Rowan v Beck[2021] QCATA 20

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   The events giving rise to these appeal proceedings occurred in 2015 as part of the operations of the Gympie Aero-Club (the Club). The respondent, Ms Jennifer Beck, was a flying instructor at the Club. The applicant, Mr Blair Rowan, was taught to fly by Ms Beck. He was a Club member and at relevant times served on the committee of the Club.
2. [2]
   Ms Beck is a transgender woman. In 2015, Mr Rowan wrote a series of emails to the committee of the Club discussing Ms Beck, which were later disclosed to Ms Beck.

History of complaints

3. [3]
   On 22 January 2016, a complaint making allegations of sexual harassment and vilification on the basis of gender identity (the complaint) was lodged by Ms Beck with the Anti ‑ Discrimination Commission Queensland (the ADCQ) against Mr Rowan.
4. [4]
   Ms Beck referred to a number of emails from Mr Rowan to office holders in the Club. They include, relevantly, emails dated 19 February 2015 and 25 February 2015, stating respectively:

1. (a)
   ...i will be far too busy broadsiding Jen Beck as to why we should clean his shit from the side of a toilet bowl but he cant (sic).

and also why he uses the female toilet?

2. (b)
   …How does a woman feel sharing a toilet or change room with a man? Ask your wives if it bothers them to sit on the same toilet his genitals may have just touched after being who knows where! And then he has the audacity to refuse to be on the toilet cleaning roster!

5. [5]
   Mr Rowan responded on 21 April 2016. As part of his response, Mr Rowan made 3 allegations of sexual harassment against Ms Beck. In summary, the allegations are:

   1. (a)
      on 4 January 2009 during flight instruction, Ms Beck said: ‘So you don’t mind a man coming up behind you then.’;
   2. (b)
      Ms Beck rubbed against him when he was inspecting a cupboard door in her caravan;
   3. (c)
      during September 2008 to July 2009 while instructing in flight, Ms Beck on multiple occasions made a circle with her thumb and first finger and slid it up and down the control stick, simultaneously bulging her left cheek with her tongue; and that
   4. (d)
      the vilification continues to this day as a result of his rejection and demonstrated disgust in the unwanted advances from Ms Beck.

6. [6]
   Mr Rowan also made allegations of vilification against Ms Beck, asserting she had impugned his competence as a pilot. We note that these allegations do not fall within the jurisdiction of the ADCQ.
7. [7]
   Recorded at the end of Mr Rowan’s response document in the ADCQ is a communication to an ADCQ staff member:

Ben, I offer to sign an agreement not to take any future legal action against Jennifer Beck if Beck rescinds the ADCQ complaints and the District court defamation and agrees to waive her right to future action or participation in same against me in future. Each to own costs.^[1]

8. [8]
   Mr Rowan applied to the Anti – Discrimination Commissioner to dismiss Ms Beck’s complaint as frivolous, trivial, vexatious, misconceived or lacking in substance.
9. [9]
   On 2 June 2016, the ADCQ determined that Ms Beck’s complaint was not frivolous, vexatious, misconceived or lacking in substance.
10. [10]
    Mr Rowan filed his own complaint in the ADCQ on 26 September 2016, making the same allegations of sexual harassment and vilification against Ms Beck that he had set out in his response to her complaint. By an undated letter, Mr Rowan’s complaint was not accepted by the Anti – Discrimination Commissioner on the basis that no alleged contravention occurred within the statutory time limit; that is, within 12 months before the complaint was lodged.
11. [11]
    Ms Beck’s complaint was referred to the Tribunal on 10 November 2016. The referral document records that the Commission treated the complaint as indicating sexual harassment (section 118), vilification on the basis of gender identity (section 124A) and victimisation (section 129).

Hearings and appeals

12. [12]
    The complaint was ultimately heard in this Tribunal on 6, 7 and 8 February 2018 with respect to liability. The Tribunal made a decision on 8 February 2018 and reasons were given orally. The decision is the subject of an application for leave to appeal or appeal by Mr Rowan filed on 9 March 2018, being appeal proceeding APL059-18.
13. [13]
    The Tribunal made a further decision on 27 February 2019, with respect to remedy for three established contraventions of the Anti – Discrimination Act 1991 (Qld) (ADAct). The Tribunal ordered that Mr Rowan pay to Ms Beck the sum of $17,500.00 together with interest in the sum of $1,555.00, being a total sum of $19,055.00. The reasons for this decision were given orally, following a hearing on 26 and 27 February 2019.
14. [14]
    The remedy decision of the Tribunal made 27 February 2019 is the subject of the second appeal proceeding, APL076-19. The application for leave to appeal or appeal the remedy decision was filed on 27 March 2019.
15. [15]
    During the appeal proceedings, the parties made written submissions about both appeals jointly, and the Appeal Tribunal heard oral submissions at a hearing on 24 March 2020.
16. [16]
    Mr Rowan was initially self - represented in the appeal proceedings. His first submissions and submissions in reply were drawn in his own name. Subsequently, Mr Rowan was represented by Mr O'Gorman SC, instructed by solicitors. Both parties provided the Tribunal with further written submissions on the eve of hearing settled by Counsel. Mr O'Gorman confirmed that Mr Rowan continued to rely upon his previous written submissions.
17. [17]
    Ms Beck was represented in the appeal by Mr Hamlyn-Harris of Counsel. Mr Hamlyn‑Harris settled submissions in response to the appeal and further submissions in response to the submissions settled by Mr O'Gorman.

Issues for the Appeal Tribunal

18. [18]
    The Appeal Tribunal must determine the following:

    1. (a)
       whether leave should be granted to Mr Rowan to rely on additional evidence. Mr Rowan submits that the additional evidence is relevant to the application for a grant of leave; if leave to appeal is granted, the rehearing; and also to the appeal, in considering an alleged breach of natural justice.
    2. (b)
       whether leave to appeal should be granted to Mr Rowan in respect of alleged errors of fact or mixed law and fact; and
    3. (c)
       Mr Rowan’s appeal on alleged errors of law.

19. [19]
    Both parties further submitted that, if leave to appeal is granted, it would be appropriate for the Appeal Tribunal to conduct the rehearing as required pursuant to s 147 of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act) on another day. The Appeal Tribunal agreed to that course.
20. [20]
    For the reasons that follow, the applications for leave to appeal and the application for leave to rely upon additional evidence are refused. Further, the appeals on questions of law fail and the appeals are dismissed.

The Grounds of Appeal

21. [21]
    Mr Rowan’s Outline of Submissions for Appeal dated 29 May 2019; Submissions in Reply to Appeal dated 22 August 2019; and submissions settled by Senior Counsel dated 23 March 2020 raise the following grounds of appeal against the decisions of the Tribunal below:

1. (a)
   alleged breach of natural justice arising out of:

   1. (i)amendment of the complaint to add allegations of victimisation on the first day of hearing; and
   2. (ii)re-joining the hearings in relation to liability and quantum to allow evidence relevant to the remedy hearing to be given at the liability hearing;
2. (b)
   alleged breach of natural justice in refusing to hear oral evidence from Mr Haynes;
3. (c)
   error of law in finding sexual harassment had occurred without making a finding that the Complainant would be offended, humiliated or intimidated by the conduct under section 119(f) of the AD Act;
4. (d)
   error as a consequence of bias, including through the Member’s interventions;
5. (e)
   alleged breach of natural justice in making findings when other evidence is available;
6. (f)
   error in making inconsistent findings;
7. (g)
   error in disregarding the evidence of Dr Barletta and relying on the evidence of other inherently unreliable medical professionals;
8. (h)
   error in the assessment and award of compensation; and
9. (i)
   error in failing to award costs.

22. [22]
    Leave to appeal is required if the grounds raised by Mr Rowan raise questions of fact, or mixed law and fact, as opposed to questions of law only.^[2]
23. [23]
    The appeal grounds in relation to breach of natural justice in granting leave to amend the complaint; failure to make a relevant finding; and bias are properly framed as errors of law for which no leave to appeal is required.
24. [24]
    Where, as here, both errors of law and errors of mixed law and fact are raised, the Appeal Tribunal has previously observed that it is important the Appeal Tribunal not burden a right to appeal from a decision of the Tribunal on a question of law with a requirement to obtain the Tribunal’s leave to do so. Such an approach has been said to impermissibly impose a limit on appeal rights not imposed by the legislation.^[3]
25. [25]
    For that reason, we address the appeal on the questions of law. We also address the balance of the grounds of appeal in determining whether leave to appeal should be granted.
26. [26]
    In doing so, we consider the application for leave to rely upon additional evidence, in considering the grounds of appeal to which Mr Rowan contends the additional evidence is relevant.

Ground of Appeal – breach of natural justice in granting leave for Ms Beck to amend her complaint to include victimisation

The application for leave to rely upon fresh evidence

27. [27]
    The application to rely upon fresh evidence^[4] relates principally to Mr Rowan’s ground of appeal that the Member below did not afford him natural justice when, on the first day of the hearing, he allowed the complaint on referral from the ADCQ to be amended to include two allegations of victimisation.
28. [28]
    In an affidavit affirmed 18 March 2020 filed in support of the fresh evidence application, Mr Rowan refers to his application to rely upon affidavits from nine witnesses who assert that Mr Rowan told them of sexual conduct by Ms Beck towards Mr Rowan. Each affidavit gives a date when Mr Rowan made his disclosure. The dates are variously March or April 2011, 2013, 26 May 2009, an unspecified date after February 2015, 2008 or 2009, 22 June 2015, 2014, approximately January 2010, and between 2008-2009. A further deponent, Mr Gary Haynes, does not give evidence in the same vein. He restates that he was unaware Mr Rowan was subjected to improper behaviour by Ms Beck at the time of the February emails the subject of Ms Beck’s complaint. We deal with other aspects of Mr Haynes additional evidence separately from the other nine affidavits, later in this decision.
29. [29]
    Mr Rowan says that he would have adduced this type of evidence (as now given by the nine proposed witnesses) if he had known he had to meet allegations that:

    1. (a)
       he invented his complaint of sexual harassment;
    2. (b)
       that the complaint was an attempt to improve his negotiations with Ms Beck; and
    3. (c)
       that the complaint was made up and was undue pressure on Ms Beck to give up her claim.
30. [30]
    Mr Rowan in his submission says it would be ‘unjust’ not to allow the evidence to be adduced and that the affidavits would have changed the outcome of the decision on the victimisation ground.^[5] The application for leave to rely upon additional evidence states the affidavit evidence should be allowed on the basis that: it was not available to the Tribunal below through no fault of Mr Rowan; the affidavit evidence is important as it ‘refutes findings, turns decisions, and compels the Appeal be allowed’; and it is in the interest of justice and the public interest.^[6]
31. [31]
    Mr O'Gorman made oral submissions that the affidavit evidence, particularly of Mr Rowan himself, is required for the Appeal Tribunal to properly consider the appeal grounds,^[7] and that the need to adduce further evidence is a consequence of the alleged breach of natural justice with respect to the Member below allowing an amendment of the Complaint to include a complaint of victimisation.^[8] As discussed earlier, it is submitted that the additional affidavit evidence is relied upon not just in the event of a rehearing if leave is granted, but also in support of the application for leave to appeal and the appeal grounds, which it is said are based on errors of law alone.^[9]
32. [32]
    At the oral hearing Mr Hamlyn‑Harris, citing Maffey v Mueller,^[10] argued that the affidavit evidence is not ‘fresh evidence’, in the sense that it could not have been obtained in the original hearing with due diligence, but rather it is new evidence. Mr Hamlyn-Harris’ written submissions are that there was a very strong basis for the conclusion that Mr Rowan’s complaint to the ADCQ was not genuine, but was an act of victimisation because Ms Beck made a complaint against him to the ADCQ. Mr Hamlyn-Harris referred to the timing of Mr Rowan’s complaint, the fact that it was so far out of time, and the contents of his email of 5 February 2016 (Exhibit 13) which lead to this conclusion. Also, Mr Rowan’s evidence was to the effect that he was offended by what he now claimed to be sexual harassment only sometime later when he discovered that Ms Beck was a transgender woman. Mr Hamlyn-Harris concluded that there is no reasonably arguable case of error in the Member’s finding and that even if the new evidence was considered it would not affect the conclusion that Mr Rowan’s complaint to the ADCQ was an act of victimisation.^[11] On that basis, he argued that leave should not be granted to rely upon the affidavit evidence.^[12]
33. [33]
    In reply, Mr O'Gorman submitted that Mr Hamlyn-Harris’s position, that the additional evidence would have ‘made no difference’ had it been available, is speculative. Mr O'Gorman restated that the evidence would have refuted the suggestion of recent invention; however, Mr Rowan had no opportunity to place evidence before the Tribunal because he did not have sufficient notice to deal with the allegation that he made up the complaint.^[13]

Mr Rowan’s submissions – breach of natural justice

34. [34]
    Mr Rowan accepts that victimisation is ‘referenced’ in Ms Beck’s statement of contentions, filed in the Tribunal prior to the hearing, and also accepts that he filed a brief rebuttal to the victimisation contentions. However, Mr Rowan submits that the rebuttal does not: ‘adequately address nor respond to the issues of natural justice’.^[14] Mr Rowan submits that, as a result of the late amendment of the referral, a key finding was made against him.
35. [35]
    Mr Rowan submits the late amendment of Ms Beck’s complaint on referral was prejudicial and that he was unable to lead evidence to rebut the victimisation allegations. He submits that the Tribunal should have allowed him time to obtain and lead evidence to challenge the allegations and that, as a result of the alleged breach of natural justice, the Tribunal made findings against him that could not, or may not, have been made if Mr Rowan had been given an opportunity to lead the further evidence.
36. [36]
    Mr Rowan submits that it is particularly relevant that, during the Tribunal proceedings below and at the hearing, he was self - represented.
37. [37]
    Before the Appeal Tribunal, Mr O'Gorman highlighted Mr Rowan’s objection on the day of the hearing to leave being granted for Ms Beck to rely upon the victimisation allegation and some comments by Mr Rowan on the first day of the Tribunal hearing indicating he was ‘dazzled’ and in a distressed state.^[15] Mr O'Gorman also submitted that Mr Rowan was not aware that everything contained in the contentions filed by the parties would necessarily be the subject of the final hearing.^[16]
38. [38]
    Mr O'Gorman’s written submissions provide that circumstances said to constitute a denial of natural justice are:

    1. (a)
       Ms Beck’s complaint form lodged 27 January 2016 related to allegations of sexual harassment and vilification alone. There was no allegation of victimisation.
    2. (b)
       The ADCQ’s decision letter pursuant to s 168 dated 2 June 2016 makes no reference to any allegations other than those of sexual harassment and vilification.
    3. (c)
       While the Member relied upon the Contentions of 1 March 2017 and the Contentions in Reply, those documents were not before the Tribunal.
    4. (d)
       The appellant was self - represented.
    5. (e)
       The appellant objected to the amendment.

Mrs Beck’s submissions

39. [39]
    Ms Beck relies upon her Contentions filed 1 March 2017 and Mr Rowan’s response to those contentions filed 31 March 2017 as evidence Mr Rowan was not taken by surprise. Ms Beck contends that the application to amend the referral was properly dealt with.^[17] Mr HamlynHarris noted that the circumstances giving rise to the late amendment of the complaint are relevant.^[18] Mr Hamlyn-Harris pointed out that Mr Rowan’s sexual harassment complaint was made some eight months after Ms Beck’s complaint and that the nature of the alleged victimisation was that the allegations of sexual harassment were made in response to Ms Beck’s complaint.^[19] Mr Hamlyn-Harris asserted the victimisation allegations were ‘very explicitly contended’ in the statement of contentions filed in the Tribunal.^[20]

Mr Rowan’s reply

40. [40]
    In reply, Mr Rowan submits the contentions filed in the Tribunal below were not adequately particularised and that he did not prepare a defence against a complaint that was unparticularised.^[21]
41. [41]
    The submissions, both in writing by Mr Rowan and made orally by Senior Counsel, do not take issue with the question of whether the referral could or should have been amended, but rather ‘the timing of it’ and the manner in which the Tribunal below dealt with the amendment.^[22]

How the complaint was amended

42. [42]
    We have previously observed that the referral from the ADCQ of Ms Beck’s complaint notes that the Commission characterised the complaint as including victimisation. Because Mr Rowan’s complaints against Ms Beck were raised in his response and in his own later lodged complaint, it is necessarily the case that any question of victimisation arising out of Mr Rowen’s allegations was not dealt with in Ms Beck’s complaint lodged on 22 January 2016.
43. [43]
    The Member below was obviously aware from the Tribunal’s file that Ms Beck’s allegation of victimisation is put in response to Directions made 30 January 2017 requiring contentions to be filed which set out factual details of the conduct complained of and how that conduct amounts to a breach of the AD Act. The Member was also aware of Mr Rowan’s response.
44. [44]
    At the commencement of the hearing on 6 February 2018, the Member raised the question of whether Ms Beck’s complaint would need to be amended if she was to rely on an allegation of victimisation against Mr Rowan arising out of the filing of his complaint and to give the Tribunal jurisdiction to hear evidence about the issue.
45. [45]
    Ms Beck’s legal representative submitted that the real damage to the applicant that she seeks to be compensated for are the four emails and the notice on the whiteboard. By the time the victimisation occurred, the real damage to her at the hand of Mr Rowan had been done. It was put that one would imagine that there is little, if any, additional remedy that would flow to the applicant for the victimisation if she were successful in the primary causes of action.^[23]
46. [46]
    Ms Beck’s legal representative later indicated to the Tribunal that, to the extent necessary, Ms Beck seeks to amend her complaint in accordance with s 178 of the AD Act to include the victimisation complaint.^[24]
47. [47]
    The Member dealt with a range of procedural matters at the commencement of proceedings. He also arranged for the parties to confer with the assistance of a Tribunal Member to explore any possibility of a settlement of the claims. Those discussions were not fruitful.
48. [48]
    Upon the parties’ return from that conference, the Member said that he intended to deal with the question of whether the complaint should be amended to add the victimisation claim. The Member asked Mr Rowan if he objected to the amendment being made ‘to the complaint to add the victimisation claim as it is set out?’^[25]
49. [49]
    Mr Rowan objected. When asked for his grounds of objection, Mr Rowan said:

The -sorry, I’m a little bit dazzled from being out there. I’m not back with us yet.^[26]

50. [50]
    The Member asked Mr Rowan if he required some time. Mr Rowan did not ask for time to collect his thoughts. He asked for an explanation in relation to the proposed amendment. The Member explained that he had before him two complaints of victimisation, but those complaints had not been referred to the Tribunal by the ADCQ. The Member explained the need to amend the complaint to enable the complaints of victimisation to be dealt with by the Tribunal. The Member explained that, if Mr Rowan objected to the amendment, the Member would consider the merits of the application; that is, whether it would be unfair to Mr Rowan to allow the amendment or whether it would be unfair to the applicant not to do so.^[27]
51. [51]
    Mr Rowan said:

I will object to it but I will allow you to make the decision, because the - you know, especially me making that complaint is not an act of vilification. It’s an act of seeking justice.^[28]

52. [52]
    Later, Mr Rowan said:

…Making the application is not an act of vilification or victimisation by me because I’m trying to seek justice for something that really did happen, and I realised it was an out of time complaint. It was rejected because it was out of time, but it was still a real thing that happened, so that’s – and you’re saying that that’s not irrelevant. It’s going to have to be dealt with.^[29]

53. [53]
    The Member discussed with Mr Rowan whether he could be taken by surprise by the allegations. He referred to the contentions filed on 1 March 2017. The Member said that Mr Rowan always knew he had to face this particular complaint.^[30]
54. [54]
    Mr Rowan did not object to that proposition. He replied: ‘Okay’.^[31]
55. [55]
    The Member allowed the amendment to add the allegation that the communication on the 5^th of February 2016 was an act of victimisation and the complaint made to the ADCQ by Mr Rowan on the 26^th of September 2016 was an act of victimisation.

Was Mr Rowan surprised by the amendment?

56. [56]
    Relevant to the question of whether Mr Rowan was surprised by the amendment and whether he was in fact unprepared to deal with the allegations of victimisation, we note that not only is a complaint of victimisation raised in Ms Beck’s contentions at the commencement of the matter, but other material filed in the proceeding addresses the issue and the complaints made by Mr Rowan against Ms Beck.
57. [57]
    We have isolated the following matters from the material filed in the Tribunal below and from the transcript of evidence in the proceeding.
58. [58]
    At paragraphs [84] and [85] of her Contentions Submission filed 1 March 2017, Ms Beck refers to an email from Mr Rowan to a mediator, Mr Middlemiss, dated 5 February 2016, advising that he intended to counterclaim against Ms Beck. It is contended Mr Rowan wrote in the email that if Ms Beck’s actions failed, then it would pave a path for Mr Rowan to sue the complainant for damages and costs. At paragraph [85], Ms Beck contends that Mr Rowan threatened to counterclaim and sue her for damages and costs which was an act to her detriment.
59. [59]
    At paragraph [86], Ms Beck states:

On 26 September 2016, the Respondent commenced a complaint against the Complainant alleges (sic) the Complainant had sexually harassed the Respondent. The Respondent’s complaint was not accepted by the ADCQ. The Complainant denies all of the allegations of sexual harassment made by the Respondent in his complaint, and alleges that this further act by the Complainant (sic) was another act of detriment because of the Complainant’s complaint made to the ADCQ.

60. [60]
    A further act of victimisation is raised at paragraph [87] relating to threats to sue other persons if Ms Beck did not withdraw her complaint. That matter does not appear to have been taken further in the proceedings.
61. [61]
    Mr Rowan filed a response to the contentions on 31 March 2017. He responded to paragraphs [83]-[87] of Ms Beck’s contentions, denying all allegations. Mr Rowan asserted that defamation proceedings against him by Ms Beck had begun in the District Court and that he was endeavouring to defend himself against several attacks by Ms Beck, the Club and individuals calling him a ‘bigot, racist and other unkind things for his emails concerning this matter.’
62. [62]
    At para [32] of his response, Mr Rowan said:

The Respondent contends that ALL of the circumstances surrounding the history, relationship and conduct of the parties must be examined in this regard; and that the distillation could not on any fair assessment be that the Respondent has victimised the Complainant in any sense and any time.

63. [63]
    In her statement of evidence made 28 April 2017 and relied on in the proceeding below, Ms Beck referred at paragraphs [55]-[58] to Mr Rowan’s complaint to the ADCQ, stating it was a counter-claim against her because of her complaint to the ADCQ and that Mr Rowan had suggested he would sue her for damages and costs because she commenced the complaint. Ms Beck says that she completely denied the allegations of sexual harassment. The statement attaches an email of 5 February 2016 from Mr Rowan to the possible mediator - Mr Middlemiss. The email accepts Mr Middlemiss’ proposal to participate in a mediation and states:

Citizen John I am interested in resolving the situation and your kind offer is appreciated. I will attend anywhere at any time with any mediator.

Unfortunately Jennifer is blissfully unaware of my intention to counter claim which will put her into defense (sic) mode.

As she is now in offense mode she will most likely refuse.

If you get the chance to suggest to her people usually counter claim and she will need to defend sooner or later.

Also if her actions fail it may pave a path for me to civilly sue her for damages and costs. If you play with solicitors everyone gets burned. Best not to be there. I have paid solicitors enough to buy a home in Gympie and I have always ended up where I would have without one.

If she takes the next step as her solicitor advises she will, I think it will be a forced mediation at the discrimination commission which after talking with the commission at the onset I have a reasonably comfortable feeling about…^[32]

64. [64]
    In his statement of evidence made 26 May 2017, Mr Rowan set out at paragraph [19] the matters for resolution in the proceeding, namely sexual harassment, vilification, and victimisation. At paragraph [29], Mr Rowan said that he did not tell anyone about the earlier incidents of which he complains. At paragraph [46], he addressed the victimisation claim in the same way as he dealt with it in his contentions.
65. [65]
    At paragraphs [13], [14], [16], [17], [29], [40](b) and [40](c) of his statement of evidence, Mr Rowan sets out his allegations of sexual harassment by Ms Beck and his response to the alleged conduct.
66. [66]
    At paragraph [47] of his statement of evidence, Mr Rowan said:

I ask that ALL of the circumstances surrounding the history, relationship and conduct of the parties must be examined in this regard; and that the distillation could not on any fair assessment be that I have victimised the Complainant in any sense and any time.

67. [67]
    Mr Rowan again sets out, at paragraph [51] of his affidavit, that Ms Beck’s complaint is but part of a long association between her and Mr Rowan. At paragraph [53], Mr Rowan says:

The totality of my relationship with the Complainant is one event out of which our respective positions can be understood. Any fair judgement of the conduct of the parties requires a complete knowledge and understanding of the entire history and circumstances of the relationship between the parties, commencing at the beginning as Instructor and Student and continuing until the proceedings we are now involved in.

68. [68]
    Mr Rowan also filed in the proceedings on 24 October 2017 a document, entitled ‘Opening Submission of the Respondent’, made pursuant to directions of 16 October 2017. That submission was treated as evidence of Mr Rowan at the hearing.^[33] The submission does not form part of the appeal book but has been located by us because it is referred to in the transcript of proceedings. The submission asserts at paragraph [1.2] that Ms Beck sexually harassed Mr Rowan. At paragraph [1.4], Mr Rowan denies victimisation of Ms Beck and says he was victimised for what he had said. Mr Rowan expands on the question of sexual harassment of him by Ms Beck at paragraph [1.5] to say that, at the time of the alleged sexual harassment, he thought Ms Beck was female but he felt aggrieved when later it was revealed that Ms Beck was biologically male, identifying as female. He says that even so, his feelings and disquiet about that issue are quite distinct from the underlying purpose and content of the relevant emails.
69. [69]
    The issue of Mr Rowan’s complaint of alleged sexual harassment by Ms Beck of him is also referred to in the statement of Daryl Scurr, dated 26 April 2017. Mr Scurr is a member of the Club and at relevant times was Treasurer of the Club serving on the committee. After setting out his knowledge of the history of this matter, Mr Scurr said at paragraph [29] of his statement:

Blair next approached me at my hangar. He said he was disappointed I didn’t hear his side of the story before giving the emails to Jennifer. He told me Jennifer sexually harassed him and made him scared of flying when he was a student pilot. I didn’t believe this. He had not mentioned this previously and I believed this was said to pressure me into advising Jennifer to drop her legal action.

70. [70]
    In response to a question from the Member, Mr Scurr said that the conversation with Mr Rowan occurred quite some time after the emails the subject of Ms Beck’s complaint were given to her.^[34] The emails were given to Ms Beck on 5 July 2015.^[35]
71. [71]
    Another witness, the Honourable Alan Griffiths, set out in his statement of 28 April 2017 a record of an interaction with Mr Rowan after a committee meeting of the Club on 2 August 2015. He refers at paragraph [16] to Mr Rowan saying:

There were things about Jennifer Beck that I didn’t know about and that I shouldn’t support her.

72. [72]
    Mr Griffiths goes on to say that at no time prior to 2 August 2015 did Mr Rowan raise any alleged misconduct by Ms Beck during the period he was instructed by her and comments that Mr Rowan continued to train with Ms Beck. Mr Griffiths said at paragraph [21]:

I believe Mr Rowans allegations of sexual overtures by Jenifer Beck whilst he was student as self serving, ex post and not worthy. In any event, they are not relevant to his actions in circulating offensive material although he has amplified the damage by spreading these claims. In addition to the email trail, he has ensured his accusations of sexual harassment are now widely disseminated.

Evidence given at the hearing in relation to Mr Rowan’s complaint against Ms Beck

73. [73]
    Mr Griffiths was cross-examined by Mr Rowan. The following occurred:

Witness: Up until this point, you had never made any comment to me, or to others, to my knowledge, about any misconduct by Jennifer Beck.

Mr Rowan: And I’m confirming that’s correct. I have never told anybody about it and I didn’t even tell you about it on that day. I just…?.. Well, you…inferred to you that there was reasons? …You were probably in the process of making it up.

And as you say, I did not cease training with Jennifer because there was nowhere else to go in Gympie at the time, or I would have…Are you seriously expecting me to believe that what I now know of your allegations that you would have continued your training:

Yes?...You lack credibility.

The conduct by Jennifer was not overly offensive to me, but it was still misconduct?...I just think you’re a liar, as I’ve said previously.

I think you’re a liar. I know you’re a liar?... I don’t believe that. I think – I think you’ve – you’ve made this story; you’ve spread it widely.

74. [74]
    Mr Rowan asked Ms Beck, in his cross-examination of her, what the allegation of victimisation was in relation to his email to Mr Middlemiss. Ms Beck explained that Mr Middlemiss made it clear he would pass on communications from the parties. Mr Rowan put to Ms Beck his explanation that he did not read properly that advice from Mr Middlemiss, that he replied to Mr Middlemiss, and that he was trying to settle the matter: ‘because you had done things to me which were still in - in me that I hadn’t told anybody, and that’s what I was getting at?’.^[36] Ms Beck said: ‘Well, that’s – that didn’t happen, and I did read the email in its entirety, as any sensible person I thought would have…’^[37]
75. [75]
    Mr Rowan cross-examined Ms Beck in relation to his allegations of sexual harassment which had been the subject of his complaint to the ADCQ.^[38] Mr Rowan put each allegation of sexual harassment to Ms Beck. Each allegation was denied by Ms Beck. It is evident from the transcript that Mr Rowan had prepared his questions for Ms Beck and that he was referring to written notes.^[39]
76. [76]
    Under cross-examination, Mr Rowan denied filing a complaint before the ADCQ to pressure Ms Beck into dropping her complaint against him.
77. [77]
    Cross-examination of Mr Rowan covered the 5 February 2015 email to Mr Middlemiss. Mr Rowan again said that he had not said anything to anyone at that time about what had happened.^[40] It was put to Mr Rowan that parts of the email were a tactical step taken to deter Ms Beck from continuing to pursue her complaint against him. Mr Rowan said:

And I say that I wanted to make her aware that I could, and may, start my own complaint against Jennifer.^[41]

78. [78]
    At the point in the proceedings when Mr Rowan’s counterclaim in the ADCQ^[42] was put in cross-examination, the Member asked Ms Beck’s legal representative if he was going to go through the nature of the complaint. It was Ms Beck’s position that the allegations were in evidence and what was important to the victimisation claim was the reason for Mr Rowan bringing the complaint. The Member drew the parties’ attention to textbook commentary referring to English cases as to how far a counterclaim can go without being victimisation. The Member expressed the view that he was most interested in whether Mr Rowan’s counterclaim was genuine.
79. [79]
    Mr Rowan was extensively cross-examined by Ms Beck’s representative about the alleged sexual harassment of him, the dates the incidents occurred, his reaction to the events and when in the timeline of events Mr Rowan discovered that Ms Beck was born a man.
80. [80]
    The Member asked a number of questions of Mr Rowan as to what he could say to convince him that he did not make up his complaint against Ms Beck.^[43] Mr Rowan referred to his allusion to the issues in his conversation with Mr Griffiths. It is notable that Mr Rowan did not refer to any complaint to any of the persons he now seeks to call as witnesses by way of additional evidence. On the contrary, Mr Rowan repeatedly gave evidence or made statements that he had never said anything to any person about Ms Beck’s conduct towards him.
81. [81]
    The Member asked why 3 allegations of sexual harassment were made in the ADCQ complaint and then a number of other issues not related to sexual harassment were added to the document. He asked whether Mr Rowan was testing the boundaries, trying to test whether he could get a case going.^[44]
82. [82]
    The Member asked why the allegations had never been mentioned before. Mr Rowan replied that he did not want to do so and that he only mentioned it in the middle of 2016 because of the claim against him. He said that he thought his case had a right to be heard too.^[45]
83. [83]
    Ms Beck addressed the Member in closing submissions about the victimisation claim, referring to the evidence which went to the genuineness of the counterclaim in the ADCQ. Mr Rowan made no submissions on the point.

Member’s findings in relation to victimisation

84. [84]
    The Member gave his decision orally. The Member found that the email of 5 February 2016 to Mr Middlemiss was not an act of victimisation. He found that the counterclaim filed in the ADCQ was victimisation under the AD Act. The Member determined that it is for the applicant to prove, in order for the victimisation claim to succeed, that the respondent’s complaint to the ADCQ was not genuine. TheMember found that had been done.

85. [85]
    The Member found that the filing of Mr Rowan’s complaint against Ms Beck amounted to victimisation under the AD Act. His reasons are:

    1. (a)
       there is no Australian authority on the point; however, English cases establish that if a respondent states a case to a complainant, it is not a detriment to the complainant provided the conduct is honest and reasonable. If, however, from the complainant’s point of view the steps taken by the respondent to defend himself could be regarded as undue pressure to give up his or her claim then the conduct may amount to victimisation.^[46]
    2. (b)
       In considering what is undue pressure, the Member had to consider whether the complaint to the ADCQ was genuine. The Member did not have to decide if it was accurate or not, simply whether it was genuinely made in the sense it was not made up at some point in order to retaliate against the applicant, or in order to improve his position with the applicant, or for some other reason.
    3. (c)
       Mr Rowan could not satisfactorily explain why he had chosen 4 January 2009 as the date of the first alleged sexual harassment.
    4. (d)
       Mr Rowan’s detailed recall of the first incident seemed unlikely after seven and a half years, when it was not written down and he was not deeply affected by it.
    5. (e)
       It was unbelievable that the third alleged sexual harassment occurred in the same way a number of times.
    6. (f)
       The allegations are inherently unbelievable because of the way they are described, including the way chunks from the AD Act are set out.
    7. (g)
       Mr Rowan tended to test the boundaries of discrimination law, including: by a free speech note he posted on the noticeboard; hanging a golliwog on the notice board; and insisting in his emails that he can use the word ‘he’ when he refers to the applicant, because it is discriminatory to say he cannot.
    8. (h)
       Ms Beck denied that the events happened.
    9. (i)
       Ms Beck’s submissions were accepted that it is strange that if Mr Rowan was so concerned about these alleged acts of sexual harassment as he says, in such a way as he was able to remember them for so long, then why was he prepared to continue his flying lessons with the applicant. Why didn’t he report them? Why was he willing to go into close confines with her in her caravan? And why did he vote for her to continue to live on-site in 2014 despite it? Why was he willing to allow other people to be instructed by her? It was noted that evidence was given of a young man who flew with Ms Beck.

86. [86]
    In addition, Ms Beck’s closing submissions set out at paragraphs [102]-[105] of the written submissions were referred to as relied upon by the Member. Those submissions not already mentioned and not expressly set out in the Reasons are that:

    1. (i)
       Mr Rowan’s complaint to the ADCQ expressly refers to Ms Beck’s complaint against him;
    2. (ii)
       most of Mr Rowan’s complaint is of conduct not amounting to sexual harassment;
    3. (iii)
       it was made years after the fact;
    4. (iv)
       it lacked detail as to dates;
    5. (v)
       the alleged conduct did not concern Mr Rowan at the time;
    6. (vi)
       for some of the period Mr Rowan wasn’t aware of the gender identity of the applicant and he only seems to have taken issue with it after he became aware of that matter;
    7. (vii)
       he made (or put into evidence) no notes of it;
    8. (viii)
       none of his communications about his complaint before it was made referred to the nature of his cause of action or otherwise revealed that his concerns were genuinely held;
    9. (ix)
       it was a serious matter which would have been appropriate to report but he did not report it;
    10. (x)
        when one analyses the tone of the Middlemiss email, Mr Rowan’s submissions to the ADCQ upon the proposed summary dismissal of his claim against Ms Beck, his email to Mr Fraser to like effect, the footnote to his response to the ADCQ claim against him and the extract from his contentions filed in QCAT, it is clear that his claim against Ms Beck (and the threat of it) were a response to attack;
    11. (xi)
        nowhere is there any reference by Mr Rowan to a legitimate grievance which he wanted to pursue against Ms Beck (or for that matter Mr Fraser). If his grievance was legitimate, he would have pursued it at the time. Rather, these were steps belatedly taken for tactical reasons. They were a means of exerting pressure on Ms Beck to cease pursuing her claim against him; and
    12. (xii)
        the complaint was not genuine and the making of it was to Ms Beck’s detriment. Mr Rowan brought it because Ms Beck had done the same to him. Section 130 was breached by the respondent’s complaint.
87. [87]
    For all those reasons, the Member thought the allegations of sexual harassment were simply invented by Mr Rowan in order to test the boundaries of the ADCQ. He thought it likely that Mr Rowan knew the allegations would be rejected for time reasons and therefore did not think that they would go any further. He also thought the allegations were an attempt to improve Mr Rowan’s position with Ms Beck in negotiations, because he was going to be on the attack as he said in exhibit 13.^[47] Also, because the allegations in the counterclaim were made up, it was undue pressure on Ms Beck to give up her claim. As a result, the Member concluded the counterclaim filed in the ADCQ was victimisation under the AD Act.

Consideration

88. [88]
    The provisions of the QCAT Act determine not only the nature of any appeal but also the right, if any, to adduce evidence on an appeal that was not before the tribunal at the original hearing.^[48] In the case of an appeal on a question of law only, the appeal tribunal may make any order it considers appropriate. It may direct that a matter be returned to the original decision maker with or without the hearing of additional evidence. In the case of an appeal on a question of fact, or mixed law and fact, the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
89. [89]
    A rehearing pursuant to s 147 of the QCAT Act presupposes that leave to appeal has been granted because of error in the original tribunal’s decision. The appeal tribunal has a wide discretion in deciding whether to grant leave for a party to rely upon additional evidence in a rehearing.
90. [90]
    The tribunal’s appeal procedure exists to redress errors made by the tribunal below. The plurality in CDJ v VAJ made the following observations in relation to the power of the Full Court of the Family Court to admit further evidence in circumstances of a wide statutory discretion:

The power to admit further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.^[49]

91. [91]
    Other considerations to be weighed by the Appeal Tribunal include:

    1. (a)
       the public interest in the finality of litigation. The failure to call evidence that could with reasonable diligence have been placed before the original tribunal may weigh against the exercise of the discretion.^[50]
    2. (b)
       Whether the evidence is sufficiently credible.^[51]
92. [92]
    The discretion in s 147 is wide, but it is not unfettered.^[52] The objects of the QCAT Act and the scheme provided for disposition of disputes, in particular through appeals, is relevant, guided by considerations developed at common law. The considerations set out in Clarke v Japan Machines (Aust) Pty Ltd^[53] have commonly been applied by the Appeal Tribunal with respect to the admission of fresh evidence.^[54]
93. [93]
    We accept Mr Hamlyn-Harris’ submission that the additional evidence sought to be relied upon by Mr Rowan is new, not fresh, evidence in the sense that it is evidence which was reasonably available to Mr Rowan to adduce at the hearing below if he had exercised due diligence.
94. [94]
    There is no evidence that the statements of evidence of all the proposed witnesses could not have been obtained for use at the original hearing, with the exercise of reasonable diligence.
95. [95]
    Mr Rowan knew from at least 1 March 2017 that he was accused of victimisation as a result of lodging a complaint of sexual harassment against Ms Beck. Mr Rowan knew from the earliest possible date that the allegations against Ms Beck were denied. Material filed in the proceeding addressed the issue of victimisation. Mr Rowan responded to the accusation, the denial and the material from Ms Beck’s witnesses. He confirmed in his pre-hearing material that victimisation was a matter to be determined by the Tribunal. Mr Rowan himself insisted that the allegations he raised should be heard in the Tribunal proceedings.
96. [96]
    Ms Beck bore the burden of proof to establish on the balance of probability that Mr Rowan had victimised her within the terms of the AD Act. She did that by reference to the evidence before the Tribunal and cross-examination of Mr Rowan.
97. [97]
    Once Mr Rowan knew that his allegations were denied and that they were being characterised as victimisation, the evidentiary burden shifted to him to put his best case forward to establish that the matters alleged against Ms Beck occurred.
98. [98]
    Mr Rowan put his case. He was not believed. That is a peril of litigation. Tribunal proceedings are not a dress rehearsal to enable a litigant to learn the lie of the land and then (on appeal) endeavour to create a different case, to meet the obstacles confronted at first instance. As discussed, the function of the appeal process is primarily to correct error made by the Tribunal in its decision. It is not for the correction of error of a litigant in presenting his case.
99. [99]
    Mr Rowan now seeks to run a completely different case to the one he presented in the hearing below.
100. [100]
     Mr Rowan gave evidence on oath that he told no-one of the alleged sexual harassment. He put that position to witnesses. When the Member made it very clear that he was interested in the genuineness of the allegations and asked Mr Rowan why he had not mentioned the allegations, Mr Rowan insisted that he did not want to do that. He did not want to mention it because nothing good would come of it. His evidence was that he only mentioned the allegations in the middle of 2016 because he was being accused of sexual harassment.
101. [101]
     It now appears that Mr Rowan thinks some corroboration of his allegations may have helped his case, because he would have been able to meet what he describes as an allegation that he invented his complaint, that the complaint was an attempt to improve his negotiations and that the complaint was made up and constituted undue pressure on Ms Beck. Mr Rowan now seeks to put an entirely different case to that run in the Tribunal below. He asks the Appeal Tribunal to accept that he in fact told nine people about at least one incident of sexual harassment, over the period 2008 to 2015, when he had previously insisted that he told no-one. Mr Rowan is hoisted on his own petard. Leave to rely upon additional evidence is given to prevent an injustice, not to enable a different case to be run on a second attempt with new evidence.
102. [102]
     The new evidence cannot stand with Mr Rowan’s own evidence at the hearing. On that basis, it is a nonsense to entertain further the question of whether the evidence would have had a decisive influence on the result of the hearing.
103. [103]
     As to whether the proposed evidence is credible, there is first the question of Mr Rowan’s credibility in attempting to put a different case. Beyond that, the statements of the nine proposed witnesses all set out what Mr Rowan asserts as to Ms Beck’s conduct, in a number of affidavits relaying Mr Rowan’s suggestions as to the date of his alleged conversations with them. No person was an eye-witness to the alleged events. No person suggests Mr Rowan discussed making a formal complaint about the conduct he apparently discussed with them. We consider the proposed evidence would be of limited value in determining whether Mr Rowan’s complaint to the ADCQ was genuinely made or whether it was made as an act of retaliation against Ms Beck.
104. [104]
     Mr Rowan seeks to assist his application for leave to rely on the evidence of further witnesses by submitting that he would have called that evidence if he had known the case he had to meet. He says that he was not afforded natural justice because he had to meet a claim of victimisation raised on the first day of the hearing.
105. [105]
     When the Member sought to put the evidence on the victimisation issue on a proper footing so that it could be heard in the proceeding, Mr Rowan agreed. He acknowledged that the Member did not think his allegations were irrelevant and that they would be heard. All of Mr Rowan’s responses to the victimisation claim make it clear that he wanted his allegations to be heard and to form part of the case.
106. [106]
     We do not accept that Mr Rowan did not think he had to meet a claim of victimisation. His own material acknowledges the claim was a matter for determination. It is a furphy to say that the complaint, as filed in the ADCQ, was limited to sexual harassment and vilification. Obviously, the question of victimisation arose after that complaint was lodged. There was a failing of process in terms of formal amendment of the complaint or lodgement of a further complaint in the ADCQ. Nevertheless, the claim was set out in Ms Beck’s contentions. It was the claim as set out that was the subject of the amendment. There were no surprises as to the way in which the claim was framed.
107. [107]
     We have earlier made the point that, once Mr Rowan knew that the allegations of sexual harassment in his complaint were denied, it was a matter for him to provide evidence in support of his claim. Ms Beck’s denial put into question, at that point, the veracity of his complaint. If Mr Rowan had in fact disclosed his complaints to others, that evidence could have been called by him. That was not his case. We think that Mr Rowan is fixed with the evidence he has given on oath to this point. For that reason, we reject the submission that he was denied natural justice by not being given the opportunity to call further evidence. The evidence which Mr Rowan now says is available is in direct conflict with his own evidence to-date.
108. [108]
     We reject the submission that the Contentions and Response of March 2017 were not before the Tribunal. The documents were filed pursuant to Tribunal Directions, they were referred to in the proceedings and were not challenged by Mr Rowan.
109. [109]
     As to the claim that the allegation of victimisation was unparticularised, Mr Rowan never sought particulars and has not now said what particulars he would have expected to enable him to meet the claim. We think the allegation was clearly made at an early stage and that it was fully understood and addressed by Mr Rowan.
110. [110]
     Mr Rowan filed the evidence on which he relied to address the alleged sexual harassment by Ms Beck set out in his complaint. It is not unreasonable to consider that there was no further evidence which went to the underlying facts which was available to Mr Rowan, given his evidence that he told no-one of the incidents.
111. [111]
     In those circumstances, it is difficult to see how Mr Rowan was prejudiced by the Member ensuring the Tribunal had jurisdiction to determine the complaint of victimisation and hear the evidence of both Mr Rowan and Ms Beck on the issue.
112. [112]
     It is submitted that Mr Rowan objected to the amendment. The transcript of the hearing reveals that, once Mr Rowan had received a full explanation of the nature of the amendment and the reason for the amendment, he did not maintain his objection.
113. [113]
     Finally, it is put as evidence of a breach of natural justice that Mr Rowan was self‑represented, that he was dazzled and that he was in a distressed state at the time the amendment to the complaint on referral was raised.
114. [114]
     The Member did not ignore Mr Rowan’s self - represented status. When Mr Rowan indicated he was ‘dazzled’, he was offered time to collect his thoughts. That offer was refused by Mr Rowan.
115. [115]
     For the reasons set out earlier, in our view, the procedural step of regularising the matters before the Tribunal to reflect the complaint as set out at the commencement of the Tribunal proceedings was not a significant change to the case to be met by Mr Rowan: there was no change to the case that Mr Rowan had understood he had to meet. Nor do we accept that he had not prepared to meet it. The Member explained the nature of the change and the reason why he was dealing with the issue. TheMember asked Mr Rowan for any grounds of objection and gave him an opportunity to be heard on any prejudice he might suffer as a result of the amendment.
116. [116]
     Further, as to the ground of appeal that there was a breach of natural justice in allowing an amendment of the complaint on referral and failing to afford Mr Rowan the opportunity to obtain additional evidence to establish that his complaint of sexual harassment by Ms Beck was genuine, we observe that natural justice must be considered in the context of the statutory framework governing the tribunal.^[55]
117. [117]
     Section 28 of the QCAT Act provides that the tribunal must conduct its proceedings in a way which is fair and reflects the substantial merits of the case with as little formality and technicality as possible. In conducting a proceeding, the tribunal must, inter alia, observe the rules of natural justice, is not bound by the rules of evidence, may inform itself in any way it considers appropriate and must act with as little formality and technicality as a proper consideration of the matter permits.
118. [118]
     Section 29 of the QCAT Act requires the tribunal to take all reasonable steps to ensure, relevantly, that each party understands the practices and procedures of the tribunal, the nature of assertions made and the legal implications of the assertions and any decision of the tribunal relating to the proceeding.
119. [119]
     Insofar as an obligation to afford natural justice is reflected in the conduct of a fair hearing, we consider the Member adopted a fair process consistent with his obligations under ss 28 and 29 of the QCAT Act. The amendment of the complaint on referral was technical or formal in nature, it reflected the case as set out by Ms Beck, the need for the referral was fully explained to Mr Rowan and Mr Rowan expressed a desire for his evidence relevant to the allegation of victimisation to be heard. Mr Rowan at no stage indicated that there might be other evidence relevant to a defence of the victimisation claim. In fact, the evidence he now seeks to rely upon is contrary to the evidence already given by him.

Conclusion in relation to the application for leave to rely upon fresh evidence and allegation of breach of natural justice

120. [120]
     We do not consider that the decision of the Tribunal was attended by an error of law, being a breach of natural justice with respect to amendment of the complaint on referral without adjournment to allow time for further evidence so as to amount to an error of law. The alleged error is not made out.
121. [121]
     We do not consider that Mr Rowan has established a proper basis for leave to be granted so that he may rely upon the affidavits of Ms Pozzebon, Mr Hall, Ms Plath, Mr Lally, Mr Fletcher, Mr Stover, Mr Tennant, Mr Cuddihy and Mr Dawkins, should there be any further hearing in this matter with respect to the grounds of appeal raised by Mr Rowan. The application is refused. The further affidavit of Mr Haynes is addressed later in the decision.

Ground of Appeal – breach of natural justice – splitting of hearing

122. [122]
     The second breach of natural justice ground of appeal relates to the liability and remedy aspects of the proceedings being heard separately. The ground of appeal raises a question of law.
123. [123]
     Prior to the hearing, Directions were made that an initial hearing be conducted to consider liability, and then at a later date a hearing be conducted for the purpose of assessing the appropriate remedy.
124. [124]
     A relevant passage from the transcript of the first day of the liability hearing is as follows:

MEMBER: Yes. So I know that during the hearing that we’re going to have today and the next couple of days, there may be some evidence which go to questions of remedy, so that people, for example, talk about the effect on the applicant of what happened, things that they’ve noticed. What I intend to do, unless there’s any objection from you, is to take that into account when deciding questions of remedy. So we’re not separating liability and remedy entirely separately, so there’s no demarcation between the two. Evidence given in the next three days about – which impact on remedy, I’ll take into account on the remedy matters.^[56]

125. [125]
     In the context of that passage, Mr Rowan submits that ‘it was unfair … for the member to allow evidence, that was relevant to the remedy hearing, to be given at the liability hearing’.^[57] At the oral hearing, Mr O'Gorman submitted said it is not suggested that Mr Rowan did not have the opportunity to address remedy but rather that Mr Rowan was ‘thrown’ by the statement.^[58] Mr O'Gorman emphasised that Mr Rowan was self‑represented and that this statement, apparently in contradiction of previous Tribunal directions, added to the stress and difficulty of running his case.^[59]
126. [126]
     In response, Ms Beck submitted there was no disadvantage to Mr Rowan and that he was not prevented from fully running his case.^[60] Mr Hamlyn-Harris submitted orally that there was nothing unusual about the comment by the Member; that he was essentially stating that there would naturally be some crossover between the evidence given in respect of liability and remedy.^[61]
127. [127]
     The excerpt from the transcript given earlier does not record the later exchange between Mr Rowan and the Member as follows:

Member: Well, there’s some witnesses that talk about both. So rather than calling them at the remedy hearing. I’ll take them into account at the remedy hearing.

Mr Rowan: I would still be able to call my people, my witnesses to the remedy hearing?

Member: You can call other witnesses to the remedy hearing, should we reach it.

Mr Rowan: Thank you.

128. [128]
     There is no suggestion on the transcript that Mr Rowan’s concerns were not met. There is no complaint that Mr Rowan was prejudiced in relation to the conduct of the remedy hearing by any issue which in fact arose during the liability hearing.
129. [129]
     The Member did not re-join the issues of liability and remedy in the liability hearing. The Member’s comments were provided by way of explanation of what might emerge during the liability hearing and how it would be dealt with. The comments were made to assist the parties and are consistent with the Member’s obligation to conduct the proceeding expeditiously and with as little formality and technicality as possible. Feeling ‘thrown’ or anxious about what may lie ahead in a proceeding is common to all litigants. It does not mean a breach of natural justice has occurred.
130. [130]
     The ground of appeal is not made out.

Ground of appeal – breach of natural justice – refusing evidence by Mr Haynes

131. [131]
     Mr Rowan claims that he was improperly denied the opportunity to call Mr Haynes as a witness. This point was not the subject of submissions at the oral hearing, but was not withdrawn.
132. [132]
     There is no substance to Mr Rowan’s assertion. The affidavit of Mr Haynes dated 3 March 2017 was admitted into evidence, without Mr Haynes being required for cross-examination.
133. [133]
     There was no breach of natural justice by the Tribunal.

Ground of Appeal – error of law – finding of sexual harassment and no finding made under section 119(f) AD Act

134. [134]
     Mr Rowan submits the Tribunal erred in finding he had twice sexually harassed Ms Beck as defined in s 119 of the AD Act.^[62]
135. [135]
     It is also submitted that the Member was required to make a finding under s 119(f), as further defined in s 120 of the AD Act, but failed to do so. That is to say, no finding, or adequate finding,^[63] was made by the Tribunal that a reasonable person in Mr Rowan’s place would have anticipated the possibility that Ms Beck would be offended, humiliated or intimidated by his conduct. Instead, the Tribunal is said to have applied an incorrect test by finding a reasonable person in Mr Rowan’s place would have anticipated the possibility that the emails would come to Ms Beck’s attention.^[64]
136. [136]
     It is argued that no finding was made about what the relevant circumstances were, pursuant to s 120, that would have given rise to the reasonable person’s anticipation.^[65] This alleged error is properly framed as an error of law.
137. [137]
     Ms Beck contended, in response, that on a plain reading of the reasons for decision, the Member did in fact make the required findings.^[66] In oral submissions, Mr Hamlyn-Harris took the Appeal Tribunal through the Tribunal’s reasons for decision, which included the following passages:

I’m going to turn to the sexual harassment claim now and then return to the victimisation claim. The sexual harassment claims in respect of the two emails, the 19^th of February 2015 and 25^th of February 2015 – and I have regard here to section 119 of the Act – the question here is whether things said in these emails were both as is relied on by the applicant under paragraph (c) of section 119, that is, remarks with sexual connotations relating to the applicant, and also (f), “in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct”. I’m quite clear that both these emails come within those two definitions.

The email of the 19^th of February 2015 may not expressly with the words it uses have sexual connotations; however, when read with the email of the 25^th of February 2015, it clearly does. The use of the word “he” and the reference to “female toilets” in the 19^th of February 2015 email needs further explanation and understanding, but the parties who are affected by this, that is, both the respondent and the applicant, have that understanding. And the applicant had – when she read the 19^th of February 2015 email, she had the other one as well at the same time. She had the 25^th of February 2015 email at the same time because they were sent to her at the same time in July 2015 by Mr Scurr. It doesn’t matter that she saw these after the event, as is suggested by the respondent. The act of harassment occurred when she received them.

Does it come under paragraph (f) ? So would a reasonable person have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct? Well, the conduct is the sending of the emails to the officers. The conduct is not the sending of the emails to the applicant. So the question I have to decide is how far a reasonable person would have anticipated the possibility that the officers would pass those emails on to the applicant and, if they did that, that she would be offended, humiliated or intimidated. I think it was very likely that they would pass it on to the applicant, one or other of them or somebody else who might have received that chain.

It’s suggested by the respondent that that shouldn’t have happened and that the chances of this happening to him were very slim, but I don’t agree with that. I think that somebody of the four or five who saw these would have sympathised sufficiently with the applicant and thought that she ought to see them for one reason or another for reasons which are unnecessary to go into, not to hurt her in any way, as the respondent suggests, and not to retaliate to him, as the respondent suggests, but simply because somebody is entitled to know what is going on if it’s do to with them. And that, I think, is perfectly able to be anticipated and perfectly likely and therefore comes within subsection (f). Subsection (f) only requires the possibility that something will happen, and it was clearly within that. So those two emails did amount to sexual harassment of the applicant.

138. [138]
     Mr Hamlyn-Harris in oral submissions contended that the test in s 119(f) does not require a finding that someone was actually humiliated but rather whether a reasonable person would have anticipated that a person would be humiliated.^[67] Mr Hamlyn‑Harris agreed that there was no explicit finding made that Ms Beck was actually humiliated, but rather the Tribunal considered the evidence indicated Mr Rowan should have anticipated that she would be humiliated.^[68] In relation to whether a finding was made under s 120, Mr Hamlyn‑Harris asserted the relevant circumstance was Ms Beck’s status as a transgender person, and that a finding had therefore been made under s 120.^[69]
139. [139]
     We consider that on a fair reading, a finding was made that s 119(f) of the AD Act had been met. The finding is set out in the first paragraph quoted above. The reasoning is then given in the following paragraphs. The subsection is set out by the Member. Clearly, the Member is setting out the criteria under the subsection which has to be met. He says that it has been met.
140. [140]
     The Member finds that the conduct referred to in s 119(f) is the conduct of sending emails containing sexual connotations about Ms Beck to the committee.
141. [141]
     The Member sets out what he has to find, namely how far a reasonable person would have anticipated the possibility that:

     1. (a)
        the officers would pass those emails on to the applicant and, if they did;
     2. (b)
        she would be offended, humiliated or intimidated.
142. [142]
     The Member found that it was very likely an officer of the Club’s executive committee would pass on the emails to Ms Beck. Once that finding has been made, it is a platform for a finding that a reasonable person would have anticipated the possibility that Ms Beck would be offended, humiliated or intimidated by that conduct. The Member refers to the subsection requiring only that there is a possibility that something will happen. Given that Member is answering the question he set himself as to whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct, we think the reference to ‘that something will happen’ is a reference to the possibility that Ms Beck would be offended, humiliated or intimidated by the conduct.
143. [143]
     We do not think, as submitted on behalf of Mr Rowan, that the Member looked solely at whether a reasonable person in Mr Rowan’s place would have anticipated the possibility that the emails would come to Ms Beck’s attention and that was an incorrect test to apply. That consideration was but one part of what the Member said he had to find.
144. [144]
     Perhaps the findings might have been expressed with greater clarity; however, we are satisfied that the Member turned his mind to s 119(f) of the AD Act, set out what had to be found, applied the correct test and made relevant findings.
145. [145]
     As to s 120 of the AD Act, we agree with Ms Beck’s submission that it is her status as a transgender person which is the relevant circumstance in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. There is no controversy as to Ms Beck’s status. It is an unchallenged fact that in December of 2004 Ms Beck transitioned from the male gender to the female gender.^[70] There is no need for a further specific finding in this context that she is a transgender person. The subject matter of the emails found to amount to sexual harassment refer specifically to Ms Beck’s transgender status.
146. [146]
     We do not consider that the Tribunal erred as alleged.

Ground of appeal – breach of natural justice – bias

147. [147]
     Mr Rowan submits the Member displayed bias in the following ways:

     1. (a)
        The Member asked questions of Mr Rowan which were inappropriate and which would have been objected to if Mr Rowan had legal representation, as they were ‘not reasonable or relevant to the complaints’ against Mr Rowan.^[71]
     2. (b)
        The findings by the Member based on his questioning as to Mr Rowan’s complaint of sexual harassment were inappropriate and displayed bias.
     3. (c)
        Mr Rowan was required to receive ‘special permission’ from the Member to have his wife present, which amounted to unequal treatment evidencing bias.^[72]
     4. (d)
        The Member relied upon precedents, including previous decisions by the Member himself, that were not comparable, and which resulted in adverse findings as to remedy.
     5. (e)
        Various factual findings by the Member, in the context of the victimisation finding against Mr Rowan, amounted to bias, including:

        1. (i)that a pilot would not notice a ‘bulging cheek’ of a passenger beside him;
        2. (ii)the Member substituted his understanding rather than the actual conditions in the cockpit of an ultralight plane; and
        3. (iii)finding that it was ‘strange’ Mr Rowan continued his flying lessons with Ms Beck; that Mr Rowan did not report his allegations of sexual harassment; that Mr Rowan was willing to go into Ms Beck’s caravan; and that Mr Rowan voted to allow Ms Beck to live on-site (at the Gympie Aerodrome).
     6. (f)
        The Member failed to put to Mr Rowan the question as to why he was willing to allow other people to be instructed by Ms Beck; however, a finding was made on that point. That is said to be unreasonable and evidence of bias.
148. [148]
     Mr O'Gorman, in his further written submissions and oral submissions,^[73] focused on the Member’s questioning of Mr Rowan. In Mr O'Gorman’s submission, there is nothing wrong with questions from a Member which are ‘designed to clear up answers that may be equivocal or uncertain’.^[74] However, the Member is alleged to have gone beyond this point. Mr O'Gorman provided a number of authorities,^[75] relying particularly on the reasoning of McMurdo P and Davies and Thomas JJ in R v Senior:

That does not preclude a judge from asking questions of a witness, not only to clarify his or her evidence, but also to test that evidence where the judge perceives that it may be untruthful or even inconsistent with the evidence. ^[76]

149. [149]
     Mr O'Gorman describes the common law system as requiring a decision – maker to hold the balance between the parties, and ensuring the case against an accused party is properly and fairly advanced by the accusing party.^[77] The decision – maker is required to ‘remain aloof from the fray’.^[78] Mr O'Gorman described the conduct of cross-examination before the Tribunal below as one where a self - represented party, Mr Rowan, was examined by a ‘very competent’ lawyer and was then ‘confronted’ with ‘further cross-examination’ from the Member.^[79] Mr O'Gorman submits that a layperson could be forgiven for being taken aback by this situation, and that the alleged cross-examination by the Member amounts to a denial of natural justice.^[80]
150. [150]
     Framed in this way, the ground of appeal relates to a question of law. It is a fundamental tenet of natural justice that proceedings be determined by an impartial decision – maker, unaffected by either actual or apprehended bias.^[81]
151. [151]
     Mr O'Gorman referred the Appeal Tribunal to four pages of the transcript, which he submitted contained inappropriate questioning by the Member about issues which had already been the subject of ‘gruelling’ cross-examination by Ms Beck’s solicitors. These include a series of exchanges as follows:

MEMBER: I just need to ask you some more things about this, Mr Rowan?---Yep.

Now, this paper, the complaint to ADCQ, was prepared in 2016, I Think, so that’s - - -?---Six years, yep.

- - - seven years after – seven and a half years after these things happened?---Yep.

So I need to ask you how you could be sure about the date as the 4^th of January 2009 [indistinct]?---I can’t be. I went to the logbook and believed that was the - based on what was - I was in circuit training when it happened, and I looked at the circuit training and decided that would be the date.

But you’ve got circuit training on the 5^th of April as well?---Yeah, you do circuit training a lot - - -

So - - - ?--- - - - and you come back to it and go back to it, and I tried to identify it the best I could.

But why firm up on a date at all? Why bother putting a date in?---Good question.

Can you answer it?---No, I can’t. I should’ve just said approximately.

Well, one theory is that you’ve got into a moment of litigation, and you know that lawyers love dates, and they always ask you if you have a specific date for something, and you wanted to go along with that, That’s a possibility?---It is.

Do you think so?---Yes, that’s a possibility. I don’t know if – yes. Yes, it is.

But why doesn’t that apply to the cupboard door incident, then?---Because I couldn’t narrow it down anywhere near as accurately. The 4^th of January is a reasonably accurate date, but the cupboard door one I couldn’t recall.

Okay. Now, what am I to make about your use of the words “when I discovered that Beck was born a man, I was offended, humiliated, and felt intimidated”? Now, that’s straight out of the Act, isn’t it?---Yes.

So what do I make of that?---I copied it from the Act.

It looks like you might’ve sat down and thought, well, I’m going to put something in here that’s from the Anti – Discrimination Act?---the reason I made the complaint, I believe is – a lot of the reason is that Julie Ball said in a letter to me that every case has a right to be heard, and I thought, well, my case has a right to be head.

Who said that? Sorry?---Julie Ball said it to me.

Julie Ball being - - - ?---The principal lawyer at the ADCQ, who sent me a letter saying - - -

…

Were you trying to see what might happen with the ADCQ if you made an allegation about sexual harassment - - - ?---No.

- - - against the applicant as well?---No. I was – Julie Ball said every case had an – and that’s what motivated me to make the application.

You’re a believer in free speech, aren’t you - - ?---Yes.

- - - as against the political correctness - - -Yes.

- - - of the discrimination law and so on, so weren’t you just testing the boundaries?---Not necessarily – not necessarily against the discrimination law and so on, I’m just - - -

Okay. No .But as it conflicts with the discrimination law, there’s conflict, isn’t there, between what - - - I just think sometimes it goes too far.

Yes. So were you trying to test whether you could get a case going here?---Definitely not.

Trying it out?---I’m not a litigant. I didn’t want to litigant. I’m not interested in it. I was – I did that because I was aggrieved that I was being attacked by Jennifer and I have a genuine complaint and I wanted to have my case heard as well.

And you haven’t brought it as a case before for a reason which I don’t think you’ve been asked here?---I don’t want to litigate.^[82]

152. [152]
     Mr O'Gorman noted one particular comment from the Member as appearing to reverse the burden of proof from the applicant, Ms Beck, to Mr Rowan, as follows:

[MEMBER] So what can you say that might convince me that that’s the case – that you did it actually, that it wasn’t made up?^[83]

153. [153]
     Mr O'Gorman submits the Member’s questioning resulted in three key findings:

     1. (a)
        that Mr Rowan is prepared to test the boundaries of discrimination law;
     2. (b)
        that Mr Rowan invented his allegations of sexual harassment to improve his position in negotiations; and
     3. (c)
        that the Member ultimately found that Mr Rowan’s sexual harassment complaint was made to the detriment of Ms Beck because she had made a complaint under the AD Act.^[84]
154. [154]
     Ms Beck submits in response that none of the points Mr Rowan raised (in his initial written submissions) support the allegations of bias. Further, Ms Beck contends ‘it cannot reasonably be suggested that the Member played an inquisitorial role’.^[85] Ms Beck refers to R v Gibb ^[86] as support for her submission that the Member’s questioning was permissible.^[87]
155. [155]
     Ms Beck also argues that Mr Rowan takes issue with adverse findings made against him, but that these findings were open on the evidence and Mr Rowan provides no evidence to support his claims of bias.^[88] We accept that submission.
156. [156]
     It does not appear that in his outline of submissions Mr Rowan has fairly set out what occurred at the hearing. He was not required to obtain special permission for his wife to be present in the hearing. Mrs Rowan was a witness in the proceeding and would ordinarily not be entitled to be present in the hearing room until after her evidence had been given. However, the Member specifically asked Mr Rowan if he would like his wife to be present and asked Ms Beck’s lawyer if there was any objection.^[89] Furthermore, contrary to Mr Rowan’s assertion, the Member did raise with Mr Rowan any concern he may have had with respect to other students being in the same cockpit as Ms Beck.^[90]
157. [157]
     At the oral hearing, Mr Hamlyn-Harris also noted the Tribunal had dismissed other aspects of Ms Beck’s claim, which he argued goes against Mr Rowan’s general allegation of bias.^[91]
158. [158]
     In specific response to Mr O'Gorman’s written and oral submissions about the Member’s questioning, Mr Hamlyn-Harris submitted the Member, by asking the questions he did, put Mr Rowan on notice that the Member doubted Mr Rowan’s evidence and provided natural justice by allowing Mr Rowan an opportunity to respond to these doubts.^[92] In oral submissions, Mr Hamlyn-Harris referred the Appeal Tribunal to Bowskill J’s discussion of a similar issue in R v SDH,^[93] as follows:^[94]

[53]Further, in my view, the learned trial judge did not “unfairly intervene in the trial” (ground 2) by asking the appellant questions about some of the text messages. The relevant principles were referred to recently in R v Gibb [2018] QCA 120 in the reasons of the Chief Justice (with whom Gotterson and McMurdo JJA agreed).

“[75]It’s permissible for a trial judge to ask questions

‘designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself’.

And a judge may ask questions of a witness

‘not only to clarify his or her evidence, but also to test that evidence where the judge perceives that it may be untruthful or even inconsistent with other evidence’.

Miscarriages of justice may arise when questioning appears to be directed towards advancing the case for the prosecution or is convinced of the accused’s guilt.^[95] (footnotes omitted)

159. [159]
     Mr Hamlyn-Harris submitted that the question of whether the Member’s intervention was appropriate or not must be determined in the context of the hearing as a whole. Mr Hamlyn-Harris contended that, when reading the transcript of the Member’s questioning of Mr Rowan, it can be seen as ‘appropriate for a member having concerns about the genuineness of the complaint’ and, importantly, as giving Mr Rowan an opportunity to know and respond to these concerns.^[96]
160. [160]
     In relation to whether the Member had improperly reversed the burden of proof, Mr Hamlyn-Harris submitted the Tribunal was simply putting Mr Rowan on notice that his evidence was being doubted.
161. [161]
     We accept that Mr O'Gorman has correctly set out the legal position.
162. [162]
     However, we accept the submissions made by Ms Beck and Mr Hamlyn-Harris. We think that, in circumstances where the Member made it very clear he was concerned as to whether the complaint made by Mr Rowan was genuine or whether it was made up to retaliate against Ms Beck, it was appropriate for him to ask any questions which would enable him to make relevant findings.
163. [163]
     We do not accept that it is accurate to characterise the Member’s questioning of Mr Rowan as cross-examination. We agree with Ms Beck that the Member was giving Mr Rowan every opportunity to demonstrate the genuineness of his complaint.
164. [164]
     We do not consider the Member reversed the onus of proof in relation to the issue. The question Mr O'Gorman refers to is only one part of what must be determined before the onus of proof is discharged with respect to the allegation of victimisation. The question is part of an exchange between the Member and Mr Rowan which goes directly to the issue on which the Member would make a finding. The relevant exchange is:

Member:… and I’m wondering whether you made this case up?...I didn’t make it up. It’s true.

So what can you say that might convince me that that’s the case…that it wasn’t made up…

165. [165]
     The Member is clearly asking for evidence which supports Mr Rowan’s assertion that he was sexually harassed by Ms Beck. Being asked for more information or evidence about a factual assertion is not the same as being asked to disprove an allegation of victimisation under the ADAct on a reverse onus of proof, as submitted on behalf of Mr Rowan.
166. [166]
     Finally, we again refer to s 28 of the QCAT Act which provides at sub-s (3)(c) that the Tribunal may inform itself in any way it considers appropriate. The questioning of the Member was within the bounds of what the authorities describe as an entitlement to test the truthfulness of evidence.
167. [167]
     We do not accept that error has been made out.

Ground of appeal – breach of natural justice – making findings when other evidence is available

168. [168]
     Mr Rowan submits that there is evidence available that a reasonable person would not have anticipated the possibility that officers would pass emails on to Ms Beck.^[97]
169. [169]
     This ground was not expressly addressed in the oral hearing beyond reference to the ground being relied upon. We understand the ground to relate to the application to rely upon the further affidavit of Mr Haynes and that the application is linked to an assertion that there was a lack of procedural fairness in the hearing and a denial of natural justice in that Mr Rowan did not have the opportunity to fully present his case. That is an allegation of an error of law by the Member below.
170. [170]
     Mr Haynes could have, but did not, address the issue of confidentiality of committee communications in his affidavit before the Tribunal.
171. [171]
     In his further affidavit Mr Haynes expands upon evidence set out in his affidavit dated 3 March 2017, relied upon by Mr Rowan in the proceedings. The further evidence from Mr Haynes relates to matters canvassed at the hearing below. Mr Haynes gives his opinion as to the confidentiality of committee emails and states that he never attended a meeting about a Statement of Principle and never voted on the issue. The proposed evidence is not fresh evidence. It is new evidence intended to enable Mr Rowan to run a better case the second time around. That is not the basis on which leave is given to allow reliance on additional evidence. To the extent that this ground relates to the application for leave to rely upon the affidavit of Mr Haynes, that leave is refused.
172. [172]
     To the extent that Mr Rowan says that, if called to give evidence in person, Mr Haynes would have given that evidence, we note that Mr Rowan did not at any time indicate to the Member that he wished to call additional evidence in chief from Mr Haynes.
173. [173]
     The ground of appeal is not made out. If we are mistaken and the ground of appeal is an alleged error of mixed law and fact or fact and leave to appeal is required, we would refuse leave on the basis that no reasonably arguable error is demonstrated on the facts.

Ground of appeal – inconsistency in findings

174. [174]
     The parties did not address the ground of inconsistent findings in oral submissions before the Appeal Tribunal. Mr Rowan submits in his outline of submissions for appeal that the Tribunal made findings that were inconsistent in relation to the allegation of victimisation in relation to the 5 February 2016 email to Mr Middlemiss, which was dismissed, and the allegations of sexual harassment in two emails which were accepted.^[98]
175. [175]
     Mr Rowan submits the Member could not have made a finding that Mr Rowan should reasonably have anticipated the possibility that the emails, found to be sexual harassment, would come to Ms Beck’s attention, while also finding Mr Rowan should not have reasonably anticipated the possibility that his email of 5 February 2016 to Mr Middlemiss would not come to Ms Beck’s attention.
176. [176]
     This ground of appeal involves questions of fact.
177. [177]
     The emails are different and arose in different factual contexts. The Member set out his findings on a reasoned basis in relation to the possibility of the emails coming to the attention of Ms Beck. Of note, in relation to the 5 February 2016 email, is the Member’s reliance on a concession by Ms Beck’s lawyer that the email was not intended to be seen by Ms Beck.^[99]
178. [178]
     It is the task of the Member to consider and make findings on the evidence. The findings were open on the evidence and do not demonstrate any error. There is no reasonably arguable ground of appeal demonstrated. Leave to appeal on this ground is refused.

Ground of appeal – error in accepting and rejecting medical reports

179. [179]
     Mr Rowan raised a further ground of appeal not addressed at the oral hearing before the Appeal Tribunal.
180. [180]
     Mr Rowan argues that the Tribunal, in reaching its decision as to remedy, erred by rejecting a report from a Dr Barletta and that medical evidence provided by Ms Beck from Dr Neilson and other medical professionals should not have been accepted. Mr Rowan claims that only Dr Barletta had full knowledge of other stressors said to be impacting on Ms Beck. On that basis, Mr Rowan claims that the other medical evidence before the Tribunal is ‘inherently unreliable’ and that Ms Beck did not provide proper disclosure to her reporting medical professionals. It is asserted that the matter should be struck out under s 48 of the QCAT Act.^[100] The submission is unclear as to what part of the proceeding it is said should be struck out and is misconceived.
181. [181]
     Ms Beck clarified the experts referred to are Ms Muir, Dr Taikato and Dr Nielsen. In her submission, the Member did not reject Dr Bartella’s report and in fact relied upon it in finding there were multiple explanations accounting for psychological issues faced by Ms Beck.^[101] On that basis, Ms Beck submitted there is no basis for Mr Rowan’s arguments.
182. [182]
     This ground of appeal involves questions of fact. In discharging his function, the Member considered the medical evidence and made findings of fact. Findings of fact will rarely be disturbed provided that they are open on the evidence, even if another view is available.^[102]
183. [183]
     We do not accept that a reasonably arguable error of fact or law has been demonstrated by Mr Rowan.

Ground of Appeal – Incorrect assessment of quantum of claim

184. [184]
     Mr Rowan submitted that the Tribunal incorrectly assessed the quantum of the claim because the Member did not take into account Mr Rowan’s lack of intention to sexually harass Ms Beck in the precedents the Member relied upon and calculations undertaken.^[103] In particular:

69. The member found there to be 3 causes to the alleged condition of the Complainant:

1. (i)
   The aerodrome club and members;

2. (ii)
   The emails; and

3. (iii)
   The court case.

70. The Appellant was found responsible for 0% of cause (i) but 75% responsible for causes (ii) and (iii).

71. In regard to cause (ii) the Appellant successfully defended 7 of the 10 claims including one of serious vilification. It is contended that the more appropriate apportionment of liability is 30%, less the effect of the serious vilification claim that was never going to succeed.

72. In regard cause (iii) the 75% was reached by adding the victimisation claim to the effect on the Complainant. In the circumstances where Appellant successfully defended 7 of the 10 claims including one of serious vilification, it is contended that the more appropriate apportionment is 30%, less the effect of the serious vilification claim that was never going to succeed. It is contended that because the Complaint contained a complaint of serious vilification, the Appellant had no choice but to defend the complaints.

73. The member applied the costs for remedial counselling of $2000 despite having no invoices to ensure the sessions were applicable and he did not account for the significant government subsidy claimed back by the Complainant for each visit. The Appellant contends that this is unreasonable.

185. [185]
     In response, Ms Beck submits Mr Rowan’s arguments do not reveal any error by the Tribunal in reaching its decision on remedy, but rather the Tribunal correctly applied similar cases and correctly assessed quantum, considering causation and remedy. In relation to Mr Rowan’s argument that his success on 7 out of 10 claims should discount the awarded amount, Ms Beck contended that no such discount applies. Instead, she submits that the Member was correct to consider compensation only for the contraventions established and in the context of which the contraventions occurred.^[104]
186. [186]
     We accept Ms Beck’s submissions. We consider the exercise of the Member’s discretion in relation to assessment of the quantum of damages was not affected by any identified error of fact or law which would justify it being set aside. For completeness, it is not manifestly excessive.
187. [187]
     We do not accept that a reasonably arguable error of fact or law has been demonstrated by Mr Rowan.

Ground of appeal – Costs

188. [188]
     Mr Rowan made several arguments in relation to costs. It is unclear whether he refers to the costs of the appeal proceeding or the original proceeding.
189. [189]
     Ms Beck did not respond to these arguments, noting instead costs have not yet been determined in the proceedings below and are not subject to an application for leave to appeal or appeal.
190. [190]
     For completeness, the subject of costs as a ground of appeal is misconceived if it was an intended ground.

Conclusions and disposition of the appeal

191. [191]
     No error of law has been established on appeal.
192. [192]
     No basis has been established for the grant of leave to appeal. No reasonably arguable case of error is shown which would entitle Mr Rowan to substantive relief. Leave to appeal is not necessary to correct a substantial injustice to Mr Rowan, nor is there any question of general importance in relation to which a decision of the appeal tribunal would be to the public advantage.^[105]
193. [193]
     The application for leave to rely upon fresh evidence is refused.
194. [194]
     Both the applications for leave to appeal and the appeals are dismissed.
195. [195]
     We make orders accordingly.