Carey v Cairns Regional Council & Ors [2011] QCATA 313

CITATION: Carey v Cairns Regional Council & Ors; Cairns Regional Council & Ors v Carey [2011] QCATA 313 PARTIES: David George Carey (Applicant/Appellant) v Cairns Regional Council (First Respondent) David Egan (Second Respondent) George Pitt (Third Respondent) William Bellero (Fourth Respondent) Joseph Sciacca (Fifth Respondent) Cairns Regional Council (First Applicant/Appellant) David Egan (Second Applicant/Appellant) George Pitt (Third Applicant/Appellant) William Bellero (Fourth Applicant/Appellant) Joseph Sciacca (Fifth Applicant/Appellant) v David George Carey (Respondent) APPLICATION NUMBER: APL087-11 / APL104-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Michelle Howard, Member DELIVERED ON: 21 November 2011 DELIVERED AT: Brisbane -- 1 of 9 -- 2 ORDERS MADE: 1. Leave for the appeal by David George Carey is granted. 2. Leave for the appeal by the Cairns Regional Council is granted, except in relation to the ground set out at paragraph 7 of the written submissions of the Cairns Regional Council filed 8 April 2011. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ANTI- DISCRIMINATION – where discrimination found on basis of political belief or activity – local government – where finding of no personal liability of councillors – reasonably arguable error – question of general importance APPEAL – LEAVE TO APPEAL – ANTI- DISCRIMINATION – where finding that discharge of position of chief executive officer was political activity – where termination of employment by deliberative vote – where adverse inferences drawn against Council Anti-Discrimination Act 1991, ss 7(j), 7(p), 102 Local Government Act 1993, ss 229, 240, 1130 Queensland Civil and Administrative Tribunal Act 2009, s 142 APPEARANCES and REPRESENTATION (if any): The matter was heard and determined on the papers in the absence of the parties, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION President [1] I have read the draft reasons for decision of Ms Howard. I agree with her reasons, and the orders she proposes. Michelle Howard, Member [2] Mr David Carey, the applicant in an anti-discrimination proceeding has filed an application for leave to appeal the decision of the tribunal which was delivered on 21 January 2011. -- 2 of 9 -- 3 [3] The ground of appeal is that the tribunal erred in concluding that s 240 of the Local Government Act 1993 (LG Act) or, alternatively, s 102 of the Anti-Discrimination Act 1991 relieved the second, third, fourth and fifth respondents, who were councillors, from personal liability. [4] The Cairns Regional Council, which was the first respondent in the earlier proceeding, also seeks leave to cross-appeal the decision on the following grounds: (a) The learned Member who made the decision erred in law and in fact in finding that the dismissal of Mr Carey from his employment was an act done on the basis of political activity and in contravention of the Anti-Discrimination Act 1991 for which the Cairns Regional Council was liable to him; (b) The Member erred in law and in fact in the award of damages ordered to be paid by the Cairns Regional Council to Mr Carey. [5] Both applicants have set out the established principles surrounding the question whether or not leave to appeal should be granted. Leave will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;1 there is a reasonably arguable case that the primary decision-maker made an error2 and there are reasonable prospects that the applicant would be granted orders in its favour;3 or to correct a substantial injustice to the applicant caused by error.4 [6] Leave to appeal is required under the Queensland Civil and Administrative Tribunal Act 2009 in respect of both applications as they both involve questions of mixed law and fact.5 Mr Carey’s application Background [7] Mr Carey‟s submissions set out a concise background to his application for leave to appeal. He was dismissed from his employment with Douglas Shire Council shortly before the amalgamation of Queensland local councils in 2008, after which responsibility for its actions was assumed by the Cairns Regional Council. The termination was the result of a council motion carried on the vote of the second, third, fourth and fifth respondents. At the time, no reason was given for the termination. [8] Mr Carey alleged the reason for the termination was discrimination, contrary to sub-ss 7(j) and (p) of the Anti-Discrimination Act 1991, by reason of the attribute of political belief or activity or association with or in relation to persons identified on the basis of their political belief or activity. 1 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 QCAT Act, s 142(3)(b). -- 3 of 9 -- 4 [9] The Member found that the termination was an act of political retribution by the respondent councillors done on the basis of political activity.6 The Council‟s liability flowed automatically from that finding. However, despite their conduct the councillors were found,7 not to be liable by reason of the operation of s 240 of the then LG Act as well as s 102 of the Anti- Discrimination Act 1991. Section 240 of the Local Government Act 1993 [10] Section 240 of the then LG Act provided: Indemnity for councillors (1) A councillor does not incur civil liability for an act or omission done honestly and without negligence under this Act. (2) A liability that would, apart from this section, attach to a councillor attaches instead to the local government. [11] Mr Carey does not take issue with the Member‟s conclusion that termination of Mr Carey‟s employment was not done dishonestly, but issue is taken with the conclusion that it was not negligent. Mr Carey says this conclusion was not explained. [12] Mr Carey submits that absence of reasons for the finding that the conduct was not negligent suggests error,8 because the conclusion was far from obvious or inevitable given the learned Member‟s finding that the councillors had, through their vote, committed an act of political retribution. He argues that an act of political retribution would appear to be in conflict with the councillors‟ obligations to act in the public interest under s 229 of the then LG Act and in accordance with s 1130 of the then LG Act, as follows: Personnel practices A local government must comply with the following principles in its personnel practices-… (b) employees are to be treated fairly and equitably without resort to arbitrary action, irrelevant personal preferences or coercion… [13] The argument seems to be that the councillors‟ acts of political retribution as found by the learned Member may amount to negligence through a breach of their statutory duty to treat employees, such as Mr Carey, fairly and equitably, and to act in the public interest. Further, if they breached that duty, then they may be held to be personally liable in this proceeding before the tribunal. He argues that the more obvious conclusion flowing from the unlawfulness is that it was negligent conduct. [14] However, the proceeding before the tribunal is not an action for breach of statutory duty: it is an anti-discrimination referral. 6 Carey v Cairns Regional Council [2011] QCAT 26, paragraph 76. 7 Carey v Cairns Regional Council [2011] QCAT 26, paragraphs 78 to 87. 8 Drew v Makita (Aust) Pty Ltd [2009] 2 Qd R 219. -- 4 of 9 -- 5 [15] The LG Act was repealed as of 1 July 2010 and the Local Government Act 2009 enacted. It does not appear that there are any relevant transitional provisions regarding the sections which arise for consideration. By operation of the Acts Interpretation Act 1954, the repeal of the LG Act does not affect a right or privilege accrued under the LG Act,9 and a proceeding may recognise the right or privilege as if the repeal had not occurred.10 [16] One possible reading of s 240 is that civil liability can only attach to councillors in respect of actions or claims which involve, as elements, dishonesty and negligence. While acknowledging that in a particular case dishonest behaviour or behaviour which may in other circumstances amount to negligence may arise, an anti-discrimination claim does not contain elements of dishonesty and negligence. [17] As a preliminary observation, it appears to me that it would be artificial if, in an anti-discrimination claim, the tribunal is expected to consider whether a councillor has been dishonest and negligent in respect of an unrelated type of claim, which is not before the tribunal and for which the tribunal does not have jurisdiction in order to reach a conclusion about whether a councillor is to be personally liable for acts which constitute anti-discrimination. [18] That aside, the tribunal‟s decision does not explain the basis upon which the learned Member formed the view that the actions could not be said to have been negligent. Also, in my respectful view, the tribunal, although it considered some commentary about the operation of s 240, did not explain how the section operates, why it considered that it could consider whether the councillors acted „dishonestly‟11 or negligently12 separately when the section refers to not incurring civil liability for acts and omissions done „honestly and without negligence‟; or, why it concluded that s 240 protects the councillors from personal liability in this proceeding.13 [19] There does not appear to have been any judicial consideration of the operation of s 240. As discussed, the LG Act has since been repealed and the Local Government Act 2009 enacted. It does not contain an exact equivalent of the now repealed s 240. [20] The current s 235 effectively provides that a „constitutor of a local government‟, which is defined to include a councillor when constituting the local government, is not civilly liable for acts done and omissions made honestly and without negligence by the local government or the councillor.14 Therefore, the interpretation of the use of the words honestly and without negligence in the repealed section 240 still has ongoing relevance to anti-discrimination claims against councillors as the current section continues to provide for councillors not to be civilly liable for acts done and omissions made honestly and without negligence. 9 Section 20(2)(c). 10 Section 20(3). 11 Carey v Cairns Regional Council [2011] QCAT 26, paragraph 86. 12 Carey v Cairns Regional Council [2011] QCAT 26, paragraph 86. 13 Carey v Cairns Regional Council [2011] QCAT 26, paragraph 86. 14 Local Government Act 2009, ss 235(1), 235(2). -- 5 of 9 -- 6 [21] This is an issue which will be of potential significance in any anti- discrimination application against councillors. Section 102 of the Anti-Discrimination Act 1991 [22] Mr Carey also makes submissions in relation to the interpretation and application of s 102 of the Anti-Discrimination Act 1991 by the tribunal as an alternative basis for relieving the councillors from personal liability. [23] Section 102 of the Anti-Discrimination Act 1991 provides: (1) A member of a local authority must not discriminate against another member in the performance of official functions. (2) Subsection (1) does not apply to discrimination on the basis of political belief or activity. [24] He submits that s 102 does not have general application, and that it did not apply since Mr Carey was not a „member‟ of the relevant local authority, that is, he was not a councillor. He was an employee. [25] It appears to me that Mr Carey‟s argument has significant force. Section 102 applies only to members of a local authority. A member of a local authority is not defined, but a local government is constituted by the councillors.15 Without deciding the point, logically, it appears to me, a member of a local authority can only be someone who constitutes it, as opposed to someone who is employed by it. [26] The operation of this section of the Anti-Discrimination Act 1991 is also an issue of general importance to anti-discrimination claims concerning members of local authorities. Conclusions [27] In my view, it is reasonably arguable that the tribunal erred in the primary decision in respect of the two issues raised by Mr Carey. Also, as I have already indicated, I consider the issues of interpretation have general importance, such that a decision of the Appeal Tribunal would be to the public advantage. [28] I would grant Mr Carey leave to appeal. Application by Cairns Regional Council [29] The Council argues that it should be granted leave to appeal on the basis of a reasonably arguable error on the part of the learned Member at first instance, and because there is a question of general importance outside the facts of the particular case. [30] The Council submits as follows: 15 Local Government Act 2009, s 11. -- 6 of 9 -- 7 a) First, the learned Member erred in concluding at paragraph 7316 that the holding and discharge of the position of General Manager, Community and Corporate Services, which Mr Carey held with the Douglas Shire Council, was one which was „political activity‟ within the meaning of the Anti-Discrimination Act 1991 and that Mr Carey‟s discharge of his functions was also within the category of „political belief or activity‟ in the Act; b) Secondly, the learned Member erred in finding at paragraph 76,17 that the termination of the employment of the former chief executive officer of the local government – in order to prevent the appointment of an administrator – was a termination for “political reasons” and that to terminate Mr Carey‟s employment because of his involvement with or association with the Mayor responsible for the former officer‟s termination was „an act done on the basis of political activity‟; c) Thirdly, the learned Member erred in concluding, at paragraphs 25, 43 to 45 and 61,18 that reasons for a decision taken by deliberative vote in proceedings of a local government ought to have been given, and that the absence of reasons was significant and was a basis for drawing inferences adverse to the Council; d) Fourthly, having rightly concluded at paragraph 14 that Mr Carey‟s case was a circumstantial case the learned Member erred in finding, at 8 to 11, that the case (as found by the learned Member) was within the scope of his case as set out in his complaint and contentions; e) Fifthly, the learned Member erred in finding, at paragraphs 60 to 64, that Mr Carey‟s case (as found by the learned Member) was established by inferences, in circumstances where those inferences were drawn against the evidence or against the weight of the evidence; f) Finally, that the learned Member erred in the findings as to compensation, being against the evidence or the weight of evidence. [31] The Council suggests that the first three, and last, of these contentions are more than merely arguable, but demonstrate a prima facie case that the decision was in error. The Council accepts that the fourth and fifth contentions require a more detailed analysis of the evidence before the primary Tribunal, including by reference to evidence from the transcript of the proceeding (which had not been prepared at the time of filing the application and preparation of submissions), than is easily accomplished in an application for leave. [32] Mr Carey submits in response that the Council does not actually advance reasons as to why the alleged errors are, in fact, errors and that the 16 Carey v Cairns Regional Council [2011] QCAT 26. 17 Carey v Cairns Regional Council [2011] QCAT 26. 18 Carey v Cairns Regional Council [2011] QCAT 26. -- 7 of 9 -- 8 assertion of error without any explanation or argument does not demonstrate that the alleged errors are reasonably arguable. [33] I consider prima facie error has not been established by the Council in relation to the first, second or third contentions, or the last. The arguments are made as bare assertions, rather than the presentation of a substantive argument referring to the evidence and findings such as might demonstrate error. [34] That said, it is readily apparent that there is a reasonably arguable case to the contrary of the conclusions reached by the Member. The conclusions reached appear to be without precedent insofar as the activities of a local government employee are concerned. In my view, having regard to the nature of the findings of the tribunal, the submissions of the Council go far enough for this leave application in identifying the contrary position it proposes to argue. The time for fully articulating that case is in the appeal proper. [35] Regarding the Council‟s fourth submission, it does not appear to me that the Council has demonstrated that there is a reasonably arguable error. No authority has been cited by the Council for this contention, nor any sufficient explanation given about a basis for the contention. There is no readily apparent reason for the assertion. [36] Finally, I accept that the fifth and sixth contentions are reasonably arguable if the Council can point to the relevant evidence or argue successfully as to the weight of evidence. The time for this exposition is during the appeal. I am also influenced by the lack of a transcript available to the Council at the time of filing of this application and preparing submissions for leave which must have circumscribed the Council‟s ability to elaborate on these contentions. [37] As to the other limb of the Council‟s application for leave, I accept that questions of general importance have been raised by the Council. Without otherwise limiting the scope of the matters which the Council wishes to argue on appeal, it appears to me that it is a matter of general importance whether the holding and discharge of the position of General Manager of a local government may be „political activity‟. Further, the extent to which adverse inferences may be drawn from the absence of express reasons for deliberative decisions made by the elected chamber of local governments is also a question of general importance. [38] Also, the proper construction of the Anti-Discrimination Act 1991 is a matter of general importance and that an appellate consideration of the relevant provisions of the Act, in light of the current state of the authorities which were discussed in the tribunal‟s decision, regarding „political belief or activity‟, would be to public advantage. [39] Finally, I agree that there are public interest considerations arising from findings which may be made about the conduct of persons acting as elected councillors. [40] However, I do not consider the Council‟s fourth contention raises any questions of general importance. -- 8 of 9 -- 9 [41] I note Mr Carey‟s arguments as to why no questions of general importance arise from the Council‟s case and that the case turns upon its own facts. I consider his arguments are best put during an appeal, as they involve an analysis of the evidence which is beyond the scope of this application for leave to appeal determined on the papers. [42] For these reasons, I would grant the Council leave to appeal on all but its fourth contention. [43] In light of these conclusions both parties may, at their election of course, now file any appeal consequent upon the granting of leave pursuant to s 143(4) of the QCAT Act. -- 9 of 9 --