Angelopoulos v State of Queensland [2023] QCATA 124

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Angelopoulos v State of Queensland [2023] QCATA 124 PARTIES: ANGELOS ANGELOPOULOS (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: APL177-22 ORIGINATING APPLICATION NO/S: ADL003-19 MATTER TYPE: Appeals DELIVERED ON: 30 August 2023 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for miscellaneous matters (to amend the grounds of appeal) filed 22 May 2023 is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to amend grounds of appeal – where significant delay – where appeal books filed and appeal ready for determination when application to amend was filed – where leave to amend refused Anti-Discrimination Act 1991 (Qld) s 11 Burial Assistance Act 1965 (Qld) s 4 Human Rights Act 2019 (Qld) s 15, s 20, s 27, s 48, s 108 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32 Angelopoulos v State of Queensland [2022] QCAT 163 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 5 -- 2 REASONS FOR DECISION What is the application about? [1] Mr Angelopoulos appeals a decision made in Angelopoulos v State of Queensland [2022] QCAT 163 to dismiss his complaint referred from the Queensland Human Rights Commission. Mr Angelopoulos had, in 2018, applied for assistance to fund his late father’s funeral under the Burial Assistance Act 1965 (Qld) (‘BA Act’) and contended that the State of Queensland had breached the Anti-Discrimination Act 1991 (Qld) (‘ADA’) by refusing the full financial assistance sought such that Mr Angelopoulos was required to bury his father without a church service or private viewing despite being of the Greek Orthodox faith. [2] The issue before the Tribunal below was whether the State of Queensland engaged in indirect discrimination within the meaning of section 11 of the ADA on the grounds of religious belief/activity by refusing Mr Angelopoulos’ full request for burial assistance in respect of his father’s funeral. [3] In dismissing Mr Angelopoulos’ complaint, the learned Member found that: [33] Here, Mr Angelopoulos’ application for financial assistance was approved for a burial of his deceased father to a total amount of $3,071.95. Mr Angelopoulos sought and was refused additional expenses for the conveyance of his deceased father from the morgue to the church and then from the church to the burial site in order for a church service and a private viewing to take place. [34] The respondent’s decision to refuse Mr Angelopoulos’ request for further expenses was a decision made under the BA Act. On balance, I am satisfied that the respondent’s decision has not resulted in Mr Angelopoulos being treated less favourably than a person applying for funeral assistance for their deceased next of kin with religious, cultural, racial or linguistic requirements or a person applying for funeral assistance for their deceased next of kin who requires more than a burial or cremation. [35] Here, Mr Angelopoulos was not denied the additional costs associated with a funeral service for his deceased father because of his religious beliefs and activities. The BA Act does not provide for the cost and associated costs of a funeral. The BA Act requires the chief executive to make arrangements for the disposal of the relevant body such as a burial or cremation. The chief executive is responsible for the administration of the scheme including paying the costs of the disposal of deceased persons where it appears there are no suitable arrangements for the disposal of the body. [36] On balance, I am satisfied that the respondent’s decision to refuse the additional costs claimed by Mr Angelopoulos in relation to his deceased father’s burial did not amount to unlawful discrimination. Further to that, the term as contended, that a burial or service arranged by the chief executive cannot include a separate service where the body of the deceased is to be taken to a place other than the grave or crematorium was made under the BA Act that only requires the chief executive to incur the cost of a burial or cremation. Such costs as provided under s 4(1) of the BA Act include, for example, the expense of conveying the body to a place such as a morgue or other place for burial such as a cemetery. [37] The respondent’s conduct is in all of the circumstances reasonable and is otherwise exempt under s 106 of the Act on the basis that the conduct was necessary to comply with or is specifically authorised by the BA Act. The -- 2 of 5 -- 3 reason for Mr Angelopoulos’ application being approved with conditions and the decision to refuse additional finding for the religious service that includes a viewing was a decision properly made by the chief executive under the BA Act and not because of Mr Angelopoulos’ or his deceased father’s religious or cultural beliefs. The grounds of appeal [4] The application for leave to appeal or appeal filed on 8 June 2022 raised an error of law as its grounds of appeal, namely that the learned Member did not properly apply the Human Rights Act 2019 (Qld) which, Mr Angelopoulos says, required the following mandatory consideration: (a) The BA Act must be interpreted in a way that is consistent with their purpose and compatible with human rights (section 48(1) of the HRA). (b) If the BA Act cannot be interpreted in a way that is compatible with human rights, the provision must be interested the way that is most compatible with human rights (section 48(2) of the HRA). (c) The provisions of the HRA relevant to the HRA: (i) Section 15 (recognition and equality before the law); (ii) Section 20 (freedom of thought, conscience, religion and belief); and (iii) Section 27 (cultural rights). [5] The application for leave to appeal or appeal proceeded through the appeal tribunal as follows: (a) The application was served upon the State of Queensland on 5 July 2022. (b) Pursuant to directions an appeal book with the hearing transcript was filed by Mr Angelopoulos on 5 August 2022. (c) The State of Queensland filed its response to the application together with its appeal book on 16 September 2022. (d) By a direction made 16 November 2022 the application was listed for a final decision, on the papers. (e) The application is scheduled to be heard, on the papers, on 11 October 2023. The application to amend [6] The application to amend filed on 22 May 2023 sought to include as an additional ground of appeal that Mr Angelopoulos was denied a fair trial during the hearing of his referred complaint in breach of the HRA, as he was not afforded the opportunity to refer to or interact with all exhibits provided to the registry during the hearing. He is concerned that not all the documents he says he filed were available to the learned Member in the Tribunal below and says that “a competent and experienced lawyer selected the relevant exhibits which were determined to be relevant and important for the hearing”. [7] The State of Queensland say that there is no merit in this ground of appeal: the Member noted the documents that were relevant and relied upon and they were marked as exhibits during the hearing and mentioned them in the written decision. -- 3 of 5 -- 4 [8] Further the State of Queensland say that pursuant to section 108(1), the HRA does not affect proceedings commenced before 1 January 2020, and the application referring the complaint was filed on 21 January 2019. Discussion and decision By a decision made 30 August 2023 I refused the application to amend for the following reasons. The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick and to enhance the openness and accountability of public administration.1 To achieve these objects the tribunal must, among other things, ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.2 Whilst formality is not part of the tribunal’s mandate, the tribunal nonetheless need be mindful that its resources serve the public as a whole, not just the parties to proceedings before it. Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman:3 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.4 [9] The application for leave to appeal or appeal was filed on 8 June 2022, following an oral hearing on 29 April 2022 and a decision with written reasons delivered on 11 May 2022. Mr Angelopoulos was present and self-represented at the hearing and, in any event, was in receipt of the transcript of hearing by 5 August 2022 at the latest (being the date he filed it in the appeal). [10] Accordingly, Mr Angelopoulos was aware of the issues with exhibits that he now seeks to include as a ground of appeal when the appeal book was filed. He ought to have raised the ground at that time, however, he waited until 22 May 2023, eight months after the response was filed and six months after the matter was listed for an on the papers hearing, to do so. The reasons for that delay have not been explained. [11] Given the matter is to be decided on 11 October 2023, permitting the amendment would require a direction vacating the on the papers hearing and permitting the State of Queensland to file a response to the amended ground. Such an outcome would be inconsistent with the tribunal’s mandate to conduct matters quickly and economically, and to use its resources appropriately for the public as a whole. 1 Section 3 of the QCAT Act. 2 Section 4, ibid. 3 [2011] QCATA 226 at paragraph [13]. 4 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217. -- 4 of 5 -- 5 [12] Further, it would put the State of Queensland, who made the original decision in 2018, to further delay and expense in amending their response to the appeal, which, in the circumstances and in my view, risks causing them an unnecessary disadvantage. [13] Finally, I am not convinced that there is any merit in the ground the subject of the application to amend: the transcript notes careful interactions between the learned Member, Mr Angelopoulos and the respondent’s representative with respect to the documents referred to and exhibits marked. It appears there was duplication in the material filed, where each party had numbered their exhibits differently, however, this did not prevent the Member from correctly identifying, after making inquiry, documents referred to and relied upon by Mr Angelopoulos. Even if the HRA has no application – a submission upon which I have not formed a view - there are no grounds, in my view to argue that Mr Angelopoulos was denied natural justice in the process or that an appealable error arose from this particular ground. [14] For those reasons the application to amend was refused. -- 5 of 5 --