Casey v Singh [2013] QCATA 277

CITATION: Casey v Singh [2013] QCATA 277 PARTIES: Mr Kevin George Casey (Appellant) v Mr Rachhpal Singh (Respondent) APPLICATION NUMBER: APL053-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member P Goodman, Member DELIVERED ON: 23 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is dismissed. CATCHWORDS: APPEAL – Anti-Discrimination Act 1991 – where appellant claims denial of natural justice – where appellant claims employer vicariously liable for actions of employee – where employer now in liquidation – where appellant failed to provide evidence at original hearing and now seeks rehearing Anti-Discrimination Act 1991 s 133 Queensland Civil and Administrative Tribunal Act 2009 ss 28, 32, 142 PS Business Holdings v Duncan & Anor [2010] QCATA 19 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 (QCAT Act). -- 1 of 6 -- 2 REASONS FOR DECISION [1] Mr Singh applied to QCAT alleging that he had been discriminated against by Mr Casey. After a number of prehearing processes, the complaint was considered at an oral hearing on 8 November 2012. Mr Casey was aware of the hearing but chose not to take any active part. [2] QCAT found that Mr Casey and his employer Shafston Training One Pty Ltd were responsible for discrimination against and vilification and victimisation of Mr Singh. Shafston and Mr Casey were required to pay $33,287 to Mr Singh. Reasons for the decision have been published.1 [3] Mr Casey asks that we revisit the decision and make a finding that Mr Singh was not discriminated against. He says that Mr Singh‟s complaint should be dismissed, or alternatively that the complaint should be reheard with all relevant information available to the Tribunal. [4] Mr Casey says that the Tribunal member made a number of errors: a) in awarding Mr Singh a remedy (compensation) other than the remedy he originally sought (an apology and Mr Casey‟s employment reviewed); b) in denying him natural justice by not having regard to his affidavit, which was not submitted to the Tribunal by Shafston as had been arranged between them; c) in denying him natural justice by: i) not allowing him the opportunity to make submissions on the appropriate order, once the finding of discriminatory conduct was made; ii) not granting Shafston‟s application to have the hearing adjourned on the basis that they were likely to enter into liquidation; iii) not allowing him to be heard on the issue of whether he and Shafston should be jointly and severally liable; d) in making Shafston and Mr Casey jointly and severally liable knowing that Shafston was in liquidation, leaving Mr Casey to pay the full amount; and e) in holding Mr Casey, as head chef, responsible for the assessment of four other trainers who also deemed Mr Singh to be “not yet competent”. [5] Mr Casey‟s appeal raises questions of law: a) was he denied natural justice? b) can the Tribunal order compensation when it was not originally sought by the applicant? 1 Singh v Shafston Training One Pty Ltd and Anor [2013] QCAT 8 -- 2 of 6 -- 3 c) was the Tribunal wrong to find that Mr Casey and Shafston were jointly and severally liable? [6] Under the QCAT Act, no leave to appeal is necessary on a question of law. 2 Accordingly, leave is not required and we will proceed to consider the appeal. SHOULD WE CONSIDER MR CASEY’S AFFIDAVIT, WHICH WAS NOT BEFORE THE ORIGINAL DECISON MAKER? [7] Mr Casey states that he was denied natural justice because his affidavit was not put before the Tribunal. Mr Casey says he did not attend the hearing because he relied on an assurance from Shafston that it would provide his affidavit to the Tribunal, and would present a case on his behalf. [8] Mr Casey chose not to be present at the hearing, and not to lodge any documents on which the Tribunal could rely. He chose instead to rely on another party to the proceedings to argue his case for him. That decision is one which Mr Casey is entitled to make and the consequences of that decision are consequences that Mr Casey must accept. There is no denial of natural justice on the basis of the affidavit not being before the Tribunal. [9] Mr Casey states that he relied on assurances from Shafston that a representative would provide all necessary evidence to defend the claims made by Mr Singh. Mr Casey states that, had he been aware that Shafston was going into liquidation and would not properly act to protect him, he would have ensured that all the evidence was before the Tribunal. In the circumstances, Mr Casey submits that we should now take into account the evidence which he would have submitted at the hearing if he was there. He says that if the evidence was considered by the Tribunal, it would have reached a different decision. [10] New evidence will be considered on appeal when „it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced the opposite result‟.3 [11] Here it is clear that the evidence was available but that Mr Casey, a party to the proceedings, did not provide the evidence to the Tribunal. It is not appropriate that the new evidence forms any part of our consideration. WAS MR CASEY DENIED NATURAL JUSTICE? [12] Mr Casey states that: a) once the Tribunal was satisfied that Mr Singh had been discriminated against, it should have provided him with an opportunity to make submissions on the appropriate penalty, and as to whether he and Shafston should be jointly and severally liable; and 2 QCAT Act s 142 3 PS Business Holdings v Duncan & Anor [2010] QCATA 19 at [16]. -- 3 of 6 -- 4 b) if an adjournment had been granted once the tribunal became aware that Shafston was likely to be liquidated, he would have had a proper opportunity to consider the impact which the liquidation would have on the application, and on himself. [13] Mr Casey knew that Mr Singh‟s claim was to be heard and determined by the Tribunal. He was advised by a Notice of Hearing dated 23 October 2013 that: a) the purpose of the hearing was to decide the application; b) if he failed to appear the Tribunal could proceed and make orders in his absence; and c) he must bring to the hearing copies of all statements and documents relevant to the dispute. [14] Mr Casey was aware that the Tribunal would be conducting an oral hearing and making a decision based on the evidence before it. Part of finalising an application is dealing with issues raised by the parties (such as the application for an adjournment) and deciding what penalties, if any, are appropriate. Parties who were present at the hearing provided submissions. [15] There has been no error. The Tribunal must provide Mr Casey with an opportunity to be heard.4 It has done so. Mr Casey declined to take up the opportunity. The Tribunal is not required to cajole parties to provide evidence or submissions, or to suspend proceedings to update parties on its progress or on findings made. [16] There has been no denial of natural justice. CAN THE TRIBUNAL MAKE AN ORDER DIFFERENT TO THAT SOUGHT IN THE ORIGINAL APPLICATION? [17] Mr Casey states that Mr Singh originally sought an apology and that some action be taken against him by Shafston. He says that he was not aware that he could be found liable to pay money to Mr Singh until after he received the decision. [18] The Tribunal is able to make an order open to it under the legislation, which includes awarding a monetary sum to an applicant. In any event, in a document lodged by Mr Singh with QCAT on 18 October 2011 and ordered to be sent to Mr Casey entitled Complainant’s contentions on referral under the Anti-Discrimination Act 1991, Mr Singh outlines the outcomes he is seeking, including: ‘If I am not issued the certificates, a full refund of the tuition fees I have paid and compensation for the loss of opportunity I have suffered by spending two years of my life working to gain a qualification, which due to Mr Casey’s discriminatory behaviour, I have not been able to obtain’. 4 QCAT Act s 28. -- 4 of 6 -- 5 [19] It is clear that Mr Casey was on notice that a monetary award could be made. There is no ground for appeal established. COULD THE TRIBUNAL MAKE MR CASEY AND SHAFSTON JOINTLY AND SEVERALLY LIABLE FOR PAYMENTS TO MR SINGH? [20] Mr Casey says that, as a matter of general law, Shafston, as his employer, should be liable for his conduct. [21] The original decision maker refers to section 133 of the Anti-Discrimination Act 1991. That section reads as follows: 133 Vicarious liability (1) If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both. (2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act. [22] The determination that Mr Casey and his employer are jointly and severally liable for any contravention of the Act is correct. COULD THE TRIBUNAL MAKE ITS ORDER KNOWING THAT SHAFSTON WERE IN LIQUIDATION, LEAVING MR CASEY TO PAY THE FULL AMOUNT OF THE AWARD? [23] As noted above, Mr Casey and Shafston were found to be jointly and severally liable. That means, by definition, that either of the parties can be held responsible for payment of the entire amount awarded. If Mr Casey has been left to pay the full amount because Shafston has entered into liquidation, that is an intended consequence of the legislation, and is not due to any mistake on the part of the Tribunal. IS MR CASEY BEING HELD RESPONSIBLE FOR THE ASSESSMENT OF OTHER TRAINERS AS TO MR SINGH’S COMPETENCY? [24] The tribunal member found that Mr Casey‟s behaviour was in breach of the Act. In particular, she found that Mr Casey „did say the words alleged by Mr Singh‟ which amounted to direct discrimination. [25] The member was satisfied that „Mr Singh was victimised by Mr Casey who acted to Mr Singh’s detriment by refusing to sign-off on his competence, because he alleged discrimination and later made a complaint to the ADCQ‟. [26] We are not satisfied that Mr Casey is being held responsible for the actions of others. On the contrary, the member has found that Mr Casey‟s actions were in breach of the Act. -- 5 of 6 -- 6 SHOULD WE OVERTURN THE FINDING THAT THE ANTI-DISCRIMINATION ACT WAS BREACHED, OR SEND THE MATTER BACK FOR REHEARING? [27] For the reason stated above, we are unable to consider any new evidence. We have read the decision of the Tribunal dated 8 January 2013. The member sets out the evidence upon which she relies, the relevant legislation, and her findings. There is no error identified in any of these areas. The outcome is reasonably open on the evidence before the Tribunal. There is no basis upon which we can overturn the decision or remit it for rehearing. [28] The appeal is dismissed. -- 6 of 6 --