Angelopoulos v State of Queensland
[2025] QCA 83
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- Unreported Judgment
- Appeal Determined (QCA)
- Angelopoulos v State of Queensland[2025] QCA 83
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Angelopoulos v State of Queensland[2025] QCA 83
Angelopoulos v State of Queensland[2025] QCA 83
SUPREME COURT OF QUEENSLAND
CITATION: | Angelopoulos v State of Queensland [2025] QCA 83 |
PARTIES: | ANGELOS ANGELOPOULOS (applicant) STATE OF QUEENSLAND (respondent) |
FILE NO/S: | Appeal No 15230 of 2023 QCATA No 177 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2023] QCATA 138 (Senior Member Aughterson) |
DELIVERED ON: | 27 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 May 2025 |
JUDGES: | Boddice and Brown JJA and Kelly J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the applicant applied for and was granted burial assistance under the Burials Assistance Act 1965 (Qld) – where a request for additional funding for a burial and ceremony in accordance with religious requirements was refused – where the applicant made a complaint to the Anti-Discrimination Commission which was referred to QCAT – where the applicant seeks to rely on the Human Rights Act 2019 (Qld) – where the complaint application to QCAT and subsequent appeal to QCATA were dismissed – whether the grounds of appeal relate to a “final decision” – whether the Senior Member erred in not applying the Human Rights Act 2019 (Qld) – whether leave to appeal should be given Anti-Discrimination Act 1991 (Qld), s 106 Burials Assistance Act 1965 (Qld), s 3, s 4 Human Rights Act 2019 (Qld), s 108(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150, s 151 Allen v Queensland Building and Construction Commission [2024] QCA 24, cited Angelopoulos v State of Queensland [2022] QCAT 163, cited Angelopoulos v State of Queensland [2023] QCATA 138, cited |
COUNSEL: | The applicant appeared on his own behalf M J Brooks for the respondent |
SOLICITORS: | The applicant appeared on his own behalf C E Christensen, Crown Solicitor for the respondent |
- [1]BODDICE JA: I agree with Brown JA.
- [2]BROWN JA: Mr Angelopoulos seeks leave to appeal a decision from the QCAT Appeals Tribunal (QCATA) dated 31 October 2023.
- [3]The background facts, which are not the subject of any contention, were summarised by the member who heard the appeal.[1] Mr Angelopoulos’ father sadly passed away on 23 June 2018. Mr Angelopoulos’ father was Greek Orthodox and Mr Angelopoulos desired his father to have a Greek Orthodox funeral. He, however, could not afford to pay for the funeral service and burial at the time of his father’s passing.
- [4]Mr Angelopoulos applied for financial assistance under the Burials Assistance Act 1965 (Qld). Some financial assistance was granted to him in October 2018, but the funding was for the re-opening of a pre-purchased burial plot, a graveside service, the funeral director’s fee, a coffin and any required preparation of the body and transportation from the morgue to the burial site. A term of the funding was that it would not extend to costs associated with the conduct of a Greek Orthodox Service and viewing of the deceased in an open coffin (which accorded with the religious ceremony in the Greek Orthodox Church). Mr Angelopoulos ultimately received the support of the Greek community and the Greek Orthodox Church to fund a church service, but it did not extend to the costs of the private viewing of the deceased in an open coffin. Mr Angelopoulos’ father was eventually buried on 16 November 2018. The delay added to Mr Angelopoulos’ grief.
- [5]Mr Angelopoulos complained to the Anti-Discrimination Commission on 25 October 2018 that the decision was discriminatory. The Commission referred the matter to QCAT on 18 January 2019 and was stamped by QCAT on 21 January 2019.[2] Mr Angelopoulos contended that the State of Queensland breached the Anti-Discrimination Act 1991 (Qld) as a result of imposing a term on the funding which excluded the expenses of the church service and viewing of the deceased as part of the ceremony, which required him to bury his father without his complying with his father’s and his own religious beliefs. He contended that the Chief Executive, in imposing a restriction on the funding, imposed a term that constituted indirect discrimination. According to Mr Angelopoulos a higher proportion of people who are not of Greek Orthodox faith would be able to comply with the term and bury family members without a church service or private viewing.
- [6]Mr Angelopoulos’ application to the Queensland Civil and Administrative Appeal Tribunal (QCAT) was refused by Member Browne on 11 May 2022. Member Browne considered sections 3 and 4 of the Burials Assistance Act and found that the Chief Executive was limited by the respective sections to provide for the disposal of a deceased body to burial or cremation when the Chief Executive is satisfied no satisfactory arrangements have been made. He found “other place” would include a site for burial such as a cemetery or a site for cremation,[3] and that the Burials Assistance Act did not provide for payment of expenses related to a religious, cultural or civil remembrance ceremony and associated costs of such a ceremony.[4] Thus, Member Browne concluded that the decision of the Chief Executive accorded with the Burials Assistance Act. Given that finding, Member Browne also found that the Chief Executive’s conduct was reasonable under s 106 of the Anti-Discrimination Act because it was necessary to comply with, and authorised by, the Burials Assistance Act.[5] Member Browne also found the Human Rights Act 2019 (Qld) (HR Act) had no application because Mr Angelopoulos’ complaint was made prior to the commencement of the Act.[6]
- [7]A subsequent appeal to QCATA was dismissed on 31 October 2023. Mr Angelopoulos had sought to add grounds to the appeal but that was refused by QCATA on 30 August 2023.[7]
- [8]The member of QCATA summarised the grounds of appeal that had to be considered as follows:[8]
“The grounds of appeal raise a question of law and are as follows:
- 1)Whether the Member, in making the decision dated 11 May 2022, properly applied the Human Rights Act 2019 (Qld), which required the following mandatory consideration:
- a)The relevant provisions of the Burials Assistance Act 1965 (Qld) (including sections 3 and 4) must to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights: sub-section 48(1) Human Rights Act 2019 (Qld);
- b)If the relevant provisions of the Burials Assistance Act 1965 (Qld) (including sections 3 and 4) could not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights: sub-section 48(2) Human Rights Act 2019 (Qld).
- c)The provisions of the Human Rights Act 2019 (Qld) relevant to the section 48 inquiry and mandatory construction may have included;
i) section 15 (Recognition and equality before the law);
ii) section 20 (Freedom of thought, conscience, religion and belief); and
iii) section 27 (Cultural rights – generally).” (footnotes omitted)
- [9]QCATA found that s 108(2) of the HR Act operated such that the Act did not apply to the act or the decision made by the Chief Executive in October 2018 or the proceedings instituted in the Anti-Discrimination Tribunal and referred to QCAT, all of which occurred before the commencement of the relevant sections of the HR Act on 1 January 2020. Mr Angelopoulos’ appeal was therefore dismissed.
- [10]According to Mr Angelopoulos’ outline of submissions he wishes to appeal on the basis that:
- there was a denial of natural justice due to the consideration of the matter by QCATA being limited to the evidence listed in the exhibit list (Ground 1);
- QCATA misinterpreted the Burials Assistance Act 1965 in failing to recognise that it did not explicitly exclude church services under ss 3 and 4 (Ground 2);
- QCATA neglected to apply the Anti-Discrimination Act 1992; (Ground 3);
- QCATA overlooked the HR Act 2019 (Ground 4); and
- there was an error of fact in the affidavit of Ms Spears, relied on by the respondent, in stating that the Burials Assistance Act “does not allow for expenses related to religious or cultural ceremonies, including church services, to be paid from the consolidated fund” and that this statement represented a significant factual error underlying the respondent’s argument (Ground 5).
Limits of appeal
- [11]Pursuant to s 151 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) any application for leave to appeal from the decision of the appeal tribunal is required to be made by application within 28 days of the applicant being giving written reasons of the appeal tribunal.
- [12]The State of Queensland takes no issue with Mr Angelopoulos’ appeal being approximately two days out of time.
- [13]Section 150 (2) and (3) of the QCAT Act sets out the decisions of QCATA which may be appealed and the conditions which must be met before there can be any such appeal. Pursuant to s 150(2)(b) of the QCAT Act a person relevantly may appeal to the Court of Appeal against a decision of the appeal tribunal, which is a final decision. Under s 150(3) of the QCAT Act an appeal may be made only on a question of law and only if the party has obtained the Court’s leave to appeal.
- [14]In Allen v Queensland Building and Construction Commission[9] the Court discussed the legal principles governing an application for leave noting that firstly leave to appeal can only be granted if the proposed appeal is “only on a question of law” (s 150(3)(a) QCAT Act), which requires the question to be considered upon appeal to be confined to pure questions of law.[10] Even if a proposed appeal from a final decision of the appeal tribunal is only on a question of law, an applicant will still need leave to appeal to this Court, which will involve the exercise of judicial discretion. While the discretion is unfettered, the matters which have been identified in the authorities relevant to the exercise of the discretion include:[11]
“(a) whether there is a reasonable argument that there is an error of law to be corrected; and
- whether leave is necessary to correct a substantial injustice, or an important point of principle sufficient to warrant the grant of leave [that] has been identified.”
- [15]On 28 August 2024, the parties were directed to address the following in relation to each ground of appeal:
- whether the Court has jurisdiction to entertain the grounds of appeal having regard to s 150(3)(a) of the QCAT Act; and
- if so whether the Court should grant leave to appeal in relation to the proposed grounds of appeal pursuant to s 150(3)(b) having regard to the considerations mentioned in Allen v QBCC at [21]-[23].
- [16]The respondent conceded grounds 1-3 were matters of law but contends ground 5 is a matter of fact. The respondent submitted however that leave should be refused in relation to grounds 1-3 and 5 above because they were not the subject of the final decision of QCATA dated 31 October 2023 and therefore cannot be the subject of appeal under s 150(2)(b) of the QCAT Act. The respondent concedes ground 4 did raise a question of law, and arose out of the final decision of QCATA, but submits there was no error as the HR Act did not apply to the applicant’s complaint and that there was no error to be corrected to avoid a substantial injustice.
- [17]The applicant contended each question involved a question of law. In oral argument he did not cavil with the fact he had not raised grounds 1-3 and 5 before QCATA, but stated he had received some advice from a voluntary legal centre suggesting he could raise them as part of the appeal. As to ground 4 he contended that there were unidentified authorities supporting the HR Act applying in a case such as this, notwithstanding the commencement date of the HR Act.
Decision
- [18]There is no jurisdiction for the Court to determine any appeal in relation to grounds 1-3. While those matters were addressed in the primary decision of QCAT by Member Browne on 11 May 2022, they were not the subject of QCATA’s appeal or its final decision.[12] Similarly ground 5 was not raised in the QCATA appeal or the subject of final decision. In any event, ground 5 does not raise a pure question of law.
- [19]Ground 4 does arise out of the final decision of QCATA and involves a question of law. However, there is no reasonably arguable error in relation to ground 4. As identified by QCATA the HR Act did not commence operation until 1 January 2020. Section 108(2) of the HR Act provides that the Act does not affect proceedings commenced or concluded before the commencement; nor does it apply to an act or decision made by a public entity before the commencement. In this case the decision refusing the provision of the financial assistance under the Burials Assistance Act, which Mr Angelopoulos complains of, was made on 19 July 2018. The proceeding commenced by the complaint in the Anti-Discrimination Tribunal, which was then referred to QCAT, was signed on 18 January 2019 and received by the Tribunal on 21 January 2019. While Mr Angelopoulos has contended that the considerations under that Act somehow apply notwithstanding s 108 of the HR Act and he understood there may be some District Court decisions to that effect, s 108 clearly operates to preclude the operation of the HR Act in the present case.
- [20]Leave should not be granted to the applicant given the proposed appeal does not raise questions of law arising from the final decision of QCATA in relation to grounds 1-3 and 5. Nor does ground 4 raise an arguable error of law requiring correction to avoid substantial injustice.
- [21]The respondent did not seek an order for costs in the event Mr Angelopoulos’ application was unsuccessful.
Orders
- [22]The orders of the Court should be:
- The application for leave is dismissed.
- No order as to costs.
- [23]KELLY J: I agree with Brown JA.
Footnotes
[1][2023] QCATA 138 at [1] & [4].
[2][2023] QCATA 138 at [9].
[3]Angelopoulos v State of Queensland [2022] QCAT 163 at [31].
[4]Angelopoulos v State of Queensland [2022] QCAT 163 at [32].
[5]Angelopoulos v State of Queensland [2022] QCAT 163 at [37].
[6]Angelopoulos v State of Queensland [2022] QCAT 163 at [15].
[7]Angelopoulos v State of Queensland [2023] QCATA 124 at [6].
[8][2023] QCATA 138 at [6].
[9][2024] QCA 24.
[10]Allen v QBCC at [16].
[11]Allen v QBCC at [21].
[12]The matters the subject of the appeal being identified in [6] of the QCATA decision.