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Lovel v Ray White Mermaid Beach QCATA 93
Lovel v Ray White Mermaid Beach  QCATA 93
Ray White Mermaid Beach
11 July 2017
Senior Member Stilgoe OAM
Ex tempore 11 July 2017
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where landlord filed application for compensation – where application filed in Coolangatta – where rental property located in Benowa Waters – where Tribunal transferred application to Southport – where tenant filed application for strike out – where Tribunal refused to strike out – where tenant applied for leave to appeal on interlocutory decisions of Tribunal – where substantive matter has not been heard – whether Tribunal’s decision to transfer and refusal to strike out are grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 62
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 416
Ms Lovel, in person
Ms Kershaw, Ray White Mermaid Beach, by phone
REASONS FOR DECISION
- Ray White Mermaid Beach filed an application for compensation after Crystal Lovel left a tenancy located in Benowa Waters. The application was for compensation for the usual things: the tenancy not being left clean and unpaid water bills. Ms Lovel applied to the Tribunal for three things: firstly, a production of the dispute resolution notice provided by the RTA; secondly, an adjournment of the hearing; and thirdly, that the application be struck out. On the 22nd of November 2016, the Tribunal refused Ms Lovel’s application for production of a document, dismissed the application to strike out, and then made a series of interlocutory orders, one of which was that the proceeding be transferred to Southport.
- Ms Lovel has applied for leave to appeal that decision. As I indicated at the beginning of the hearing, in order to get leave to appeal, Ms Lovel has to demonstrate, firstly, an error by the Tribunal; and secondly, that that error created a substantial injustice. Ms Lovel has three grounds of appeal: the first is jurisdictional error; the second is lack of procedural fairness; and the third is an error of law.
The first ground of appeal
- Turning to each of those in turn. The jurisdiction error: Ms Lovel says that the Tribunal had no jurisdiction to hear the matter at Coolangatta, and, in fact, that the application for compensation was filed in the wrong location. Ms Lovel is correct, in that the jurisdiction of the Tribunal, in the residential tenancies jurisdiction, is either in Brisbane or the Magistrates Court location in which the rental property is located. Benowa Waters is within the Southport jurisdiction, and therefore the decision to file in the Coolangatta jurisdiction was in error. Ms Lovel pointed that out in her application to strike out.
- The Tribunal, though, has a very broad discretion to deal with matters. In section 62, its discretion is very broad. It also has a legislative obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick; that is section 3(b). So the options open to the Tribunal at that point were twofold: either to dismiss the application on the basis that there was no jurisdiction or transfer it to the correct jurisdiction. Had it dismissed the application then, the parties would still have been before the Tribunal, and in the correct jurisdiction, but time and effort and money would have been spent correcting what is possibly an administrative error.
- So while the Tribunal was perhaps in error to hear the application in Coolangatta, because there was no jurisdiction, the matter had been brought to the Tribunal’s attention, and the jurisdictional error was corrected by transferring it to Southport. In all the circumstances, Ms Lovel has not demonstrated to me that there is any injustice in the process that the Tribunal undertook. The Tribunal has correctly referred the matter to Southport, corrected the jurisdiction, and, in my view, correctly responded to the application to strike out.
- The second point about exceeding the jurisdiction was, Ms Lovel says, that the issues in dispute had not been referred to conciliation. The Tribunal had a copy of a notice of unresolved dispute from the Residential Tenancies Authority; it was therefore entitled to assume, in the absence of evidence to the contrary – and I will come to that in a minute – that section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) had been complied with, and that there was jurisdiction to hear a matter for compensation.
The second ground of appeal
- This brings me to the second ground of appeal, which is the refusal to allow the production of documents. Ms Lovel says that she was not sure that the matters raised in the application for compensation were also raised in the conciliation. The way in which that was framed in Ms Lovel’s application for miscellaneous matters does not quite make that point as clear as it perhaps could have been made. I accept now that the point is that Ms Lovel was not sure that all of the matters raised in the application were canvassed in the conciliation.
- It is the case that the Tribunal should only hear applications for compensation that were the subject of conciliation. It is also the case that the conciliation is without prejudice, and the Tribunal has no way of knowing what in fact was discussed. Perhaps if Ms Lovel had had the opportunity to make proper submissions about the reason for the application for production, the Tribunal would have come to a different conclusion, and that is another ground of appeal that I will come to in a minute.
- So the Tribunal refused the application for production of documents on the basis, as I understand it, although I am not sure that there were comprehensive reasons for decision, that it is something for the applicant to prove, rather than for the respondent, the tenant in this case, to disprove. And that is a fair point, although, as Ms Lovel has raised the point, the onus then did shift to Ray White Mermaid Beach to satisfy the Tribunal that all of the matters raised in the application were the subject of conciliation, and that could have been done simply by production of the letter which Ms Kershaw now refers to, which would have demonstrated that they were matters that were the subject of conciliation and therefore appropriate to bring to the Tribunal.
- So perhaps the Tribunal was in error in not requiring the production of that letter. But, again, I come to the issue of substantial injustice. If, as appears to be the case, these matters are properly before the Tribunal and it could have been demonstrated had Ms Kershaw or her agency provided a copy of the letter, then, again, we are back to the position where these matters were always going to be ventilated before the Tribunal, and I am not sure where the injustice to Ms Lovel is.
The third ground of appeal
- The third ground of appeal is lack of procedural fairness, and there are three sub-grounds to this: firstly, that Ms Lovel was not heard on the application, and it is true that she did not appear at the hearing of the application.
- As I pointed out to Ms Lovel in the hearing of this application for leave to appeal, a notice of hearing was posted to her at the address nominated by her on the 1st of November 2016. In the ordinary course of post, it would have been received by Ms Lovel in time for her to appear at that hearing. There was nothing on the file as at 22 November 2016 to indicate that Ms Lovel had not received the notice of hearing. Therefore, there was no reason for the Tribunal not to proceed on that day, and proceeding in her absence was not a lack of procedural fairness. If Ms Lovel was unhappy about that, then the approach was not to appeal but to apply to reopen on the basis that she had a reasonable ground for not turning up.
- The second ground of appeal on this point is that Ms Lovel had no notice of the procedural orders that were made by the Tribunal, and that is true. But they are orders made under section 62 to facilitate the efficient hearing of the matter. They are orders which are often made by this Tribunal to give both parties the opportunity to be fully appraised of the matters that will be before the Tribunal and the evidence that will be heard.
- Contrary to Ms Lovel’s assertion, the orders do not prevent her from cross-examining the witnesses; what they say is that the parties cannot rely on evidence-in-chief that is not filed without the leave of the Tribunal. And, again, that does not prevent Ms Lovel from seeking an application for leave to give oral evidence. But the nature of minor civil disputes is that parties, in a very short time, have to get all of their issues across, and parties should not be taken by surprise, either side. So it is for the protection of parties that the Tribunal makes orders in this way.
- The last point is that Ms Lovel was not aware of any application to transfer this matter to Southport, and that is true. However, as I have indicated, that order was made to correct the lack of jurisdiction in the Tribunal hearing the matter in Coolangatta, so it is a natural consequence of an application to strike out because it has been filed in the wrong jurisdiction.
- This is an example of people taking technical points, in a matter which really needs to be ventilated quickly and with both of the parties present. And while Ms Lovel is correct in some of her issues, the bottom line is that this was an interlocutory application to try to progress a dispute between parties over, as I understand it now, some $900, as quickly and efficiently as possible. And if Ms Lovel had been successful in all of her matters, she would still be before the Tribunal somewhere – perhaps Brisbane, perhaps Southport – and these matters would have been ventilated.
- I accept, Ms Lovel, that Ray White Mermaid Beach has not complied with its obligations correctly, and Ms Kershaw and her agency have some lessons to learn from this. But the bottom line is that nothing you have said to me today, or have made in your submissions, derogates from the fact that there is a dispute between these two parties; it needs to be resolved; it needs to be before the Tribunal. It is now before the correct Tribunal, and the parties should just get on with it and resolve their issues.
- And can I say, Ms Kershaw, that if you cannot get instructions, you need to, pretty quickly, because this matter is going to go back to the Tribunal before Southport, and a lot more time and effort will be wasted if you cannot resolve it. So, for all of those reasons, the application for leave to appeal is refused.
- Published Case Name:
Lovel v Ray White Mermaid Beach
- Shortened Case Name:
Lovel v Ray White Mermaid Beach
 QCATA 93
Senior Member Stilgoe OAM
11 Jul 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment||QCAT (No Citation)||22 Nov 2016||Application by Ms Lovel for production; an adjournment; and Ray White's application for compensation to be struck out; application dismissed.|
|Primary Judgment|| QCATA 93||11 Jul 2017||Leave to appeal refused: Senior Member Stilgoe OAM.|
|Notice of Appeal Filed||File Number: Appeal 10166/17||03 Oct 2017||-|
|Appeal Determined (QCA)||Appeal 10166/17 (No Citation)||-||By consent: application for leave to appeal granted and appeal allowed; claim in the Tribunal started by Ray White dismissed: Sofronoff P.|