Dapontes v State of Queensland and Anor [2011] QCAT 716

CITATION: Dapontes v State of Queensland and Anor [2011] QCAT 716 PARTIES: Martha Dapontes (Applicant) v State of Queensland (First Respondent) Wendy Austin (Second Respondent) APPLICATION NUMBER: ADL043-11 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. Martha 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 by 4:00pm 20 January 2012. 2. The respondents may file in the Tribunal and send to Martha Dapontes their response to the amended contentions by 4:00pm 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] The background to this complaint can be read in paragraphs 1 and 2 of the reasons in ADL044-11. [2] Martha Dapontes is the widow of Nick Dapontes. Her daughter, Alexis Dapontes acting as her agent, lodged a complaint to the Anti- Discrimination Commission alleging that she had been unlawfully discriminated against based on her race in the provision of goods and services by the respondents. [3] The complaint has been referred to QCAT. I am prepared to adopt the summary of allegations made by the Commission as an accurate summary of the referred complaint in this proceeding. [4] The summary of alleged racial discrimination is as follows: “When Alexis Dapontes called Nick Dapontes at the hospital while the complainant Martha Dapontes was visiting him, Wendy Austin grabbed the phone off her husband Nick Dapontes 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 Nick Dapontes gets from Martha Dapontes.” Lastly “When the complainant Martha Dapontes visits Nick, Wendy Austin shouts out speak English not that wog language.” [5] Directions were made in this proceeding which required Martha Dapontes to file her contentions about the allegations she had made that the respondents had contravened the Anti-Discrimination Act 1991. [6] The contentions filed by Alexis Dapontes in this proceeding on behalf of her mother, Martha Dapontes, were unsatisfactory as was the case in ADL044-11 and ADL045-11. Alexis Dapontes had incorporated into the contentions in this proceeding, ADL043-11, all the complaints made by her and had not restricted the contentions to the actual complaint made by her mother. There was no attempt made to distinguish between the four separate complaints that had been lodged. The respondent, the State of Queensland, is common to all four complaints but the other individual respondents are not common to all four complaints. [7] As explained in proceedings ADL044-11 and ADL045-11, the contentions filed in this proceeding as well as the other proceedings contain allegations that are not part of the respective referred complaints. Those allegations are irrelevant 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 -- 2 of 3 -- 3 at the outset of the conference identify which allegations are relevant and which are outside the scope of the referred complaint. [8] 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 2, 3, 4, 5, 6, 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 44, 45, 46 and 48. [9] The filed contentions in this proceeding do not provide the tribunal with a basis to consider the referred complaint. The contentions must set out the facts relevant to the referred complaint and must only contain information and allegations that stay within the terms of the referred complaint. For that reason, I have made directions to Martha Dapontes to file amended contentions restricted to the referred complaint in this proceeding of unlawful discrimination based on race in the provision of goods and services by the respondents. [10] Similar directions have been made in ADL044-11 and ADL045-11 based on similar reasons as set out here. -- 3 of 3 --