Alexandra Dapontes on behalf of the estate of Martha Dapontes v Phillip Kay ATF Lysis Trust

[2018] QCAT 329

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Alexandra Dapontes on behalf of the estate of Martha Dapontes v Phillip Kay ATF Lysis Trust & Anor  [2018] QCAT 329

PARTIES:

ALEXANDRA DAPONTES ON BEHALF OF THE ESTATE OF MARTHA DAPONTES   
(applicant)

v

PHILLIP KAY ATF LYSIS TRUST

(first respondent)

JANICE HAY

(second respondent)

APPLICATION NO/S:

ADL028-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

7 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane  

DECISION OF:

Member Traves

ORDERS:

1.   Leave is granted to Janice Hay to withdraw the application for leave to represent filed on 22 August 2018.

2.   Leave is granted to the respondents to be legally represented in these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for leave to be legally represented pursuant to s 43(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This complaint was made by Alexandra Dapontes on behalf of her mother, Martha Dapontes who is now deceased.

2. The complaint was that on 14 August 2017 Martha Dapontes was upon arrival by ambulance at the Brisbane Northside Emergency Centre at Chermside, diverted by staff to the Prince Charles Hospital. Alexandra Dapontes claims that she was told by Janice Hay, who worked at the Centre, that they did not accept mental health patients. Alexandra says that her mother was seeking treatment due to an injury she sustained at the nursing home where she resided. Martha Dapontes was taken to St Andrews Hospital in Spring Hill where she was treated.

3. Martha Dapontes passed away on 15 September 2017 which was after the lodgement of the complaint by Alexandra with the Anti Discrimination Commission Queensland (the Commission) but before its acceptance.

4. On 4 May 2018 Alexandra Dapontes was granted authority by the Commission to act on behalf of the complainant, the Estate of Martha Dapontes, on the basis that she was the executor of the Estate for Martha Dapontes. The Tribunal has received a certified copy of two Wills of the late Martha Dapontes:

   (a)A Will executed on 24 May 2011 which appoints Alexandra Tubaro (née Dapontes) sole executrix and trustee and bequeaths the estate of Martha Dapontes in equal shares to each of her four daughters; and

   (b)A Will executed on 24 March 2017 which revokes all former Wills and appoints Alexandra Tubaro executor and trustee and bequeaths the whole of the rest and residue of the estate of Martha Dapontes, after funeral expenses and debts are paid, to Alexandra Dapontes.

5. The Tribunal has also received a certified copy of an Enduring Power of Attorney executed on 24 May 2011 which appoints Alexandra Tubaro Attorney for Martha Dapontes for all matters to take effect immediately.

6. The complaint alleging a breach of the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act) was referred to the Tribunal on 15 June 2018.

7. On 22 August 2018 the second respondent, Janice Hay, who is employed by the first respondent, applied for leave to be represented by Fair Work Employment lawyers and a non-lawyer specialist advocate. Prior to the determination of that application, Carter Newell Lawyers were instructed to defend the matter on behalf of the respondents. The respondents therefore applied to withdraw the application for leave made on 22 August 2018 and, on 5 September 2018, applied for leave to be represented by Carter Newell.

8. In considering whether leave should be granted I have had regard to the submissions of the applicant filed on 29 August 2018 and the submissions of the respondents filed on 5 September 2018.

9. Under s 43 of the QCAT Act, a party needs the leave of the Tribunal to be represented by someone else. This general provision applies to discrimination proceedings brought before the Tribunal, there being no modifying provision regarding the right to representation in the Anti-Discrimination Act.[1] 

   [1]QCAT Act, s 7(2).

10. Section 43(3) provides, relevantly, that the Tribunal in deciding whether to grant leave may consider, as circumstances supporting the giving of leave, whether the proceeding is likely to involve complex questions of fact or law.

11. I am satisfied, for the reasons below, that the factual and legal complexity of the matter is such that leave to be represented should be granted. I am also satisfied that granting leave to the respondents will not disadvantage the applicant.

12. Apart from the disputes which exist between the parties as to the facts and their relevance, the complex issues of law which potentially arise include:

    (a)Whether Alexandra Dapontes had authority to make the complaint on behalf of Martha Dapontes;

    (b)Whether the applicant has standing to pursue the claim on behalf of the estate of Martha Dapontes;

    (c)Whether the cause of action survives the death of Martha Dapontes;

    (d)Whether the actions of the second respondent constituted unlawful discrimination against Martha Dapontes; 

    (e)If so, whether the first respondent is vicariously liable for her actions;

    (f)Whether the complaint, as originally made, was rejected by the Commission, and if so, when and on what basis; and

    (g)Whether the Tribunal has power to make the orders for compensation sought by the applicant.

13. The respondents have also raised issues in their application for leave relating to the prejudice they may suffer in an evidentiary sense due to the death of Martha Dapontes and, more generally, as to whether the proceeding is lacking in substance or otherwise an abuse of process.

14. Given the nature of these issues I am satisfied that circumstances exist which support the granting of leave for the respondents to be represented. I do not accept, as submitted by the applicant, that granting leave in such circumstances constitutes a denial of natural justice to the applicant. Although the applicant has stated in her submissions that she does not wish to be represented due to the cost involved, the applicant has the same opportunity to apply for leave to be represented if that is what she wishes to do.

15. The applicant also submits that having lawyers involved will mean unnecessary costs are incurred and that a legalistic approach to the proceedings will be taken. Further, that allowing legal representation will be oppressive to the applicant and cause the applicant to be subjected to bullying and intimidation. The applicant also refers to the “general rule regarding representation at QCAT” which is that parties represent themselves and notes that the first respondent is not a State agency.

16. Although the main purpose of s 43 is to have parties represent themselves, this is subject to the qualification “unless the interests of justice require otherwise”. Subsection 43(2) then specifically provides for a party to be represented where the leave of the Tribunal has been obtained. While it is true that the first respondent is not a State agency this is not a disentitling factor but rather a circumstance which, if it applied, may have supported the giving of leave.[2]

    [2]QCAT Act, s 43(3)(a).

17. The applicant’s concern that the involvement of lawyers will lead to a legalistic approach is unpersuasive. The Tribunal is bound to determine the matter according to the law and the substantial merits of the case. This does not mean however that the proceedings need become overly technical or “legalistic”. The Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record other than to the extent it chooses to adopt them and must act with as little formality and technicality as a proper consideration of the matter permits.[3] These provisions are designed to ensure that the law is applied but in a flexible, user-friendly environment.

    [3]QCAT Act, s 28(3)(b).

18. Further, it would assist the Tribunal in considering relevant issues to have the benefit of submissions on the law by legal practitioners. The Tribunal has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[4] Allowing legal representation will assist the Tribunal to conduct the hearing in a manner that is fair, just, economical and quick by ensuring that the parties focus on the relevant legal issues and that the evidence presented is confined to those issues.

    [4]QCAT Act, s 3(b).

19. In granting leave I am satisfied that the applicant’s interests are not adversely affected as it is in the interests of all parties that the Tribunal have available to it submissions on complex issues of law that need to be determined and for the Tribunal’s time and attention at the hearing to be focussed on relevant issues and evidence. Further, the Tribunal has a positive obligation to ensure that each party understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding and the legal implications of those assertions.[5] These, and other statutory safeguards entrenched in the QCAT Act,[6] exist to ensure that parties are not disadvantaged by a lack of legal representation.

    [5]QCAT Act, s 29.

    [6]For example, QCAT Act, s 28(2).

20. Accordingly, I grant leave to the respondents to be represented.