Dapontes v State of Queensland and Anor (No 2) [2011] QCAT 717

CITATION: Dapontes v State of Queensland and Anor (No 2) [2011] QCAT 717 PARTIES: Alexis Dapontes (Applicant) v State of Queensland (First Respondent) Wendy Austin (Second Respondent) APPLICATION NUMBER: ADL044-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 15 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Alexis Dapontes must file in the Tribunal and send to the respondents care of the Crown Law Office amended contentions setting out her contentions restricted to the referred complaint of unlawful discrimination based on race in the provision of goods and services by the respondents and victimisation by 4:00pm 20 January 2012. 2. The respondents may file in the Tribunal and send to Alexis Dapontes their response to the amended contentions by 4:00pn 9 February 2012. 3. The matter is listed for a Directions Hearing in Brisbane at 2:30pm on 13 February 2012. CATCHWORDS: ANTI-DISCRIMINATION – where contentions contained irrelevant facts and allegations to the referred complaint – where it was inappropriate to proceed to a compulsory conference on unsatisfactory contentions -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Nick Dapontes was hospitalised in the Cognitive Assessment and Management Unit of The Prince Charles Hospital on 26 May 2010. While he was in the hospital his family, including his daughter Alexis Dapontes, made complaints about the care he was receiving and about the treatment his family received when visiting Mr Dapontes. [2] Alexis Dapontes has complained that the respondents have contravened the Anti-Discrimination Act 1991. She lodged two separate complaints in the Anti-Discrimination Commission in her name as complainant and also lodged another complaint in the name of her father. A fourth complaint was lodged by Martha Dapontes, the wife of Nick Dapontes. The complaints were not resolved at the Commission and all four complaints were referred to QCAT. The four complaints have not been amalgamated but remain four separate complaints. Nick Dapontes has subsequently passed away. [3] In this proceeding, Alexis Dapontes has contended that the respondents have unlawfully discriminated against Alexis Dapontes based on her race in the manner in which they provided goods and services. It is further contended that Alexis Dapontes had been subjected to victimisation by the respondents after Alexis Dapontes had complained about the respondents’ conduct. [4] The complaint made by Alexis Dapontes was referred to QCAT. Although the tribunal is not bound by the categorisation of the complaint made by the Anti-Discrimination Commission, I consider it is apt to adopt the Commission’s summary of allegations as an accurate summary of the referred complaint. [5] The summary of alleged racial discrimination is as follows: “When the complainant called her father at the hospital, Wendy Austin grabbed the phone off her father and said ‘speak English this is Australia and if you don’t speak English I will hang up’ which she did.” Further “this happens every call my father gets from me.” Lastly “Wendy Austin responded to requests from the complainant and her father for Greek food with comments like ‘this is Australia not Greece, make your own wog food’.” [6] The summary of the alleged victimisation is as follows: “As I made complaints to Jay Olsen nurse Wendy Austin said she is punishing me and won’t allow me to talk to my 76 yr old dad. Wendy Austin did not allow me to see or speak to my father on father’s day.” -- 2 of 3 -- 3 [7] Directions were made in this proceeding which required Alexis Dapontes to file her contentions about the allegations she had made that the respondents had contravened the Anti-Discrimination Act 1991. [8] The contentions filed by Alexis Dapontes were unsatisfactory. She incorporated into her contentions all the complaints made by her and also the complaint made by her mother. There was no attempt made to distinguish between the four separate complaints. The respondent, the State of Queensland, is common to all four complaints but the other individual respondents are not common to all four complaints. [9] The contentions contain allegations that are not part of the referred complaint. Those allegations are irrelevant to the complaint unless leave is granted for the complaint to be amended. It is not appropriate to proceed to a conference with the contentions in a confusing and unclear state. It will detract from the opportunities to resolve the complaint at the conference if the parties must at the outset of the conference identify which allegations are relevant and which are outside the scope of the referred complaint. [10] From an initial consideration of the filed contentions, it would appear that the following paragraphs wholly or partly contain allegations or information that are not part of the referred complaint in this particular matter: paragraphs 5, 6, 7, 12, 13, 14, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 44, 45, 46 and 48. [11] The filed contentions do not provide the tribunal with a basis to consider the referred complaint. The contentions must set out the facts of the referred complaint and must contain information and allegations that stay within the terns of the referred complaint. For that reason, I have made directions to Alexis Dapontes to file amended contentions restricted to the referred complaint of unlawful discrimination based on race in the provision of goods and services by the respondents and victimisation. [12] Similar directions have been made in ADL043-11 and ADL045-11 based on similar reasons as set out here. -- 3 of 3 --