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- Unreported Judgment
Page v Jobbins QCATA 147
Page v Jobbins  QCATA 147
Kenneth Russell Jobbins
On the papers
Senior Member Stilgoe OAM
6 October 2016
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – CHOICE OF ORIGINATING PROCESS – where claim filed as residential tenancy dispute – where claim in fact a commercial tenancy dispute – where tribunal dealt with claim as minor debt dispute – whether tribunal should have heard the claim
APPEAL – LEAVE TO APPEAL – PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION , POWERS AND GENERALLY – JURISDICTION – where claim filed as residential tenancy dispute – where claim in fact a commercial tenancy dispute – where tribunal dealt with claim as minor debt dispute – where tribunal ordered payment of damages for breach of contract – whether tribunal had jurisdiction to make orders – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 12(4)(a), 62(1), 100, 102(1), 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 43(1), 83(1), 83(2)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 358, 359, 415(5)(o), 415(5)(p)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- Christopher Page rented a workshop from Kenneth Jobbins. Mr Jobbins had Mr Page sign a general tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’) to record the terms of their agreement.
- Mr Jobbins believed that Mr Page was in arears of rent. He therefore filed a claim in the tribunal for recovery of the arrears. The tribunal ordered Mr Page pay Mr Jobbins.
- Mr Page wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr Page has four grounds of appeal. He says Mr Jobbins’ application was in the wrong form, which denied him the opportunity to file a response. He says the tribunal made a mistake of fact and law. He says that the tribunal did not ask him whether he was able to read and write well and, therefore, the tribunal did not know that he was unable to understand the proceeding. He says he should not have to pay the filing fee because the tribunal is a no cost jurisdiction.
The form of application
- Mr Jobbins filed an application for minor civil dispute – residential tenancy dispute. It was not, of course, a residential tenancy dispute: Mr Jobbins’ claim should have been filed as a minor debt.
- Mr Jobbins filed the application under ss 358 and 359 of the RTRA Act on the grounds that Mr Page had abandoned the tenancy. Applications under ss 358 and 359 are urgent applications and therefore are listed as a priority.
- The difference between an urgent tenancy application and a minor debt application is significant. A respondent to a residential tenancy dispute is not required to file a response, whereas a respondent to a minor debt claim is required to file a response. The purpose of the response is to ensure that both parties have put their case, and supporting material, before the tribunal and neither is taken by surprise.
- However, the mere fact that Mr Jobbins filed the wrong form, and Mr Page did not have the benefit of the procedure for a minor debt, does not necessarily mean that leave to appeal should be granted and the appeal allowed.
- The tribunal may do whatever is necessary for the speedy and fair conduct of a proceeding. The tribunal noted that the lease was in the wrong form. It noted that the claim was for money owing, not a residential tenancy. It appears from the transcript that the tribunal did treat Mr Jobbins’ claim as a minor debt claim. There is no doubt that the tribunal’s decision to hear the dispute was speedy but, if it was not fair, then, by failing to provide natural justice, the tribunal committed an error of law.
- Mr Page handed up a document at the hearing that referred to the fact that Mr Jobbins filed the wrong form. He made submissions about the facts of the claim. He stated that he did not owe rent. He stated that he paid the rent in cash and did not receive receipts. He told the tribunal he transferred ‘$2800 lots’ that were not accounted for. He disputed the claim for future rent. He disputed the claim by Mr Bowerman. He disputed the claim for electricity on the basis that the invoice before the tribunal was for a different premises. He disputed the claim for the cost of waste oil because the agreement did not make him liable for that cost. He disputed the cost of a locksmith because there was no evidence before the tribunal that the work had been done. He disputed the filing fee on the basis that the tribunal is a no-cost jurisdiction.
- Reading the transcript, I am not persuaded that Mr Page was denied natural justice or procedural fairness because Mr Jobbins filed the wrong form. Mr Page was not taken my surprise. He responded to the claim in some detail. He was partly successful: from a claim of $25,000, the tribunal ordered that he pay only $16,836.58. The wrong form, and the wrong procedure, is not, in this case, a ground for appeal.
- I note, in passing, that Mr Jobbins says he filed the wrong form on advice from ‘this court’. I assume he means the tribunal registry. Registry officers cannot give legal advice. They respond to the questions asked of them. A substantial part of the tribunal’s work is residential tenancy disputes, so it is not surprising that, if a registry officer is asked for a form for a dispute about a lease, the inquirer will be given a residential tenancy form. But the form is clearly marked as a residential tenancy form. Mr Jobbins obviously consulted the RTRA Act to come up with ss 358 and 359. He knew that this was not a dispute about a residential tenancy. If I had decided to grant leave to appeal on this ground, Mr Jobbins had only himself to blame.
Mistake of fact
- Mr Page frames the mistake of fact in two ways. The first is:
“The combination of the mistake of law referred to above (the wrong form) coupled with the potential mistake of fact that in reality the Respondent’s Agent’s refusal to issue receipts as witnessed by Mr Layland is sufficient evidence to consider this appeal to be a type of rehearing under s 146(1)(c).”
- Mr Page filed fresh evidence with his application for leave to appeal which purported to show that he had paid the rent.
- The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Page knew that the payment of rent was in issue. He does not say why he did not bring this evidence to the hearing.
- The fresh evidence consists of bank statements showing cash withdrawals and a summary of rental payments prepared by his bookkeeper. Cash withdrawals on a bank statement prove nothing. There is no accompanying statement from the bookkeeper as to the truth of the summary. It was probably prepared on advice from Mr Page. The fresh evidence is not credible and does not have an important impact on the result of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal.
- The evidence can support the tribunal’s finding that Mr Page did not pay all of the rent due. I can find no compelling reason to come to a different view.
- Mr Page frames the second mistake of fact as:
“…the clear concern as to the Applicant’s lack of cognitive skills which was not brought to the attention of the Tribunal potentially because of the abovementioned mistake of law.”
- In his application for leave to appeal, Mr Page filed a report from a psychiatrist which records that Mr Page has diminished concentration and attention span, partial literacy due to dyslexia, and difficulties with social functioning. The report records that Mr Page is easily bored, has difficulty following conversations and congenital information processing difficulties.
- The report is dated August 2015, well before the hearing. Mr Page did not produce the report at the hearing. He did not tell the tribunal he had difficulties with reading or processing information and, from reading the transcript, I do not get the sense that his difficulties were apparent.
- While I have some sympathy for Mr Page, he cannot claim that the tribunal dealt with him unjustly when it did not take account of his difficulties. The tribunal cannot adjust its hearing process if it does not know there is a problem.
- I appreciate that Mr Page’s difficulty with social interaction may have inhibited his ability to tell the tribunal he was having trouble following the case, but his solicitor wrote the submission he handed up to the tribunal. If his ability to follow the hearing was an issue, Mr Page’s submission should have addressed it or he should have asked for leave to be represented. I do not see why Mr Page should be given the opportunity for a ‘second go’ when the solution to the problem was in his own hands.
- I do not consider there is a ground for leave to appeal because of a mistake of fact.
The filing fee
- It is true that the tribunal expects each party to pay its own costs of a proceeding. However, the tribunal may order costs if it is in the interests of justice to do so. Rule 83(1) of the QCAT Rules states that the tribunal may award costs in a minor civil dispute proceeding if there is a final decision against a respondent. Mr Page was the respondent and he was subject to a final decision. Rule 83(2) states that the costs are limited to the filing fee. That is what the tribunal ordered.
- I am satisfied that the tribunal acted appropriately and there is no basis for leave to appeal.
Other grounds for leave to appeal?
- As I have already identified, Mr Jobbins’ claim should have been, and was, dealt with as a minor debt claim. The tribunal could only decide to make Mr Page pay Mr Jobbins for amounts that were a debt or liquidated demand.
- Mr Jobbins claimed for electricity. Under the lease agreement, Mr Page was liable to pay one third of the electricity billed to the property. Mr Jobbins produced electricity bills but he did not produce any evidence of a demand for payment of one third of those bills. In the absence of a demand, the claim for the electricity is a claim for breach of contract, not a liquidated demand and, therefore, not within the tribunal’s jurisdiction.
- Mr Jobbins also claimed the cost of waste removal. This is a claim for breach of contract, because Mr Jobbins says Mr Page did not leave the tenancy in good condition. Again, it is not a claim for a debt or liquidated demand. Again, the tribunal had no jurisdiction to consider that claim.
- Leave to appeal should be granted, the appeal allowed. The decision of 6 April 2016 set aside and the following order substituted: That Christopher Page pay Kenneth Jobbins $13,605.00 within 21 days of today’s order. I note that I refused a stay of the tribunal’s decision. If Mr Page has paid Mr Jobbins the full amount of $16,836.58, or more than $13,605.00, I order that Mr Jobbins refund the difference to Mr Page within 21 days of the date of order.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 RTRA Act ss 415(5)(o), (p).
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 43(1).
 QCAT Act s 62(1).
 Transcript page 1-11, lines 5 – 7.
 Transcript page 1-11, lines 28 – 38.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
 Transcript page 1-10, line 8.
 Transcript page 1-14, lines 1 – 3.
 Transcript page 1-12, line 42.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-13, lines 30 – 44.
 Transcript page 1-14, lines 11 – 13.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 Transcript page 1-10, line 35.
 QCAT Act s 100.
 QCAT Act s 102(1).
 QCAT Act s 12(4)(a).
- Published Case Name:
Page v Jobbins
- Shortened Case Name:
Page v Jobbins
 QCATA 147
Senior Member Stilgoe OAM
06 Oct 2016