CH v State of Queensland [2012] QCAT 536

CITATION: CH v State of Queensland [2012] QCAT 536 PARTIES: CH (Applicant) v State of Queensland (Respondent) APPLICATION NUMBER: ADL086-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: 17 October 2012 HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Presiding Member Clare Endicott, Senior Member Peter Roney SC, Member DELIVERED ON: 29 October 2012 DELIVERED AT: Brisbane ORDERS MADE: Subject to the filing of a written undertaking of CJG by her counsel that she will hold the settlement monies as trustee for the applicant CH: 1. The settlement of this proceeding on terms set out in the Deed of Settlement filed in the Tribunal on 17 October 2012 is sanctioned pursuant to s 59(1) of the Public Trustee Act 1978. 2. Within fourteen (14) days of this order the respondent pay the settlement sum to CJG by depositing that amount into a bank account, details of which are to be provided by the said CJG (through the applicant’s solicitors) to the respondent’s legal representatives in writing. 3. Within fourteen (14) days the respondent pay the applicant’s legal costs agreed in the sum of $17,500.00 to the applicant’s solicitors. 4. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act -- 1 of 10 -- 2 2009 the Registrar of the Tribunal place in a sealed enveloped marked “not to opened without an order of the Tribunal” all material filed in this matter today namely: (a) Application for miscellaneous matters filed 16 October 2012. (b) Affidavit of CJG filed 16 October 2012. (c) Affidavit of CJG filed 14 May 2012. (d) Affidavit of MSG (filed on 17 October 2012 by leave). (e) Deed of Settlement (filed on 17 October 2012 by leave). (f) Counsels’ opinion dated 11 October 2012. (g) Applicant’s submissions in relation to the sanction, filed 16 October 2012. 5. Each of the parties is granted liberty to apply in respect of these orders. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION – GENERALLY – where parties agreed to settle a complaint of unlawful discrimination – where applicant has impaired capacity – where settlement requires sanction – whether tribunal is a court for purposes of sanctioning settlement – whether settlement funds should be paid to a person other than the Public Trustee – whether administrator needed to be appointed – where documents containing terms of settlement kept confidential – where permissible to constitute tribunal with more than one legal member Anti-Discrimination Act 1991, s 176 Public Trustee Act 1978, ss 6, 59(1), 59(1A) and (2) Guardianship and Administration Act 2000, s 12 Queensland Civil and Administrative Tribunal Act 2009, ss 66, 164(1), 165 Owen v Menzies and Ors [2012] QCA 170 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Rangiah SC with him Ms Kidson of Counsel instructed by Caxton Legal Centre for CH RESPONDENT: Mr Horneman-Wren SC instructed by the Crown -- 2 of 10 -- 3 Solicitor for State of Queensland REASONS FOR DECISION [1] This is a claim for damages and other relief under the Anti-Discrimination Act 1991 (“the AD Act”). [2] The parties have now settled the claim. The claimant is a severely disabled cerebral palsy sufferer who cannot care for herself or manage her own affairs. Her mother (CJG) has conducted these proceedings on her daughter‟s behalf and now seeks a sanction of the proposed settlement under section 59(1) of the Public Trustee Act 1978. An application has also been made for the appointment of CJG (her preferred designation) as administrator under the Guardianship and Administration Act 2000 (“the GA Act”). [3] A number of issues need to be determined in order to dispose of the matter: 1. Is a sanction of the settlement required by section 59(1) of the Public Trustee Act 1978? 2. If yes, does this Tribunal have jurisdiction to grant the necessary sanction? 3. Should the settlement be approved? 4. Should it be directed that the settlement monies be paid to a person other than the Public Trustee? 5. Should an administration order be made under section 12 of the GA Act? [4] We will deal with these in turn. Is a sanction of the settlement required by section 59(1) of the Public Trustee Act 1978? [5] Section 59(1) of the Public Trustee Act 1978 provides: (1) In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiff's solicitor or to any person other than the public trustee unless the court otherwise directs. -- 3 of 10 -- 4 [6] The term “court” is defined for the purposes of that section as: court means a court within whose jurisdiction an amount or damages are claimed by or for a person under a legal disability suing either alone or with others, and includes a judge or magistrate of the court. [7] Unless this Tribunal is regarded as a “court” for the purposes of section 59(1), there is no requirement that any sanction of the settlement be obtained from a court, or the Public Trustee, or for that matter anyone at all. The relevant words, creating the necessity to obtain a sanction of a settlement are “in any cause or matter in any court in which money or damages is or are claimed… no settlement...shall… be valid without the sanction of a court or the public trustee…” Duties may arise at law and equity concerning dealings by the recipient with the settlement monies, but the familiar “sanction” provision, section 59(1), simply would not apply unless the present litigation is regarded as a matter in a court. [8] Plainly the specific definition of “court” for the purposes of section 59 displaces the general definition of “court” in section 6 of the Public Trustee Act 1978, where the term is defined to mean the Supreme Court. [9] The definition in section 59 assumes the ordinary meaning of the word “court”. The question-begging “court means a court…” followed by words of limitation and an inclusive addition, obviously imports the general meaning of “court”. No intention to impose any technical limitation can be discerned. [10] It focuses attention upon the relevant body having jurisdiction to award the damages, and being the one in which the claim is made. [11] In both legal and lay dictionaries, the primary definition of “court” (in any curial context) has for a very long time been the broad statement “a place where justice is administered”. Many tribunals aspire to satisfy that general requirement. However important distinctions need to be maintained in many areas between “courts” and “tribunals” as for example in the supervisory jurisdiction of courts and their control of inferior courts and tribunals, especially in the context of administrative law. The question whether a tribunal may be described as a “court” or be seen as functioning as one has to be answered according to the particular circumstances and context of each situation or case. [12] The question in the present case is whether the present Tribunal – which is the only designated body with jurisdiction to award such damages, and in which the present claim has been made, and which in the determination of such claims observes natural justice and follows procedures based upon traditional court procedures – should be included in the term “court” within the general understanding of that term. [13] A question of this kind has recently been pronounced upon by the Court of Appeal in a case concerned with whether QCAT, in the exercise of its anti-discrimination jurisdiction, should be regarded as a “court” within the -- 4 of 10 -- 5 meaning of that word in Chapter III of the Commonwealth Constitution. In Owen v Menzies and Ors [2012] QCA 170, following a comprehensive examination of QCAT‟s functions both generally and with regard to its anti-discrimination jurisdiction, the court concluded that it should be so regarded. The relevant discussions appear in the reasons of Chief Justice de Jersey at [8]-[20], McMurdo P at [43]-[49], [52], and Muir JA at [144]-[150]. Among other considerations reference was made to section 164(1) of the Queensland Civil and Administrative Tribunal Act 2009 („QCAT Act‟), which declares QCAT to be a court of record. [14] The context and content of section 59 of the Public Trustee Act 1978 are consonant with the idea that “court” embraces a tribunal that performs the function of a court, and which is the only body with jurisdiction to award such damages to a claimant. To read it otherwise would create an area where the structure that protects claimants under legal disabilities would be missing, and where parties, next friends and litigation guardians, were free from supervision in the distribution of proceeds of such litigation. [15] We therefore think it tolerably clear that section 59 applies to the present claim and that QCAT is to be regarded as a court for the purposes of subsection (1). It follows that the parties need QCAT‟s sanction before their agreement can be carried out. Does this Tribunal have jurisdiction to grant the necessary sanction? [16] If the foregoing reasoning is correct, it follows that this tribunal is a "court" within the meaning of the definition in section 59(1), and that it has the power to grant the necessary sanction. Indeed, apart from the inherent protective jurisdiction of the Supreme Court, this Tribunal seems to be the only "court" with jurisdiction to award the relevant damages, and the only "court" that can satisfy the definition. We emphasise that if this conclusion is incorrect, and QCAT is not a court for the purposes of this section, no sanction is necessary, and the parties seemingly may carry out their arrangements without the supervisory system instituted by section 59. Should the settlement be approved? [17] The claim concerns alleged discrimination by a state government department (the Department of Communities, Child Safety and Disability Services) in determining that the applicant, a New Zealand national who holds a special category visa (SCV) was ineligible for disability services funding. The issues, which were well presented in the material before us, involve the history of arrangements between New Zealand and Australia since 1973, the power of governments (state and federal) to discriminate on the ground of citizenship in the distribution of social service benefits, the criteria and policies by which the respondent department determines eligibility and many other issues. Whilst recognising that there are many arguable points, and indicating that no concluded view has been reached, it is fair to say that the claimant appears to have shown a strong case of direct discrimination under the AD Act, and that it may well be that the only answer to the claim would lie in the mounting of a defence under -- 5 of 10 -- 6 section 51 or special exemption under section 113 of the AD Act, through reference to the 2001 arrangements between Australia and New Zealand concerning restriction of social service benefits, and lack of funds to satisfy the needs of disabled Australian citizens. However, the respondent did not defend on that basis and the contest was essentially on denial of discrimination. For these reasons the claimant‟s position should be regarded as strong, and any reasonable settlement ought to obtain a result close to that of a successful claim. [18] Having regard to the comparable awards in this jurisdiction referred to in Mr Rangiah SC‟s opinion, we think that the agreed settlement amount is close to the best that could be expected in this matter. The claimant (through her caring mother) seems primarily interested in obtaining access to the benefits of a scheme, far more so than in obtaining fleeting pecuniary benefit through damages. The reaching of this agreement overcomes the first hurdle in her search for access to the benefits of the relevant scheme. This is the first step in what might be a long road to eventual relief, with issues of prioritisation still ahead. The avoidance of potentially substantial delay through further litigation, and certainty in relation to this first step, are themselves benefits. [19] In our view the settlement is reasonable and for the benefit of the person under the disability, and ought to be sanctioned. Should the settlement monies be paid to a person other than the Public Trustee? [20] In the context of damages awards (for example in personal injury cases) the relevant fund is a very modest one. If the fund were to be administered by the Public Trustee, the administration fees, if the full sum were to be expended during the first year, would be approximately 10% of the fund. If it were not fully administered within that time the fees could be substantially greater. [21] If the fund is administered by the claimant‟s mother, no fees will be charged and expenses and administration will be minimised. The severely disabled applicant is now 18 years old. Her mother has cared for her from birth and remains devoted to the fulfilment of her needs. In a very real sense the best way to benefit the child is to benefit the mother, or provide her with the means to benefit her daughter. [22] There is nothing unreasonable about the Public Trustee‟s level of fees, but the saving of that fee will be a worthwhile benefit to the claimant. This is not a case where the size of the fund, or suspicion of possible abuse by a carer, renders it desirable that the fund be controlled by a third party trustee such as the Public Trustee. [23] In the circumstances it is desirable that we direct that the fund be paid to the claimant‟s mother, to be applied by her for the benefit of the claimant. She, however, is not an “appropriate person” as that term is defined in section 59 of the Public Trustee Act 1978. Before any money may be -- 6 of 10 -- 7 paid to her it would be necessary that either an order be made appointing her to be an administrator under the GA Act, or that a special direction be made under section 59(2) of the Public Trustee Act 1978 permitting the payment to be made to her. This is a consequence of section 59(2) which provides: (2) Any claim for money or damages by or on behalf of a person under a legal disability claiming either alone or in conjunction with other parties may be settled or compromised out of court before action brought, with the sanction of a court or the public trustee, but no money or damages agreed to be paid in respect of the claim of any such person, whether by settlement or compromise, shall be paid to any person other than the appropriate person for the person under a legal disability unless by direction of a court upon application made in that behalf. [24] It is arguable that section 59(2) applies only to the settlement of claims "before action brought", and that it has no application to the present proceedings. However, on the assumption that the prohibition of payment of monies to anyone other than "the appropriate person" is of general application, we think the present case is an appropriate one to make a special direction of the kind that is contemplated by the concluding part of the subsection. The reasons for our preference of this course over the appointment of CJG as an administrator are stated hereunder. [25] In order to satisfy the definition of “appropriate person” in section 59(1A) of the Public Trustee Act 1978, CJG applied to be appointed an administrator for the person under section 12 of the GA Act. However, for reasons mentioned under the next subheading, we consider that such an appointment would be unduly burdensome and unnecessary. It is a suitable case for us to direct that the monies be paid to CJG notwithstanding that she is not an “appropriate person” within the definition of that term. [26] The answer to this question is "Yes. In our opinion the monies should be paid to the claimant's mother in trust for the claimant.” In order to do so it will be necessary that we make a special direction under the power conferred by section 59(2) of that Act to direct that it be paid to CJG. Should an administration order be made under section 12 of the Guardianship and Administration Act 2000? [27] An appointment of an administrator under the GA Act can be made when the factors set out in section 12 of that Act are established. In essence, the tribunal must be satisfied that CH has impaired decision making capacity for financial matters and specifically for managing the moneys to be recovered from the settlement of her discrimination complaint, that there is a need to make decisions about the management of those moneys and that without an appointment of an administrator CH‟s decision making needs about those moneys will not be appropriately met. [28] The evidence provided to the tribunal was capable of establishing that CH had impaired decision making capacity and that decisions would have to -- 7 of 10 -- 8 be made about the use of the moneys for CH‟s benefit. However there was evidence that these decisions could be made in this case without an appointment of an administrator. CJG currently operates a bank account as trustee for her daughter. According to CJG, the money held in that account is solely used to meet CH‟s needs. In the event that the modest settlement moneys from this proceeding were to be paid into that account by CJG, she could access the moneys for her daughter‟s benefit over the forthcoming months. CJG would not need to be an appointed administrator to access the moneys in that circumstance. [29] We were satisfied that CH‟s decision-making needs about the settlement moneys could be adequately met without a formal appointment of an administrator being made by QCAT. The GA Act acknowledges that an adult with impaired capacity has a right to adequate and appropriate support for decision making.1 Support for financial decision making is provided to CH by her mother as part of her support network. The GA Act encourages involvement in decision making by an adult‟s support network and authorises the exercise of informal decision making power by that support network.2 Requiring decisions about the management of the settlement funds to be made solely by an administrator appointed by QCAT would in this case amount to the imposition of an unnecessary expense and burden. [30] As the requirements in section 12(1)(c) of the GA Act for the appointment of an administrator were not established in this case, an administrator was not appointed for CH. However we recognise that this outcome is somewhat exceptional. In most cases where moneys are recovered for an adult with impaired capacity, the need for a formal appointment of an administrator can be readily established as the only way in which decision making about those moneys can be implemented. Constitution of the Tribunal [31] The present litigation involves the disposition of a complaint under the AD Act upon a referral by the Anti-Discrimination Commissioner, and also an application for an order under the GA Act. The Tribunal for this matter consists of three Members. Its presiding member was appointed following the parties‟ suggestion that a judicial member was desirable because declaratory relief was sought. We understand that the other members were appointed because of their desirable experience in the relevant areas that might arise for consideration. [32] QCAT Tribunals may consist of one, two or three Members, as determined by the President for each particular matter3, unless of course there is a contrary requirement in some other statute. [33] Section 176 of the AD Act states as follows: 1 Guardianship and Administration Act 2000, s 5(e). 2 Guardianship and Administration Act 2000, ss 7(d), 9(1) and 9(2)(a). 3 Queensland Civil and Administrative Tribunal Act 2009, s 165. -- 8 of 10 -- 9 Subject to section 228A, the tribunal is constituted by 1 legally qualified member of the tribunal for the purpose of conducting a hearing. [34] The parties expressly indicated their assent to the composition of the present Tribunal. However the question arises whether section 176 is a mandatory prescription of the membership of the Tribunal in anti- discrimination matters, or whether it is a statement of sufficiency as to the constitution of such a Tribunal. If it is the latter, then the use of QCAT‟s familiar procedural functions lies comfortably with section 176 of the AD Act4. That, in our view, is the correct construction of section 176. The better view seems to be that section 176 is permissive rather than a mandatory prescription. It does not say “must” or “shall”, and no policy or purpose of limitation to one person is apparent. The objective of that section seems to be to ensure that there is a legally qualified person in the determination of such claims. That seems to be the essential requirement, rather than a limitation of the Tribunal to one and one only person. On that basis there is no necessary inconsistency between the two Acts such as to activate section 7(2) of the QCAT Act. [35] We therefore consider that the Tribunal has been appropriately constituted and that we have jurisdiction to consider the applications that have been made. [36] If this point were considered to threaten the validity of the proposed orders, we would adjourn and arrange for a reconstitution. However in the absence of such a request from the parties we have proceeded and, after due reflection, are prepared to make the orders that have been indicated. Orders [37] It is ordered that: Subject to the filing of a written undertaking of CJG by her counsel that she will hold the settlement monies as trustee for the applicant CH: 1. The settlement of this proceeding on terms set out in the Deed of Settlement filed in the Tribunal on 17 October 2012 is sanctioned pursuant to s 59(1) of the Public Trustee Act 1978. 2. Within fourteen (14) days of this order the respondent pay the settlement sum to CJG by depositing that amount into a bank account, details of which are to be provided by the said CJG (through the applicant‟s solicitors) to the respondent‟s legal representatives in writing. 3. Within fourteen (14) days the respondent pay the applicant‟s legal costs agreed in the sum of $17,500.00 to the applicant‟s solicitors. 4 Compare sections 6, 115 and 165 of the Queensland Civil and Administrative Tribunal Act 2009. -- 9 of 10 -- 10 4. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 the Registrar of the Tribunal place in a sealed enveloped marked “not to opened without an order of the Tribunal” all material filed in this matter today namely: a) Application for miscellaneous matters filed 16 October 2012. b) Affidavit of CJG filed 16 October 2012. c) Affidavit of CJG filed 14 May 2012. d) Affidavit of MSG (filed on 17 October 2012 by leave). e) Deed of Settlement (filed on 17 October 2012 by leave). f) Counsels‟ opinion dated 11 October 2012. g) Applicant‟s submissions in relation to the sanction, filed 16 October 2012. 5. Each of the parties is granted liberty to apply in respect of these orders. -- 10 of 10 --