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 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 Solicitor for State of Queensland

REASONS FOR DECISION

This is a claim for damages and other relief under the Anti-Discrimination Act 1991 (“the AD Act”).
The parties have now settled the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 536
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the case of Ch v State of Queensland, the applicant, CH, sought sanction of a settlement agreement under the Public Trustee Act 1978, as well as other ancillary orders. The dispute arose from a complaint of unlawful discrimination which was settled by the parties. The settlement required sanction, as CH has impaired capacity. The central issues were whether the tribunal constituted a court for the purposes of sanctioning the settlement, whether the settlement funds should be paid to a person other than the Public Trustee, whether an administrator needed to be appointed for CH, whether documents containing the terms of the settlement could be kept confidential, and whether it was permissible to constitute the tribunal with more than one legal member.

The court found that the Queensland Civil and Administrative Tribunal (QCAT) was a court for the purposes of sanctioning the settlement. The court reasoned that QCAT was a court for the purposes of the Public Trustee Act 1978 as it was established by statute and had the power to make binding decisions. The court also found that it was appropriate for the settlement funds to be paid to CJG, CH's legal representative, rather than the Public Trustee, as CJG had been appointed by CH and was acting in her best interests. The court held that no administrator needed to be appointed as CH had the capacity to enter into the settlement agreement. The court also found it permissible to keep the documents containing the terms of the settlement confidential, and to constitute the tribunal with more than one legal member.

In light of the above findings, the court sanctioned the settlement agreement and ordered the respondent to pay the settlement sum to CJG. The court further ordered that the documents filed in the matter be placed in a sealed envelope and only opened upon order of the tribunal. The court granted each party liberty to apply in respect of these orders.

The final orders of the court were that the settlement of the proceeding was sanctioned, the respondent was to pay the settlement sum to CJG, the respondent was to pay the applicant’s legal costs, and certain documents were to be placed in a sealed envelope.

Orders

Orders of the court

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.

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 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.

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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