Revolve Property v Walsh[2021] QCAT 256

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Applicants, Revolve Property and Hsi-Chen Huang as trustee for the Tseng and Huang Family Trust, agent (the agent) and property owner (the lessor) respectively, by email to the Tribunal dated 15 July 2021, informally applied to adjourn today’s hearing on grounds they have had insufficient time to prepare affidavit material to answer a counter-application by Marnie and Melinda Walsh, residential tenants (the tenants) of a horse property at Jimboomba leased from the trustee in terms of a general tenancy agreement for $700 per week. The lease commenced on 26 May 2021 and is for a fixed term to 23 May 2023.
2. [2]
   Neither of the tenants are related or personally known to me. The fact that their surname is Walsh and that my surname is Walsh is purely co-incidental.
3. [3]
   The proceedings commenced by an urgent Form 2 Application for residential tenancy dispute (the Application) filed by Revolve Property at Beaudesert on 18 June 2021 to terminate the tenancy for the tenants’ alleged objectionable behaviour which, it is said, includes, but is not limited to, intimidation, harassment and racist conduct against the owner and trades people, including in writing by SMS and orally. It is not necessary for present purposes to descend into the particularity of what is alleged. Suffice to say that there is some factual and legal complexity to the allegations.
4. [4]
   In accordance with standard Registry practice for urgent residential tenancy disputes, the Registrar at Beaudesert listed the matter for a 15-minute hearing timeslot on 19 July 2021 and mailed the Application and associated documents together with Notice of hearing to the tenants on 24 June 2021. The certificate of service states that the documents would be delivered to the tenants in the ordinary course of post on 1 July 2021.
5. [5]
   On 8 July 2021, the tenants, whose address for service was given as c/o solicitors Ryan Murdoch O'Regan, filed a Form 8 Counter-application together with supporting affidavits of each of the tenants and a substantial quantity of documentary evidence running to 56 pages.
6. [6]
   The tenants are seeking orders for alleged emergency repairs and maintenance, the removal of goods left on the premises, re-imbursement in the sum of $7,783.60 for their cost of undertaking emergency works, compensation for lease breach and misrepresentation calculated at the rate of $1,150 per week from commencement of the tenancy, reduction of rent to nil until the property is rendered safe and secure, and set-off of lessor liabilities to them against their liability for future rent.
7. [7]
   A cursory reading of the tenants’ evidence and documents in conjunction with the definition of what is an urgent application in section 415 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRAA) suggests that their Counter-application is for a mixture of urgent and non-urgent relief but it is not presently clear whether they underwent jurisdictionally prerequisite conciliation first pursuant to section 416(1) of the RTRAA, before filing the Counter-application.
8. [8]
   Also on 8 July 2021, the tenants filed a Form 56 Application for leave to be legally represented in the proceedings. The Registrar followed standard practice in serving a copy on the agent and calling for submissions from the parties.
9. [9]
   I assume that, prior to their applying for legal representation, the tenants were advised by their solicitors that, even if wholly or partly successful, the tenants will not recover any of their legal costs from the agent and lessor. The only amount either may recover is the outlay for filing fees paid.
10. [10]
    The reasons given for why representation is needed included complexity in understanding of the issues and tenants’ rights, the financial and emotional effect of the dispute on the tenants, the fact that the property was a former methamphetamine laboratory and used as a dog-fighting ring of which there are still remnants on the property, the breakdown in communications between the parties, the lack of safety and security of the property for human and animal habitation, that the tenants have nowhere to go, and that they have been forced (they say) to work on the property and pay for contractors.
11. [11]
    On the Registrar’s electronic referral of the papers to me for a pre-hearing decision, I dealt with the tenants’ Form 56 Application on the papers remotely. Accepting that legal representation was appropriate, I made orders on 14 July 2021 (five days before the scheduled hearing) as follows:

    1. The Respondents may be legally represented.
    2. Hsi-Chen Huang as trustee for the Tseng and Huang Family Trust is joined as Applicant and Respondent to the Counter-application.
    3. The Applicants (including the joined Applicant) may be legally represented if they wish.
    4. The Applicants must file with the Tribunal and email to the Respondents by 4:00pm on 16 July 2021 all Affidavits and/or Statutory Declarations of evidence together with any further documents on which they wish to rely in support of the Application and reply to the Counter-application and the Respondents Affidavits of evidence and documents.
    5. The Applicants and Respondents must by 11:00am on the morning of hearing email to each other and file with QCAT Registry any written submissions on which they may wish to rely at the hearing.
    6. QCAT Registry email these orders to the parties.
12. [12]
    The solicitors for the agent and the lessor, in their email dated 15 July 2021, sought the adjournment because they say they were not aware of the QCAT proceeding until 9 July 2021, Hsi-Chen Huang has limited English and would be at a significant disadvantage without legal representation, they had received approximately 200 pages of relevant material on 15 July 2021 from the agent, and they have had insufficient time to digest the material and prepare and file affidavits by the 16 July 2021 deadline referred to in Order 4 of the Tribunal’s orders dated 14 July 2021.
13. [13]
    By direction through the Registrar, I called for submissions from the parties’ solicitors on the question of the adjournment informally sought by solicitors for the agent and lessor. Solicitors for the tenants however objected to an adjournment. I therefore asked the Registrar to inform the parties that it would be considered at the commencement of the hearing on 19 July 2021.
14. [14]
    The following authorities and provisions of the QCAT Act are relevant to the Form 2 Application, the Form 8 Counter-application, the management of the case as a whole, and the informal application for an adjournment.
15. [15]
    One of the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) in section 3(b) is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical and quick. However, in terms of section 4(c) regarding the Tribunal’s functions relating to the objects of the Act, the Tribunal must ensure that proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[1] In my opinion, those qualifying words make expressly clear that “quickness” must not come at the expense of procedural fairness and (natural) justice.
16. [16]
    As I said in Helyar v Civil and Property Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465 at [2]:

Delay is almost always this Tribunal’s statutory enemy. That is because proceedings must be conducted in a way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[2] Most cases are finalised relatively quickly in the minor civil dispute jurisdiction of this Tribunal. Others, because of complexity or special circumstances, may be the exception to the rule of expedition. In particular, a speedy conclusion to a case must not come at the expense of due process^[3] and justice.^[4]

17. [17]
    Recently, in McVicker v Bunnings [2021] QCATA 88 at [40], the Appeal Tribunal has summarised the Tribunal’s obligations thus:

The Tribunal has a statutory obligation under s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to observe the rules of natural justice and to ensure all relevant material is disclosed to the Tribunal. Under s 28(4) the Tribunal may admit into evidence the content of any document despite noncompliance with any time limit. Under s 29 the Tribunal must take reasonable steps to ensure parties understand the practices and procedures. This includes the right to provide opportunities to question (cross-examine) relevant witnesses and proceed with the hearing in a methodical way to avoid confusion and uncertainty about the process. It must ensure, as a matter of procedural fairness, that a party has presented all the evidence that it intends to rely upon.

18. [18]
    It is tolerably clear in all the circumstances that:

1. (a)
   The matters in dispute cannot now be adjudicated in a 15-minute hearing in what has (subsequently) become a complex case.
2. (b)
   Achieving justice would be impossible in a headlong rush to finality today.
3. (c)
   The solicitors for the agent and lessor have indeed had insufficient time to prepare and should be allowed a reasonable period beyond the 16 July 2021 deadline for filing and service of their clients’ defence to the Counter-application and their clients’ evidence.
4. (d)
   A period of two weeks from today ought to suffice for that purpose.

19. [19]
    The hearing will therefore be adjourned for a two-hour hearing with further interim directions in terms of the following orders: 

1. The hearing is adjourned to 16 August 2021 at 3:00pm for a two-hour hearing.

2. Revolve Property and Hsi-Chen Huang as Trustee for the Tseng and Huang Family Trust by their solicitors must on or by 4:00pm on 2 August 2021 file with the Tribunal and email to the solicitors for Marnie Walsh and Melinda Walsh all affidavits of evidence and documents on which they wish to rely in support of the Form 2 Application and in response to the Form 8 Counter-application.
3. Marnie Walsh and Melinda Walsh by their solicitors must on or by 4:00pm on 9 August 2021 file with the Tribunal and email to the Applicants’ solicitors any further affidavits of evidence and documents on which they wish to rely in reply.
4. The parties by their solicitors must on or by 4:00pm on 13 August 2021 file with the Tribunal and email to each other all final written submissions on which they may wish to rely at the hearing.
5. QCAT Registry arrange an interpreter of the Mandarin language for the next hearing.
6. QCAT Registry email these orders to the parties.

20. [20]
    I make no formal directions in the following respects but draw the attention of the solicitors for the parties to the following:

1. (a)
   The solicitors for the Respondents must, before the next hearing day, inform the Tribunal’s Registry in writing if they do not intend to cross-examine Ms Hsi-Chen Huang.

2. (b)
   In that event, the Registrar may dispense with the need for the presence of the interpreter because Mr Cruise has informed me that he speaks fluent Mandarin in communication with his client.
3. (c)
   The parties and their solicitors are encouraged to consider a joint inspection of the Jimboomba property before the next hearing with a view to agreeing a list of accepted and disputed facts and narrowing the issues in dispute.
4. (d)
   The parties should file an Application for Consent Orders with the Tribunal prior to the next hearing if they are able to reach a compromise of the dispute in without prejudice discussions.

Postscript

21. [21]
    The solicitors for the parties ought consider whether the provisions of the Human Rights Act 2019 (Qld) may apply and, if so, the engagement and implications of the competing human rights of Hsi-Chen Huang, Marnie Walsh, and Melanie Walsh, respectively, such as are relevant and may potentially be affected in the present case. I refer the parties’ solicitors to the Tribunal’s decision in The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144.