the comments made in both incidents were ‘perhaps insensitive and bad mannered, but in the Tribunal’s view were not deliberately offensive’.[65]
  3. [29]
    The Tribunal found the remarks as being ‘comparable’ to the remarks in Moffat’s case and Abo’s case and held that the comments made by the respondents are ‘not of a less favourable treatment of [Mr Bero], but rather they lacked sensitivity on behalf of the Respondents which caused offense to [Mr Bero]’.[66] The learned Member found that in the absence of any prior consistent behaviour or any subsequent behaviour, he could not be satisfied that the comments during both incidents were ‘calculated to humiliate or demean’ Mr Bero. The learned Member found that 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 [Mr Bero]’.[67]
  4. [30]
    In respect of the ‘Boiler room’ incident, the Tribunal found that words used must be accompanied by some other action to ‘bring it within the ambit of prohibition as prescribed within the legislation’.[68] The matter was held to be ‘not dissimilar’ to the facts in Park’s case and the Tribunal held that there is no evidence that the respondents treated or proposed to treat Mr Bero less favourably than a person not of the age or race of Mr Bero.[69] The Tribunal was satisfied that ‘the statements,’ meaning the comments alleged to have been said, do not amount to less favourable treatment of Mr Bero in any material way.[70]
  5. [31]
    The Tribunal also made findings about Mr Bero’s claim in relation to vilification, victimisation and the medical evidence. The Tribunal ultimately found that the comments or conduct involved in the training room on 20 May 2014 and the locker room on 8 June 2014 were not racial vilification.[71] The Tribunal was not satisfied that the decision by Wilmar Sugar Pty Ltd to not re-employ Mr Bero involved any suggestion of a nexus between that decision to not re-employ and the anti-discrimination proceedings. The Tribunal ultimately found that Mr Bero was not victimised by his employer.[72] In relation to the medical evidence, the Tribunal was not satisfied that there is a definitive nexus between the allegations raised and Mr Bero’s stress related illness.[73] The Tribunal observed that there have been multiple incidents impacting upon Mr Bero, ‘exacerbated by the legal process involved in the prosecution of his own application’.[74] The Tribunal ultimately found that Mr Bero had failed to establish ‘a nexus between his stress related illness and the matters complained of arising out of [the two incidents]’.[75]
  6. [32]
    In conclusion the Tribunal did not accept that Mr Bero was a completely truthful witness and found that his ‘disclosures’ about another incident on 15 September 2014 ‘is at odds with his testimony’.[76] The Tribunal observed that Mr Bero demonstrated on a number of occasions when giving his evidence that he was ‘not afraid or shy to be quite forceful when answering questions’.[77] The Tribunal also made observations about Mr Bero’s complaints of or other alleged earlier discriminatory activity involving his employment and found that Mr Bero’s explanation (about the earlier allegations) that he had failed to complain (about them) ‘is inconsistent with those features just identified…’.[78]

Leave to Appeal

  1. [33]
    An appeal to this Appeal Tribunal may only be made on a question of fact, or a question of mixed law and fact only if the party has obtained the Appeal Tribunal’s leave to appeal. Because Mr Bero’s application for leave to appeal or appeal raises questions of mixed fact and law, leave to appeal is necessary.[79] The question of whether or not leave to appeal should be granted is usually addressed according to established principles:
    1. (a)
      Is there a reasonably arguable case of error in the primary decision?[80]
    2. (b)
      Is there a reasonable prospect that Mr Bero will obtain substantive relief?[81]
    3. (c)
      Is leave necessary to correct a substantial injustice to the applicant caused by some error?[82]
    4. (d)
      Is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage?[83]
  2. [34]
    The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application. A useful summary is found in Canada (Director of Investigation and Research) v Southam Inc:[84]

Briefly stated, questions of law are questions about what the correct legal test is, questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

  1. [35]
    We are of the view that Mr Bero’s application for leave to appeal or appeal raises questions of mixed fact and law. We are also satisfied that there is a reasonably arguable case that there has been error in the Tribunal’s decision as to whether there have been acts of direct discrimination. Further, if that is the case Mr Bero would obtain substantive relief and an injustice would be corrected.  We also think that there is a question of general importance that arises in the determination of the appeal as to whether comments of the nature and in the circumstances of the present case amount to ‘treatment’ which contravenes section 7(g) of the Act, by virtue of section 10(1) of the Act. Leave to appeal is granted.

Appeal Grounds 1, 2 and 6 – The learned Member’s findings that the ‘Nigerian scammer’ comment was banter and there was no contravention of the Act

  1. [36]
    Grounds 1 and 2 concern the findings made by the Tribunal about the ‘Nigerian Scammer comment’. In particular, the learned Member’s findings that Mr Russo’s use of the phrase ‘Nigerian Scammer’ towards Mr Bero and his (Mr Bero’s) response by calling Mr Russo ‘Rocky’ was banter between two work colleagues. Furthermore, the learned Member’s findings that the use of the phrase ‘Nigerian Scammer’ towards Mr Bero does not constitute an act of direct discrimination under the Act.[85]
  2. [37]
    The grounds of appeal can be confined to simply whether it was open to the learned Member to make the finding of ‘banter’ in the context of the words exchanged between Mr Bero and Mr Russo. Mr Bero submits that the ‘Nigerian scammer’ comment was not banter as found by the learned Member, but a racial epithet made about Mr Bero that was offensive because it related to the colour of his skin.[86] Mr Bero submits that Mr Russo’s conduct contravened s 7(g) and 10 of the Act.
  3. [38]
    In written submissions, Mr Bero says that the evidence in relation to this incident was in conflict.[87] Mr Bero says that the learned Member has not defined what banter means. Mr Bero refers to the Macquarie Dictionary definition (of banter) that is ‘playful language; good humoured raillery…’[88] Mr Bero also says that the comment ‘had real sting in it’ because it directly vilified him, a person who has dark skin and who is not a dishonest or crooked person.[89] Mr Bero also says that his reaction saying ‘Get fucked Rocky’ can be understood as evidence that he was not speaking in a light-hearted way.[90]
  4. [39]
    Mr Bero contends that the Tribunal’s findings were wrong in fact and law because of the admissions made by Mr Russo during cross-examination and the contradiction in the evidence of Mr Russo given during cross-examination.[91] Mr Bero says that Mr Russo contradicted his evidence, in that his affidavit did not say he made the Nigerian scammer comment in front of others, yet he admitted that fact in cross-examination.[92] Mr Bero says that Mr Russo deposed in his affidavit that others were in the room but he did not know if they could hear. Mr Bero also refers to Mr Russo’s evidence in that there were admissions made during cross-examination by Mr Russo that he used the phrase, and that he was in a management role and his comment was ‘probably’ not in keeping with Wilmar Sugar’s expectations outlined in the booklet published by Wilmar Sugar which referred to, amongst other things, ‘protection from unfair discrimination’.[93]
  5. [40]
    Mr Bero contends that despite the asserted conflicts in evidence the learned Member made adverse findings about his evidence given in the hearing and those adverse findings appear to have influenced the learned Member towards the finding of banter between the two men.[94] Mr Bero refers to the learned Member having found that he (Mr Bero) contradicted himself in evidence and that Mr Russo was joined as an afterthought to support his overall allegations of victimisation and racist work culture.[95] Mr Bero says that this particular finding is in error because the reference to Mr Russo and the ‘Nigerian scammer’ comment was set out in the initial complaint to the Commission dated 3 July 2014 along with other complaints.[96]
  6. [41]
    Mr Bero says that his evidence given during cross-examination leaves little doubt that he was offended by the comment and that he responded to Mr Russo because he (Mr Bero) was upset and offended by the comment.[97] Mr Bero contends that he was treated less favourably due to the colour of his skin and Mr Russo would not have treated another worker without the attribute of Mr Bero’s race in the same way, given the circumstances.[98] Mr Bero says that the Tribunal ought to have drawn inferences about the incident to make the ultimate finding that as a matter of law, because of s 133 of the Act, that Wilmar Sugar Pty Ltd was vicariously liable in respect of the conduct.[99]
  7. [42]
    At the hearing, Counsel for Mr Bero raised a further ground of appeal (Ground 6) that raises a question of law because it raises an issue of procedural fairness and the rule in Brown v Dunn.[100] Counsel submits that it was not put to Mr Bero during cross-examination that he was engaged in banter or that he (Mr Bero) found the remark to be humorous.
  8. [43]
    Counsel for Mr Bero submitted that the motive of Mr Russo in making the comment is irrelevant by virtue of s 10(3) of the Act. Counsel submitted that there is no evidence of a history of ‘banter’ between Mr Bero and Mr Russo and that the evidence showed no close relationship - it is not a relationship of mates having an off-the-cuff rough comment to each other.  Counsel for Mr Bero says that the foundation for the finding that this was banter between two people who are used to a bit of banter with each other is not there. 
  9. [44]
    We have carefully considered the written and oral submissions made in support of Mr Bero’s appeal. We have also considered the Tribunal’s reasons and the transcript of the hearing at first instance. It is non-controversial that Mr Russo said the words ‘looked like a Nigerian scammer’ to Mr Bero and that Mr Bero said ‘Get fucked Rocky’ to Mr Russo. It is also non-controversial that Mr Russo and Mr Bero had worked together and were known to each other because Mr Russo was a childhood friend of Mr Bero’s brother and Mr Russo knew Mr Bero’s parents.
  10. [45]
    Mr Bero deposed in his affidavit that the words were said to him by Mr Russo and he knew the words were directed at him. Mr Bero’s sworn evidence was that he was ‘taken back’ by Mr Russo, he continued to take a seat (in the training room) and he responded by saying ‘Get fucked Rocky’. Mr Bero deposed to having known ‘Rocky’ as being Mr Russo’s nickname from high school and that his brother is a childhood friend of Mr Russo. Mr Bero’s sworn evidence is that Mr Russo responded again by saying words to the effect ‘you look like a Nigerian scammer’ and that Mr Russo was standing at the front of the training room when he said the words. Mr Bero deposed that Mr Russo was laughing and by this stage more people had entered the room. The relevant extracts from Mr Bero’s affidavit is as follows:[101]

As I entered the room but had yet to take a seat at one of the desks, [Mr Russo] called out to me, ‘Nigerian Scammer’. I recall that [Mr Russo] said those words to me whilst looking at me, such that I knew that they were addressed at me. The words were said in a loud and audible tone such that the whole of the room could hear that they were said and directed towards me.

I recall that I was taken back by [Mr Russo] saying this to me. I continued to take a seat in the Training Room and responded by saying ‘Get fucked Rocky’. I am aware that ‘Rocky’ is [Mr Russo’s] nickname from high school. I am aware that this is his nickname as my elder brother, [Jimmy], is a childhood friend of [Mr Russo].

I recall that after I had said these words, I believe [Mr Russo] has again responded to me by saying words to the effect of ‘You look like a Nigerian Scammer’. I recall that as [Mr Russo] was saying these words he was still standing at the front of the Training Room. He was laughing and by this stage, more persons had entered the room. …

I recall that I was quite upset and angry that [Mr Russo] said these words to me. I recall that I had to then sit through the theory component of the course and then move to the practical component which were both conducted by Mr Russo. I recall that I did not want to nor did I feel that I could talk to [Mr Russo] during the course after these words were said.

  1. [46]
    Mr Russo deposed in his affidavit to saying the words ‘looked like a Nigerian scammer’ to Mr Bero. Mr Russo’s sworn evidence was that he did not intend to offend or upset Mr Bero and that Mr Bero did not appear to him to be offended or upset by his comment at the time. Mr Russo’s sworn evidence was that the words were said in a ‘light hearted manner’ and in the context of them ‘exchanging banter about the rugby’. The relevant extract from Mr Russo’s affidavit is as follows:[102]

In response to a comment Peter made about my [rugby] team (South Sydney) I said words in jest to Peter to the effect that he ‘looked like a Nigerian scammer’. Peter responded by saying words to me to the effect of ‘Get fucked Rocky’.

‘Rocky’ is not my nickname. It was not my nickname at high school.

I did not intend to offend or upset Peter, and he did not appear to me to be offended or upset by my comment at the time. I was not offended or upset by his ‘Get fucked Rocky’ comment to me. Our words were said in a light-hearted manner and in the context of us exchanging banter about the rugby.

  1. [47]
    The transcript shows that Mr Bero was cross-examined about his sworn evidence at the hearing. Mr Bero was questioned about whether Mr Russo was ‘trying to make a joke’ in relation to the comment made to him by Mr Russo. Mr Bero’s evidence in response was ‘No.’ Mr Bero said that he found the comment to be ‘racist’. Mr Bero was questioned about his comment ‘Get fucked Rocky’ that he made to Mr Russo. Mr Bero’s evidence was that he used the words ‘Get fucked Rocky’ because Mr Russo was ‘a look-alike’ meaning Mr Russo looked like the character Rocky (from the movie). Mr Bero accepted during cross-examination that the character Rocky was played by Sylvester Stallone in a movie. Mr Bero did not accept, however, that he made the comment to Mr Russo with reference to Mr Russo’s Italian heritage. Mr Bero accepted that both comments were offensive. Mr Bero’s evidence was that they (he and Mr Russo) were ‘both on even terms’ when questioned about whether it was a ‘one all draw’ with reference to the exchange of words between him (Mr Bero) and Mr Russo. The relevant extract from the transcript is as follows:[103]

Mr Williams:…But you – did you believe that Mr Russo actually thought you were Nigerian?

Mr Bero: I don’t know. I…

Mr Williams: He was making a joke, wasn’t he?

Mr Bero: That’s a very offensive joke to me.

…

Mr Williams: But he was just trying to make a joke, wasn’t he?

Mr Bero: No. I don’t know. Let him get cross-examined and ask him about it….because I don’t know. I wouldn’t have a clue…Because I found that racist.

…

Mr Williams: Right. So Mr Russo’s called you a Nigerian scammer and you’ve called him an Italian boxer; is that right?

Mr Bero: Yeah; get fucked, Rocky.

Mr Williams: …Which do you think was the most offensive of those two comments?

Mr Bero: I don’t know. Both….So…If-if-if-if-I’m going to – if he’s going to point me out I’ll say both, then….So, well, just say we’re both on even terms, then.

Mr Williams: Yeah, and I would suggest to you exactly that?

Mr Bero: Yeah

Mr Williams: It was a one all draw, Mr Russo, wasn’t it?

Mr Bero: Yeah…Well, does he call his wife that - because his wife’s black.

Mr Williams: I don’t know. But you know that his [Mr Russo’s] wife’s black, don’t you?

Mr Bero: Yeah

…

Mr Williams: So you wouldn’t be imagining that he’s racist towards black people, would you?

Mr Bero: You’d have to ask him that.

  1. [48]
    It was open to the learned Member to make findings about the ‘Nigerian scammer’ comment including that the comments made in both incidents were, as found, ‘perhaps insensitive and bad mannered’ but were not ‘deliberately offensive’. As found in Park’s case, the remarks may have been ‘insulting or such to cause offence’ but do not amount to unfavourable treatment for the purposes of
    s 10 of the Act.
  2. [49]
    The Tribunal had evidence before it of Mr Bero and Mr Russo having known each other since school, Mr Bero’s brother being a friend of Mr Russo at school and Mr Russo having known Mr Bero’s parents. Mr Bero also knew Mr Russo by the nick name “Rocky” because of the relationship Mr Russo had with Mr Bero’s brother in school. The Tribunal also had evidence before it of Mr Bero’s response to the comment made by Mr Russo and Mr Russo’s evidence about the comment.
  3. [50]
    We do not consider there to be any material conflict in the evidence given by Mr Russo as to whether the ‘Nigerian scammer’ comment was made in front of others. Mr Russo admitted that fact in cross-examination.[104] Mr Russo’s affidavit at paragraph [7] swears that others were in the room but he did not know if they could hear.[105] We do not consider that there is any error by reason of the Tribunal’s failure to mention Mr Russo’s admission during cross-examination that his comment was probably not in keeping with Wilmar Sugar’s expectations as set out in the booklet.[106]
  4. [51]
    The learned Member preferred the evidence of Mr Russo to Mr Bero. Mr Russo’s evidence was that the words were said to Mr Bero in a ‘light-hearted way’ in the context of ‘exchanging banter’.[107]  It was open to the Tribunal to make findings that the exchange of words was banter and that there was no contravention of the Act. Because it was open to the learned Member to make those findings the submissions made by Mr Bero that the ‘Nigerian scammer’ comment is a racial epithet must fail.
  5. [52]
    We accept the meaning of ‘banter’ can include ‘playful teasing language’ and ‘good humoured raillery’, as proffered by Mr Bero in his written submissions.[108] The transcript shows Mr Bero was given an opportunity to give evidence about the exchange of words when he was asked by the respondent’s legal representative if Mr Russo was ‘making a joke’. Mr Bero gave evidence to the effect that he and Mr Russo were both on even terms. The learned Member’s finding that there was no contravention of the Act, given the context and the evidence before him, was open for him to make.
  6. [53]
    Given that the Tribunal found there was no ‘prior consistent behaviour, or subsequent behaviour’[109], it was not open to the Tribunal to find, as submitted by Mr Bero, that there was a poor workplace culture and attitude to dark skinned or indigenous people; that no reasonable steps were taken by Wilmar Sugar Pty Ltd to prevent contravention of the Act, its booklet not being treated as a stern instruction; and as a matter of law Wilmar Sugar Pty Ltd is vicariously liable for the acts of Mr Russo.[110] We agree with Mr Bero that there may have been no good basis for the learned Member to suggest that he (Mr Bero) had only joined Mr Russo as ‘an afterthought’. However, we do not think that adverse finding is determinative of whether the learned Member otherwise had a sufficient basis for concluding that the exchange was banter.
  7. [54]
    Finally, we are conscious of the adverse findings of credit made by the learned Member, which no doubt affected his preference for the evidence of Mr Russo and the ultimate finding that the exchange of words between Mr Bero and Mr Russo was banter and there is no contravention of the Act. The reasons show that the learned Member made findings about the evidence having drawn inferences about the demeanour of Mr Bero as a witness giving evidence during cross-examination. The learned Member was not satisfied that Mr Bero was ‘a completely truthful witness’ referring to Mr Bero’s evidence about another incident on 15 September 2014.[111] The learned member observed that Mr Bero was ‘not afraid or shy to be quite forceful when answering questions’ and Mr Bero was ‘not restrained in voicing his opinion when he thought that the cross-examiner was attacking him’ and at times was observed to be ‘aggressive in his mannerism in the witness box’.[112] The learned Member had the benefit of seeing Mr Bero and all of the witnesses give evidence during cross-examination including their viva voce evidence. It was open for the learned Member, having formed a view about all of the evidence including the demeanour of Mr Bero during cross-examination, to make relevant findings.
  8. [55]
    It is not appropriate for the Appeal Tribunal to disturb the findings made by the learned Member where ‘demeanour may have played a part in making those findings’.[113] We rely on the High Court decision of Fox v Percy, where Gleeson CJ, Gummow and Kirby JJ cited a passage from Isaacs J in Dearman v Dearman,[114] where His Honour said:[115]

So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit…the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal. The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal… 

  1. [56]
    Mr Bero has failed to raise any matter which would cause this Appeal Tribunal to disturb the finding of the learned Member that in respect of the ‘Nigerian Scammer comment’ there is no contravention of the Act. The learned Member’s finding was sufficiently based on the evidence. There is no evidence upon which a finding can be made that the banter or exchange of words between Mr Bero and Mr Russo was less favourable treatment than if Mr Russo had been engaging in banter with other employees who are not of the same race as Mr Bero or do not have the same skin colour. There can be no inference drawn from the evidence that banter with other employees who do not have the same skin colour was different or less offensive. There is no basis to overturn the finding that the exchange between Mr Russo and Mr Bero was banter. There is no basis to find that the comments can be characterised as less favourable treatment on the basis that Mr Bero is a Torres Strait Islander person. Grounds 1 and 2 of the appeal are dismissed.
  2. [57]
    Turning now to Ground 6. We refuse leave to amend the application for leave to appeal or appeal to include the further ground of appeal (Ground 6). It is settled law that Browne v Dunn[116] is authority for the rule of evidence that requires a party proposing to contradict the evidence given of a witness to firstly put the proposition to the witness so that the witness has an opportunity to explain the contradiction.  Although the Tribunal is not bound by the rules of evidence, it must observe the rules of natural justice.[117] This requires the Tribunal to act fairly and, as prescribed in s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to take all reasonable steps to ensure a party understands the nature of assertions made in the proceeding and the legal implications of the assertions. Mr Bero was legally represented at the hearing and was given an opportunity to give oral evidence about the incident. The transcript shows that Mr Bero was cross-examined about Mr Russo’s comment, in particular that Mr Russo was making a joke. We have found no error in the learned member’s finding that the exchange of words was banter. Indeed, Counsel for Mr Bero said at the oral hearing that the better argument about the question of the finding of banter is probably not the rule in Browne v Dunn but rather the history of the relationship between the men. Counsel for Mr Bero referred to the absence of a finding by the learned Member as to the meaning of banter. For completeness we refuse leave to amend the application for leave to appeal or appeal on the basis that, as contended, the learned Member failed to define the meaning of banter. As we have said above in disposing of grounds 1 and 2 of the Appeal, there is no error in the finding of banter the Tribunal having accepted the evidence of Mr Russo. Leave to amend the application for leave to appeal or appeal to include a further ground (Ground 6) is refused.

Appeal Grounds 3 and 4 – The learned Member’s findings about the ‘boiler room incident’

  1. [58]
    Grounds 3 and 4 concern the findings made by the Tribunal about the ‘boiler room’ incident. In particular, the Tribunal’s findings about Mr Luke’s use of the phrase ‘break out the clapstick’ and Mr Chatfield’s use of the phrase ‘Pete can’t hear you ‘cause he is listening to Charlie Pride’ in the presence of Mr Bero.[118] Mr Bero contends that the Tribunal’s findings were wrong in fact and law because the comments were not innocent or substantially innocent remarks, and a finding of unlawful discrimination should have been made because Mr Bero was treated less favourably than a person not of the age or race of Mr Bero.[119] Mr Bero says the Tribunal ought to have drawn inferences about the incident to make the ultimate finding that as a matter of law, because of s 133 of the Act, Wilmar Sugar Pty Ltd was vicariously liable in respect of the conduct.[120]
  2. [59]
    In written submissions, Mr Bero says that the evidence in relation to the ‘boiler room’ incident was also in conflict, and Mr Bero was not cross-examined about his feelings of depression and humiliation following the incident. Mr Bero submits that the theme of the cross-examination was that the comments were joking comments. Mr Bero says that he gave evidence that he did not find the comments to be a joke.[121]
  3. [60]
    Mr Bero submits that he complained to his Wilmar Sugar’s site manager about the incident on 10 June 2014.[122] Mr Bero says that the learned Member agreed with the respondents’ submission that ‘the comments should be accepted as an innocent or substantially innocent remark’.[123]
  4. [61]
    Mr Bero submits that the Tribunal erred in its application of Qantas case,[124] in not being satisfied that the comments ‘were calculated to humiliate or demean the Applicant’ or that the Boiler room comments were ‘innocent or substantially innocent remarks’.[125] Mr Bero says that Qantas’ case was decided under the Commonwealth Act and in that case the intention of the person making the comment was relevant. Mr Bero says that the learned Member’s findings run contrary to s 10(3) of the Act because the person’s motives for making the comments were irrelevant.[126]
  5. [62]
    Mr Bero refers to Barney’s case as being relevant authority in this matter and submits that the intention of the person making racial comments is irrelevant.[127] Mr Bero also refers to the decision in Sailor’s case and says that it is an example of a case where remarks based on race and skin colour were held to contravene s 7(g) of the Act. Mr Bero refers us to the relevant findings made in Sailor’s case at paragraph [61] as follows:

Mr Hubbucks treated Mr Sailor less favourably than he would have treated a non-indigenous person in the same or similar circumstances. “Once the finding is made that the racial epithets were used, the inference is inescapable that the way in which she was treated was less favourable than the way in which other passengers were treated on the ground of the complainant’s race”.

  1. [63]
    Finally, Mr Bero submits that the Appeal Tribunal ought to find that the ‘Nigerian scammer’ and the ‘boiler room’ comments were, for the purposes of s 10 of the Act, direct discrimination on the basis of an attribute namely race because of Mr Bero’s skin colour as this was treatment that was less favourable of Mr Bero than another person without the attribute in circumstances that are the same or not materially different. Mr Bero says that this discrimination was prohibited by virtue of s 7(g) of the Act and the learned Member found that the comments were made during the course of work.[128]
  2. [64]
    We have considered Mr Bero’s submissions and evidence that was before the Tribunal, in particular the sworn affidavits of Mr Bero, Mr Chatfield and Mr Luke.
  3. [65]
    Mr Bero’s sworn evidence was that Mr Chatfield said to Mr Powell, ‘break out the clapstick’ and that Mr Powell said in response ‘It’s the Kanaka Stick and Pete will play the didge’. Mr Bero deposed in his affidavit that Mr Powell at the time of making the remark ‘began to gesture his legs and arms of an Aboriginal dance and began to sing’.[129] Mr Bero said that Mr Powell, Mr Chatfield, Mr Luke and other employees ‘began laughing’. Mr Bero’s sworn evidence was that he was ‘upset with what was being said’ and that he found the comments ‘particularly racist’ as he was the only indigenous co-worker present.[130] Mr Bero said that he tried to ignore the comments and began listening to music though earphones on his mobile phone.[131] Mr Bero deposed to Mr Luke saying words to the effect ‘Pete can’t hear cause his listening to Charley Pride’.[132] Mr Bero said that Mr Powell, Mr Chatfield, Mr Luke as well as other employees ‘continued to laugh’.[133] Mr Bero said that he was ‘extremely upset and distressed’ as to the comments, he stood up and went and sat at the spare man table which is located in a different part of the room. Mr Bero said that he travelled home after Mr Powell and Mr Chatfield had ‘clocked off’. Mr Bero said that he travelled home ‘feeling extremely depressed, humiliated and upset’ about the remarks and deposed to the remarks as being ‘racist remarks directed at [him] such that [he] was belittled’.[134]
  4. [66]
    Mr Chatfield’s evidence about the incident is that he said words to the effect of ‘bring out the chapstick’ when he meant to say ‘bring out the clapsticks’.[135] Mr Chatfield deposed in his affidavit to making jokes and laughing. Mr Chatfield did not remember if Mr Powell said words to the effect of ‘it’s the Kanaka Stick and Pete will play the didge’. Mr Chatfield did not remember if Mr Powell was ‘singing and dancing’ and that Mr Luke said words to the effect ‘Pete can’t hear you ‘cause he is listening to Charley Pride’.[136] Mr Chatfield’s sworn evidence was that on 1 September 2014 he wrote a letter to Mr Bero apologising for the ‘bring out the clapsticks’ comment that he made on 8 June 2014.[137]
  5. [67]
    Mr Luke’s sworn evidence before the Tribunal was that he once said words to the effect of ‘Peter listens to Charlie Pride’ but could not remember if he made the comment on 8 June 2014 or at another time.[138] Mr Luke deposed in his affidavit to having said the words to Mr Bero because he (Mr Bero) listened to music at work during his shifts and on his breaks. Mr Luke’s sworn evidence was that he himself listens to ABC radio at work and the ABC plays Charley Pride songs. Mr Luke deposed in his affidavit to not knowing what music Mr Bero listens to and that the comment made to Mr Bero was ‘meant to be a joke about [Mr Bero] always listening to music at work’.[139] Mr Luke’s sworn evidence was that he apologised to Mr Bero for saying ‘the Charley Pride comment’ and on 12 August 2014 he wrote a letter of apology to Mr Bero.[140] In relation to the incident on 8 June 2014, Mr Luke’s sworn evidence was that he never heard Mr Chatfield say ‘break out the clapsticks’ or ‘break out the chapsticks’ and he never heard Mr Powell say words to the effect of ‘It’s the Kanaka Stick and Pete will play the didge’ and had never seen Mr Powell sing in an attempt to imitate a traditional Aboriginal dance.[141]
  6. [68]
    We accept Mr Bero’s submission that the learned Member has in one part of its reasons incorrectly identified the evidence in terms of which witness said which comment first. For example, the Tribunal found at paragraph [83] that Mr Luke said ‘Pete can’t hear you ‘cause he is listening to Charley Pride’ and at paragraph [84] that Mr Chatfield said words to the effect of ‘break out the clapstick’. As set out above, the evidence before the Tribunal was that Mr Chatfield firstly said ‘bring out the chapstick’ when he in meant to say ‘bring out the clapsticks’ and then Mr Luke said, as found by the Tribunal, ‘Pete can’t hear you ‘cause he is listening to Charley Pride’. The Tribunal did however correctly set out the evidence with respect to the comments made when summarising Mr Bero’s contentions in paragraphs [40] to [43] of its reasons.
  7. [69]
    Although the Tribunal incorrectly identified in one part of its reasons the evidence in terms of which comments were made by each of the respective respondents, there is no error in the Tribunal’s finding that the comments made ‘lacked sensitivity’,[142] were ‘inappropriate’[143] and may have been ‘insulting’[144] and ‘caused offence’[145] but did not constitute ‘treatment’ or ‘less favourable treatment’ of Mr Bero.[146] It was open to the Tribunal to make findings about the evidence including not being satisfied that Mr Powell said the words ‘it’s the Kanaka Stick and Pete will play the didge’ and that Mr Powell did not hit two shifting spanners together as he danced and sang ‘like an Aboriginal man’. Those findings concerning the conduct of Mr Powell are not challenged on appeal.
  8. [70]
    The learned member was required to make findings of fact as to whether there was any treatment of Mr Bero at all, and, if there was, whether it was less favourable treatment.  It was open to the Tribunal to find that the comments made by Mr Chatfield and Mr Luke do not amount to less favourable treatment of Mr Bero.[147] It was open to the learned Member to find that the words were ‘indeed inappropriate’, the words may have been insulting and ‘on [Mr Bero’s] version, they caused offence’ but does not constitute treatment of Mr Bero in any particular way.[148]
  9. [71]
    The transcript shows that Mr Bero was cross-examined about the comments made in the boiler room. Mr Bero accepted during cross-examination that, as deposed in his affidavit, Mr Chatfield said to Mr Powell ‘break out the clapstick’ and that Mr Powell replied ‘humorously’ to Mr Chatfield saying ‘it’s the kanaka stick and Pete can play the didge’.[149] Mr Bero accepted when questioned that Mr Powell was trying to be humorous and that it was Mr Powell’s intention to make him (Mr Bero) laugh.[150] Mr Bero said, however, that he was not laughing.[151] The Tribunal accepted that Mr Bero found the comment to be very offensive and racist.[152]
  10. [72]
    The transcript shows that Mr Bero was questioned about the comments with reference to his heritage and aspects of his culture. Mr Bero’s evidence was that in relation to the Kanaka stick comment, it was not his culture and that he had never heard of a kanaka stick. Mr Bero also said that a didgeridoo had no relevance in his culture. When questioned about Mr Powell’s ‘dance’, as contended (by Mr Bero), Mr Bero accepted when questioned that that dance had no relevance to his culture and said that ‘they insulted my partner’s culture’ referring to the fact that his partner is half Aboriginal and his eldest brother’s partner is Aboriginal.[153] Mr Bero accepted when questioned that there is no insult in playing the didgeridoo. Mr Bero stated that ‘you got to know where didgeridoos come from first of all’ referring to having to ‘learn that’ in the context of ‘different tribes or different cultures’.[154] When questioned about whether the comments were ‘ignorant comments’, Mr Bero said, ‘Yes. And racial’. Mr Bero said that he was the only indigenous employee that has been employed for four years ‘at the boiler area’.[155]
  11. [73]
    Mr Bero confirmed when giving his evidence that he had a friendly relationship with each of Mr Luke, Mr Powell and Mr Chatfield and that the comments were made at the end of a shift.[156] The context was work colleagues who were friends. That was relevant to the factual conclusion of the learned Member that the comments were innocent or substantially innocent, which were offensive and poorly judged. As we have said above, Mr Bero was legally represented at the hearing and was given an opportunity to give his evidence during cross-examination. In those circumstances it was open to the learned Member to find that the remarks were innocent or substantially innocent having had the benefit of hearing the evidence.
  12. [74]
    The learned Member reached the ultimate conclusion at paragraphs [94] and [95] of the reasons that there was no evidence supporting the finding of less favourable treatment.  In relation to the Boiler room comments the Tribunal found that, in context, they did not amount to any particular ‘treatment’ of Mr Bero in any material way. On this basis it is not possible to find as Mr Bero submitted that he was treated less favourably than others because the comments were made in his presence and related to his race or his skin colour. It was not necessary for Mr Bero to be further cross-examined about his feelings of depression and humiliation as contended by Mr Bero. As we have set out above, the Tribunal accepted that Mr Bero found the comments to be offensive and racist. Further, there was no evidence as to how the Respondents engaged in exchanges with other work mates who were not of the same race or skin colour.
  13. [75]
    Mr Bero does not dispute that Mr Chatfield made the first comment to Mr Powell and Mr Powell responded. Mr Bero accepted that Mr Powell was trying to be humorous and amongst other things that the comments were ignorant. Mr Bero had a friendly relationship with each of Mr Luke, Mr Powell and Mr Chatfield. Mr Bero’s evidence is that he effectively disengaged from the incident because he said that he ignored the comments by putting his earphones into his ears and listened to music. There is no evidence that the comments was less favourable treatment for the purposes of s 10 of the Act.
  14. [76]
    There has been no error in the learned Member’s reference to Qantas’ case.  It was open to the learned member to make findings about the context of the comments relevant to the circumstances of the complaint and whether there was less favourable treatment on the basis of Mr Bero’s race. The learned Member was making findings of mixed fact and law which were necessary about the character of the conduct and his consideration as to whether the conduct involved ‘treatment’ and if it did, ‘less favourable treatment’ for the purposes of s 10 of the Act.
  15. [77]
    As to whether there has been an error by the learned Member taking into account the intention of the respective respondents in making the comments, the reasons show that the learned Member referred to ‘intention’ for the purpose of characterising the comments in the context in which they were made, not for the purpose of determining if there has been discriminatory treatment of Mr Bero.  The learned Member has not applied a test described in Qantas’ case to a legislative regime where ‘intention’ to discriminate is irrelevant. There has been no error of law on the part of the learned Member in applying the law to the facts and the conclusion reached that there has been no unfavourable treatment of Mr Bero.

Appeal Ground 5 – findings relevant to any assessment for compensation

  1. [78]
    For the sake of completeness, we will consider the issue of quantum of damages. The Respondents have submitted that if the learned Member’s finding is overturned and a substituted finding that there has been unlawful conduct is made, then as an alternative to any compensation process, the Respondents will be content with the orders specifically sought in relation to compensation.  The authorities do, in this jurisdiction and in others, enable the making of limited orders of compensation for hurt and humiliation, even without any significant medical evidence or evidence of real personal injury.  There is a foundation for this Appeal Tribunal to do the same.
  2. [79]
    We accept the Respondents submissions.  If the learned Member’s finding had been overturned we would have made orders as sought by Mr Bero for compensation for humiliation and interest in the amounts claimed.

Conclusion

  1. [80]
    In relation to the ‘Nigerian scammer’ comment, we have found no error in the Tribunal’s findings. The transcript shows that Mr Bero was cross-examined about Mr Russo’s comment. The Tribunal’s finding that the exchange of words between Mr Bero and Mr Russo was banter was made in the context of the circumstances surrounding the making of the comment, such as the relationship between Mr Bero and Mr Russo who were known to each other outside of the working environment. The Tribunal preferred Mr Russo’s evidence that the comment was made by him in a ‘light-hearted way’. It was open to the Tribunal to find that the conduct does not constitute an act of discrimination as defined in the Act.
  2. [81]
    In relation to the ‘boiler room’ incident, there is no error in the learned Member’s findings that comments do not amount to less favourable treatment for the purposes of the Act. It was open to the learned Member to make findings about the context in which the comments were made. There has been no error in the Tribunal’s reference to Qantas’ case. The reasons show that the learned Member referred to the ‘intention’ of the respective Respondents for the purpose of characterising the comments in the context in which they were made.
  3. [82]
    The Appellant has not succeeded in his appeal.  The appeal is dismissed.

Costs

  1. [83]
    Mr Bero submits that if he is not successful in the Appeal, it is not appropriate to award costs against him.  The usual rule is that each party bears its own costs.[157]  In relation to the interests of justice, the ‘Nigerian scammer’ comment is said to be of particular gravity; it happened in front of others and caused hurt and humiliation.  The matter affected Mr Bero deeply. In those circumstances it is said that it would be inappropriate to award costs against him.
  2. [84]
    The Respondents submit in response that Mr Bero’s purpose in the litigation, including the appeal was to punish, to teach and expose. They say that they are improper purposes because the purpose of litigation should be to vindicate rights.  In the circumstances they seek their costs of the appeal.
  3. [85]
    We decline to order costs in favour of the Respondents.  We do not consider it to be in the interests of justice that the usual rule under s 100 of the QCAT Act not be applied.[158]
  4. [86]
    In particular, having regard to the matters set out in s 102(3) of the QCAT Act we are of the view that there is a degree of complexity in anti-discrimination matters which justifies the engagement of legal representatives. The cost of that engagement has not diminished the value of the Respondent’s success.  Mr Bero’s case, although not successful was arguable.  Mr Bero, as conceded by the Respondents is a man of not unlimited means, whereas Wilmar Sugar Pty Ltd at least is a party with means.  On balance no order is made as to costs.

Footnotes

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

[2]  Application for leave to appeal or appeal filed on 8 November 2016.

[3] Fox v Percy (2003) 214 CLR 118, 129 (Gleeson CJ, Gummow and Kirby JJ).

[4]Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2011] QCATA 115 citing Dearman v Dearman (1908) 7 CLR 549, 561 and Fox v Percy (2003) 214 CLR 118, 125-127.

[5]  Submissions on behalf of the applicant filed on 7 April 2017.

[6]  Amended grounds of appeal/order sought filed on 7 April 2017, page 12.

[7]  (1893) 6 R 67.

[8]  Ibid. See Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147.

[9]  The Act, s 10, s 7(g).

[10] Woodforth v State of Queensland [2017] QCA 100 [29].

[11]  The Act, s 10, s 133.

[12]  Ibid, s 6(1).

[13] Barney v State of Queensland and Anor [2012] QCAT 695 [32] citing Chesson v Buxton (1990) EOC 92-295.

[14]  See Sailor v Hubbucks and Black & White (Quick Service) Taxis Ltd (No. 2) [2008] QADT 33.

[15] Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11 [17].

[16]  See Barney’s case.

[17]  [2012] QCAT 695.

[18]  Ibid [24].

[19]  (1990) EOC 92-295.

[20] Barney’s case [32].

[21]  Ibid [34].

[22]  Ibid [47].

[23]  Ibid [145].

[24]  Ibid.

[25]  [2008] QADT 33.

[26]  Ibid [30].

[27]  Ibid [34].

[28]  Ibid [48].

[29]  Ibid [63].

[30]  [2004] QADT 11.

[31]  Ibid [15]-[16].

[32] Malone’s case [17].

[33]  Ibid [19]-[20].

[34]  [1998] QADT 16.

[35]  [1997] QADT 27.

[36] Malone’s case [19].

[37]  Ibid [20].

[38]  Ibid [21]-[22].

[39]  [2013] QCAT 8.

[40]  Ibid [60].

[41]  [2013] QCAT 183.

[42]  Ibid [12].

[43]  Ibid [20].

[44]  (2008) FCR 537.

[45] Qantas’ case, 564 [76].

[46]  Ibid, 564 [78].

[47]  Ibid.

[48]  Reasons [28].

[49]  Ibid [63].

[50]  Reasons, [37].

[51]  Ibid [68].

[52]  Ibid [69].

[53]  Ibid [69].

[54]  Ibid [9]-[14].

[55]  Ibid [9]-[14].

[56]  Reasons [15].

[57]  Ibid [73].

[58]  Ibid [40]-[43].

[59]  Ibid [83].

[60]  Ibid [84].

[61]  Ibid [85].

[62]  Reasons [86].

[63]  Ibid [86].

[64]  Ibid [87].

[65]  Ibid [89].

[66]  Ibid [90].

[67]  Ibid.

[68]  Ibid [93].

[69]  Ibid [94].

[70]  Ibid [95].

[71]  Ibid [104].

[72]  Ibid [152]-[155].

[73]  Reasons [173].

[74]  Ibid.

[75]  Ibid [174].

[76]  Ibid [177].

[77]  Ibid [178].

[78]  Ibid.

[79]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).

[80] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[81] Cachia v Grech [2009] NSWCA 232 [13].

[82] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[83] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578-580.

[84] Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 [35]
(Iacobucci J).

[85] Amended grounds of appeal/orders sought filed on 7 April 2018.

[86]  Ibid, page 3.

[87]  Submissions on behalf of the applicant filed on 7 April 2017, page 3.

[88]  Ibid.

[89]  Ibid, page 5.

[90]  Ibid.

[91]  Submissions on behalf of the applicant filed on 7 April 2017, page 3.

[92]  Ibid.

[93]  Ibid, page 2.

[94]  Ibid.

[95]  Ibid, page 4.

[96]  Ibid.

[97]  Amended grounds of appeal/orders sought filed on 7 April 2018. See also Submissions on behalf of the applicant filed on 7 April 2017.

[98]  Ibid.

[99]  Ibid.

[100]  (1893) 6 R 67.

[101]  Appeal Book, pages 120 to 121. See Submissions on behalf of the applicant filed 7 April 2017, page 3.

[102]  Appeal Book page 124. See Submissions on behalf of the applicant filed 7 April 2017, page 3.

[103]  Appeal Book, pages 31 to 34.

[104]  Appeal Book, p 96, L1-6.

[105]  Ibid, p 124.

[106]  Ibid, p 96.

[107]  See Transcript, Appeal Book p 96.

[108]  Submissions on behalf of the applicant filed on 7 April 2017, page 3.

[109] Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 [91].

[110]  See Amended grounds of appeal/order sought filed 7 April 2017, page 3.

[111] Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 [177].

[112]  Ibid [178].

[113]Fox v Percy (2003) 214 CLR 118, 139.

[114]  (1908) 7 CLR 549, see 561-2.

[115] Fox v Percy (2003) 214 CLR 118, 139; Dearman v Dearman (1908) 7 CLR 549, 561-2.

[116]  (1893) 6 R 67.

[117]  QCAT Act, s 28(3)(a), s 28(3)(b).

[118]  Amended grounds of appeal/orders sought filed on 7 April 2018.

[119]  Ibid.

[120]  Ibid.

[121]  Submissions on behalf of the applicant filed on 7 April 2017, page 6.

[122]  Ibid.

[123]  Ibid.

[124]  (2008) 167 FCR 537.

[125]  Submissions on behalf of the applicant filed 7 April 2017, page 9.

[126]  Submissions on behalf of the applicant filed 7 April 2017.

[127]  Ibid.

[128]  Ibid, page 10.

[129]  Appeal Book, page 99.

[130]  Ibid, page 100.

[131]  Ibid.

[132]  Ibid.

[133]  Ibid.

[134]  Appeal Book.

[135]  Ibid, page 108.

[136]  Ibid.

[137]  Ibid, page 109.

[138]  Ibid, page 113.

[139]  Ibid, page 114.

[140]  Ibid, page 115.

[141]  Ibid, page 113.

[142]  Reasons [90].

[143]  Ibid [95].

[144]  Ibid.

[145]  Ibid.

[146]  Ibid.

[147]  Ibid [95].

[148]  Ibid.

[149]  Appeal Book, page 12.

[150]  Ibid.

[151]  Ibid, page 13.

[152] Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 [28].

[153]  Appeal Book, pages 13 to 14.

[154]  Ibid, page 14.

[155]  Appeal Book, page 14.

[156]  Ibid, page 8.

[157]  QCAT Act, s 100.

[158]  See QCAT Act, s 102.

Close

Editorial Notes

  • Published Case Name:

    Bero v Wilmar Sugar Pty Ltd & Ors

  • Shortened Case Name:

    Bero v Wilmar Sugar Pty Ltd

  • MNC:

    [2018] QCATA 104

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Browne, Member Fitzpatrick

  • Date:

    20 Jul 2018

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
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Cite 1 - (1997) QADT 27
Cite 2 - (1997) QADT 27
Barney v State Of Queensland and Anor [2012] QCAT 695
8 citations
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Cite 1 - [2012] QCAT 695
Cite 2 - [2012] QCAT 695
Cite 3 - [2012] QCAT 695
Cite 4 - [2012] QCAT 695
Cite 5 - [2012] QCAT 695
Cite 6 - [2012] QCAT 695
Cite 7 - [2012] QCAT 695
Cite 8 - [2012] QCAT 695
Bero v Wilmar Sugar Pty. Ltd. [2016] QCAT 371
5 citations
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Cite 1 - [2016] QCAT 371
Cite 2 - [2016] QCAT 371
Cite 3 - [2016] QCAT 371
Cite 4 - [2016] QCAT 371
Cite 5 - [2016] QCAT 371
Browne v Dunn (1893) 6 R 67
4 citations
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Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Cite 3 - (1893) 6 R 67
Cite 4 - (1893) 6 R 67
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
2 citations
Jump To
Cite 1 - [1997] 1 SCR 748
Cite 2 - [1997] 1 SCR 748
Chesson v Buxton (1990) EOC 9 2-295
3 citations
Jump To
Cite 1 - (1990) EOC 9 2-295
Cite 2 - (1990) EOC 9 2-295
Cite 3 - (1990) EOC 9 2-295
Dearman v Dearman (1908) 7 CLR 549
4 citations
Jump To
Cite 1 - (1908) 7 CLR 549
Cite 2 - (1908) 7 CLR 549
Cite 3 - (1908) 7 CLR 549
Cite 4 - (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
5 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Cite 5 - (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Malone v Pullen and Hungry Jacks Pty Ltd [2004] QADT 11
3 citations
Jump To
Cite 1 - [2004] QADT 11
Cite 2 - [2004] QADT 11
Cite 3 - [2004] QADT 11
Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2011] QCATA 115
1 citation
Jump To
Cite 1 - [2011] QCATA 115
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Park v State of Queensland & Anor [2013] QCAT 183
2 citations
Jump To
Cite 1 - [2013] QCAT 183
Cite 2 - [2013] QCAT 183
Qantas Airways Ltd v Gama (2008) 167 FCR 537
2 citations
Jump To
Cite 1 - (2008) 167 FCR 537
Cite 2 - (2008) 167 FCR 537
Qantas Airways v Gama (2008) FCR 537
1 citation
Jump To
Cite 1 - (2008) FCR 537
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
3 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41
Cite 3 - [2009] 1 Qd R 41
Sailor v Hubbucks and Black and White (Quick Service) Taxis Ltd (No. 2) [2008] QADT 33
7 citations
Jump To
Cite 1 - [2008] QADT 33
Cite 2 - [2008] QADT 33
Cite 3 - [2008] QADT 33
Cite 4 - [2008] QADT 33
Cite 5 - [2008] QADT 33
Cite 6 - [2008] QADT 33
Cite 7 - [2008] QADT 33
Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT 16
2 citations
Jump To
Cite 1 - (1998) QADT 16
Cite 2 - (1998) QADT 16
Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8
1 citation
Jump To
Cite 1 - [2013] QCAT 8
Teacher J v Queensland College of Teachers [2012] QCATA 115
1 citation
Jump To
Cite 1 - [2012] QCATA 115
Woodforth v State of Queensland[2018] 1 Qd R 289; [2017] QCA 100
1 citation
Jump To
Cite 1 - [2017] QCA 100

Cases Citing

Case NameFull CitationFrequency
Michalakellis v LMM Holdings Pty Ltd (No. 4) [2023] QIRC 2482 citations
1

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