Chut v Brisbane City Council [2014] QCATA 275

CITATION: Chut v Brisbane City Council [2014] QCATA 275 PARTIES: Ayik Chut (Applicant/Appellant) v Brisbane City Council (Respondent) APPLICATION NUMBER: APL061-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Browne DELIVERED ON: 23 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to adduce new evidence is refused. 2. The appeal is refused. CATCHWORDS: APPEAL – ANTI-DISCRIMINATION – PROCEDURAL FAIRNESS – where the applicant was self represented – where applicant alleges he was discriminated against at work because of his Sudanese race – where allegations of direct and indirect discrimination – where the Tribunal found no breach – where the complaint was dismissed – where the applicant appealed on a question of law – where the applicant seeks relief by way of setting aside the Tribunal’s decision – whether grounds for appeal NEW EVIDENCE – where the applicant seeks leave to admit new evidence – whether new material sought to be produced is relevant to matters already ventilated at the hearing – whether the applicant satisfies the test for admitting new evidence on appeal -- 1 of 13 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 142(3)(b) Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 15, s 133, s 177, s 178, s 204, s 205 Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99, cited Chut v Brisbane City Council & Turner [2014] QCAT 38 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited Dearman v Dearman (1908) 7 CLR 549, cited Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93, cited Kioa v West (1985) 159 CLR 550, cited South Australia v O’Shea (1987) 163 CLR 378, cited Tsigounis v Medical Board of Qld [2006] QCA 295, cited W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Senior Member Endicott [1] I have had the advantage of reading the draft reasons prepared by Member Browne. I agree with them and the orders she proposes. Member Browne [2] The Anti-Discrimination Act 1991 (Qld) (‘the ADQ Act’) provides a mechanism for the referral of a complaint, that has been made to the Anti- Discrimination Commission, to the Queensland Civil and Administrative Tribunal.1 [3] It is the Tribunal’s role having received a complaint from the Anti- Discrimination Commission to ‘hear and decide complaints’ in particular the contentions made to determine whether there has been a contravention of the ADQ Act. The complaint on referral to the Tribunal may for example concern an employee or former employee as the 1 Under s 175 of the ADQ Act the Tribunal must accept a complaint made referred by the Commissioner, unless the complaint was made out of time, as provided in the ADQ Act. -- 2 of 13 -- 3 applicant (or complainant) and contain allegations of direct and or indirect discrimination by the former employer as the respondent based on an attribute, as defined, in breach of the ADQ Act.2 [4] The complainant or applicant before the Tribunal upon referral of a complaint by the Commission has the burden of proof where contentions of direct discrimination have been made. That is the applicant must present evidence to the Tribunal to ‘prove, on the balance of probabilities, that the [employer] contravened the [ADQ Act]’.3 [5] On 10 November 2011, the Commission referred a complaint to the Tribunal made by Mr Chut, concerning his former employer, the Brisbane City Council (‘BCC’), and Darren Turner, his former supervisor at the BCC. The complaint referred to the Tribunal contained allegations of direct and indirect discrimination on the attribute of race in the area of work. [6] Mr Chut previously worked as a trainee with the BCC based at the St Lucia Golf Course. Mr Chut accepted an offer made on 22 June 2010 by the BCC to work under a temporary 12 month ‘Turf Management’ traineeship. The traineeship program called ‘Working On’ was designed to provide traineeship opportunities to adults aged up to 35 years who have difficulties with substance abuse. Mr Chut successfully completed his traineeship in Horticulture and was notified by the BCC on 7 July 2011 that the completion date for his traineeship was 6 July 2011. Prior to completing the traineeship Mr Chut lodged the complaint with the Commission on 22 June 2011. [7] The complaint made by Mr Chut proceeded to a hearing before the Tribunal in Brisbane on 22 and 23 July 2013. Mr Chut at the time of the hearing was a 36 year old man of Sudanese race who had been living in Australia for approximately 17 years and had been educated in Australia.4 Mr Chut was not legally represented at the hearing and did not require an interpreter. [8] The Tribunal published reasons for its decision and final orders were made on 15 January 2014 that the complaint made by Mr Chut is dismissed and each party to bear its own costs. [9] Mr Chut has filed an application for leave to appeal or appeal the decision made by the Tribunal on 15 January 2014. Mr Chut seeks an order to ‘reverse the decision and find that [he] was discriminated against’.5 [10] Mr Chut has also filed an application for miscellaneous matters to adduce new evidence in particular a statement prepared by Robert Pratten a former employer of the BCC. 2 ADQ Act s 7. 3 ADQ Act s 204, subject to the requirements in s 205 and s 206. 4 Chut v Brisbane City Council & Turner [2014] QCAT 038. 5 Application for leave to appeal or appeal filed 5 February 2014. -- 3 of 13 -- 4 [11] Mr Chut contends that the witness Robert Pratten was a ‘witness who saw what happened to [him]’ and was not available at the time his complaint proceeded to a hearing at the Tribunal before the learned Member.6 Grounds of Appeal [12] Mr Chut sets out the following in the application for leave to appeal or appeal: I had to represent myself as Legal Aid was declined; I was unable to respond in time to their correspondence. I believe that was a major disadvantage to my case because I didn’t properly understand the legal language and I couldn’t really put my case properly. I have a witness now who was not available for the hearing because I had lost contact with him. I can support the things I have said in my statement. I think the BCC won because of legal arguments, not because what I said was untrue. [13] Mr Chut effectively raises two grounds in the appeal in that he contends he was not afforded an opportunity to properly present his case because he was self represented and because he was self represented the BCC were capable of presenting legal argument that was preferred or accepted by the Tribunal resulting in the complaint being dismissed. [14] There is a further contention raised in the appeal that principally relates to whether Mr Chut was denied a reasonable opportunity to be legally represented at the hearing having had his legal aid application declined. [15] Mr Chut has also filed an application for leave to adduce new evidence being a statement prepared by Robert Pratten, former employee of the BCC. Mr Chut makes reference to the availability of a witness in the grounds of appeal. The Appeal Tribunal will address Mr Chut’s contentions in relation to having ‘a witness now’ that is relevant to the application to adduce or rely on new evidence in determining whether leave should be given to allow the further evidence. [16] The Appeal Tribunal has the power to grant relief under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) if it is satisfied that there has been an error in the Tribunal’s decision on a question of law, mixed fact and law, or of fact. A question of law does not require leave. A question of fact, or mixed fact and law may only proceed if the Appeal Tribunal has granted leave to appeal.7 [17] In an earlier decision of the Appeal Tribunal the distinction between questions of law and fact were considered. In Racing Queensland Limited v Dixon8 the Deputy President stated: 6 Application for miscellaneous matters filed 3 March 2014. 7 QCAT Act s 142(3)(b). 8 [2013] QCATA 172. -- 4 of 13 -- 5 Provided that the question raised by the relevant appeal ground is properly framed as a question of law then the appeal on that ground may proceed before the Appeal Tribunal as of right. Leave is not required.9 [18] In the present case the grounds of appeal identify errors of law in that Mr Chut contends he was not afforded procedural fairness in presenting his case at the hearing and in being self-represented as a result of his grant of legal aid being refused. The grounds of appeal raise questions of law as to whether there has been a breach of the rules of natural justice that includes a failure by the Tribunal to give Mr Chut ‘a reasonable opportunity of presenting his case’.10 [19] It was held by Brennan J in Kioa v West: The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.11 [20] It was determined by the Appeal Tribunal in Bakker & Kramer v Richards Projects Pty Ltd12 that ‘[w]hether a matter has been dealt with fairly depends on the circumstances of the case’.13 A breach of natural justice will not however necessarily arise in all circumstances where a person appearing in a proceeding has elected to be self represented.14 [21] The grounds of appeal raise questions of law as to whether Mr Chut was afforded procedural fairness in presenting his case and being self represented at the hearing. Questions of law do not require leave as a right. The appeal should be allowed to proceed without leave. Ground 1: Was there a denial of procedural fairness? [22] The QCAT Act requires the Tribunal to ‘take all reasonable steps’ to ensure that each party to a proceeding understands ‘the practices and procedures of the Tribunal; and the nature of assertions made in the proceeding and the legal implications of the assertions; and any decision of the Tribunal relating to the proceeding’.15 [23] The Tribunal must in conducting a proceeding ‘observe the rules of natural justice’ and act with as little ‘formality and technicality and with as much speed’ as the requirements of the act, an enabling act or the rules and a proper consideration of the matters before the Tribunal permit.16 9 Ibid at [9]. 10 Kioa v West (1985) 159 CLR 550. 11 Ibid at 612. See Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99 at [29]. 12 [2014] QCATA 99. 13 Ibid at [28]. 14 Tsigounis v Medical Board of Qld [2006] QCA 295 at [57]. 15 QCAT Act s 29. 16 QCAT Act s 28. -- 5 of 13 -- 6 The Tribunal also has an obligation to identify issues in dispute and questions of law in conducting a compulsory conference that will take place on a date prior to the hearing. The purpose of a compulsory conference as required by s 69 of the QCAT Act is, amongst others, to ‘identify and clarify the issues in dispute’ and to identify the ‘questions of fact and law to be decided by the Tribunal’.17 A compulsory conference is chaired by a member of the Tribunal and will involve the participation of both parties in the proceedings. [24] The Tribunal has considered Mr Chut’s contentions that he did not ‘properly understand the legal language’ and he was therefore not able to present his case. A party to a proceeding should be afforded the opportunity to present his or her case to ensure that ‘everything to be said that could be said in his favour’ is presented.18 [25] The Tribunal is satisfied that Mr Chut was given an opportunity to participate in a compulsory conference that was scheduled on a date before the hearing.19 [26] The Tribunal is satisfied that the learned member took reasonable steps at the hearing as required under s 29 of the QCAT Act to ensure that Mr Chut was not in any way disadvantaged in presenting his case. The learned member informed Mr Chut at the commencement of the hearing that an interpreter was available to assist him and explained the relevant legislation and what he, as the applicant, had to establish under the ADQ Act, in order to be successful with his application. [27] Mr Chut elected to proceed at the hearing without the assistance of an interpreter. The learned member advised Mr Chut upon his declining the assistance of an interpreter that if at any stage throughout the hearing should an interpreter be required, an interpreter could be arranged at his request. The relevant extract from the transcript of the hearing is as follows: MEMBER: I have to be independent because I have to decide your application. But it is my obligation under the act also to make sure you understand everything that happened today. So if at any time you don’t understand what is happening, can you let me know? … MEMBER: Now, you asked for an interpreter. MR CHUT: Yeah MEMBER: Unfortunately we could not obtain an interpreter to come and sit with you. But we have go – managed to get an interpreter on the telephone. Now, you have been in Australia for 16 years. 17 QCAT Act s 69. 18 South Australia v O’Shea (1987) 163 CLR 378 at 405, see Tsigounis v Medical Board of Qld [2006] QCA 295 at [57]. 19 The matter proceeded to a compulsory conference before a legal member of the Tribunal on 6 June 2012 in accordance with directions made on 12 March 2012. -- 6 of 13 -- 7 MR CHUT: Yeah. Seventeen years, nearly 18. Came ’96 - - - MEMBER: Yes. MR CHUT: - - - at the end of ’95. MEMBER: Yes. And that makes no difference still. With technical things like legal terms, it’s important that you understand. So we’re very happy to provide that interpreter. I’m just making an inquiry about whether you need the interpreter to stay with us for the full day or just for parts. Would you like us to get the interpreter on the telephone now? MR CHUT: Yeah, I can talk for myself. Sometime it get harder. That’s when I need interpreter. MEMBER: Yes. So, do you think we should get the interpreter now on the phone? Or do you – would you rather wait until you think you need the interpreter? MR CHUT: I’ll wait until I think I need it. MEMBER: Okay. Yes. So we have that person standing by. MR CHUT: All right. MEMBER: And at any time you let me know if you don’t understand. MR CHUT: Righto.20 [28] The Appeal Tribunal is satisfied that the learned member took reasonable steps to explain to Mr Chut at the commencement of the hearing the relevant legislation and the issues to be determined by the Tribunal having received the referred complaint. The learned member referred Mr Chut to the ADQ Act and what Mr Chut must ‘show’ to satisfy the requirements (under the ADQ Act) to support his contention that he was treated ‘less favourably by the respondents than other people who were not of Sudanese background’. Mr Chut has indicated to the learned member at the hearing that he understood the procedure to be followed and the issues to be determined by the Tribunal. The relevant extract from the transcript of the hearing is as follows: MEMBER: - - - to the tribunal. So Mr Sapsford, do you mind if I briefly just run through, given that Mr Chut has the onus of proof, what he has to establish? … MEMBER: So in order to succeed in your claim, Mr Chut, you have to show that Mr Turner treated you less favourably than he would – than he treated other people who weren’t Somalian. Are you Somalian background? MR CHUT: No, No, Sudanese. … MEMBER: Sudanese background, in circumstances that were the same or not materially different. Now, you know that our parliament makes written – writes laws down, and there’s the Anti-discrimination act, and I have to work out whether - - - … 20 Transcript of proceedings, T1-2 lines 25 to 45, T1-3 lines 5 to 20. -- 7 of 13 -- 8 MEMBER: - - - on the facts of this case you have made out that basic case of discrimination in the area of work. Now, it doesn’t matter – so firstly we have to find out whether Mr Turner did treat you less favourably in the first place. And, if he did, was it on the basis that you are Sudanese. And if he did treat you less favourably on that basis, it’s not necessarily – it’s not necessary that you prove that Mr Turner knew he was treating you less favourably or he had a specific motive for – whatever motive he had is irrelevant, if he did treat you unfavourably. And if there are two or more reasons – if there are two different reasons why he treated you less favourably, the – if the fact you are Sudanese is the substantial reason why he treated you less favourably, you have made out your case. You have also brought an allegation of sexual harassment under section 118 of the Anti-discrimination Act. So – basically on the basis that Mr Turner has made remarks with sexual connotations relating to you. And they are unlawful if he intended to offend, humiliate or intimidate you, or if a reasonable person would have anticipated the possibility that you would be offended, humiliated or intimidated by Mr Turner’s conduct. So does that help you understand - - - MR CHUT: Yep. Yep, I understand. MEMBER: - - - what you have to prove today? MR CHUT: Yeah. MEMBER: And so I’ll just tell you one last thing about the process. Firstly we’ll get you to give your evidence. Now, I see there are – you haven’t filed any affidavit material, but you have filed a couple of statements. Well, there are a couple of statements before the court. One is in writing and one is attached to the application. MR CHUT: Yep.21 Ground Two: Was there a breach of natural justice? [29] The Appeal Tribunal is satisfied that Mr Chut was not in any way disadvantaged by reason of him being self represented at the hearing; or that he was (as contended) denied an opportunity to properly present his case because he was denied an opportunity to be legally represented at the hearing by reason of his grant of legal aid being refused.22 [30] The QCAT Act provides that ‘parties represent themselves unless the interests of justice require otherwise’.23 A party can however apply under s 43 of the QCAT Act for leave of the Tribunal to be represented in a proceeding. [31] Mr Chut has failed to establish that he was denied an opportunity to properly present his case because he had otherwise been denied an opportunity to obtain legal advice or to be legally represented at the hearing. The Tribunal by way of order dated 30 March 2012 granted both parties leave to be legally represented in the proceedings. It was a matter for Mr Chut as to whether he would avail himself of the opportunity to be 21 Transcript of proceedings, T1-5 lines 30 to 45, T1-6 lines 5 to 45. 22 See Tsigounis v Medical Board of Qld [2006] QCA 295. 23 QCAT Act s 43. -- 8 of 13 -- 9 legally represented. Mr Chut had approximately 16 months from the date the order was made (for the parties to be legally represented) to the date of the hearing to avail himself of that opportunity. It is unfortunate for Mr Chut that he, as contended, was denied legal aid representation but this did not however prevent Mr Chut from obtaining legal representation or advice from another legal stakeholder. Mr Chut has elected to be self represented in the proceedings. [32] Notwithstanding Mr Chut’s election to not be legally represented in the proceedings, there was no requirement under the QCAT Act for Mr Chut to be legally represented. The Tribunal has a statutory obligation to take reasonable steps to ensure that the parties in the proceedings understand the procedure and nature of assertions being made. The Appeal Tribunal has made findings that the learned member took reasonable steps as required under the QCAT Act to give Mr Chut an opportunity to present his case and took steps to ensure that he understood ‘the nature of assertions made in the proceeding and the legal implications of the assertions’.24 [33] There is no evidence before the Appeal Tribunal that Mr Chut due to any language difficulties and by reason of the fact that he was self represented has failed to understand the proceedings and the nature of the assertions made at the hearing. The transcript of the hearing clearly demonstrates that Mr Chut was capable of expressing himself verbally. Mr Chut has stated at the commencement of the hearing that although he is of Sudanese background he has been living in Australia for approximately 16 years. Mr Chut has also prepared written submission in support of his application for leave to adduce further evidence. The submissions filed in the Appeal Tribunal on 27 March 2014 are set out in a clear and concise way and Mr Chut has stated the reasons why he is appealing the decision and ‘bringing in the new evidence’.25 Mr Chut states in his written submissions filed: This matter has been going on for so long now and it has affected my life in so many ways. I came to Australia in 1996 as a refugee due to the war in my country. I finished high school in Toowoomba in 1998 and started working. I have done all sorts of work since then but I have never worked in a place where I got treated as badly like I did in Brisbane City Council. Racism is something that I go through nearly every day I walk out of my place. I ignore 99% of it because people who say things are either drunk or they are young people just making fun of it and the 1% are the people who say racist things right to my face like Darren Turner did to me so many time…. I just want my right to be heard so I can move on and this kind of thing does not happen to anyone in the future.26 24 QCAT Act s 29. 25 Applicant’s written submissions filed 27 March 2014. 26 Ibid. -- 9 of 13 -- 10 [34] The learned member in her published reasons has also made observations about Mr Chut’s ability to understand the nature of the proceedings. The learned member stated: [8] Mr Chut was well presented and punctual in his attendance at the Tribunal. He was articulate and with support, was quick to understand what was required of him in presenting his case.27 [35] Mr Chut has failed to identify any error in the learned member’s conduct of the proceedings or that he was otherwise denied an opportunity to present his case by reason of him being self represented in the proceedings and at the hearing. The appeal in relation to both grounds one and two must fail. Mr Chut’s application to adduce new evidence [36] There are established principles to be considered in determining whether leave to adduce further evidence should be granted. In Ellis & Anor v Queensland Building Services Authority28 the Appeal Tribunal identified the circumstances in which new evidence will be permitted: It could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and the evidence is apparently credible, although not necessarily incontrovertible.29 [37] The new evidence is in the form of a hand written statement dated 27 February 2014 prepared by a witness and alleged former employee of the BCC, Robert Pratten. Mr Chut contends in the application to adduce new evidence that the witness Robert Pratten was not available at the hearing. In written submission filed in support of the application, Mr Chut provides reasons why the witness Robert Pratten was not available at the hearing. Mr Chut states: The reason Robert Pratten was not available as my witness before was that I had lost contact with him because he had moved to a different state and changed his phone number. This happened before my matter was taken to [sic] Tribunal. I found him again through Facebook and he had moved back to Queensland at the start of 2013. He now lives in Brisbane and I was able to contact him and talk to him about my matter.30 [38] Mr Chut has failed to demonstrate however why he could not have obtained the evidence from Robert Pratten prior to the hearing. Mr Chut was given an opportunity to present evidence at the hearing. It is evident from reading the transcript of the proceedings that Mr Chut was questioned by the learned member about the availability of witnesses and Mr Chut has clearly failed to mention that he had a potential witness that is 27 Chut v Brisbane City Council & Turner [2014] QCAT 038 at [8]. 28 [2010] QCATA 93. 29 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 at [7], see Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 30 Applicant’s written submission filed on 27 March 2014. -- 10 of 13 -- 11 no longer in the employment of the BCC. The learned member informed Mr Chut at the hearing about the Tribunal’s power to compel a witness to attend a hearing to give evidence. It is evident from the transcript of the hearing that Mr Chut told the learned member that the witnesses who could effectively give evidence for him were still employed by the BCC. There was no mention by Mr Chut that there was a potential witness such as Robert Pratten who was no longer in the employment of the BCC. The relevant part of the transcript is as follows: MEMBER: …I need to be sure that you know that you can compel witnesses to come… … MR CHUT: I had Peter. So now I can’t – they’re still working for the Council and I know there’s no way they’re going to go against the Council. Thy still work there. … MEMBER: I was just thinking if you had a critical witness who you really wanted to attend, than that can be arranged. MR CHUT: Even if I – even if you get them over here, they’re not going to be on my side. MEMBER: yes MR CHUT: Because I have a lot of thing to the Council that I shouldn’t say.31 [39] Mr Chut has also failed to demonstrate that the new evidence would have an ‘important influence on the result’ being the learned member’s findings had it been available at the hearing. The statement of Robert Pratten refers to ‘racial slurs’ and ‘racist jokes’ about Mr Chut that were allegedly overheard by the witness, Robert Pratten. The written statement fails to identify who allegedly said the words and is devoid of any particulars as to when the alleged comments were made or the events concerning the comments took place. [40] The written statement also raises issues in relation to allegations, comments or statements including ‘racial slurs’ made about Mr Chut that have already been determined by the learned member as being ‘directly uncontradicted’. The learned member states in the decision: [46]…Mr Chut has not established that it was more likely than not that Mr Turner said that he had come to Australia as a “slave” in front of Mr Watterson. This aspect of the complaint is dismissed. [47] This is a substantial setback to Mr Chut’s case, as his evidence has, again been directly contradicted, this time in relation to a significant interaction which constituted one of the more serious allegations against Mr Turner. It also calls the reliability of his memory into question, as he could not recall seeing Mr Watterson’s tattoo. 31 Transcript of proceedings, T1-4 lines 30 to 45, T1-5 lines 5 to 15. -- 11 of 13 -- 12 [48] Mr Chut says that Mr Turner occasionally referred to him with reference to his colour. For example says he overheard Mr Turner say “I wonder what the [sic] midnight got up to on the weekend”. Mr Turner’s evidence was that he didn’t refer to Mr Chut as “midnight” and had not heard the term used before with reference to someone’s race. Mr Chut did not call any witnesses to substantiate his claim. While it is not determinative, I note that this allegation was not mentioned in the original complaint to the Commission. [41] The learned member also made findings in relation to Mr Chut’s credibility as a witness in considering the evidence before her. The learned member in her findings considered a statement prepared and filed by Mr Chut dated 21 March 2013 in which he states that he (Mr Chut) had ‘knocked someone out’ because they called him a ‘faggot’. The learned member observed that Mr Chut in giving his oral evidence effectively ‘changed his story’ about the circumstances giving rise to the events referenced in the statement. The learned member states: [27] Mr Chut disputed that he was lazy, unreliable and violent although he did acknowledge his homelessness as a disruptive factor affecting his work life. He said I have good references and I work hard. In relation to the allegations of violence, Mr Chut volunteered in his undated statement filed in the Tribunal on 21 March 2013 that he had knocked someone out because they called him a faggot…. [28] However, during cross examination, Mr Chut changed his story and said that he had seen someone else knock out someone because they called him a faggot. This is a concerning admission that he mislead the Tribunal on this point, which began to raise the Tribunal’s concerns about Mr Chut’s credibility.32 [42] It was open to the learned member to make findings about the evidence including observations about Mr Chut’s reliability as a witness. As considered by the Appeal Tribunal in W & T Enterprises (Qld) Pty Ltd v Bernau33 and consistent with the findings of Isaacs J in Dearman v Dearman34, finings of fact made by the Tribunal at first instance will not ‘usually be disturbed on appeal’ in circumstances where there is ‘evidence capable of supporting any inferences underlying it’.35 Isaacs J held in the High Court decision of Dearman v Dearman: …And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal.36 [43] The Appeal Tribunal is not satisfied that had Mr Chut presented the evidence of Robert Pratten that it would have had ‘an important influence’ 32 Chut v Brisbane City Council & Turner [2014] QCAT 038 at [27], [28]. 33 W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71 at [15]. 34 (1908) 7 CLR 549. 35 W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71 at [15]. 36 Dearman v Dearman (1908) 7 CLR 549 at 561. -- 12 of 13 -- 13 on the outcome of the learned member’s findings. The application for leave to adduce further evidence is refused. [44] The Appeal Tribunal has also considered all of the contentions made by Mr Chut and is not satisfied that he has demonstrated an error in the learned member’s findings or in the conduct of the proceedings. The appeal is refused. -- 13 of 13 --