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Van Zyl & Anor v Rentstar QCATA 120
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Van Zyl & Anor v Rentstar  QCATA 120
Dion van zyl
brigette van zyl
MCDT 326/20 (Brisbane)
29 September 2021
13 August 2021
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – DENIAL OF NATURAL JUSTICE – where an Adjudicator discussed case management and evidential matters in detail with the parties about a counter application for damages in the mistaken belief that such a claim was before the tribunal – whether a demonstration of bias or procedurally unfair – whether appeal succeeds on this and other, grounds
Civil Procedure Rules 1998 (England and Wales), Part 1.4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 309
Uniform Civil Procedure Rules 1999 (Qld), r 5(1), r 157, r 480(2), r 573
Birnbaum v Akero  QCATA 18
Cameron v Spalding  QCATA 145
C Davidson and Aboriginal & Islander Child Care Agency (Unreported, AIRC, 12 May 1998) 534/98
Chandra v Queensland Building and Construction Commission  QCA 335
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
Davis v Gray  QCATA 147
Davis v Metro North Hospital and Health Service  QCAT 18
Drift Palm Cove Body Corporate CTS 36253 v Drift Palm
Cove Management Pty Limited  QCATA 005
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Grant v Repatriation Commission (1999) FCA 1629
Harbour Day Spa v Tree Harmony  QCAT 692
Harrison and Anor v Meehan  QCATA 197
Harrison & Anor v Meehan  QCA 315
Johnson v Johnson (2000) 201 CLR 488
Lawler v Department of Housing and Public Works, State of Queensland  QCATA 21
Lida Build Pty Ltd v Miller  QCATA 17
Minister for Immigration and Border Protection & Anor v SZSSJ and Anor (2016) 259 CLR 180
MZAIB v Minister for Immigration and Border Protection  FCA 1392
Queensland Building & Construction Commission v Whalley  QCATA 38
Re: Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425
Rowan v Beck  QCATA 20
Salmond v S & S Accounting Services Pty Ltd  QCATA 218
Savage Resorts Pty Ltd v Maksymiuk  QCATA 184
Sloane v WJR Investments Pty Ltd, Ramsey and Galloway  QCAT 647
Stone v Grundy  QCATA 68
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
T.C. Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130
Thorne v Toowoomba Regional Council & Tytherleigh  QCATA 128
Wellard v Nicol  QCATA 77
REASONS FOR DECISION
- This appeal concerns the point at which the tribunal’s efforts to case manage a matter in a hearing including explaining to the parties the evidence required and how the tribunal will approach the matter, demonstrates bias or becomes procedurally unfair.
- In a residential tenancy matter Dion Van Zyl asked the tribunal to make an order terminating his tenancy following the lessor’s alleged failure to remedy breaches of the tenancy agreement. He had served a number of notices to remedy breach on Form 11 relating to repair and maintenance issues, and alleged that the lessor had failed to comply with them. Hence he said, he was entitled to an order terminating the tenancy agreement.
- As can be seen from the transcript of the hearing obtained by the Appeal Tribunal, both parties were on the telephone. The Adjudicator hearing the matter decided, having heard the evidence and having read much material filed by the parties, that the lessor was not in breach. Hence the Adjudicator dismissed the tenant’s application.
Grounds of appeal
- The grounds of appeal can be set out as follows:
- (a)The Adjudicator came to the wrong conclusion on the evidence.
- (b)The Adjudicator should have found in favour of the tenant because the tenant had complied with directions about obtaining a report from a gutter specialist and Rentstar had not complied with those directions.
- (c)An allegation of bias demonstrated by the Adjudicator advising Rentstar how to bring a damages claim against the tenant. Alternatively this may be put as procedural unfairness or breach of natural justice.
- Concentrating for the moment on ground (c), in this appeal the tenant says that the Adjudicator ‘explained in detail what Rentstar was required to do to lodge a claim against me for damages’, and that the Adjudicator ‘did not help me in the same way’, so that Rentstar were advised how to bring a claim against him and this demonstrated bias.
- The tenant is somewhat at a disadvantage in presenting an appeal on such grounds without a full transcript of the hearing. The Appeal Tribunal has obtained a transcript, but has been unable to provide it to the parties for copyright and cost reasons.
- In the circumstances it is right for me to pick out from the transcript those statements by the Adjudicator which might cause the tenant to believe that the Adjudicator was helping Rentstar in a prospective claim against him for damages. Also, to understand this concern and the Adjudicator’s statements, it is necessary for me to explain more about the dispute and its history up to the final hearing.
The dispute and its history up to the final hearing
- The tenancy agreement was for a fixed term expiring on 6 June 2020, but having served seven notices to remedy breach on Form 11, followed by a notice of intention to leave on Form 13 on the grounds of unremedied breach (that is, that the Forms 11 had not been complied with), the tenant vacated the premises at the end of February 2020.
- Rentstar did not accept that there was any breach, and regarded the tenant as having been in breach of the fixed term agreement by leaving early, and therefore liable to compensate the lessor for break lease compensation.
- If the tenant had validly terminated the tenancy by his use of Forms 11 and 13, or if he could obtain a termination order from the tribunal, he would not be liable to the lessor for the break lease compensation. But if, as it turned out, the tenant failed in this respect then he would be liable to the lessor for break lease compensation.
- The main part of the break lease compensation would be to make good the rent lost by the lessor, subject to the lessor’s obligation to mitigate the loss by taking reasonable steps to relet the premises.
- The tenant originally tried to bring his application for termination of the tenancy together with a money application against the lessor in one originating application on Form 2. When he tried to file the claim, he was told that he could not bring the claims together but that would need to bring two separate claims – one for the termination which was an ‘urgent’ claim, and one for compensation which was a ‘non-urgent’ claim. These were given claim numbers MCDT326/20 and MCDT371/20 respectively. In MCDT371/20 which is not before the Appeal Tribunal, he sought full return of the rental bond and compensation.
- The tribunal directed that MCDT326/20 and MCDT371/20 be heard together. They were both before the Adjudicator at the hearing from which the tenant now appeals although he has only appealed from the decision made in MCD326/20 - that is the urgent application for termination.
- In response to MCDT371/20, Rentstar filed a ‘minor civil dispute – counter application’ on Form 8. In that document Rentstar denied that the tenant was entitled to any compensation and supported this with detailed submissions and supporting documentation. The material attached to the counter application included a number of emails from Rentstar to the tenant saying that despite the Forms 11, the tenant was obliged to continue to pay rent and that if he left early it would be regarded as a break lease and that compensation would be sought from the tribunal. At the hearing Rentstar made it clear it would be seeking compensation for the loss of rent and ‘a lot of expenses’ on top, bringing the counter application to ‘under $10,500’.
- During the hearing the Adjudicator took it that Rentstar was seeking break lease compensation from the tenant in its counter application in MCDT371/20. The Adjudicator noted however, that the counter application was not properly itemised or calculated and that the tenant was saying that he had not received it. Hence, the Adjudicator decided that it would have to be adjourned to a hearing to be fixed, reserved to the Adjudicator.
The statements made by the Adjudicator
- Here are the statements made by the Adjudicator which could be relied on by the tenant in ground (c) of this appeal:
- (a)Rentstar would need to re-serve the counter application on the tenant with a breakdown the amount claimed and any submissions and evidence to be relied on, including evidence dealing with the duty to mitigate, with provision in the directions for the tenant to reply, and the matter to be relisted reserved to the Adjudicator.
- (b)Responding to Rentstar’s question how to lodge this new material the Adjudicator explained that it could be emailed and that the email address could be found on the tribunal’s website.
- (c)The Adjudicator stated that in a break lease situation a lessor has a duty to mitigate and after a while this would entail reducing the rent to secure a tenant, and it might require the rent to be reduced still further if it were necessary to secure a short term tenant because the owner wished to live in the property.
- (d)Responding to a comment by the tenant, the Adjudicator said that in the circumstances of the case, an order that the tenant pay the rent up to near the end of the lease would be unlikely.
- (e)The Adjudicator said that the evidence that it would be reasonable for Rentstar to provide on the question of the duty to mitigate would be evidence of the property being advertised, evidence of the available inspection dates, evidence of how many people inspected, and evidence of what steps they took to secure a tenant, which would normally include if necessary a sequence of rent reductions.
- It is of significance that during the discussion about how the counter application would be handled, the Adjudicator asked whether the required conciliation process with the Residential Tenancies Authority had been undertaken with respect to the claim for break lease compensation.
- It seems that the Adjudicator was taken by surprise when it turned out that this had not been done. This meant that the tribunal had no jurisdiction to deal with the counter application after all. Upon hearing this, the Adjudicator abandoned all the proposed directions about re-service and better particulars of the counter application, and made an order as follows:
- A declaration that the lease agreement was not validly terminated by the Applicant.
- The claim for compensation by the Applicant is dismissed.
- From the order made, it can be seen that the Adjudicator then understood that there was no valid counter application before the tribunal brought by Rentstar for break lease compensation because there had been no attempt to conciliate that claim with the RTA. The Adjudicator made no order with respect to the counter application at all.
- The tenant’s complaint that the Adjudicator had explained to Rentstar what they had to do to lodge a claim against him for damages can therefore be understood. There was in fact no existing claim for damages against him. In the belief that there was such a claim, the Adjudicator had gone into detail about how it should be dealt with. In doing so, the tenant says that the tribunal advised Rentstar how to bring a claim against him and this demonstrated bias.
- Appeals in the minor civil disputes jurisdiction, as this matter is, require leave to appeal before they can be made. Such leave may be given if there is a question of general importance which should be resolved by the Appeal Tribunal or if there is a reasonably arguable case on appeal which could result in substantive relief.
- Here it needs only one citation from legal authority to show that ground (c) of the appeal is reasonably arguable. That is from Harrison & Anor v Meehan  QCA 315. This was an appeal from QCAT proceedings. Sofronoff P, having recited section 28(3)(d) and section 29 of the QCAT Act, then said:
None of that permits the Tribunal to assist parties to prove their respective cases or to give advice to parties about how to conduct the proceedings. To do so would necessarily involve unfairness to one of the parties. Notwithstanding the desirability for informality in proceedings before the Tribunal, the need for impartiality remains paramount.
- Accordingly I give leave to appeal.
The statutory framework
- It would seem necessary to set out sections 28 and 29 of the QCAT Act in full.
28 Conducting proceedings generally
- (1)The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
- (2)In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
- (3)In conducting a proceeding, the tribunal—
- (a)must observe the rules of natural justice; and
- (b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
- (c)may inform itself in any way it considers appropriate; and
- (d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- (e)must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
- (4)Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.
29 Ensuring proper understanding and regard
- (1)The tribunal must take all reasonable steps to—
- (a)ensure each party to a proceeding understands—
- (i)the practices and procedures of the tribunal; and
- (ii)the nature of assertions made in the proceeding and the legal implications of the assertions; and
- (iii)any decision of the tribunal relating to the proceeding; and
- (b)understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party’s or witness’s age, any disability, and cultural, religious and socioeconomic background; and
- (c)ensure proceedings are conducted in a way that recognises and is responsive to—
- (i)cultural diversity, Aboriginal tradition and Island custom, including the needs of a party to or witness in the proceeding who is from another culture or linguistic background or is an Aboriginal person or Torres Strait Islander; and
- (ii)the needs of a party to, or witness in, the proceeding who is a child or a person with impaired capacity or a physical disability.
The steps that can be taken for ensuring a person understands something mentioned in subsection (1)(a) include, for example—
- (a)explaining the matters to the person; or
- (b)having an interpreter or other person able to communicate effectively with the person give the explanation; or
- (c)supplying an explanatory note in English or another language.
- When the tribunal was established in 2009, the intention was that it would operate differently from the mainstream courts:
Generally, the tribunal is to operate in a more pro-active, inquisitorial manner than what is expected of a traditional court. The primary object is to provide the parties with substantive justice as expeditiously and economically as possible, without the tribunal being bound by formal rules of evidence or procedure.
- The provisions as enacted reflect this approach. Section 28(3)(c) permits the tribunal to inform itself in any way that it considers appropriate, and 28(3)(e) requires the tribunal to ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. It is noticeable that this could include calling a witness.
- Section 28(3)(b) provides that the tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures and 28(3)(d) requires the tribunal to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit.
- The aim is for the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- By section 29(1) of the QCAT Act, the tribunal must take all reasonable steps to ensure that each party understands the practices and procedures of the tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the tribunal relating to the proceeding.
- Although it can be seen from the above that the tribunal decision maker would intervene where appropriate in order to reach a just conclusion, the tribunal must also make orders it considers fair and equitable in order to resolve the dispute, and by section 28(2) in all proceedings must act fairly and according to the substantial merits of the case, and by 28(3)(a) must observe the rules of natural justice.
- There appears to be a certain conflict arising from these things when taken together. On the one hand the tribunal must take an inquisitorial role and seemingly under section 28(3)(e) actively seek evidence, whilst under section 29(1) ensuring that the parties understand what is happening, but at the same time the tribunal must still appear to be acting impartially. In practice, bearing in mind that parties are usually unrepresented and usually have little knowledge of the law or of evidential matters, this is one of the most difficult things faced by the tribunal’s decision makers.
- However, QCAT’s former President Justice Alan Wilson pointed out in his paper Tribunal Proceedings And Natural Justice: A Duty To Inquire, that sections 28 and 29 do work together:
They are not couched, however, in imperative terms. QCAT is obliged to ensure it has all relevant material but only, in the words of s 28, ‘so far as is practicable’. It must aid parties, s 29 says, but only to the extent of taking ‘reasonable steps’. Groves suggests,* and I agree, that this does not require the tribunal to assume responsibility for or take control of a party’s application. In particular, the language cannot sensibly be stretched to encompass an exhortation to assume an overarching duty to inquire. At the highest, these provisions alert tribunal members to be active and not passive.
* Matthew Groves, The Duty to Inquire in Tribunal Proceedings (2011) 33 Sydney Law Review 177, 184.
- In this appeal I have to decide whether the Adjudicator’s statements demonstrated bias or partiality or were procedurally unfair, that is to say a breach of natural justice.
- The suggestion in Harrison that it will always be unfair for the tribunal to assist parties to prove their respective cases or to give advice to parties about how to conduct the proceedings is obviously a concern in this respect because it does appear that this is what the Adjudicator did. For this reason, I need to understand more clearly how far tribunal decision makers can go.
- Although the passage in Harrison was seemingly obiter, it has been accepted by the Appeal Tribunal as expressing the limit of the obligation at least under the two statutory provisions referred to. The two statutory provisions are respectively the requirement to act with as little formality and technicality and with as much speed as the legislation and proper consideration of the dispute permits [section 28(3)(d)], and the taking of all reasonable steps to ensure proper understanding and regard (section 29).
- And in Savage Resorts Pty Ltd v Maksymiuk  QCATA 184, Justice DG Thomas, President said, when referring to section 29:
The obligation to take reasonable steps do not require the Tribunal to provide legal advice to the parties – indeed such action would be inappropriate and improper.
- A somewhat stronger deprecation of the tribunal giving legal advice appears in Drift Palm Cove Body Corporate CTS 36253 v Drift Palm Cove Management Pty Limited  QCATA 005, where Dr Cullen said (Senior Member Oliver agreeing):
QCAT cannot, and should not, provide legal advice
 In relation to the grounds stated by the Body Corporate, and in the event that this decision is read by other prospective appellants, I think it prudent to comment further. Whilst the Tribunal is obliged to create procedural fairness for parties that appear before it, there is no obligation on the part of the Tribunal to provide any form of legal advice to parties. This is the domain of the legal profession, of which there are many well-qualified members practicing in the area of body corporate law.
 Further, it is important to also appreciate that there are reasons why the Tribunal cannot apprise parties of legal rights, the most important perhaps being that the Tribunal, as a neutral decision maker, cannot be seen to advantage any party through the giving of legal advice.
- It seems to me however, that in practice there are many circumstances where the tribunal will intervene entirely properly where the result is that one party or both parties are assisted to prove their cases, or effectively receive advice about how to conduct the proceedings. Ironically, this appeal is itself an example of this. There was an oral hearing of the appeal. The tenant made submissions to me in the hearing but made only general references to the Adjudicator’s statements and made no reference to Harrison or to any other authority, and made no reference to the tribunal’s statutory provisions. It is clearly right that in this appeal I should provide detail about the Adjudicator’s statements and refer to the relevant legal matters. In doing so I am clearly assisting the tenant in his appeal. But could Rentstar complain about this?
- I shall now give other instances where, in practice, the tribunal properly intervenes and this results in assistance or advice.
Acting in an inquisitorial manner
- One result of the inquisitorial nature of the tribunal’s proceedings is that the tribunal’s decision makers will often take an active part in testing the evidence. It was said in Re: Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
- This approach has been adopted in the tribunal and recently endorsed in Rowan v Beck  QCATA 20. In that appeal it was contended that the Member hearing the matter had effectively cross examined a witness and therefore displayed bias. The Appeal Tribunal considered however, that the Member was merely testing the evidence and giving the witness an opportunity to demonstrate that it was truthful.
- Another result of the inquisitorial nature of the proceedings is that the tribunal may attempt to fill gaps in the evidence and indeed may be obliged to do so because of the statutory provisions allowing the tribunal to inform itself in any way that it considers appropriate, and requiring it so far as is practicable, to ensure that all relevant material is disclosed to enable the tribunal it to decide the proceeding with all the relevant facts.
- A stark example was Davis v Metro North Hospital and Health Service  QCAT 18, a discrimination complaint where neither party called an important witness; instead the tribunal called the witness, seemingly turning the case in favour of the complainant.
- Then in Thorne v Toowoomba Regional Council & Tytherleigh  QCATA 128 a self-represented complainant succeeded on liability but there was no evidence of the economic loss which was claimed, so the award given at first instance under that head was zero. The Appeal Tribunal allowed an appeal, deciding that since the complainant had given notice of a claim under that head, the tribunal should have discussed the relief sought and the applicable legal concepts, and she should have been told that the evidence was insufficient. Since the quantification of the loss involved complex legal concepts, it was not unfair to a represented respondent to give the complainant more time to assess her case, make submissions and perhaps obtain relevant evidence. This was also a positive obligation under section 29.
- The tribunal does therefore, assist the parties to prove their respective cases.
- There are several tribunal appeals however, where the limits of the obligations in section 29 have been considered. In Harrison and Anor v Meehan  QCATA 197 it was said that the tribunal is not required by section 29 to tell a party how to quantify their claim or to explain that their expert will need to give an opinion about the reasonableness of the costs of completion. In a residential tenancy matter, section 29 did not require the tribunal to offer a tenant an adjournment to obtain a quote for repairs. This is because it is reasonable to expect a party of normal capacity to obtain their own quote: Cameron v Spalding  QCATA 145. In Birnbaum v Akero  QCATA 18, there was no duty to ask for better photographs of an obscured view because the duty to enquire was ‘very limited’.
- In none of the cases cited above, was the effect of section 28(3)(e) considered. The explanation for this might be that although section 28(3)(e) requires the tribunal to ensure, so far as practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts, it may well be that it was not practicable to do so in the cited cases, bearing in mind the tribunal’s obligation to deal with matters in a way that is economical informal and quick.
- Some tribunal appeals have specifically considered section 28(3)(e). In Lawler v Department of Housing and Public Works, State of Queensland  QCATA 21 it was said that section 28(3)(e) did not require the tribunal to investigate matters not put before the tribunal, seemingly because it would not be practicable to do so. A similar thing was said in Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28 where a party was legally represented: then the tribunal would expect the legal representative to gather and present all relevant evidence, although if critical material was obviously omitted the tribunal would call for it. And in Wellard v Nicol  QCATA 77 it was said that although the tribunal had inquisitorial powers there was a risk of compromising neutrality if they were exercised in a case where neither party was represented and there was no apparent imbalance in capacity. In such a case there was no obligation to receive oral evidence from a particular witness who had not provided a statement of evidence in accordance with directions.
Identifying issues and forewarning parties about the tribunal’s approach
- The tribunal has no system of pleadings and its starting point is that parties are not represented. Therefore parties will often not be aware of the factual and legal issues which arise from their contentions. In such circumstances it is often the case that a fair resolution of the dispute can only be achieved if the tribunal takes on the task of identifying those factual and legal issues. Often this is also good case management, because it enables the tribunal to identify what is relevant and what is not relevant material or evidence presented by the parties, and to understand the extent of the tribunal’s resources which should be applied to resolve the dispute.
- In an appeal from the Administrative Appeals Tribunal, in Grant v Repatriation Commission (1999) FCA 1629 it was said:
An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant
- In Salmond v S & S Accounting Services Pty Ltd  QCATA 218, Justice Alan Wilson President, confirmed in a minor civil disputes appeal that the same approach applied to QCAT, so that it may be required to initiate inquiries suggested by material already before it.
- An example of this in practice was Harbour Day Spa v Tree Harmony  QCAT 692, where the tribunal applying section 29, invited the applicant to consider an alternative basis of claim arising from the same facts relied on.
- The importance of defining the issues is reflected in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) applicable to the mainstream Queensland courts. The UCPR require the pleadings to define the issues, or where there are no pleadings, the parties may be required to agree a statement of facts and issues or the court may settle such a statement itself. Directions made by the court may make orders ‘relating to’ the defining of the issues. This is in the context that one of the overriding obligations of the parties and the court in the UCPR ‘is to facilitate the just and expeditious resolution of the real issues ...’.
- The rules governing the courts in England and Wales go a step further, imposing a duty on the court to manage cases including identifying the issues at an early stage, deciding promptly which issues need full investigation and trial and accordingly disposing summarily with the others, and deciding the order in which issues are to be resolved.
- The QCAT rules are silent about issues, except that one of the purposes of a compulsory conference is said to be to ‘identify and clarify the issues in dispute in the proceeding’, although there is no guidance about what should be done with the result of this task.
- It has been recognised in the tribunal however, that identification of the issues is one of the obligations imposed by section 29(1)(a)(ii) of the QCAT Act which requires the tribunal to take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions. This would include ‘assistance with the legal implications of the issues in the case’.
- As for forewarning the parties about the factual matters the tribunal will be taking into account to resolve the dispute and the legal principles which will be applied, it is recognised that parties need to understand, and be given an opportunity to comment on, the tribunal’s likely approach to the determination of the dispute, including being able to comment on material adverse to the party’s case. This is closely connected to the right of a party to be heard on those matters which may be of important to the tribunal in coming to a decision.
- In any case where the tribunal identifies the issues and forewarns the parties in this way, is the tribunal assisting parties to prove their respective cases or giving advice about how to conduct the proceedings?
- Suppose for example, a minor civil dispute applicant claims a refund of the purchase price of a truck which he had purchased some six years previously from a haulier colleague because he has discovered that the engine in the truck had a smaller horse power rating than as represented at the time of purchase.
- The Adjudicator hearing the claim would explain that the tribunal would need to examine whether the purchase was a private sale or a sale in trade or commerce. The Adjudicator would explain that the tribunal would have no jurisdiction to hear a compensation claim under a private sale unless the claim was for the recovery of a debt or a liquidated demand of money. That means that if it was a private sale the tribunal would have to decide whether a claim for a refund of an ascertained sum was a claim for recovery of a debt or a liquidated demand of money.
- The Adjudicator would explain that if the tribunal did have jurisdiction to deal with the claim under a private sale then it would be under the Sale of Goods Act 1896 (Qld) and section 16 would apply (sale by description); and if the sale was in trade or commerce then it would be under the Australian Consumer Law and section 56 would apply (guarantee relating to the supply of goods by description).
- The Adjudicator would explain that either way, the applicant would need to show that the truck was supplied by description and that the truck had not corresponded with the description.
- The Adjudicator would explain that there was a question whether the claim was barred by the statute of limitations.
- And finally, the Adjudicator would explain that if the claim was made out, the question would arise whether the applicant could now reject the truck or whether, six years having passed, whether he was limited to compensation based on the difference between the value of the truck as supplied and its value as represented. The Adjudicator might point out, without deciding the matter, that it was likely that it was too late to reject the truck after six years.
- In the above case, the Adjudicator’s explanation would inform the parties of the factual and legal issues arising from what happened, and it would alert the parties to the way in which the tribunal would be handling the claim. And the Adjudicator’s explanation that compensation might be based on difference in values might alert the parties to the need to consider what these values were.
- So, assuming the parties had no prior knowledge about these things, they would be greatly wiser after the explanation than before. Can it be said that in those circumstances the tribunal had assisted the parties to prove their respective cases or had received advice about how to conduct the proceedings?
- It might be said that in this example, the Adjudicator’s explanation was legitimate and fair because both sides have received a roughly equal amount of assistance and advice. But there will be some claims where the assistance and advice would need to be all one sided. Suppose for example the applicant had an excellent case, except for the limitation point. Clearly the Adjudicator would not allow the claim to succeed even if the respondent was completely unaware that there was a limitation defence. Yet in those circumstances only the respondent would be assisted by the tribunal’s intervention.
- There is also a difficulty with the ‘equal amount of assistance and advice’ approach in that there would clearly be problems assessing whether the assistance and advice was balanced, either at the time it is given, or later on appeal.
- It is probably better to regard such proper interventions by the tribunal at least as not giving legal advice of the type envisaged in Savage Resorts and Drift Palm Cove. This is because any such proper intervention by the tribunal will be addressed to both parties, whereas legal advice would only be addressed to one party and would be confidential to that party. This distinction is not fanciful, because in mediations and compulsory conferences it would be common for the tribunal to talk to one party in the absence of the other. Another distinction would be that the tribunal’s intervention would be done by a decision maker acting in a judicial capacity, and not in a professional capacity. Again this is not fanciful, because as explained by Dr Cullen in Drift Palm Cove, giving legal advice is the domain of the legal profession.
- If the ‘assistance and advice’ referred to in Harrison is regarded as really a reference to ‘legal advice’ in the same way as was envisaged in Savage Resorts and Drift Palm Cove, then a workable balance of the conflicting statutory provisions is achieved.
- Finally it is of interest to note C Davidson and Aboriginal & Islander Child Care Agency (Unreported, AIRC, 12 May 1998) 534/98 where the Full Bench of the Australian Industrial Relations Commission set out guidelines for members as to the assistance which they could provide to an unrepresented party. It was said that the assistance provided by a member may, depending on the circumstances, include:
- (i)identifying the issues which are central to the determination of the particular proceedings;
- (ii)drawing a party's attention to the relevant legislative provisions and key decisions on the issues being determined;
- (iii)asking a party questions designed to elicit information in relation to the issues which are central to the determination of the particular proceedings;
- (iv)assisting a party to conform to the Browne v Dunn principle and other procedural rules designed to avoid unfairness; and
- (v)drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence.
A member may also intervene, to an appropriate extent, by asking questions of witnesses. Such a role is appropriate in the following circumstances:
- (a)to clear up a point that has been overlooked or left obscure;
- (b)to obtain additional evidence to better equip the member to choose between the witnesses' versions of critical matters;
- (c)to exclude irrelevancies and discourage repetition;
- (d)to ask admissible questions which a party is unable, for the moment, to formulate; and
- (e)to facilitate expedition in the progress of the proceedings.
- It is true that the requirement of overall fairness means that there must be some limit to the tribunal’s ability to intervene. One limit is probably where it would mean that the decision maker no longer reasonably appears to be impartial. In MZAIB v Minister for Immigration and Border Protection  FCA 1392 Mortimer J explained that the authorities suggest intervention is warranted as far as is necessary to ensure fairness while preserving the appearance of neutrality. He said:
In my view, however, the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial.
- The upshot of the above discussion is, I think, as follows.
- The tribunal’s inquisitorial role will often require it to establish and explain the factual and legal issues in the case, and to test and sometimes to fill gaps in the evidence. The need to forewarn the parties about the approach the tribunal will take to resolve a dispute may often provide clues to the parties as to the evidence they need to adduce. When parties are not represented it is likely that their knowledge and understanding of the issues, principles and correct preparation of the case will therefore be enhanced. In some cases that enhancement will be greater on one side or another. None of these things can legitimately be objected to unless the tribunal reasonably appears to be acting partially rather than independently and fairly. For this reason it is preferable that if there is a risk that the tribunal might appear one sided, the tribunal gives some explanation about the intervention to demonstrate that there is no unfairness or partiality involved.
Consideration of the appeal
- Returning to the grounds of appeal, it is convenient to set them out again:
- (a)The Adjudicator came to the wrong conclusion on the evidence.
- (b)The Adjudicator should have found in favour of the tenant because the tenant had complied with directions about obtaining a report from a gutter specialist and Rentstar had not complied with those directions.
- (c)An allegation of bias demonstrated by the Adjudicator advising Rentstar how to bring a damages claim against the tenant. Alternatively this may be put as procedural unfairness or breach of natural justice.
- As for (a), it can be seen from the transcript that the Adjudicator went carefully through the evidence with the parties and then gave full reasons for the findings made. In this appeal the tenant relies particularly on the Adjudicator failing to find that the guttering was out of repair based on the videos he had submitted, and failing to find that this had caused damage to his personal property. It is clear from the transcript that the Adjudicator had viewed the videos, but was not satisfied they were sufficient to show lack of repair because it was not uncommon for gutters to overflow in heavy rain, and there was also the possibility that they were obstructed by leaves or debris. Clearly this decision was open to the Adjudicator on the evidence and so the Appeal Tribunal is unable to reverse it. This ground of appeal does not succeed.
- As for (b) it was submitted that the Adjudicator should have found in favour of the tenant because the tenant had complied with the tribunal’s directions about obtaining a report from guttering specialists but Rentstar had failed to comply. The context of this was that at a hearing two months before, having heard the parties the Adjudicator directed that the tenant should provide the names of three gutter specialists to Rentstar, then Rentstar would choose one of those to report about the state of repair of the gutters, and the cost of the report would be shared. Although the tenant submitted the names of three contractors to Rentstar there was a dispute about whether two of them were gutter specialists and so Rentstar claimed that the tenant had not complied with the directions and the report was not obtained.
- Both at the earlier hearing, and in the final hearing, the tenant was content to rely on the videos and his own evidence about the gutters. This meant that at the final hearing both parties were content for the Adjudicator to decide the gutter disrepair issue on the evidence available. Since it was not obvious who was at fault for the failure to obtain the report, the Adjudicator rightly decided not to decide that issue and simply proceeded to decide the matter of disrepair of the gutters on the evidence available.
- It is not suggested in this appeal that the Adjudicator was wrong to proceed in this way. Instead, the tenant submits in this appeal that in some way his evidence was improved by his compliance with the direction and by Rentstar’s non-compliance.
- This however, cannot be the case. The only way that the question of compliance with the directions could have improved the tenant’s case would be if the tribunal were to act under section 48 of the QCAT Act, on the basis that Rentstar had failed to comply with a tribunal order or direction without reasonable excuse causing unnecessary disadvantage to the tenant. But if the tribunal had tried to use section 48 in this way it would not have been expedient or fair, because it would have entailed deciding which party had failed to comply with the directions if at all, and then to decide whether the failure was sufficiently serious to warrant action under section 48. Any party who lost the case on that basis would rightly complain that they had been deprived of a fair hearing.
- The way the Adjudicator proceeded was much better than the section 48 route because it meant that the real issue between the parties was properly determined on the available evidence.
- This ground of appeal does not succeed.
- As for (c), I refer back to the Adjudicator’s statements (a) to (e) set out earlier in these reasons.
- The possibility of bias needs to be viewed from the position of a fair-minded lay observer. Might such a person reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the decision maker is required to decide?
- As Kirby J said in the High Court in Johnson v Johnson (2000) 201 CLR 488 that the observer is also presumed to know:
…commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
- Also in this ground of appeal is the possibility that the tribunal did unfairly give assistance or advice to Rentstar in the manner complained of.
- One question is whether it is right to view the Adjudicator’s statements as having been made in the context of a valid counter application for damages against the tenant, or whether they should be regarded as having been made in the absence of any such counter application, bearing in mind that in fact there was no valid counter application.
- It seems to me that it would have been obvious to anybody attending the hearing, and I am sure was obvious to the tenant, that the Adjudicator’s statements (a) to (e) were all made in the belief that there was a properly constituted counter application by Rentstar seeking compensation for break lease from the tenant. It is therefore in that context that these statements should be considered. To put this another way, the fact that the counter application was not properly made cannot render objectionable something which was unobjectionable.
- It seems to me that statements (a) to (c) are clearly unobjectionable. (a) was of the nature of case management, (b) was within section 29(1) as explaining the procedures of the tribunal and (c) was within section 29(1) as explaining the legal implications of any claim for compensation for break lease, including the usual approach that the tribunal would take to such claims.
- Statements (d) and (e) might be taken together. (d) was an early indication of the Adjudicator’s view about the merits of the claim for compensation for break lease. In statement (e) the Adjudicator explains what documents would be relevant to the issue of the duty to mitigate.
- Both statements need to be considered in the light of the inevitable adjournment of the proceedings because of the missing particulars of the compensation in the counter application and because the tenant said he had not received the counter application. From what the Adjudicator said, the tenant was aware that the counter application would have to be heard on a later date. It is important that it was likely that the final hearing would also be on the telephone (rather than in person) in accordance with the tribunal’s practice directions as amended to suit Covid-19 restrictions at the time. If any documents did exist relevant to mitigation as described by the Adjudicator, they were all in the possession of Rentstar and so they would need to be sent to the tenant and to the tribunal in advance of the hearing. This accorded also with the requirement in the practice direction itself. The Adjudicator was right to mention this because the counter application would not have generated the tribunal’s usual instructions about documents in accordance with the practice direction.
- It seems to me that the further step taken by the Adjudicator to identify what documents would be relevant to the mitigation issue did no more than ensure that all necessary documents were before the tribunal. As mentioned above, the tribunal was obliged to ensure that this was the case in so far as was practicable. The fact that the counter application could not be heard immediately and would need an adjourned hearing meant that it was practicable to arrange for the documents to be made available.
- It might also be pointed out that the common law position is that a person facing a contractual damages claim (like the tenant here) has the burden of proof to show that the person seeking compensation has failed to mitigate loss. Although in inquisitorial proceedings the placement of this burden would probably have little impact, it makes it more difficult for the tenant to complain about the tribunal ensuring that all reasonably available evidence has been presented.
- The need to preserve the appearance of neutrality means that it will often be helpful if a decision maker explains the reason for the intervention to the parties.
- Here, the Adjudicator did this. As the Adjudicator explained, the next hearing was also likely to be on the telephone and in such telephone hearings it was difficult to deal with documents which had not previously been disclosed. The Adjudicator also explained that giving an early indication of the merits of the mitigation issue and ensuring that the relevant documents were disclosed would assist the parties to consider whether they could reach an ‘agreed amount’. It would appear that the Adjudicator had in mind here the tribunal’s obligation to encourage the early and economical resolution of disputes.
- Since the Adjudicator was merely case managing the dispute and ensuring that all relevant material was disclosed as required by section 28(3)(e), the Adjudicator was not giving legal advice to Rentstar. There is nothing to show one way or another as to whether Rentstar was in fact assisted in its prospective claim against the tenant by anything the Adjudicator said. But even if this did happen, it was not unfair nor did it demonstrate bias because it was obviously right for the Adjudicator to ensure that all relevant material was disclosed and properly before the tribunal and that the issues and the tribunal’s approach to the resolution of the dispute was understood by the parties.
- One ground of appeal had sufficient substance for leave to appeal to be given, but ultimately the appeal has failed.
 This was under section 309 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA).
 Under section 362 of the RTRAA.
 All claims under the RTRAA are categorised either as ‘urgent’ or ‘non-urgent’ by section 415.
 Transcript 1-20 lines 30 and 47, 1-26 lines 13 to 26.
 Transcript 1-12 line 45, 1-16 line 37, 1-19 line 38, 1-27 line 2, 1-32 line 43, 1-33 line 4.
 Transcript 1-28 line 9, 1-30 line 45.
 Transcript 1-31 line 20.
 Transcript 1-31 line 37.
 Transcript 1-21 line 25, 1-24 line 41.
 Transcript 1-25.
 Transcript 1-32.
 Transcript 1-33 line 24.
 As required by section 415 of the RTRAA before a claim in the tribunal can be brought.
 Section 142(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
 Explanatory note to clause 28 of the QCAT Bill 2009.
 Section 98(1).
 Section 13(1) - this applies only to minor civil disputes.
 Presented at Customs House, Brisbane 26 September 2012.
 Davis v Gray  QCATA 147, ; Stone v Grundy  QCATA 68, ; Queensland Building & Construction Commission v Whalley  QCATA 38, .
 Gleeson CJ, Gaudron and Gummow JJ, .
 Senior Member Howard and Member Fitzpatrick, , , .
 The reasons for calling the witness appear at ,  and .
Senior Member Endicott and Member Guthrie, -.
 Senior Member Brown and Member Guthrie, , .
 Justice Alan Wilson, President,  and .
 Senior Member O'Callaghan, Member Ryan, .
Section 3(b) QCAT Act.
 Senior Member O'Callaghan, Member Traves, , .
Senior Member Endicott with whom Judge Kingham (Deputy President) agreed, , .
 Member Kanowski with whom Senior Member Stilgoe OAM agreed, , .
 Merkel, Goldberg and Weinberg JJ, .
 Dr John Forbes, Members McBryde and Judge, .
 Rule 157.
 Rule 480(2).
 Rule 573.
 Rule 5(1).
 Civil Procedure Rules 1998 Part 1.4.
 Section 69(a) QCAT Act.
Sloane v WJR Investments Pty Ltd, Ramsey and Galloway  QCAT 647, , Senior Member Endicott.
 Lida Build Pty Ltd v Miller  QCATA 17, , Justice Alan Wilson, President.
 Points emphasised by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152,  and Minister for Immigration and Border Protection & Anor v SZSSJ and Anor (2016) 259 CLR 180, .
 Chandra v Queensland Building and Construction Commission  QCA 335,  to , Davis v Gray  QCATA 147, .
 Page 9.
 This is a reference to Browne v Dunn (1894) 6 R 67, an English House of Lords case in which it was said that where it is to be suggested that a witness is not speaking the truth on a particular point it is absolutely essential to direct the attention of the witness to this so that the witness may explain and comment on the matter: Per Lord Herschell LC at 70-71.
Transcript 1-4 line 36 and 1-5 line 22.
 Transcript 1-6 line 37, 1-18 line 41, 1-19 line 21, 1-29 line 9.
 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.
 At 508-9, .
 Paragraph 2 of Practice Direction No. 5 of 2020 updated on 15 May 2020.
 Paragraph 3 of the Practice Direction.
 Section 28(3)(e) of the QCAT Act.
T.C. Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130, .
Transcript 1-33 line 44. Both parties were on the telephone for the hearing on 21 May 2020.
 Transcript 1-34 line 14.
 Section 4(b) of the QCAT Act.
- Published Case Name:
Van Zyl & Anor v Rentstar
- Shortened Case Name:
Van Zyl & Anor v Rentstar
 QCATA 120
29 Sep 2021