QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Temple leased premises from Ms Penney to conduct a restaurant café.^[1]  In the period to 23 March 2020, Mr Temple contends he renovated the premises to make it suitable for use as a restaurant café.  In doing so, he says he expended his own labour and money on materials, electrical repairs and signage.  As a result of the COVID-19 pandemic related restrictions requiring all restaurants to close until further notice on 23 March 2020 he requested a reduction to his rent. Shortly after Ms Penney purported to serve a Notice to remedy breach of covenant^[2] and then changed the locks.^[3]  Mr Temple contends that the termination was invalid and claims damages and compensation, including pursuant to sections 43 and/or 46A of the Retail Shop Leases Act 1994 (Qld)(‘RSL Act’) and sought return of his belongings left in the premises.
2. [2]
   Mr Temple sought to lodge a Notice of dispute under the RSL Act.^[4]  He says he was told by the chief executive’s delegate to lodge it with the Queensland Small Business Commission (‘QSBC’) but the QSBC referred him to the Tribunal.  He then filed an Application for an order to resolve a retail tenancy dispute seeking the same relief as contained in the Notice of dispute under the RSL Act (‘the Application’). The Application was stamped as received by the Tribunal on 27 August 2020.  It was sent under cover of a letter from Mr Temple’s then solicitor dated 25 August 2020 and it stated that it had been sent by express post.  The Tribunal was prevented from taking any action on the Application until the prescribed filing fee was paid on 11 September 2020.^[5]
3. [3]
   Mr Temple is understandably very frustrated by the apparently conflicting advice received and the delay in progressing a resolution of the matter. 
4. [4]
   As Mr Temple had not included with the Application any documentation received from the QSBC, I listed an urgent directions hearing, which was held by telephone on 18 September 2020.^[6]  Neither Ms Penney nor Ms Filipini, Ms Penney’s real estate agent, attended the Directions hearing, which given the short notice is perhaps understandable.  
5. [5]
   Mr Temple’s legal representative was granted leave to appear at the Directions Hearing. 
6. [6]
   Directions were made for the Tribunal to determine, on the papers:

   1. (a)
      a preliminary issue of law as to whether the Tribunal has jurisdiction to determine the Application by the filing of submissions and evidence;^[7] and
   2. (b)
      any applications for leave for a party to be represented.^[8]
7. [7]
   Some submissions were received.^[9]  The delay in progressing a determination of this matter is regrettable and is in part because Mr Temple’s submissions do not clearly address the legal basis of the Tribunal’s jurisdiction in the absence of a mediation having been conducted nor did Mr Temple provide evidence of communications with the QSBC in statement or affidavit form.  The delay is also in part due to resourcing issues.
8. [8]
   Mr Temple’s submissions in particular rely upon the Tribunal’s jurisdiction under the COVID-19 Emergency Response Act 2020 (Qld) (the ‘COVID Act’) and the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the Regulations’). 
9. [9]
   Ms Penney contends that the Tribunal has no jurisdiction to determine the dispute as the mandatory mediation process under the RSL Act has not been conducted.  Her submissions do not address the processes established under the COVID Act and the Regulations. 
10. [10]
    Further directions were issued seeking evidence from Mr Temple.^[10] Documents have since been received from Mr Temple in response to those directions.  I now proceed to determine the issue of leave to be represented and the preliminary issue as to whether the Tribunal has jurisdiction in the absence of a mediation in the current circumstances.

Should leave to be represented be granted?

11. [11]
    I am not satisfied that Ms Penney should be granted leave to be represented.
12. [12]
    Mr Temple has advised the registry that he could no longer afford legal assistance.
13. [13]
    Ms Penney filed an Application for leave to be represented.^[11]  It is unclear whether Ms Penney served a copy of the Application for leave to be represented on Mr Temple.  No submissions appear to have been received from Mr Temple in respect of Ms Penney’s Application for leave to be represented.   Ms Penney nominates Sarah Penney.  The form contains very little information and is internally inconsistent. 
14. [14]
    The reason why a non-legal representative is appropriate is stated to be ‘family member’.  In part F ‘Reasons why representation is needed’ Ms Penney states ‘For Leave to be legally represented’.  The email address for Sarah Penney is the same address as for Ms Penney’s real estate agent known as Ms Filipini.  It is unclear whether Ms Filipini is a family member and Ms Penney’s real estate agent in respect of the premises as well as an Australian legal practitioner.  Copies of emails attached to the Application indicates that Ms Filipini holds a Bachelor of Laws but that is not evidence that she is an Australian legal practitioner as defined under the Legal Profession Act 2007 (Qld), being an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.^[12]
15. [15]
    The considerations for granting leave to be legally represented^[13] are different to those where leave is sought to be represented by a person other than an Australian legal practitioner.^[14] 
16. [16]
    In view of the inconsistency and lack of information, I am not satisfied it is appropriate for leave to be granted. The application is dismissed.  If a further, better articulated, application is made it will be considered.

Does the Tribunal have jurisdiction in the absence of mediation?

17. [17]
    I am satisfied that the Tribunal has jurisdiction in respect of Mr Temple’s claim in so far as it is a claim for an order requiring Ms Penney to comply with section 12(1) of the Regulations because the Tribunal’s jurisdiction is not dependent upon a pre-proceeding mediation.
18. [18]
    I am also satisfied that the Tribunal has jurisdiction in respect of Mr Temple’s claimed eligible lease dispute because this claim falls within one of the few exceptions where the Tribunal has jurisdiction despite the pre-proceeding mediation not having been conducted or attempted.
19. [19]
    The Tribunal is required to find its power to hear and determine disputes in either the QCAT Act or an enabling Act.  In a limited number of cases under the RSL Act or the COVID Act and the Regulations the Tribunal’s jurisdiction is enlivened without mediation having been conducted or attempted.   
20. [20]
    For the purposes of determining the preliminary issue of law as to whether the Tribunal has jurisdiction as to the Application I make findings based on the information currently before the Tribunal.

Does the RSL Act confer jurisdiction?

21. [21]
    I am not satisfied that the RSL Act on its own confers jurisdiction in these circumstances in the absence of a mediation being conducted.
22. [22]
    Mr Temple contends this is a retail tenancy dispute, which is defined as ‘any dispute under or about a retail shop lease, or about the use and occupation of a leased shop under a retail shop lease’.^[15]  A ‘retail shop lease’ is defined as a ‘lease of a retail shop’ subject to exceptions, none of which appear to apply.^[16]  A ‘retail shop’ means premises situated in a retail shopping centre or used wholly or predominantly for the carrying on of a retail business.^[17]  A ‘retail business’ includes a café or restaurant.^[18]
23. [23]
    Ms Penney concedes that the dispute is arguably a retail tenancy dispute.
24. [24]
    Ms Penney contends, and I accept, that Mr Temple’s claim as currently framed is not excluded from the mediator’s jurisdiction under the RSL Act.^[19]  Both parties agree that the monetary value of the dispute falls within the Tribunal’s jurisdiction.^[20]
25. [25]
    The Tribunal has accepted on many occasions that it has power to make an interim order, in the nature of injunctive relief, prior to completion of the pre-proceeding mediation process.^[21]  The Application does not expressly seek relief of this nature.
26. [26]
    Ms Penney submits, and I accept, that the Tribunal does not have power to dispense with the pre-proceeding mediation under the RSL Act.  Senior Member Brown in Burinpipat Pty Ltd t/as Chili Coco v FFTOA Pty Ltd^[22] held:

The conduct of the pre-proceedings mediation under the RSL Act is, with a limited exception, a procedural step which must be undertaken before a party may commence proceedings in the Tribunal. The RSL Act creates a framework to encourage the pre-proceeding resolution of disputes. That framework is consistent with the objectives of the QCAT Act to deal with matters in ways that are accessible, economical, informal, quick and just. If the legislature had intended a mechanism by which the mediation process could be dispensed with it could have inserted such a mechanism in the Act. That no such mechanism exists is a clear indication that the process is one which must be complied with as provided for in ss 63 and 64 of the RSL Act. (references omitted)

27. [27]
    The RSL Act sets out pathways for a retail tenancy dispute to be determined by the Tribunal as follows:

    1. (a)
       lodgement of a Notice of dispute that is within a mediator’s jurisdiction^[23] with the chief executive in the approved form.^[24]  Nomination of a mediator and the issuing of notices to the parties to attend.^[25] Reference of the dispute by the mediator to the Tribunal;^[26] or 
    2. (b)
       a party to a retail tenancy dispute may apply directly to the Tribunal where the retail shop lease has not ended more than one year before the dispute was lodged and one of three circumstances applies:

       1. a party claims non-compliance by the other of a mediation agreement; or
       2. a mediator refuses to refer the dispute to the Tribunal; or
       3. a court has ordered that a proceeding started in the court be removed to the Tribunal. ^[27]
28. [28]
    There is evidence of Mr Temple attempting to lodge a Notice of dispute with the chief executive, but he was directed to the QSBC.^[28]  Section 63 of the RSL Act does not assist in conferring jurisdiction.
29. [29]
    On the information before me, none of the three circumstances contemplated by section 64 of the RSL Act applies to confer jurisdiction.

Do the COVID Act and the Regulations confer jurisdiction?

30. [30]
    Although it could be clearer, I find that the dispute concerns a claimed eligible lease dispute under the COVID Act and the Regulations within the Tribunal’s jurisdiction even though a mediation has not been conducted prior to filing the Application. 
31. [31]
    Mr Temple contends that the dispute is an affected lease dispute or a small business tenancy dispute or both within s 42 of the Regulations.  There is evidence that a notice of dispute was given to the QSBC on 20 July 2020, which was not settled within 30 days and no more than six months had elapsed since the lease ended, entitling an application to the Tribunal to be made in the absence of a mediation actually being conducted.^[29] 
32. [32]
    There is also some evidence that Mr Temple’s claim is an application to the Tribunal to enforce the statutory prohibition on a lessor taking a prescribed action.^[30]  An application to enforce section 12(1) of the Regulations does not require a pre-proceeding mediation.^[31]
33. [33]
    The COVID Act is part of the State Government’s response to the pandemic.  It provides for the making of regulations in respect of relevant leases, including regulations providing for dispute resolution processes, the conduct of mediations and the conferral of jurisdiction to hear and decide disputes.^[32] 
34. [34]
    The COVID Act now expires on the earlier of 30 September 2021 or another day prescribed by regulation.^[33]
35. [35]
    The Regulations provide for a response period commencing on 29 March 2020 and ending 30 September 2020 and for an extension period starting at the beginning of the day on 1 October 2020 ending at the end of the day on 31 December 2020.^[34] 
36. [36]
    The COVID Act:

    1. (a)
       provides for the appointment of a small business commissioner.^[35]
    2. (b)
       provides that the functions of the commissioner include to administer a mediation process prescribed under section 23(1)(g) in relation to small business tenancy disputes.^[36]
    3. (c)
       provides for the purposes of section 20 that the term:

       1. ‘small business tenancy dispute’ means a dispute about a small business lease, or about the use or occupation of the leased premises, regardless of when the lease was entered into;
       2. ‘small business lease’ means a lease of premises used wholly or predominantly for carrying on a small business.^[37]
    4. (d)
       provides for the making of regulations to provide for a dispute resolution process for disputes relating to relevant leases including the conduct of mediations and the conferral of jurisdiction on a tribunal to hear and decide disputes.^[38]
    5. (e)
       provides for the purposes of section 23 that the term:

       1. ‘relevant lease’ means a retail shop lease under the RSL Act or a lease prescribed by regulation.^[39]
       2. ‘lease’ includes a lease, sub-lease, licence or other agreement under which a person grants a right to another person to occupy premises, other than as a residence.^[40]
37. [37]
    The Regulations were made under section 23 of the COVID Act.^[41]
38. [38]
    The Regulations provide:

    1. (a)
       for dispute resolution in relation to eligible lease disputes.^[42] 
    2. (b)
       ‘eligible lease disputes’ are affected lease disputes and small business tenancy disputes.^[43]  The dispute notices lodged with the QSBC maintained it was an affected lease dispute and a small business tenancy dispute.
    3. (c)
       ‘small business tenancy dispute’ means a dispute about a small business lease, or about the use or occupation of the leased premises.^[44]
    4. (d)
       ‘small business lease’ means a lease under which the leased premises are to be wholly or predominantly used for carrying on a small business.^[45]
    5. (e)
       ‘small business’ means a business carried on by a sole trader or a business employing fewer than 20 full-time equivalent employees.^[46]  Mr Temple’s additional evidence forms a basis to conclude that it is arguable that his was a small business.
    6. (f)
       to the extent the parties agree or are required under a law or industry code, to undertake a dispute resolution process other than under this part, the small business commissioner may, but is not required to, provide assistance or information to the parties in relation to resolving the dispute.^[47]
    7. (g)
       if an eligible lease dispute arises in relation to a retail shop lease the Part 3 dispute resolution provisions of the Regulations apply rather than the dispute resolution provisions in Part 8 of the RSL Act.^[48] Mr Temple’s additional evidence forms a basis to conclude that it is arguable that the dispute is a small business tenancy dispute to which the dispute resolution provisions in Part 3 of the Regulations applies rather than the dispute resolution provisions in Part 8 of the RSL Act even though a claim under the RSL Act may also be made.
    8. (h)
       a party to an eligible lease dispute may give notice of the dispute to the small business commissioner.^[49]   Mr Temple has now provided evidence in relation to giving notice of the dispute to the QSBC on 20 July 2020 and again on 10 August 2020.^[50]
    9. (i)
       that as soon as practicable after receiving the dispute notice the small business commissioner must accept or dismiss the dispute notice.^[51]
    10. (j)
        for the small business commissioner to nominate a mediator where disputes are accepted.^[52]
    11. (k)
        that a person may by written notice to the small business commissioner withdraw a dispute notice unless the person has made an application about the dispute to the Tribunal or a court.^[53] 
    12. (l)
        if a dispute notice is lodged the dispute must not be referred to arbitration or heard by the Tribunal or a court until a settlement agreement is entered into through mediation^[54] or a notice of the outcome of the mediation is given to the parties^[55] or the dispute notice is withdrawn.^[56]
    13. (m)
        a mediator’s functions under Part 3 are in addition to the mediator’s functions under Part 9 of the RSL Act.^[57]
39. [39]
    The COVID Act and the Regulations confer jurisdiction on the Tribunal in certain circumstances in respect of eligible lease disputes.^[58]

Is Mr Temple entitled to apply to the Tribunal under section 12 of the Regulations?

40. [40]
    Mr Temple’s claim is arguably a claim for an order requiring Ms Penney to comply with section 12(1) of the Regulations, which is a claim within the Tribunal’s jurisdiction.
41. [41]
    The Regulations provide that a lessor under an affected lease must not, during or after the response period or extension period, take a prescribed action on certain grounds including failure to pay rent or outgoings for a period occurring wholly or partly during the response period or extension period.^[59]  A prescribed action is defined to include termination of the lease, exercising a right of re-entry and seizure of any property.^[60] 
42. [42]
    An ‘affected lease’ is defined in section 5 of the Regulations.  A retail shop lease is an affected lease if on the commencement of the lease it is binding on the lessee, the lessee is an SME entity and the lessee is eligible for the jobkeeper scheme.^[61] 
43. [43]
    Although Mr Temple’s submissions do not specifically address whether this retail shop lease is claimed to be an affected lease,  the dispute notices lodged with the QSBC maintained it was an affected lease, that Mr Temple is an SME entity and eligible for the jobkeeper scheme.^[62]
44. [44]
    The Tribunal may make an order requiring a lessor to comply with section 12(1) of the Regulations.  Mediation is not a pre-requisite to applying to the Tribunal for such an order.  Mr Temple does not expressly refer to seeking an order requiring Ms Penney to comply with section 12(1) of the Regulations but does contend that Ms Penney was in breach of the COVID Act in taking the actions which she took.^[63]  The Application does maintain that the Notice to Remedy Breach dated 17 April 2020, which relied upon a claimed breach of an obligation to pay rent partly within the response period, was invalid. 
45. [45]
    As I understand Mr Temple’s claim, he maintains that the Notice to Remedy Breach or the subsequent re-entering (or both) was a prescribed action, which Ms Penney was prohibited from taking during the response period as he contends the lease was an affected lease.
46. [46]
    Section 12(5) of the Regulations provides that:

In the proceeding, QCAT or a court may-

1. (a)
   make any order it considers appropriate; and

2. (b)
   award costs against the lessor or the lessee in the proceeding.

Is Mr Temple entitled to apply to the Tribunal under section 41 of the Regulations?

47. [47]
    Mr Temple’s claim is arguably a claim in respect of an eligible lease dispute, which is a claim within the Tribunal’s jurisdiction in the current circumstances.
48. [48]
    Section 41 of the Regulations sets out that a person may apply to the Tribunal in respect of an eligible lease dispute within the Tribunal’s jurisdiction under section 42 of the Regulations where no more than six months has elapsed since the affected lease or small business lease ended.  Such an application is reliant upon a notice of dispute being given to the small business commissioner but not settled within 30 days or pre-proceeding mediation through the small business commissioner having been undertaken or attempted.^[64]

Has no more than six months elapsed since the affected lease or small business lease ended when Mr Temple applied to the Tribunal?

49. [49]
    Documents attached to the Application show that the lease was terminated by Ms Penney on 24 April 2020 or by Mr Temple’s acceptance of Ms Penney’s repudiation on 21 May 2020.^[65]  The Application was filed on 27 August 2020, which is within six months of the lease ending on either basis.

Is the claim an eligible lease dispute within the Tribunal’s jurisdiction under section 42?

50. [50]
    I am satisfied that Mr Temple’s claim is arguably an eligible lease dispute within the Tribunal’s jurisdiction under section 42 of the Regulations. 
51. [51]
    As set out earlier in these reasons, an eligible lease dispute means either an affected lease dispute or a small business tenancy dispute.^[66] 
52. [52]
    An affected lease dispute means any dispute concerning the liabilities or obligations of the parties to an affected lease arising during the response period and includes a dispute about negotiating or a failure to negotiate rent under part 2, division 3.^[67]   Mr Temple contends that his business was affected by the pandemic restrictions on restaurants opening and contends that Ms Penney failed to negotiate the rent payable. 
53. [53]
    The lease the subject of the dispute provides that Mr Temple is the lessee.  On the evidence before me Mr Temple was a sole trader and therefore arguably the dispute was a small business tenancy dispute and therefore arguably an eligible lease dispute. 
54. [54]
    Section 42 of the Regulations provides that the Tribunal has jurisdiction to hear eligible lease disputes except in certain circumstances, none of which apply.^[68]  These exceptions are mirrored in the jurisdictional provisions of a mediator under the RSL Act.^[69]  
55. [55]
    As mentioned earlier in these reasons, Ms Penney accepts that the dispute is within the Mediator’s jurisdiction under the RSL Act.

Do any of the circumstances in section 41(1)(b) apply?

56. [56]
    I find section 41(1)(b)(iii) of the Regulations applies.
57. [57]
    Section 41(1)(b)(iii) of the Regulations provides that a party may apply to the Tribunal where the dispute is not settled within 30 days after the dispute notice is given to the small business commissioner.^[70]
58. [58]
    No mediation process was conducted through QSBC therefore section 41(1)(b)(i), (ii) and (iv) of the Regulations, which relate to outcomes of such a mediation process conducted do not apply i.e. the parties cannot reach a settlement agreement, a party does not attend the mediation conference and does not have a reasonable excuse and a party claims the other is non-compliant with a settlement agreement respectively.  Settlement agreement is defined as a signed written agreement reached at the mediation.^[71]
59. [59]
    Mr Temple’s submissions state that the notice of dispute was given online to the QSBC on 20 July 2020 and again on 10 August 2020 and that following a conversation between a QSBC staff member and Mr Temple’s solicitors on 19 August 2020, during which the staff member advised the matter would be best dealt with by the Tribunal, the notice of dispute was withdrawn. 
60. [60]
    I accept that submission as Mr Temple has now filed^[72] with the Tribunal:

    1. (a)
       a copy of the online dispute notice completed by his then solicitors.  The document is dated 20 July 2020.  It claims that the dispute was an affected lease dispute and a small business tenancy dispute, that the business was carried on by a sole trader with between one and four employees and that jobkeeper had been applied for.  Mr Temple also filed a further document stating that he was the only employee working in the business.
    2. (b)
       a copy of time and billing information from his then solicitors showing:

       1. work performed in relation to lodgement with the QSBC on 20 July 2020;
       2. a conversation with the QSBC on 7 August 2020 advising the application ‘is in the pile and will be processed in due course’;
       3. work performed to ‘redo’ the lodgement with the QSBC on 10 August 2020;
       4. work performed to email the QSBC on 18 August 2020.
    3. (c)
       a copy of an email from the QSBC acknowledging a dispute notice was lodged with it on 10 August 2020.
    4. (d)
       a copy of an email from QSBC dated 22 March 2021:

       1. attaching a copy of the dispute notice lodged 10 August 2020.  It claimed that the dispute was an affected lease dispute concerning failure to negotiate rent during the response period and a small business tenancy dispute; and
       2. setting out file notes, including one on 17 August 2020 in relation to the QSBC advising in relation to applying to the Tribunal for an interim order under section 12(3) of the Regulations and on 28 August 2020 that the dispute notice had been withdrawn because Mr Temple intended to apply to the Tribunal under section 12(3) of the Regulations.
    5. (e)
       a copy of emails passing between his then solicitors and the QSBC on 18 and 19 August 2020;
    6. (f)
       a copy of a letter from his then solicitors to the Tribunal dated 19 August 2020 setting out the essence of a conversation with the QSBC that ‘because of the nature of the dispute, it is not within’ the QSBC jurisdiction. I note that the copy of the letter actually received by the Tribunal in the same terms is dated 25 August 2020.
    7. (g)
       a copy of an email from his then solicitor to him dated 19 August 2020 sent at 12.27pm advising that ‘Karen’ from the QSBC had that morning ‘advised that QCAT had the appropriate jurisdiction’ with a request Mr Temple withdraw the application before the QSBC.
61. [61]
    I find that the dispute notice was given to the small business commissioner on 20 July 2020 and that the QSBC acknowledged its receipt on 7 August 2020. 

Was the dispute not settled within 30 days after the dispute notice was given to the small business commissioner?

62. [62]
    I find that the dispute was not settled within 30 days after the dispute notice was given to the small business commissioner.
63. [63]
    The Acts Interpretation Act 1954 (Qld) provides that if a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event and by including the day on which the purpose is to be fulfilled.^[73]  
64. [64]
    The notice of dispute was given to the small business commissioner on 20 July 2020.  On my calculation the period of 30 days commenced on 21 July 2020 and ended on 19 August 2020. 
65. [65]
    The QSBC had not referred the dispute to mediation by 19 August 2020.  There is evidence before me that Mr Temple withdrew the notice of dispute given to the small business commissioner at some time after 12.27pm on 19 August 2020 and prior to 28 August 2020. 
66. [66]
    In view of the position taken by the QSBC it is clear that no QSBC convened mediation could have taken place on 19 August 2020.
67. [67]
    The evidence before me is that the dispute had not been settled on or before 19 August 2020.

Summary

68. [68]
    I find that Mr Temple was entitled to file the Application and that the Tribunal has jurisdiction to hear and determine Mr Temple’s claimed eligible lease dispute even though a mediation has not been conducted.   The Application ought not be dismissed for lack of jurisdiction.