CHK v State of Queensland [2023] QCAT 41

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CHK v State of Queensland [2023] QCAT 41 PARTIES: CHK (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: ADL013-21 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 9 February 2023 HEARING DATE: 27 January 2023 HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: 1. The proceeding is stayed. 2. The disclosure of CHK’s identity is prohibited. CATCHWORDS: HUMAN RIGHTS - DISCRIMINATION LEGISLATION – GENERALLY – where the Queensland Human Rights Commission authorised a person to act on behalf of CHK – where a request to refer the complaint to the tribunal was signed by that person and not by CHK – whether the referral to the tribunal was effective – whether the authority given by the commissioner extends to the proceeding in the tribunal CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – AUTHORITY OF AGENTS – POWERS OF ATTORNEY – EXTENT OF AUTHORITY UNDER PARTICULAR POWERS – where the proceeding in the tribunal has been conducted in the name of CHK by his attorney purportedly under a power in an Enduring Power of Attorney – whether the proceeding is a financial legal matter or a personal legal matter – whether the attorney had power to pursue a personal legal matter under the Enduring Power of Attorney PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN – where the proceeding in the tribunal has been conducted in the name of CHK without his authority – -- 1 of 21 -- 2 where the tribunal is not bound by the authority given by the commissioner – whether CHK has legal capacity for the proceeding HUMAN RIGHTS - DISCRIMINATION LEGISLATION – GENERALLY – where the State of Queensland apply to strike out the complaint – where the tribunal directed that CHK must attend the strike out hearing – where CHK did not attend the hearing – whether there are any further options to regularise the complaint – whether the tribunal has power to stay a proceeding indefinitely Acts Interpretation Act 1954 (Qld), s 14D Anti-Discrimination Act 1991 (Qld), s 10(5), s 134(1)(c), s 166, s 170, s 171, s 174C, s 178, s 191, s 193, s 228 Guardianship and Administration Act 2000 (Qld), schedule 4 Human Rights Act 2019 (Qld), s 13, s 15(4), s 31, s 58 Power of Attorney Act 1998 (Qld), s 33, s 41, schedule 2 s 1, s 2, s 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 9(4), s 43, s 46(1), s 66 Supreme Court of Queensland Act 1991 (Qld), schedule 5 Uniform Civil Procedure Rules 1999 (Qld), r 93 4D Electrical Qld v Greyburn Pty Ltd [2020] QCAT 74 Adamson v Enever (2021) 9 QR 3 BA, DC, FE v State of Queensland [2022] QCAT 332 Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702 Legal Services Commissioner v Singh (No 2) [2011] QCAT 580 Petrak v Griffith University & Ors [2020] QCAT 351 Pratt v Dickson [2000] QSC 314 Stone v ACE-IRM Insurance Broking P/L [2003] QCA 218 APPEARANCES & REPRESENTATION: Applicant: Not in attendance Respondent: E S Kennedy of QPS Legal REASONS FOR DECISION [1] This is an application by the State of Queensland to strike out or dismiss a discrimination complaint on the basis that it is not validly before the tribunal or that it is otherwise defective, and that it is frivolous, vexatious or misconceived, lacking in substance and or otherwise an abuse of process. [2] The complainant is anonymised as CHK in this decision. The disclosure of CHK’s identity is prohibited. -- 2 of 21 -- 3 [3] A complaint was made to the Queensland Human Rights Commission (QHRC) in the name of CHK. CHK himself did not make the complaint. Instead, it was made by his grandfather, John Langdon. The commissioner authorised Mr Langdon to do this. [4] When conciliation in the QHRC failed, Mr Langdon signed a notice requesting the complaint to be referred to the tribunal. [5] Mr Langdon has had the conduct of the complaint in the tribunal. All communications about the complaint have been with him, all paperwork for the complaint has been lodged by him, and all decisions about the complaint have been made by him. None of these things have been done by CHK. [6] In these circumstances one question which arises is whether the referral to the tribunal was effective. I have decided that it was. Another question is whether the authority given to Mr Langdon by the commissioner to bring the complaint extends to the tribunal proceeding. I have decided that it does not. [7] Mr Langdon presents himself as agent for CHK with authority to conduct the complaint in the tribunal on CHK’s behalf by reason of an Enduring Power of Attorney made by CHK in 2012, when CHK was nearly aged 19. As it turns out, on my findings Mr Langdon has no such authority because the complaint is a personal legal matter and not a financial legal matter, and since CHK’s mental condition has not deteriorated since making the EPOA, Mr Langdon’s powers under the EPOA to act as CHK’s agent for personal legal matters has not taken effect. [8] The result therefore is that the complaint has been conducted in the tribunal by Mr Langdon without authority to do so. [9] In deciding what to do about this, one question is whether CHK has the legal capacity to bring the proceeding in the tribunal. If not, then the matter could be regularised by the appointment of a litigation guardian. But here I have decided that CHK does have such legal capacity so that route is not available. [10] In an attempt to see if the complaint before the tribunal could and should be regularised in some other way I ordered CHK to attend the strike out hearing. This direction went to Mr Langdon as the named contact for CHK on the tribunal system. Despite this order, Mr Langdon decided not to arrange for CHK to attend the hearing. [11] I need to decide in these circumstances whether it is possible to permit the complaint to proceed in the tribunal, and if it is not possible whether it should be struck out. A better alternative is a stay, and I have considered whether the tribunal has power to order a stay where such a stay may well be indefinite, that is to say not pending any particular defined event. [12] Firstly I shall identify what the complaint is about. What is the complaint about? [13] The complaints made to the QHRC and which also appear in the documents lodged in the tribunal are made against numerous parties – the State of Queensland (Queensland Police Service), the Magistrates Court service, the Magistrates, and a lawyer who represented CHK in the Magistrates Court. [14] The State of Queensland (Queensland Police Service) was the only party notified by QHRC of the complaint, at least on the documentation received by the tribunal in this referral. When the referral was made to the tribunal, the State of Queensland -- 3 of 21 -- 4 (Queensland Police Service) was the only party named as respondent. Hence when the referral was accepted by the tribunal, the State of Queensland was named as the only respondent. [15] It is clear from the above that it is only the complaints against the named respondent – that is the State of Queensland as the Queensland Police Service which are in the proceeding before the tribunal. [16] There are two complaints against the Queensland Police Service: (a) That during an interview of CHK carried out by the QPS at the Maroochydore Police Station he was not provided with a support person as required by section 422 of the Police Powers and Responsibilities Act 2000 (Qld). (b) When Mr Langdon attended the Magistrates Court the QPS stopped him from addressing the Magistrate about CHK. [17] In an attempt to discover exactly what was to be heard and decided by the tribunal in this complaint, the tribunal directed CHK to file contentions giving information about the complaint. Mr Langdon responded to these directions.1 Complaint (a) appeared in these contentions but complaint (b) did not. [18] Complaint (b) does appear however, in the original complaint to QHRC where it is said that: .. the Court nor (CHK’s) counsel would let myself or my daughter say one word on (CHK’s) behalf The police prosecutor said to me ‘You cannot say one word in this Courthouse you are not a legal Practitioner’ [19] At the strike out hearing, on behalf of the respondent Ms Kennedy confirmed that if there was a reference to complaint (b) in the original complaint to QHRC the respondent would not object to the tribunal taking it as a complaint to be heard and determined, despite it not being mentioned in CHK’s contentions. Certainly for the purposes of the strike out it seems right to regard both complaints as before the tribunal to be heard and determined if the complaint proceeds. [20] Both complaints (a) and (b) are pursued as direct and indirect discrimination complaints, the attribute relied on being ‘impairment’. Although the respondent does not expressly admit in its written material that CHK has this attribute, this is not seriously disputed. The nature of the impairment is a cognitive disability. Merits of the complaint [21] This is relevant to the strike out, but also when deciding what to do about the complaint. [22] It is difficult to regard claim (b) as having any merit as a direct discrimination claim since the stated explanation given by the QPS for their advice was that Mr Langdon was not a legal practitioner. It is difficult to say that the same thing would not have been said to a person who did not have a cognitive disability but who was in the same or not materially different circumstances. [23] As an indirect discrimination claim there would be an issue in claim (b) whether there was in fact any condition, requirement or practice imposed by the QPS having a 1 Document filed on 17 May 2021. -- 4 of 21 -- 5 disparate effect on CHK. This would seem to be very difficult to prove because CHK was represented by counsel and the decision about whether Mr Langdon could address the court would be that of the Magistrate rather than the QPS. The merits of claim (b) seem very poor. [24] The merits of claim (a) seem better. [25] Claim (a) as a direct discrimination claim could only work however, if the support person under section 422 is regarded as a ‘special service’ under section 10(5) of the Anti-Discrimination Act 1991 (Qld) (ADA). This would enable the same treatment of the complainant and a comparator without the attribute to be less favourable treatment of CHK.2 [26] Claim (a) as an indirect discrimination claim might work, because the alleged condition, requirement or practice which was imposed on CHK by the QPS was that he had to attend the interview without a support person. It would be said that this had a disparate effect on him because of his attribute and it would have this effect for others with the attribute. Such a claim would then turn on whether it was reasonable for the police to do this. Although not pleaded by the QPS in their response to the contentions, this would probably turn on whether it was reasonable for the QPS not to provide a support person in the circumstances.3 [27] As for the likely remedy should CHK succeed in the claim, in the contentions directions CHK was asked to say what orders he wanted the tribunal to make. This was however, not answered. In the strike out hearing I asked Mr Langdon what was being sought in the proceeding. He said that he was seeking ‘justice’. When pressed, he said that he was seeking a reversal of all CHK’s criminal convictions resulting from the police interview and the Magistrates Court proceeding concerned. There is some mention of this desired outcome in the papers submitted to QHRC with the original complaint. [28] Of course, the tribunal is unable to do this. The complaint is therefore weakened because what is being sought is outside the power of the tribunal. Whether the referral to the tribunal was effective [29] Here we know that the QHRC authorised Mr Langdon to make the complaint on behalf of CHK. The authorisation itself is not in the papers provided to the tribunal on referral, but the fact that this was done appears from the letter sent by QHRC to the respondent dated 3 March 2021. In that letter it is said that: If a complainant is unable to make the complaint themselves, they can have an agent act on their behalf. In this complaint John Langdon has been authorised by the Commissioner to act on behalf of the complainant. [30] Section 134(1)(c) of the Anti-Discrimination Act 1991 (Qld) (ADA) shows how a person with such authority can bring a complaint to the commissioner: 134 Who may complain 2 See the discussion about this in Petrak v Griffith University & Ors [2020] QCAT 351, [56] to [64]. 3 Ms Kennedy told me that the respondent would wish to plead more fully in its contentions in reply about its defence to this complaint should it proceed. -- 5 of 21 -- 6 (1) Any of the following people may complain to the commissioner about an alleged contravention of the Act— (a) a person who was subjected to the alleged contravention; (b) an agent of the person; (c) a person authorised in writing by the commissioner to act on behalf of a person who was subjected to the alleged contravention and who is unable to make or authorise a complaint. (2) to (5) not reproduced [31] The information which caused the QHRC to give this authorisation was probably that provided by Mr Langdon when he completed the online complaint form. In a case where a person other than the complainant completes the form, the form asks for the relationship of the person to the complainant. It also asks whether the complainant could make the complaint for himself and if not, why not. [32] In the complaint form completed by Mr Langdon he chose the relationship of: Agent – Under a Power of Attorney [33] As I have found below, this was an incorrect choice – more correctly the choice would probably have been ‘other’. [34] But in answer to the question whether the complainant could make the complaint for himself, Mr Langdon answered ‘no’ and when asked why not, he said that CHK had an intellectual disability and explained the nature of this. [35] It was probably those answers, rather than any reference to the power of attorney that triggered the authorisation enabling the complaint to be made under section 134(1)(c). [36] The question then arises whether the authorisation given by the commissioner extends to being able to sign the request to refer the complaint to the tribunal. Mr Langdon signed the referral request in his own name. [37] This request was done under section 166 of the ADA, which reads: 166 Complainant may obtain referral of unconciliated complaint (1) Within 28 days of being notified that the complaint can not be resolved by conciliation, a complainant may, by written notice, require the commissioner to refer the complaint to— (a) if the complaint is or includes a work-related matter—the industrial relations commission; or (b) otherwise—QCAT. Note— If the complaint includes a work-related matter and a matter other than a work-related matter, the complaint must be referred to the industrial relations commission. However, the commission may transfer the complaint to QCAT under section 193A. (2) to (4) not reproduced (5) The complainant is the applicant for the purposes of the relevant tribunal Act. -- 6 of 21 -- 7 [38] It was submitted by Ms Kennedy on behalf of the State of Queensland that any authorisation enabling a complaint to be made under section 134(1)(c) does not give authority to sign a referral request under section 166. Such authority is limited to making a complaint. She submitted that this was to protect people with a vulnerability where there was a complaint which was made contrary to their interests. [39] This submission seemed compelling at the time, but a further study of the statutory provisions shows that the authorisation referred to in section 134(1)(c) is not limited to bringing a complaint. Indeed it would appear that the power of the commissioner to give such authority is an implied one, rather than conferred by section 134(1)(c) itself. It is true that such authority is given in the context of being able to make a complaint, but the wording of the authorisation as described in section 134(1)(c) is: a person authorised in writing by the commissioner to act on behalf of a person [40] This tends to suggest that the authority given is a general one and not limited to bringing the complaint. [41] Secondly, there is no statutory process enabling a referral to be made to the tribunal without a referral request. There is no general power for example for the commissioner to refer a complaint to the tribunal.4 This means that the authorisation must be a general agency, extending to making a referral request. This would be the only way complaints made by those without legal capacity could be referred to the tribunal. [42] This tends to be confirmed also by the terms of section 171 of the ADA which permits the commissioner to withdraw an authorisation. This permits the commissioner to ‘authorise another person to act on behalf of the complainant’. This clearly applies during the currency of the complaint through the QHRC. Again, the authorisation envisaged by section 171 is a general one and not limited to making a complaint. [43] In its Submission to the Review of the Anti-Discrimination Act 1991 (Qld), QHRC point out that in the case of persons with impaired capacity in Tasmania a litigation guardian can be appointed, that is for a child or another person who is unable to make a complaint due to disability, age or other incapacity and that Victoria deals with such complaints in a similar way.5 The submission then states, referring to section 134, that in Queensland ‘a similar process already exists’. Hence it can be seen that QHRC regard authorisation under section 134(1)(c) as similar to the appointment of a litigation guardian. [44] On my analysis this does seem to be correct, and is confirmed by the words in section 134(1)(c) itself that a person with such authorisation could make a complaint on behalf of a person ‘who is unable to make or authorise a complaint’, in other words a person without legal capacity to do so. [45] It follows that the request under section 166 was validly made and in turn, the referral to the tribunal was effective. 4 The closest is section 228 where the commissioner may ask the tribunal for an opinion about how the Act applies in a special situation. 5 Page 160 of the pdf file version of the submission. -- 7 of 21 -- 8 Whether the authority given by the commissioner extends to the tribunal proceeding [46] Does the authority given by the commissioner to Mr Langdon extend to the tribunal proceeding as well? The question is whether, the QHRC having authorised a person to bring a complaint and refer that complaint to the tribunal, the person is automatically constituted as agent for the complainant in the tribunal proceeding. [47] On first reading, section 193 of the ADA suggests that the authority does extend to the tribunal. It is in a part of the ADA dealing with the pre-hearing process in the tribunal. It reads: 193 Complainant may withdraw complaint (1) The tribunal is not to continue to deal with a complaint if the complainant, or the person who authorised the complaint to be made, gives written notice that the person does not want to continue with the complaint. (2) The complaint then lapses. (3) The tribunal is to write to the respondent as soon as practicable to tell the respondent that the complaint has lapsed. [48] There are two ways to read the section. One way is to say that a person authorised by QHRC to act on the complainant’s behalf also acts as agent for that person in the tribunal (hence by section 193 the complaint can be withdrawn in the tribunal by the powers conferred by that agency). The second way is to say that it is obvious that if a complaint is withdrawn there is no point in the tribunal dealing with the complaint, so this is a procedural section to cover that eventuality (and the withdrawal is done by the agent acting under powers within the QHRC processes). This second way of reading this section is realistic because a complaint is not extinguished by its referral to the tribunal. It can be amended,6 and seemingly also withdrawn by notice to the commissioner.7 [49] When the ADA became law it also established the Anti-Discrimination Tribunal.8 When QCAT was formed it took the place of the Anti-Discrimination Tribunal. Under the QCAT Act, the ADA became an ‘enabling Act’. From that point on, the provisions in the QCAT Act explaining the relationship between the QCAT Act and enabling Acts prevailed over any previous arrangements. [50] Sections 6 and 7 of the QCAT Act provide a statutory framework defining what provisions in an enabling Act (like the ADA) are capable of affecting the jurisdiction, related functions, and practices and procedures of the tribunal. It is clear from these provisions that in order for an enabling Act to affect how the tribunal operates, this would need to be expressed in the enabling Act. [51] It would have been possible for the ADA to have provided that if the commissioner authorised a person to act on behalf of a complainant in QHRC this acted also as authority for that person to act on behalf of the complainant in the tribunal. This would have been possible because it would have been a provision described in section 6(7) of the QCAT Act. 6 Section 178 of the ADA. 7 Section 170 of the ADA. 8 Section 247 of the ADA as passed in 1991. -- 8 of 21 -- 9 [52] The fact that this was not done leads me to the conclusion that this was not intended by the provisions. There is little room here for such an effect to be implied. There is no override therefore of the usual tribunal rule that it can control its own procedures.9 [53] It follows that the authority given by the commissioner to Mr Langdon does not extend to the tribunal proceeding as well. What is Mr Langdon’s authority under the Enduring Power of Attorney? [54] The Enduring Power of Attorney was made on 5 June 2012. On the face of it, it was properly executed. It provided for successive attorneys – CHK’s mother first then Mr Langdon. On 29 January 2020 the mother wrote a ‘To Whom it may Concern’ letter saying that she could not presently continue as attorney. In those circumstances Mr Langdon took over as attorney in accordance with the terms of the EPOA. [55] The EPOA gave the attorney an immediate power to make decisions about financial matters. [56] The EPOA could not give the attorney immediate power to make decisions about personal matters. This is provided by section 33 of the Power of Attorney Act 1998 (Qld): 33 When attorney’s power exercisable (4) Power for a personal matter under the enduring power of attorney is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise. Note— However, the priority of an attorney’s power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4). (5) If an attorney’s power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has the impaired capacity. [57] Schedule 3 (the dictionary) to the POAA defines impaired capacity as follows: impaired capacity, for a person for a matter, means the person does not have capacity for the matter [58] I need to decide whether the referred complaint is a financial legal matter or a personal legal matter. If it is a financial legal matter, then Mr Langdon did have authority under the EPOA to conduct the proceeding in the tribunal on CHK’s behalf. Is the complaint a financial legal matter or personal legal matter? [59] This is important to see whether Mr Langdon has power under the EPOA to conduct the proceeding in the tribunal on CHK’s behalf. 9 Section 6(1) (the QCAT Act provides for the jurisdiction and related functions, and the practices and procedures for proceeding before the tribunal), section 9(4) (tribunal may do all things necessary or convenient for exercising its jurisdiction), section 28 (the procedure for a proceeding is at the discretion of the tribunal, subject to the QCAT Act, an enabling Act and the rules). Also section 174C of the ADA provides that the tribunal may exercise the powers conferred on it under the ADA or the relevant tribunal Act. -- 9 of 21 -- 10 [60] Legal matter, financial matter and personal matter are all comprehensively defined in the Power of Attorney Act 1998 (Qld) and the definitions are the same in the relevant 2012 version of the Act and in the 2023 version of it, with one exception: paragraph (ba) has been added to the definition of personal matter so that services provided to the principal are a personal matter. [61] Legal matter is defined in section 18 of schedule 2 to the Act as follows: 18 Legal matter A legal matter, for a principal, includes a matter relating to— (a) use of legal services to obtain information about the principal’s legal rights; and (b) use of legal services to undertake a transaction; and (c) use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and Note— This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person’s estate if adequate provision is not made from the estate for the dependant’s proper maintenance and support. (d) bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding. [62] It is clear that conducting this proceeding in the tribunal is a legal matter. [63] Financial matter is defined in section 1 of schedule 2 to the Act as follows: Financial matter A financial matter, for a principal, is a matter relating to the principal’s financial or property matters, including, for example, a matter relating to 1 or more of the following— (a) paying maintenance and accommodation expenses for the principal and the principal’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the principal or a dependant of the principal; (b) paying the principal’s debts, including any fees and expenses to which an administrator is entitled under a document made by the principal or under a law; (c) receiving and recovering money payable to the principal; (d) carrying on a trade or business of the principal; (e) performing contracts entered into by the principal; (f) discharging a mortgage over the principal’s property; (g) paying rates, taxes, insurance premiums or other outgoings for the principal’s property; (h) insuring the principal or the principal’s property; -- 10 of 21 -- 11 (i) otherwise preserving or improving the principal’s estate; (j) investing for the principal in authorised investments; (k) continuing investments of the principal, including taking up rights to issues of new shares, or options for new shares, to which the principal becomes entitled by the principal’s existing shareholding; (l) undertaking a real estate transaction for the principal; (m) dealing with land for the principal under the Land Act 1994 or Land Title Act 1994; (n) undertaking a transaction for the principal involving the use of the principal’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the principal; (o) a legal matter relating to the principal’s financial or property matters; (p) withdrawing money from, or depositing money into, the principal’s account with a financial institution. [64] Personal matter is defined in section 2 of schedule 2 to the Act as follows: Personal matter A personal matter, for a principal, is a matter, other than a special personal matter or special health matter, relating to the principal’s care, including the principal’s health care, or welfare, including, for example, a matter relating to 1 or more of the following— (a) where the principal lives; (b) with whom the principal lives; (ba) services provided to the principal; (c) whether the principal works and, if so, the kind and place of work and the employer; (d) what education or training the principal undertakes; (e) whether the principal applies for a licence or permit; (f) day-to-day issues, including, for example, diet and dress; (g) whether to consent to a forensic examination of the principal; Note— See also section 104 (Protection for person carrying out forensic examination with consent). (h) health care of the principal; (i) a legal matter not relating to the principal’s financial or property matters; (j) who may have access visits to, or other contact with, the principal; (k) advocacy relating to the care and welfare of the principal. -- 11 of 21 -- 12 [65] In both the definitions of financial matter and personal matter examples are given, and these are not exhaustive,10 so it is possible to have other types of financial matter or personal matter. [66] In its report A Review of Queensland’s Guardianship Laws: Volume 1,11 the Queensland Law Reform Commission stated: 6.24 A legal matter may be classified as a financial matter or a personal matter, depending on the nature of the matter involved. Legal matters relating to the adult’s financial or property matters (for example, making a claim for damages for injuries sustained in a motor vehicle accident) are classified as financial matters. Other types of legal matters (for example, making an application for a domestic violence order) are classified as personal matters. emphasis added [67] No authority is cited for the proposition that making a claim for damages for injuries sustained in a motor vehicle accident is a legal matter relating to the adult’s financial or property matters. Although it may well be true that success in such a claim would enlarge the principal’s estate, the difficulty is that it cannot be said that such a claim is within paragraph (c) of the definition of financial matter ‘receiving and recovering money payable to the principal’ because the money would only be payable upon obtaining a successful judgment. [68] Instead, I think a clear distinction can be understood from the definitions of financial and personal matters. All the things listed as financial matters are concerned with what might be described as the ‘estate’ of the principal concerned, that is the money and assets owned by that person, or which are due to that person by statutory or other right. So this would include state benefits which are payable or which could properly be claimed as of right. By the words in paragraph (c) ‘receiving and recovering money payable to the principal’ it would include debts owed to the principal and liquidated amounts where there was no genuine dispute that they were due or their amount. [69] When considering legal matters, there is a significant difference between the reference to those legal matters relating to financial matters in paragraph (o): a legal matter relating to the principal’s financial or property matters and the corresponding reference to those legal matters relating to personal matters in paragraph (i): a legal matter not relating to the principal’s financial or property matters [70] The use of the negative in paragraph (i) means that a legal matter will always be in at least one of the categories. It is impossible to have a legal matter which is not a financial matter or a personal matter. If a legal matter does not relate to a financial matter, then by paragraph (i) it is a personal matter. [71] The complaint here does not concern CHK’s ‘estate’ as described in the list of financial matters. And although I do not think it is relevant, I would point out that the complaint is not being made with the aim of achieving any monetary compensation. 10 Section 14D Acts Interpretation Act 1954 (Qld). 11 Report No 67, September 2010. -- 12 of 21 -- 13 [72] It must follow that the complaint here is a personal legal matter not a financial legal matter. Conclusion as to Mr Langdon’s authority under the Enduring Power of Attorney [73] I have found below that the medical evidence shows CHK has legal capacity to make decisions about the conduct of the proceeding. It is a fact that his mental condition is not one which deteriorates. It has remained the same since the EPOA was made. In the circumstances, it is clear to me that the powers under the EPOA for personal/health matters have not been triggered. It follows that Mr Langdon has no authority to conduct the proceeding on CHK’s behalf. How the tribunal deals with a proceeding conducted without authority [74] I have found that Mr Langdon has been conducting the proceeding in the tribunal without authority to do so, either under the authority given to him by QHRC or under the Enduring Power of Attorney. In deciding what to do about this, it is helpful to consider how the tribunal deals with proceedings brought and continued in the tribunal without authority. [75] There are no provisions in the QCAT Act or rules governing the bringing and continuing of a proceeding in the tribunal commenced without authority of the person named as applicant. [76] In the case of a non-existent person named as applicant, straightforward common law principles would apply, so for example a claim brought in the name of a person who had died, or in the name of a company which had been de-registered, would be a nullity.12 [77] In cases of legal incapacity of an applicant, the approach applied in the mainstream Queensland courts is illustrative. In the context of bringing a proceeding in a court, legal incapacity is defined in Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) as: person under a legal incapacity means— (a) a person with impaired capacity; or (b) a young person. person with impaired capacity means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings. young person means an individual who is under 18 years [78] By Rule 93 of the Uniform Civil Procedure Rules 1999 (Qld), a person under a legal incapacity in the mainstream courts in Queensland cannot start or defend or take a step in a proceeding without the appointment of a ‘litigation guardian’. [79] The provisions cited above do not apply in the tribunal and so the position is different. The modern approach is described by Member Fitzpatrick in BA, DC, FE v State of Queensland [2022] QCAT 332. There is no strict rule in the tribunal that a person under a legal incapacity always requires a litigation guardian – it would depend on the 12 In the case of death see Tetlow v Orela Limited [1920] 2 Ch 24, and for a non-existent company see Lazard Bros & Co v Midland Bank Ltd [1933] AC 289. -- 13 of 21 -- 14 nature of the matter before the tribunal, the person’s ability and the nature and extent of their representation in the tribunal. [80] Although the starting point in the tribunal is that litigants are self-represented, section 43 of the QCAT Act automatically gives a child or a person with impaired capacity a right to be represented by someone else. The expression ‘impaired capacity’ in section 43 is given the meaning in the Guardianship and Administration Act 2000 (Qld),13 which is:14 impaired capacity, for a person for a matter, means the person does not have capacity for the matter [81] Since the ‘matter’ referred to here is the legal proceeding this would be very close to, or the same as, the test for legal incapacity in the Supreme Court of Queensland Act and the Uniform Civil Procedure Rules. [82] In BA, DC, FE Member Fitzpatrick was able to say that BA who was aged 17, and DC who was aged 16, could themselves conduct a discrimination proceeding in the tribunal with the assistance of legal representation, but that FE who was aged 14 needed a litigation guardian as well as legal representation and if that was not organised by the deadline, only BA and DC’s claim would proceed. [83] In a case of legal capacity but reduced capacity, that is an adult able to make decisions about the conduct and settlement of the litigation but who needed help to do this, which is the position that CHK is in, the mainstream courts would not require a litigation guardian. Indeed a litigation guardian could not be appointed at all.15 In the same way, since there are no provisions or rules governing this in the tribunal, the tribunal could not require such a party to have a litigation guardian either. [84] Therefore, for an adult of legal capacity but reduced capacity, unless the application were defective in some other way, for example because it had been brought by someone else in the adult’s name without the adult’s authority, then the tribunal would be bound to hear the matter. The tribunal could encourage such a party to obtain legal representation and guide the party to available resources if necessary. [85] I need to decide which category CHK falls into. Does CHK have legal capacity for the tribunal proceeding? [86] I am able to decide this with the assistance of medical reports filed by the parties. [87] I start with a report from Tamara Miller, a psychologist, dated just 5 weeks before the making of the EPOA in 2012. Ms Miller explains that the report was commissioned to inform future planning for CHK. Ms Miller found that CHK had an intellectual impairment and required a high level of support successfully to participate in home environment and in the community. He needed ongoing direct instruction and support such as simplified routines to participate in various activities. He would need support in self-management skills if he was to work towards independent living. Ms Miller recommended applications for support through Centrelink and Disability Services Queensland and through a Disability Employment Service provider. 13 Schedule 3 (dictionary) to the QCAT Act. 14 Schedule 4. 15 As found in Pratt v Dickson [2000] QSC 314. -- 14 of 21 -- 15 [88] Then there is the EPOA itself. This was made on 5 June 2012. This was executed before a solicitor who confirmed in the EPOA that CHK appeared to understand the matters required by section 41 of the Powers of Attorney Act 1998 (Qld), and which were set out in clause 8 of the document. This is a description of the nature and effect of the document and must be understood by the principal for the EPOA to be valid. [89] Then there is a report dated 5 March 2016 from a clinical psychologist, Dr Donna Eshuys addressed to the District Court. One of the reasons for the report was to see if CHK was fit to plead. She had been given a short report by Tamara Miller dated 8 May 2012 and had access to CHK’s medical records. She interviewed CHK for two hours in the rooms of CHK’s solicitor. CHK had extremely low scores in tests for adaptive skills important for everyday living, in conceptual skills for communication and self direction, in social composite scores in the leisure and social skill areas, and in home living and self care skills. However his communication skills were better, so he appeared more capable than the reality. [90] The tests applied to see whether he was fit to plead showed that he had sufficient factual understanding of the various roles of the people in court and was able to articulate his knowledge and awareness of the relevant events which had occurred. He had an adequate level of ability to consult with counsel and was able to communicate with his legal team. He was found to have a mild intellectual impairment, that is with an IQ score of 50 to 70. He had difficulty with rapid and efficient problem solving and flexible thinking and was prone to making unwise decisions, so in order for information to be appropriately processed it needed to be presented explicitly, simplified, repeated and made ‘real’ wherever possible. [91] Dr Eshuys opined that: According to the ECST-R test, (CHK) has a good understanding of what it is that he is charged with and understands the nature of the proceeding in court. He is capable of instructing his counsel and is capable of relating his version of the facts. He has the ability to endure court or a trial without serious adverse consequences to his mental condition. However, despite being fit for trial, due to his extremely low scores on his intelligence testing it is critical that certain factors be considered in his case. These include avoiding the use of jargon and complicated terminology. The court should also ensure that he is not overloaded with too much information and switching between tasks too quickly should be avoided. Despite his fitness to plead, the effects of fatigue, particularly if he is presented with cognitively demanding tasks would soon become evident. [92] On 9 March 2020 Dr Mark Barnes, a consultant psychiatrist, produced a report about CHK’s fitness for trial for Magistrates Court proceedings, having interviewed CHK and having been given access to his medical records.16 He opined that CHK was fit for trial stating that: (CHK) understood all of his charges. He was unsure of the exact number of each of the charges but, when shown the QP9’s he was able to understand what each charge entailed and was able to tell me about them. He did not consider that the charges were particularly serious, although he was worried about the DVO in light of the recent incident where a family was burned to death. 16 At the hearing before me Mr Langdon was extremely critical of Dr Barnes and his report but bearing in mind it accords with the other medical reports I think I am justified in taking it into account. -- 15 of 21 -- 16 (CHK) understood what it meant to plead. He stated that guilty meant that you had “done em” and not guilty meant that you “didn’t do em”. Innocent meant that you had been “charged for something you never did and are not guilty”. He stated he was not guilty to the break and enter but would plead guilty to get it over. (CHK) understood the purpose of the court was to deal with his charges to determine whether the crime had been committed. He understood the workings of the Magistrates Court as he had been there before on two occasions. He knew the roles of the various personnel involved. He knew the Magistrate’s job was to make the decision and discipline him for his crimes. The Magistrate wears a black gown and white shirt and sits at the front. He understood the role of the police prosecutor was to “read out what you have done” and his own lawyer had to “try to get you off” and they sat next to you. (CHK) gave an example of evidence as “leave something behind in a crime” such as DNA. In his case he thought that his ex may give evidence. (CHK) felt able to defend himself in court. He would be guided by his lawyer who he has confidence in. He left able to speak up if he did not agree with something by “calling it out”. [93] I would accept of course that these reports were commissioned to assess whether CHK was fit for trial, so they were not made to test whether CHK had legal incapacity in a civil proceeding. But it can be seen that the important things for fitness for a criminal trial, that is whether he was capable of understanding the proceeding in the trial so as to be able to make a proper defence, is closely similar to a test for legal incapacity in the case of a civil proceeding. [94] I also need to bear in mind that legal capacity in the context of a proceeding is a ‘decision specific’ test, so that as pointed out by Applegarth J in Adamson v Enever (2021) 9 QR 3, a person may have capacity for some decisions and not for others, and that a person can have capacity for a matter even if such capacity can only be reached with adequate and appropriate support. [95] Here we are considering whether, with such adequate and appropriate support, CHK has capacity to decide whether or not to continue this complaint in the tribunal. CHK would need to understand advice about a number of things, including the merits of the complaint, what could be achieved by the complaint in tribunal conciliation or in success before the tribunal, the form and length of the process involved in pursuing the complaint, whether he would need to give evidence at any hearing, whether the hearing would be in public and the outcome published, and the extent of any exposure to adverse costs if the complaint were to fail. CHK has been given leave by the tribunal to be legally represented and he would be able to discuss these things with a legal representative and reach a conclusion whether he wished to proceed with the complaint in the tribunal. [96] In the circumstances I find that CHK does have legal capacity in the proceeding before the tribunal. Is the proceeding defective, and if so what is the result of this? [97] I have found as follows: -- 16 of 21 -- 17 (a) The referral to the tribunal by QHRC was effective. This means the complaint is before the tribunal to be heard and determined. (b) The complaint has been conducted in the tribunal not by CHK, but by Mr Langdon without authority to do so. [98] In a commercial situation, when a proceeding is started or progressed through the tribunal without authority of the named applicant, then it would be struck out if the authority is needed before the proceeding starts.17 But if the defect can be cured, by for example amending the statement of claim and/or by adding another party, then this is preferred to a strike out.18 [99] Where an applicant is clearly vulnerable, further factors are at play which require the tribunal to act with care to ensure that it remains accessible as required by its statutory objects.19 [100] When deciding what to do, the tribunal is probably acting as a public entity in an administrative capacity and so by section 58 of the Human Rights Act 2019 (Qld) (HRA) this decision must be compatible with human rights. Human rights can be limited but by section 13 only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. There is a human right to have a proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.20 And in this case CHK would have a human right to be entitled to equal and effective protection against discrimination.21 [101] I would bear in mind here that since the proceeding in the tribunal is not a nullity, dismissing the complaint will mean the complaint cannot be reinstated, largely because of the time limit in the ADA to make such a complaint, but also possibly because it would be a repeat of an earlier complaint. CHK’s absence at the strike out hearing [102] It was clearly important to hear directly from CHK and so instead of hearing the strike out application on the papers as it had originally been listed, I decided to conduct a physical hearing with CHK present, so that his knowledge and understanding of the proceeding and his approval for them could be ascertained, and if appropriate an attempt could be made to ensure he was properly represented. [103] For that reason in its directions for the hearing the tribunal made it absolutely clear that CHK must attend, unless he was legally represented in accordance with the leave which had already been given. A separate document, a notice of hearing, also required all required the parties to attend the hearing. 17 As happened in Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QCA 238 where an appeal was brought in the name of a Body Corporate without proper authorisation by special resolution. 18 Stone v ACE-IRM Insurance Broking P/L [2003] QCA 218; see also in QCAT, Rendermeister Pty Ltd v Macol Pty Ltd & Anor [2013] QCAT 91, [31] where a notice of assignment given on the day of the hearing cured a defect in the applicant’s right to bring the claim. 19 Sections 3(b), 4(a) and 4(e) of the QCAT Act. 20 Section 31 of the HRA. 21 Section 15(4) of the HRA. -- 17 of 21 -- 18 [104] Both the direction, and the notice of hearing were sent to Mr Langdon and not to CHK. This was because Mr Langdon was given in the tribunal’s system as the contact person for CHK. [105] On 9 January 2023 Mr Langdon sent this email to the tribunal: I, John Langdon will be attending the QCAT hearing on behalf of the principle (CHK). I will be submitting all the relevant documentation for this hearing and answer any questions from the tribunal members on behalf of the ‘Principle’ (CHK) who will not be attending due to his lack of cognitive abilities to participate and it would not be appropriate for his attendance, when the discussion will be on his intellectual disabilities and cognitive problems. In the discussion I will be mentioning he was teased at school and called by other pupils a ‘Retard’. [106] The remainder of the email explained why Mr Langdon would not be organising legal representation for CHK, which was largely because he disagreed with the way CHK’s legal representative had dealt with the Magistrates Court proceeding. CHK’s knowledge and understanding of the complaint [107] Without CHK’s attendance at the tribunal hearing I have to understand this from the available information. [108] At the hearing I asked Mr Langdon about CHK’s knowledge and understanding of the complaint and his participation in it. Mr Langdon was very vague in his answers. When I asked him what input CHK had had into the complaint, he did not answer this at all. On my finding CHK probably has no knowledge that a complaint in his name is currently in the tribunal about his interview at Maroochydore Police Station and about what happened in the Magistrates Court. [109] On what Mr Langdon told me I am willing to accept that Mr Langdon has told CHK that he is fighting for ‘justice’ for CHK in various ways, and that a tribunal is involved. However it does not appear that whether the current proceeding is in CHK’s best interest has been discussed with CHK at all, or that he has given his approval to the proceeding. The available options [110] The attempt to regularise the proceeding by hearing directly from CHK completely failed because CHK did not attend the strike out hearing. [111] There now seem to be four options to deal with this matter: (a) Appoint Mr Langdon as CHK’s representative under section 43 of the QCAT Act. (b) Appoint someone else as CHK’s representative under section 43 of the QCAT Act. (c) A further hearing where CHK would attend. At the end of the strike out hearing Mr Langdon said that he would bring CHK to any further hearing that the tribunal wished to organise. (d) Stay the complaint. (e) Strike out the complaint. -- 18 of 21 -- 19 [112] When considering whether CHK has legal capacity for the proceeding, I have described the decisions that CHK would need to make in the proceeding, and the help that he would need to make those decisions. The idea behind (a) is that Mr Langdon might be able to take on that role as his representative in the tribunal. [113] This would be by an order under section 43 of the QCAT Act, which permits a party ‘in a proceeding’ to be ‘represented by someone else’. In the case of a non-legal representative the tribunal would need to be satisfied the person is ‘an appropriate person to represent the party’.22 And ‘the tribunal may appoint a person to represent an unrepresented party’.23 [114] However, I am quite sure that Mr Langdon would not be able to take on this role. Briefly stated, he is unable to isolate the discrimination complaint from numerous other complaints that he has personally against various people concerning CHK’s treatment, he is unable to accept that his authority under the EPOA is limited to financial matters despite this being explained to him by CHK’s own lawyer, by the respondent in the proceeding and also by me in the strike out hearing, he does not understand the need to consult with CHK about the complaint,24 and he deliberately disobeyed the tribunal’s order that CHK should attend the hearing – and did not apologise for this despite being given every opportunity to do so but maintained that he made the correct decision. [115] As for (b) (tribunal appointing a representative), this could be a realistic and sensible option if it were possible to say that CHK had a real wish to make or proceed with the complaint and that it was clearly in his best interests to do so. But in the circumstances pertaining here neither of these things can be said. [116] As for (c) (further strike out hearing with CHK in attendance), I need to take into account that this suggestion came not from CHK, but from Mr Langdon so it is simply speculation that the outcome would be any different. The additional use of the tribunal’s resources to hold a second strike out hearing, and the disadvantage to the respondent, needs to be weighed against the merits and value of the complaint to CHK. I have to bear in mind here, that what is currently being sought in the complaint is something that the complaint cannot achieve.25 [117] As for (d) (stay), this has an advantage over (e) (strike out) as being a much less drastic order, because there is a possibility that the proceeding could be reinstated should CHK wish to do so, with the help of appropriate representation. [118] In deciding what to do I have regard to the principles set out above under the HRA. It seems to me that the stay option is compatible with human rights because it allows for the claim to be reinstated with leave of the tribunal. Although it is possible that not having a further strike out hearing may in fact limit the human rights referred to above this is by no means the inevitable consequence – it seems just as likely that in such a hearing CHK would express no desire to proceed with the complaint. Not offering a further hearing preserves the resources of the tribunal and I do not think 22 Section 43(4)(b). 23 Section 43(6). 24 He told me at the end of the strike out hearing that the real reason he did not ensure CH attended the hearing was that there was no reason for him to attend. 25 That is, that all convictions resulting from the police interview and the Magistrates Court proceeding concerned are reversed. -- 19 of 21 -- 20 there are any less restrictive and reasonably available ways to achieve this purpose in the circumstances. [119] This leads me to consider whether the tribunal has power to stay where there is no event provided in the order which would restore the proceeding. In other words, does the tribunal have power to stay a proceeding indefinitely? Does the tribunal have power to stay a proceeding indefinitely? [120] In Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702, Member T Fantin decided that, under the powers of the former Commercial and Consumer Tribunal (which were very similar to QCAT) there was an implied power permanently to stay a disciplinary proceeding which was an abuse of process, and in Legal Services Commissioner v Singh (No 2) [2011] QCAT 580, [10], Justice Alan Wilson, President, confirmed that tribunals have the power to stay an oppressive proceeding, although the stay was refused in the circumstances of that matter. [121] Recently in the context of an arbitration clause which needed to be complied with, Senior Member Brown in 4D Electrical Qld v Greyburn Pty Ltd [2020] QCAT 74, reviewed the statutory provisions and numerous authorities on the tribunal's power to stay a proceeding. He concluded: In my view the combined effect of s 28(1), s 28(2), s 58(1) and s 62(1) of the QCAT Act is to confer upon the tribunal the power to order a stay of proceeding if it is in the interests of justice to do so. What constitutes the interests of justice will depend upon the facts of each case. The construction I have adopted is, in my view, harmonious with the overall legislative scheme and intent of the QCAT Act and specifically, sections 3 and 4 of the Act. [122] In that case Senior Member Brown was considering a stay pending the happening of an event and he expressed the view that an open ended stay was inconsistent with the objects of the QCAT Act under those circumstances. But his reasoning about the power to stay probably also applies to stays which may have the effect of disposing of the proceeding. [123] I am therefore satisfied that the tribunal can stay a proceeding indefinitely, that is without providing for an event which would restore the proceeding. In the circumstances I think this is the appropriate way to deal with this complaint. Should the decision be anonymised? [124] I raised this in the hearing and heard Mr Langdon’s comments about it. He does not apply for himself to be anonymised. He originally thought that CHK’s name ought not to be published but then decided it would be alright after all. [125] Since on my findings CHK probably knows little about this proceeding, it would be unfair to name him in the reasons bearing in mind the reasons include detailed and sensitive information about him. He has a human right not to have his privacy unlawfully or arbitrarily interfered with.26 [126] The only reason not to name Mr Langdon in these reasons would be to avoid CHK being identified. However, CHK only needs protection from being named to the general public, not to those who know his family. 26 Section 25 of the HRA. -- 20 of 21 -- 21 [127] The usual order available under section 66 of the QCAT Act prohibits the publication of information which may enable CHK to be identified. This would also prohibit Mr Langdon’s name from being published. Such a wide order is not warranted. Instead, I propose to make an order under section 191 of the ADA which simply says that the disclosure of CHK’s identity is prohibited. This is to preserve CHK’s privacy. -- 21 of 21 --