Dapontes v State of Queensland and Anor [2012] QCAT 85

CITATION: Dapontes v State of Queensland and Anor [2012] QCAT 85 PARTIES: The estate of Nick Dapontes v State of Queensland Wendy Austin APPLICATION NUMBER: ADL042-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 24 January 2012 DELIVERED AT: Brisbane ORDERS MADE: The complaint will not be dismissed. CATCHWORDS: ANTI-DISCRIMINATION – complaint made by person with impaired capacity – applicant subsequently died – whether complaint lacking in substance – whether it would be abuse of process for complaint to continue Queensland Civil and Administrative Tribunal Act 2009, s 47 Anti-Discrimination Act 1991, preamble and s 134(1)(c) Stephenson v HREOC and St Vincent’s Hospital Ltd [1996] FCA 1654 NC and others v Queensland Correctional Services Commission [1997] QADT 22 The Corporation of the Roman Catholic Diocese of Toowoomba v Leadlights Pty Ltd and Ors [1996] QCA 356 APPEARANCES and REPRESENTATION (if any): APPLICANT: The estate of Nick Dapontes appearing by Alexis Dapontes -- 1 of 6 -- 2 RESPONDENT: State of Queensland and Wendy Austin represented by Crown Solicitor REASONS FOR DECISION [1] Nick Dapontes was hospitalised in the Cognitive Assessment and Management Unit of The Prince Charles Hospital on 26 May 2010. He was discharged into a nursing home on 17 January 2011. During his stay in the hospital his family made scores of complaints about the care he was receiving and about the treatment his family received when visiting Mr Dapontes. Police became involved and the conflict between hospital staff and the family was intense. [2] A finding was made by this tribunal under the Guardianship and Administration Act 2000 that Mr Dapontes had impaired decision making capacity for personal and financial matters on 17 August 2010. [3] On 7 September 2010 a complaint in the name of Mr Dapontes was lodged with the Anti-Discrimination Commission Queensland by Alexis Dapontes. The Commission accepted for its purposes that Alexis Dapontes should be authorised to make the complaint for Mr Dapontes. [4] Mr Dapontes died on 29 August 2011. The complaint did not lapse on the death of Mr Dapontes.1 The tribunal directed Alexis Dapontes and the respondents to make submissions as to whether the complaint should be dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. I have considered all of the submissions made by Alexis Dapontes and the respondents even though some of the submissions I have considered were filed after the due dates set out in the directions. [5] Alexis Dapontes has submitted that the complaint should not be dismissed. She has informed QCAT that she is the executor of the estate of Mr Dapontes. Although this assertion has not been substantiated by relevant documentation, I am prepared, for the sole purposes of considering the dismissal of the complaint, to accept that assertion. [6] Alexis Dapontes has submitted that the respondents have exhibited a total disregard for the law, and in particular for the anti-discrimination law, in their actions against Mr Dapontes while he was in The Prince Charles Hospital. She submits that the death of Mr Dapontes changes nothing. She submits that QCAT needs to protect the public and needs to stop discriminatory action from occurring again. [7] In her submissions Alexis Dapontes raises fresh complaints of conduct that she describes as being in breach of basic human rights but those complaints do not fall within the complaint referred to QCAT by the Commission and are not relevant to the matters currently under consideration. Those fresh complaints have not been taken into consideration. 1 Stephenson v HREOC and St Vincent’s Hospital Ltd [1996] FCA 1654 and NC and Others v Queensland Correctional Services Commission [1997] QADT 22. -- 2 of 6 -- 3 [8] Alexis Dapontes confirms in her submissions that Mr Dapontes was not ever able to provide evidence about the complaint prior to his death. She submitted that the Commission had referred to QCAT the complaint which had been based on evidence from persons other than Mr Dapontes. She argued that the fact that the complainant had passed away would therefore have “zero effect” on the evidence produced when the complaint comes on for final hearing before QCAT. [9] That submission cannot be sustained. An examination of the referral report fails to reveal the presence of any evidence given to the Commission that supports the complaint. The referral report contains the complaint with assertions of discriminatory conduct made by Alexis Dapontes and containing some other assertions of wrongdoing that do not appear to fall within the jurisdiction of the Commission. The absence of any evidence from Mr Dapontes due initially to his impaired capacity and ultimately due to his death will have a significant effect on the hearing of this complaint. [10] The respondents have submitted that as there is no direct evidence from Mr Dapontes about the complaint, the respondents and QCAT will not have the opportunity to test Mr Dapontes’ evidence at a hearing. The respondents submit that given the serious nature of the allegations and their inability to test Mr Dapontes’ evidence, they will experience significant prejudice and there will be a complete lack of procedural farness at the hearing of the complaint. [11] The respondents submit that it would be unfair for either Alexis Dapontes or Martha Dapontes to give evidence on behalf of Mr Dapontes when there is no evidence from Mr Dapontes as to what had occurred. They submit that neither Alexis Dapontes nor Martha Dapontes can give evidence about events that are alleged to have occurred when they were not present. [12] It is apparent from the referred complaint that at least one, and perhaps up to three, out of the four allegations in the complaint relate to events that took place when no family member was present with Mr Dapontes. For those events there will be no evidence presented to support those particular allegations. [13] The respondents have referred the tribunal to the decision of the Court of Appeal in The Corporation of the Roman Catholic Diocese of Toowoomba v Leadlights Pty Ltd and Ors where it was held that the death of a witness created sufficient prejudice to a defendant to justify the court not granting leave to proceed with a claim.2 The court stated: “There can be no doubt that the defendants have been denied the prospect of evidence supporting their version of the contract from an apparently independent witness whose death has left them, it now seems, with a difficult issue of credit between the second defendant, who may be seen to have an interest in the result, and Father Sheeran. In my view, that was sufficient to show sufficient prejudice to justify the result which the learned primary Judge reached.”3 [14] The comments made by the Court of Appeal confirm the need for care to avoid prejudice to a party when proceeding with a matter where essential 2 [1996] QCA 356. 3 [1996] QCA 356 at p 4. -- 3 of 6 -- 4 evidence is beyond reach due to the death of a witness. In this case, as a consequence of the death of Mr Dapontes, there will be no available evidence from Mr Dapontes and no assessment would be possible as to the relative merit of conflicting claims about what had occurred when no person other than the parties was present. [15] I accept the submissions of the respondents that there would be significant prejudice caused to the respondents if QCAT were to continue to determine allegations of discriminatory conduct where the claims made in the name of one party about an allegation could not be tested at hearing. Allegations within the accepted complaint of conduct that occurred in the absence of family members will not be permitted to proceed to hearing. The contentions in this complaint will have to be amended to remove reliance on any allegations of that nature. [16] However that conclusion does not inevitably lead to the result that the entire complaint should be dismissed. Some of the allegations forming the complaint relate to events said to have occurred when identified family members had been present. The respondents would have the opportunity to test the evidence of those witnesses should the allegations proceed to hearing. [17] The respondents have however submitted that the entire complaint should be dismissed on the grounds that the complaint is an abuse of process. They submit that Mr Dapontes lacked the legal capacity on 7 September 2010 to lodge the complaint with the Commission and to request a referral of the complaint to QCAT. [18] The question of Mr Dapontes’ capacity had been determined by QCAT on 17 August 2010. The tribunal’s conclusions were: “The Tribunal concluded that his family were confusing simple expressions of his wishes, views and desires with the elements of capacity even when these elements were explained to them. The Tribunal is satisfied that: (1) Mr Dapontes has a diagnosis of vascular dementia resulting from a number of strokes. (2) Mr Dapontes has significant cognitive impairments including impairments to his executive functioning, his memory, his judgement, his ability to initiate and to be motivated and that these cognitive impairments impact on his decision making ability. (3) Mr Dapontes has complex health care needs which require specific management in particular these health care needs are as follows – 1. Vascular dementia 2. Type 2 diabetes 3. Cerebrovascular disease 4. Chronic obstructive pulmonary disease 5. Hypertension -- 4 of 6 -- 5 6. Incontinence Finally the Tribunal is satisfied that Mr Dapontes lacks insight and awareness into the seriousness of his physical conditions, the medication he requires and the need for close management of his medication and diet, and management of his incontinence. Further he lacks understanding and insight into the risks associated with his particular health needs. The Tribunal is satisfied therefore that the presumption contained in General Principal 1 of the schedule of the Guardianship and Administration Act 2000 that presumes that Mr Dapontes has capacity for personal and financial matters is rebutted.” [19] The presumption of capacity having been rebutted provided the tribunal with the basis to conclude that Mr Dapontes had impaired capacity. The tribunal appointed the Adult Guardian to make decisions about his accommodation, health care, provision of services and who was to have contact with him. That appointment did not give the Adult Guardian power to make a complaint in the name of Mr Dapontes to the Commission as the appointee did not have power to make decisions about legal matters. [20] Alexis Dapontes has submitted that she had been authorised by the Commission to act on behalf of Mr Dapontes under section 134(1)(c) of the Anti-Discrimination Act 1991. By that subsection the commissioner can authorise a person to act for a person who is unable to make or authorise a complaint. It would appear from the referral documents that the Commission was aware at that time that Mr Dapontes lacked capacity to make his own complaint or to authorise a complaint being made in his name. [21] The submissions made by the respondents that making the complaint was an abuse of process are not sustainable. There is a statutory process, which was followed, that allows a complaint to be made on behalf of a person with impaired capacity. [22] However, that is not the end of the matter. Although QCAT is obliged by section 175 of the Anti-Discrimination Act 1991 to accept a complaint that has been referred from the Commission, it is not obliged to proceed with that complaint to hearing. [23] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides QCAT with the power to bring an early end to a proceeding if the tribunal considers the proceeding is lacking in substance or is otherwise an abuse of process. I am not presently convinced by the submissions of the respondents that the complaint lacks substance or is an abuse of process. [24] It is a very serious step to summarily dismiss a complaint that a person’s human rights have been breached. Reasonable consideration must be given to ensuring QCAT is accessible to a person seeking relief for a breach of human rights, particularly when that person is a vulnerable person. Mr Dapontes was at all times relevant to the complaint a vulnerable person. If his human rights were contravened, then his death does not prevent QCAT from determining what should be done to remedy such a contravention and what should be done to reduce the risk of ongoing contravention of the law by the respondents. -- 5 of 6 -- 6 [25] This position is able to be inferred from the reasons for passing anti- discrimination legislation as set out in the preamble to the Anti- Discrimination Act 1991. The Parliament of Queensland expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone. [26] A successful outcome in this complaint will no longer benefit Mr Dapontes. However if a determination were to be made by QCAT that the actions of the respondents amounted to unlawful discrimination, that result would be an educative experience for both the respondents and the community at large. [27] However, I feel compelled to state that the contentions filed in this complaint are almost incomprehensible as they are mixed up with contentions relating to complaints lodged by other persons and refer to matters far beyond the terms of the accepted complaint. Much work is needed to bring the contentions up to a standard where they set out with precision the case for Mr Dapontes and where they are comprehensible to the tribunal and to the respondents. Prejudicial matters discussed in paragraph 15 must also be removed from the contentions. [28] The complaint will not be dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. Arrangements will be made for the complaint to be brought on for further directions to address the current contentions before any compulsory conference will be held and to consider whether to confirm the status of Alexis Dapontes as the person able to appear for the estate of Mr Dapontes in this complaint. -- 6 of 6 --