Tedesco v State of Queensland
[2025] QCAT 109
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- Unreported Judgment
- Tedesco v State of Queensland[2025] QCAT 109
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Tedesco v State of Queensland[2025] QCAT 109
Tedesco v State of Queensland[2025] QCAT 109
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tedesco v State of Queensland & Ors [2025] QCAT 109 |
PARTIES: | nick tedesco (applicant) v state of queensland (first respondent) aaron huf (second respondent) |
APPLICATION NO/S: | ADL101-23 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 21 March 2025 |
HEARING DATE: | 21 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
THE TRIBUNAL DIRECTS THAT:
4:00pm on 21 April 2025.
4:00pm on 19 May 2025.
4:00pm on 16 June 2025.
4:00pm on 30 June 2025.
|
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO IMAPIRMENT OR PRESUMED IMPAIRMENT – where the respondents filed an application to summarily dismiss/strike out – where applicant alleges unlawful discrimination by police in failing to investigate assaults against him – where applicant contends police have treated him less favourably due to inaccurate information about his mental health in their records – where respondents submit they conducted appropriate investigation – where respondents submit statements attributed to the second respondent were not made by him – whether the proceedings are vexatious, frivolous or misconceived or lacking in substance Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 101 Human Rights Act 2019 (Qld), s 13, s 15, s 25, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256 Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This is a hearing, on the papers, of an interlocutory application for dismissal brought by the respondents.
- [2]A complaint of impairment discrimination in the area of State laws and programs was referred to the tribunal on 21 December 2023. The Complaint by Mr Tedesco can be summarised as follows:
- On 6 December 2021, when a police officer (who refused to give his name) at Metro South Police Station HQ refused to take Mr Tedesco’s statement in relation to two assaults which allegedly occurred on 5 December 2021 and in October 2021 (despite the police having a signed witness statement by Jenny Savage relating to the alleged assault on 6 December 2021).
- Constable ‘Aaron’ at Holland Park Station gave ‘illegal advice’ when he told Mr Tedesco not to make an assault statement in the second week of December 2021.
- On 19 August 2022 when police refused to take police statement of a road rage incident Mr Tedesco was involved in when a driver in a 4WD drove in a reckless/dangerous driving in front of a kids dance school car park, spat on him and damaged Mr Tedesco’s car by punching the door and mirror.
- In mid-January 2022 Mr Tedesco attended Holland Park Police Station and spoke to the second respondent. Mr Tedesco asked for an update about the assault complaints and was told there were no records of any complaint about this incident; to not make an assault statement and that he would not be making a police report in relation to the assault complaints.
- Generally, that police continue to rely on inaccurate and false reports about Mr Tedesco’s mental health diagnosis entered in QPRIME and/or other records (that he is ‘psychotic, delusional, lacking credibility and strange’) which has affected the way police have treated him, in particular, in not taking his complaints seriously and by refusing to take a statement from him or allowing him to formally lodge a complaint.
- Police ‘harass’ and embarrass him by attending his home in view of his neighbours to investigate what are civil matters.
- [3]On 8 March 2024, after a series of extensions of time granted by the Tribunal, Mr Tedesco filed his Contentions. The Contentions are, in summary that:
- Mr Tedesco has the protected attribute of impairment (due to his Post-Traumatic Stress Disorder) and the presumed impairment of a diagnosis of psychosis, or a psychotic/delusional disorder.[1]
- Mr Tedesco was subject to direct discrimination on the basis of his attributes in the administration of state laws and programs.
- The discriminatory conduct included incorrectly recoding in QPRIME and other records that Mr Tedesco was ‘psychotic, delusional, lacking credibility and strange’; failing to correct the records upon request and after the provision of supporting medical information; failing to take a formal statement and make a police report about the assault complaints; failing to properly investigate the complaints including by failing to preserve the CCTV footage; telling Mr Tedesco it was unlawful and inappropriate for him to request progress updates about the assault complaints.
- By reason of the conduct above, the respondents breached s 58(1)(a) and (b) of the Human Rights Act 2019 (Qld) (‘HRA’) and limited, in a way that was not demonstrably justified, Mr Tedesco’s right to recognition and equality before the law (s 15 HRA) and his right to privacy and reputation (s 25 HRA).
- [4]Mr Tedesco seeks orders requiring the respondents not to commit a further contravention of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) against him; damages of $10 000 or such other amount the Tribunal considers appropriate; rectification of QPRIME and other databases to remove references to him being psychotic, delusional, lacking credibility or strange; and a private and public apology.
The application to strike out the complaint
- [5]The respondents say the Complaint against Senior Constable Huf is lacking in substance and should be struck out pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). In brief, it is said that police records show Mr Tedesco did not speak with SC Huf in the second week of December but with another police officer and was not ‘forthcoming’ with a criminal complaint. The respondents say Mr Tedesco had one interaction with SC Huf on 7 January 2022 at Holland Park Police Station when Mr Tedesco enquired as to whether his assault was still being investigated to which SC Huf replied that it was listed as ‘investigations continuing’ and had been transferred to Robina Police Station. Accordingly, the respondents submit, the Complaint, insofar as it is brought against SC Huf is misconceived as it was not SC Huf that engaged in the alleged relevant conduct.
- [6]The respondents say in respect of the Complaint against the first respondent that they have taken a criminal complaint and conducted an adequate investigation into the matter. Further, that Mr Tedesco has not produced any evidence to support his allegations which are directly contradicted by police records. On that basis, it is submitted the tribunal can be certain of the outcome of the proceeding without expending further resources of the Tribunal.
- [7]In response, Mr Tedesco refers to the submissions by the respondents where at [16(f)] it is said that, in recounting their version of events, that upon being informed by SC Huf that the investigation was continuing that:
Mr Tedesco was happy with this information, that he was told by another officer the occurrence would not go ahead due to his mental health which deeply offended him.
- [8]Mr Tedesco refers to a QPS Report by SC Huf which refers to Mr Tedesco’s ‘mental health’ which Mr Tedesco says is a ‘complete fabrication’ and degrades and discredits his good name and reputation. Further, that the respondents have never explained why the disabilities they have assumed he has, should prevent him from making complaints and preclude them from denying him access to services. Mr Tedesco also refers to a report by S SG Porthill of Holland Park Police Station (1/1/2022) which ‘confirms that A Huf and S Toone’ have breached the law and discriminated against him by ‘favouring the perpetrators’ in investigating their counter complaint but not his initial complaint of assault.
Legislation
- [9]Section 47 of the QCAT Act confers on the Tribunal the power to dismiss or strike out proceedings and relevantly provides that:
- (1)This section applies if the tribunal considers a proceeding or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2)The tribunal may—
- (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; …
- [10]The power to dismiss proceedings at an interlocutory stage is not to be exercised lightly[2] and only ‘when a claim is groundless or futile’.[3] Where there are factual issues capable of being disputed and in dispute, the High Court has held that ‘summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.’[4]
- [11]The Tribunal must make a practical assessment as to whether the applicant has real, as opposed to merely fanciful prospects of success.[5] Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a ‘practical judgment’ of the case at hand. It does not require a ‘mini trial’, but rather a ‘critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial’.[6]
Consideration
- [12]The AD Act is beneficial legislation. Claims of contravention of the Act should not be dismissed without it being very clear that the claims are absolutely hopeless or so clearly untenable that they cannot succeed.[7]
- [13]I note that the application to dismiss has been made at an early stage before all evidence on which the parties intend to rely is before the Tribunal. It is clear from the respective contentions filed in the Tribunal and the submissions filed in relation to this application that the parties dispute important facts including as those relevant to whether a complaint was properly recorded and investigated.
- [14]I am not satisfied, based on the material filed to date and the Complaint made to the Queensland Human Rights Commission (‘QHRC’) that the proceedings are misconceived or that they lack substance.
- [15]Mr Tedesco may well be mistaken as to whom he spoke at various times at the Holland Park or Metro South Police Stations. The basis of his Complaint, however, is that, whomever he spoke to, his complaints of assault were not properly investigated. He claims that this was because, in effect, the police had preconceived and inaccurate notions of the state of his mental health. Mr Tedesco maintains that this stems from the inaccurate records maintained by the police which include that he is ‘delusional’, ‘lacks credibility’ and ‘strange’.
- [16]The respondents, in submissions in support of the application to strike out the Complaint, do not address this aspect of Mr Tedesco’s complaint, which, in my view, is the substance of his Complaint.
- [17]I accept that Mr Tedesco, at this stage, has no evidence to support his claim that the data entered in QPRIME and other police databases about him is incorrect in the way he claims, but this does not mean he will not be able to provide it when directed or obtain it.
- [18]It is certainly not for me, on an interlocutory application, to dismiss his complaint where such issues are in dispute, even were I to form the view that he is unlikely to succeed on those factual issues. The Complaint and contentions reveal, in my view, at least a rational cause of action.[8]
- [19]If evidence comes to light that shows Senior Constable Huf is not a necessary party, then a party can bring, or the Tribunal can initiate, an application to remove him as a party from the proceedings and to order that the contentions be amended accordingly.
Conclusion
- [20]For the reasons above, and in all the circumstances, I am not satisfied that the complaint is misconceived or that it is without substance within the meaning of s 47 of the QCAT Act.
- [21]Accordingly, the application to dismiss the Complaint is refused.
Footnotes
[1] Anti-Discrimination Act 1991 (Qld) , s 7(h) (‘AD Act’).
[2] Spencer v Commonwealth (2010) 241 CLR 118, [60].
[3] Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.
[4] Spencer v Commonwealth of Australia (2010) 241 CLR 118, [25] per French CJ and Gummow J.
[5] Ibid.
[6] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256, [46].
[7] Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.
[8] Rama v University of South Australia [2004] 136 FCR 344, 354-355.