Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks
[2021] QCATA 146
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- Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks[2021] QCATA 146
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Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks[2021] QCATA 146
Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks[2021] QCATA 146
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks [2021] QCATA 146 |
PARTIES: | tamarin pty ltd & otmoor pty ltd as trustee (appellants) |
v | |
frederick creagh wicks (respondent) | |
APPLICATION NO/S: | APL168-20 |
ORIGINATING APPLICATION NO/S: | MCDO 50242 of 2019 (Cleveland) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 8 December 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where after an oral hearing the Adjudicator reserved a decision about whether there was jurisdiction to hear the claim as a minor civil dispute – where the Adjudicator gave a decision without giving the parties an opportunity to make submissions on the jurisdiction issue – whether the common law or the provisions of section 95(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) require such an opportunity to be given – whether, if any such submissions would be futile, it is procedurally unfair not to give that opportunity LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – whether a claim under a guarantee, where the enforceable debt is arrears of rent of a retail shop, is a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) – whether this is the case even after amendments to the Act in 2016 ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the tribunal’s minor civil dispute jurisdiction extends to hearing a claim under a guarantee, where the enforceable debt is arrears of rent of a retail shop, the claim being a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) Acts Interpretation Act 1954 (Qld), s 14B, Schedule 1 Human Rights Act 2019 (Qld), s 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 11, s 28, s 29, s 95, Schedule 3 Retail Shop Leases Act 1994 (Qld), s 66, s 103 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Athian v Mayot [2017] QCATA 32 Carmelo Peter Scuderi & Caterina Scuderi ATF The C & C Group Trust v Perez [2018] QCAT 45 Chandra v Queensland Building and Construction Commission [2014] QCA 335 Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98 Davis v Gray [2018] QCATA 147 Edwards v Edgar & Wood Solicitors [2018] QCATA 154 Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394 Italiano v Carbone & Ors [2005] NSWCA 177 Kioa v West (1985) 159 CLR 550 Pike v Rockhampton Optical Pty Ltd [2011] QCATA 200 Real Management Solutions Pty Ltd v Brisbane City Council [2016] QCAT 370 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Rock Bottom Fashion Market Pty Ltd v Innes, Innes and H R and C E Griffiths Pty Ltd [1998] QCA 33 Roll’d Australia Pty Ltd t/as Roll’d Australia v Challenger Life Nominees Pty Ltd [2021] QCAT 210 Romano v Capitol Bikes Pty Ltd & Anor [2018] QCAT 108 Stead v State Government Insurance Commission (1986) 161 CLR 141 The Psychology Board of Australia v D [2010] VSC 375 |
APPEARANCES & REPRESENTATION: | |
Appellants: | Self-represented |
Respondent: | Self-represented |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This appeal concerns two matters. The first is whether the tribunal’s minor civil dispute jurisdiction extends to hearing a claim under a guarantee, where the enforceable debt is arrears of rent of a retail shop. The second is whether an Adjudicator making such a decision about jurisdiction must call for submissions about it, and whether it is procedurally unfair (a breach of natural justice) not to do so.
- [2]The claim was brought as a minor civil dispute by the appellants, Tamarin Pty Ltd & Otmoor Pty Ltd, against Barry Solomon and Frederick Wicks. The appellants were the lessors of lease of a retail shop unit in Capalaba granted to Rugs Qld Pty Ltd which traded as Rugs-a-Million. Mr Solomon and Mr Wicks were directors of the lessee company and were guarantors of sums owing under the lease. The claim was for $16,292.72, being $16,107.72 for arrears of rent, $185 for change of locks, plus various formal costs.[1]
- [3]Solicitors for Mr Wicks filed a formal response to the claim which gave the following defence:
The second respondent denies the applicant’s claim in whole on the basis that the alleged written guarantee is void due to a material alteration to the loan and guarantee document so that no sum became due and owing by the second respondent.
- [4]The other respondent, Mr Solomon, informed the tribunal that he wished to defend the claim on the same basis. A default decision which had been entered against him was set aside and he was directed to file a response to the claim within 28 days. However, he did not do this and a second default decision was entered. So by the time of the hearing on 23 January 2020 there was a default decision entered against him. He did not attend the hearing on 23 January 2020 and is not party to this appeal.
- [5]There is correspondence in the minor civil dispute file showing that the appellants disputed the point made in Mr Wicks’ formal response to the claim.[2]
- [6]None of the parties raised the question of jurisdiction of the tribunal to hear the claim as a minor civil dispute.
- [7]The matter was heard on 23 January 2020 by an Adjudicator sitting in Cleveland. What happened at the hearing can be seen from the transcript which has been obtained by the Appeal Tribunal. Both parties were on the telephone at the hearing, and the appellants were represented by a property manager and Mr Wicks represented himself. The Adjudicator pointed out to them that there was a question whether the tribunal had jurisdiction to hear the claim as a minor civil dispute.[3] The Adjudicator explained that the prevailing view, at least in respect of a minor debt claim,[4] was that there was no jurisdiction to hear a retail shop lease matter as a minor civil dispute. The Adjudicator explained that it would be necessary to make a decision as a preliminary issue whether or not the tribunal had jurisdiction.[5]
- [8]There was then some discussion about whether it was best to hear the case on that day or whether to postpone it to another day. The consensus was that it would be best to postpone to another day, although Mr Wicks was less happy about this than the property manager.[6] The Adjudicator said that if there was jurisdiction it would be listed for a hearing, but if not it would be listed for a ‘mention’ but either way it would be dealt with as quickly as possible.[7] Neither party expressed a wish to make submissions about jurisdiction.
- [9]Overall from what the Adjudicator said, it would have been clear to the parties that the Adjudicator would be deciding, without further contribution from the parties, whether or not the tribunal had jurisdiction to hear the matter as a minor civil dispute and that if there was no jurisdiction, there would be no hearing of the matter.
- [10]The order made on that day, which both parties would have received in writing, was:
Decision as to jurisdiction is reserved.
- [11]On 24 April 2020 the parties were notified by email that the Adjudicator would be giving a reserved decision in the matter on 28 April 2020 and the parties were given an opportunity to attend by telephone. Although one of the parties did give contact details for this to happen, it is unclear from the file whether anyone actually attended this second hearing.
- [12]At this second hearing the Adjudicator made the following order, giving reasons in full:
The application is dismissed for lack of jurisdiction.
- [13]There are several grounds of appeal. I need to deal with one of these first. It is on the basis that there was a failure to provide procedural fairness. It is said that:
Both parties were denied natural justice in not being requested to provide submissions on jurisdiction.
- [14]There are some other points made in the appeal which I can deal with summarily. Then there is a substantive ground of appeal which I shall need to consider in detail, about whether the Adjudicator was wrong to decide that the tribunal did not have jurisdiction to hear the claim as a minor civil dispute.
Ground of appeal on fairness: should the Adjudicator have called for submissions on the jurisdictional issue?
- [15]In the submissions in support of the appeal it is said that the tribunal failed to apply Athian v Mayot [2017] QCATA 32. In that appeal Senior Member Stilgoe OAM described as ‘appropriate’ the tribunal’s decision to ask for submissions on a jurisdictional question. Since Athian was not an appeal on the question of procedural fairness however, it is not authority for the proposition that submissions should be called for when such an issue arises.
- [16]Far stronger dicta can be found which tends to indicate, at least at first sight, that submissions should always be called for on crucial issues. For example in Davis v Gray [2018] QCATA 147:[8]
If the Tribunal identifies issues that it considers relevant and significant to the disposition of the proceedings, it is obliged to squarely raise them and invite the parties to give evidence and make submissions about them.
In deciding the proceeding with regard to issues identified by the Tribunal, but without the parties being given a proper or reasonable opportunity to provide evidence and/or submissions about them, the Tribunal failed to accord procedural fairness to the parties. This constitutes an error of law.
- [17]This passage in Davis seems to mirror the words of section 95(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which requires the tribunal to allow a party a reasonable opportunity to call or give evidence and to make submissions. I consider the wording and meaning of this provision in more detail later.
- [18]Having regard to what was said in Davis and in section 95(1) of the QCAT Act, I grant leave to appeal. It is clearly arguable that the Adjudicator should have offered an opportunity to the parties to make submissions on the question of jurisdiction. And if it were in breach of a rule of procedural fairness (natural justice) not to do so, then the decision is void,[9] requiring a substituted order or remission.
- [19]Both Davis and the words of section 95(1) seem to suggest that it is a blanket rule that in every case where a crucial issue for the final decision arises, the parties must be invited to give evidence and make submissions. Of course, whether or not the tribunal has jurisdiction to hear the application would be such a crucial issue.
- [20]Davis was a claim in the tribunal’s building jurisdiction. Might this principle also apply to a minor civil dispute? Davis started off as a claim for $50,000 but the amount at stake in the appeal was $38,544, and the order sought by the appellant if the appeal were successful was that it should be heard as a minor civil dispute capped at $25,000, which is the minor civil dispute financial limit. In the appeal before me, the amount at stake is some $16,800 odd, so there seems to be no reason on the grounds of proportionality that Davis should not apply to a minor civil dispute of the type being considered in this appeal.
- [21]However, what concerns me about laying down a blanket rule about this is that there is much authority that the concept of fairness cannot be stated in such a way and that what is important in some cases is whether the unfairness had a practical consequence.
- [22]
The content of the rules of procedural fairness will always be subject to the proper construction of the statute under which a particular decision is made. Procedural fairness does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
(citations omitted)
- [23]In Kioa v West (1985) 159 CLR 550 a number of passages from other cases were cited with approval to a similar effect:
Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules.[11]
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.[12]
What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business.[13]
- [24]Clearly, the applicable statutory provisions and the circumstances under which the tribunal operates are very relevant to the approach to fairness.
- [25]One consideration is the importance of access to the courts and tribunals. The Human Rights Act 2019 (Qld) which came into force in 1 January 2020, stated the right to a fair hearing as being a right to have a civil matter decided by a competent independent and impartial court or tribunal after a fair and public hearing.[14] This is a right recognised as a hallmark of a democratic society and was enshrined in the Magna Carta.[15] An impediment to access to such a judicial system may be unlawful.[16]
- [26]The tribunal offers an efficient dispute resolution process for minor civil disputes, in which the parties are not at risk of having to pay legal costs if they lose. Under section 43 of the QCAT Act, leave of the tribunal is required before representation is allowed. This has the stated purpose that parties will represent themselves unless the interests of justice require otherwise. Allied to this provision, the only costs which can be awarded for a minor civil dispute is the filing fee, and in some cases search and service fees.[17]
- [27]A person with a small claim who is denied access to the tribunal will lose the opportunity to take advantage of that efficient process. And if they have started a claim which is dismissed on jurisdictional grounds, they will forfeit the filing fee which they have paid. That person may instead go to the Magistrates Court to have the claim resolved subject to the territorial limit of jurisdiction of that Court. But this will probably be contrary to the applicant’s original intention and expectation in bringing a tribunal claim because in the Magistrates Court there is a right to legal representation[18] and the liability to pay legal costs will usually follow the event.[19]
- [28]One point to make is that the tribunal will be bound to raise matters of jurisdiction and determine such matters even if not raised by the parties.[20] So the question here is not whether it is right for the tribunal to raise such jurisdictional matters with unrepresented parties which might assist one party more than the other party,[21] but more the degree to which the parties should be asked to contribute to the tribunal’s decision making process about jurisdiction.
- [29]But because of the importance of the question of jurisdiction in the tribunal, both for the parties themselves on a private level, but also generally for the public, the tribunal would necessarily take some care in that decision making process.
- [30]In most cases, parties to a minor civil dispute will have no expectation or desire to contribute to such a decision making process. This is because usually parties are aware that the tribunal will take an inquisitorial role in conducting the proceedings, and will itself identify the issues and the legal principles which apply.
- [31]This has been the tribunal’s role from the outset as can be seen from the Explanatory Note to clause 28 of the QCAT Bill:
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.
- [32]Since most of the jurisdictional questions which arise in minor civil disputes are extremely obscure, in most cases parties to a minor civil dispute who are generally unrepresented will have difficulty in contributing to the debate. In such circumstances it might be thought that it would be more expedient not to offer such an opportunity.
- [33]However it was said in Chandra v Queensland Building and Construction Commission [2014] QCA 335:[22]
.. the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed.
- [34]This was also considered by Associate Judge Mukhtar in The Psychology Board of Australia v D [2010] VSC 375. He said:
Considerations of cost or efficiency have a part to play in assessing the content of procedural fairness in a given case. There can sometimes be competing demands of fairness and efficiency particularly in situations where bodies like VCAT, are given the statutory command to “conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit”. But such provisions do not justify the sacrifice of justice to expedience: see Barrier Reef Broadcasting Pty Ltd v Minister for Posts and Telecommunications (1978) 19 ALR 425. Much depends on the nature of the case, the interest involved, and the seriousness of the consequences for not observing what is said to be a particular requirement of procedural fairness.
- [35]Where the question of jurisdiction is clear and the parties express no desire to contribute to that question, it could indeed be unfair to require them to do so – because it would cause the parties unnecessary time and trouble to no purpose whatsoever, and simply result in delay.
- [36]And the tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[23] To achieve this, section 28(3)(b) of the QCAT Act 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. Section 28(3)(c) permits the tribunal to inform itself in any way that it considers appropriate, and 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.
- [37]Some statutory provisions expand on the requirement for the tribunal to act fairly. By section 29(1), 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.
- [38]By section 13(1), in minor civil disputes the tribunal must make orders it considers fair and equitable in order to resolve the dispute, by section 28(2) the tribunal must act fairly and according to the substantial merits of the case, and by 28(3)(a) must observe the rules of natural justice.
- [39]I need to consider the impact of section 95(1) of the QCAT Act on the question whether the appellant should have been given an opportunity to make submissions on the jurisdictional point in this application. It is helpful to set it out in full:
95 Evidence
- (1)The tribunal must allow a party to a proceeding a reasonable opportunity to—
- (a)call or give evidence; and
- (b)examine, cross-examine and re-examine witnesses; and
- (c)make submissions to the tribunal.
- (2)Despite subsection (1)—
- (a)the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and
- (b)the tribunal may refuse to allow a party to a proceeding to cross-examine a witness about a matter if the tribunal considers—
- (i)there is sufficient evidence about the matter before the tribunal; and
- (ii)the evidence has been sufficiently tested by cross-examination; and
- (c)for an expedited hearing under section 94, cross-examination or re-examination of witnesses is at the discretion of the tribunal, subject to the rules.
- (3)Also, the tribunal may place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses.
- (4)Evidence in a hearing—
- (a)may be given orally or in writing; and
- (b)if the tribunal requires, must be given on oath or by affidavit.
- (5)A member or adjudicator may administer or cause to be administered an oath for the purpose of taking evidence at a hearing.
- (6)A child can not be compelled to take an oath.
- [40]The terms of section 95(1) are mandatory. Although by section 28(1) the tribunal can decide its own procedure, this is made ‘subject to this Act, an enabling Act and the rules’. Hence section 28(1) cannot be taken to override the requirement in section 95(1) to allow a reasonable opportunity to make submissions. This was also the view of the New South Wales Court of Appeal in when construing closely similar provisions applying to the Consumer Trader and Tenancy Tribunal.[24]
- [41]It is noticeable that by subsections (2) and (3) the tribunal is permitted to limit the reasonable opportunity to call evidence or to cross-examine. But there is no corresponding provision for submissions. At first sight it seems therefore that the objective intention of the legislature was that the requirement to allow a reasonable opportunity to make submissions could not be limited.
- [42]Some further study of the provision however, indicates that this is not the case. I have regard here to what was said by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564,[25] that the maxim which applies here, expressio unius est exclusio alterius,[26] should be applied with caution and not so as to bring about a result which the legislature is unlikely to have intended.
- [43]It certainly seems clear that section 95(1) would not require the tribunal to give an opportunity to a party to make submission on totally irrelevant matters. This must be the case, because the tribunal should deal with matters quickly and efficiently.
- [44]But what is it in section 95 which allows the tribunal to restrict submissions only to relevant matters? The word ‘reasonable’ only seems to qualify ‘opportunity’. Interpreted literally, it means that an opportunity must be given and that opportunity must be a reasonable opportunity. It would not seem to allow no opportunity to be given at all. It seems to me however, that it is much more likely that the legislative intent is that the word ‘reasonable’ applies to the requirement generally. Read in that way, it would mean that in so far as is reasonable, the tribunal must give a party an opportunity to make submissions.
- [45]This is much more likely to be the intent because it accords much better with the common law rules of procedural fairness as expressed in Coffey and Kioa, and also in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, where Gleeson CJ stated:[27]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
- [46]In that case the appellant complained that he had the expectation that the decision which affected him would be made in a manner previously identified. But since he was not saying that in reliance upon that expectation he refrained from submitting any material to the decision maker, on a practical level the claim of procedural unfairness or breach of natural justice was not made out.
- [47]In other words, there will be no procedural unfairness if a different process would have made no practical difference to the outcome. This shows that it is not an absolute rule at common law that a party must be allowed an opportunity to make submissions. Where such submissions would be futile, the tribunal can refrain from providing such an opportunity.
- [48]This also accords with the concept that ‘fairness’ should be viewed objectively. This means that although a party may regard a hearing as unfair, this does not mean that it was. This view has been expressed in the Victorian courts,[28] and would be consistent with what is clearly an objective test when considering the possibility of procedural unfairness because of apprehended bias.[29] An objective test also seems to be required by the words ‘reasonable steps’ in section 29 (ensuring proper understanding and regard) and ‘reasonable opportunity’ to call evidence and make submissions in section 95. And it has been said that fairness should be judged from the point of view of a reasonable party with ‘knowledge of the material objective facts’.[30]
- [49]Past Appeal Tribunal cases show the principle of futility at work. On many occasions, the Appeal Tribunal has found that the tribunal has no jurisdiction to hear and determine a matter on a basis that has not been identified by either party, or by the tribunal below. When this has happened in a clear case, the Appeal Tribunal has without further reference to the parties, either set aside the order made by the tribunal or dismissed the entire claim for want of jurisdiction, or if the application had already been dismissed on other grounds, simply dismissed the appeal,[31] or the matter has been transferred to the Magistrates Court so that the jurisdictional problems could be avoided.[32] In other words a final decision on the question of jurisdiction has been made without hearing from the parties on the matter. On other occasions where the question of jurisdiction was less clear or where a factual enquiry was required, the parties have been asked for submissions on the issue,[33] or the question of jurisdiction has been returned to the tribunal for reconsideration.[34]
- [50]One thing which is important for the principle of futility is the nature of the decision made. It will be easier to say for certain types of decisions that a different process would have been futile. In Stead v State Government Insurance Commission (1986) 161 CLR 141, a distinction was made between a denial of an opportunity to make submissions on a question of law and on a question of fact. If a question of law, then the appeal court could decide that submissions would have made no difference to the result, in which case it would be futile to order a new trial. But if a question of fact, then it would no easy task for an appeal court to say the same, so it would be a mistake not to order a new trial.[35]
- [51]The corollary of this is whether, in order to show procedural unfairness, it is necessary to show that the decision would have been different if the process had been different. Where the decision maker is exercising a discretion, there is no such requirement.[36] The same approach would probably apply to questions of mixed law and fact.[37]
- [52]In this appeal, the Adjudicator was deciding solely a question of law. I should say at this juncture that the appellants do submit that the Adjudicator had not made sufficient findings of fact to decide the jurisdiction question, but as can be seen below this is incorrect because all the relevant facts were known or agreed. It was solely a question of law. This means therefore that in accordance with Stead there should be no consequence of being denied an opportunity to make submissions on the question of jurisdiction if those submissions could not possibly have changed the outcome.
- [53]I conclude therefore that whether or not there has been procedural fairness in any particular case will depend on a number of considerations. Since this appeal has challenged the Adjudicator’s decision on jurisdiction, I need to see whether this challenge succeeds, and then come back to the procedural fairness ground.
- [54]Before doing so there are certain points made in the appeal which can be dealt with summarily.
Appeal points which can be dealt with summarily
- [55]The appellants asked the tribunal for a recording of the Adjudicator’s decision and received an audio disc which they say was ‘inaudible for about one half the duration’. This is unfortunate, but the Appeal Tribunal has obtained a transcript of the decision made on that day and it certainly seems to be complete, so it does appear that a sufficiently good recording was made that day to enable the transcript to be done.[38] It is unclear therefore, why the appellants say that the disc which they received was difficult to hear.
- [56]In any case, this seems only to be mentioned in passing in the submissions,[39] and it does not seem to be relied on as a ground of appeal.
- [57]The appellants say that they did not get advance notice of the decision being given by the Adjudicator.[40] However it can be seen from the file that the Cleveland registry did notify their representatives who responded that they may be interested in attending. Again this does not seem to be relied on as a ground of appeal.
- [58]The appellants have made submissions about whether the appeal was lodged out of time,[41] but this is not an issue before the Appeal Tribunal because the appeal has been recognised as being in time.
- [59]The appellants have said that the tribunal could only strike out or dismiss a claim for lack of jurisdiction by invoking section 47[42] of the QCAT Act and as a court of record, this section should have been stated when making the decision.[43] This question would seem to turn on whether a claim purportedly brought in the tribunal but over which the tribunal has no jurisdiction is a nullity. If a nullity, then any order striking out the claim or dismissing it simply acknowledges its status. If not a nullity, then section 47 would be invoked when dismissing it. It would seem to be unnecessary to consider this further because it is not necessary for a tribunal order to state under which section of the QCAT Act, or an enabling Act, it is being made.
- [60]The appellants have made extensive submissions on the merits of the minor civil dispute application and in particular dealing with the defence raised in the response that there was a material change to the primary obligation.[44] These submissions would only be pertinent if the tribunal could hear the claim as a minor civil dispute after all, and that on the facts as found or agreed it could simply substitute a different decision.[45] There are two difficulties with this. Firstly, in this appeal I have decided that the tribunal does not have such jurisdiction and secondly if this is incorrect and in fact the tribunal does have such jurisdiction the proper course would be to remit this matter back to the tribunal for reconsideration rather than deal with it on appeal. One of the reasons for this is that there have been no factual findings, and it is unclear what facts are in dispute in the claim itself. Also Mr Wicks has not provided submissions on the merits of the claim.
Ground of appeal that the tribunal did have jurisdiction
- [61]It is said that the Adjudicator was wrong to decide that the tribunal had no jurisdiction to hear the claim as a minor civil dispute. The submissions, put in order of convenience for this appeal, are as follows:
- (a)The Adjudicator did not make sufficient findings of fact or consider the evidence sufficiently to be able to do so, to enable a decision to be made on the question of jurisdiction.[46]
- (b)Contrary to common understanding, amendments made in 2016 to the Retail Shop Leases Act 1994 (Qld) removed claims for rent arrears from the definition of retail tenancy dispute. On that basis claims for rent arrears can be heard as minor civil disputes.[47]
- (c)The indemnity and the guarantee were primary obligations and sufficiently separate from the lease for a claim under it not to be a retail tenancy dispute, and since the minor civil disputes claim was one to enforce an indemnity as well as a guarantee, both Real Management Solutions and also Romano v Capitol Bikes Pty Ltd & Anor [2018] QCAT 108 were distinguishable.[48]
- (a)
- [62]In order properly to resolve these grounds of appeal I need to recite how the Adjudicator reached the decision about jurisdiction.
How the Adjudicator reached the decision about jurisdiction
- [63]Having recited the details of the claim and procedural matters, the Adjudicator said:
QCAT has jurisdiction to deal with ... retail shop lease disputes under sections 66 and 103 of the Retail Shop Leases Act 1994 (Qld). But the Act does not say they are minor civil disputes. Hence, under schedule 3 of the QCAT Act, definition of minor civil dispute, paragraph 2, claims for debts and liquidated demands of money which come within the definition of a retail shop tenancy dispute cannot be heard as minor civil disputes.
A retail shop lease dispute is defined in the Retail Shop Leases Act as follows:
Retail tenancy dispute means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.
It is thought that a claim for unpaid rent or other charges payable under a retail shop lease is a dispute under a retail shop lease and therefore cannot be heard by Adjudicators hearing minor civil disputes because such a claim would be a claim to recover a debt or liquidated demand of money and the enabling Act does not expressly state it is a minor civil dispute.
- [64]The Adjudicator then explained the mediation process which is required by the Retail Shop Leases Act 1994 (Qld) before the tribunal has jurisdiction over such disputes.
- [65]The Adjudicator then went on to consider whether it made any difference that this claim was against two guarantors of the lessee’s obligations, as opposed to a direct claim against the lessee. The Adjudicator referred to Real Management Solutions Pty Ltd v Brisbane City Council [2016] QCAT 370 in which Senior Member Brown had decided that the tribunal had jurisdiction under the Retail Shop Leases Act to hear a claim against guarantors to pay the lessee’s arrears of rent, because such a claim was a retail tenancy dispute. Following Real Management Solutions, the Adjudicator decided that the tribunal therefore had no jurisdiction to hear the claim as a minor civil disputes claim, and dismissed it accordingly.
- [66]To explain in this Appeal the reasoning which the Adjudicator applied to come to the conclusion that the tribunal had no minor civil disputes jurisdiction to hear a claim for recovery of a debt or liquidated demand of money which was also a retail tenancy dispute, it is helpful to set out the relevant statutory provisions.
- [67]First there is section 11 of the QCAT Act, which confers jurisdiction on the tribunal to hear a minor civil dispute:
11 Jurisdiction for minor civil disputes
The tribunal has jurisdiction to hear and decide a minor civil dispute.
- [68]Then we have the definition of ‘minor civil dispute’ in Schedule 3 to the Act:
1 Minor civil dispute means—
- (a)a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
- (b)a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
- (i)for payment of money of a value not more than the prescribed amount; or
- (ii)for relief from payment of money of a value not more than the prescribed amount; or
- (iii)for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
- (iv)for return of goods of a value not more than the prescribed amount; or
- (v)for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or
- (c)a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or
- (d)a tenancy matter; or
- (e)a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or
- (f)a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.
Note— A matter mentioned in paragraph (f) would relate to part of a barrier for a swimming pool along a common boundary.
2 However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
3 A claim mentioned in paragraph 1(b) does not include a claim in a proceeding to which the Fair Trading Act 1989, section 50A applies.
4 A claim mentioned in paragraph 1(a) does not include a claim under the Fair Work Act 2009 (Cwlth), section 539.
Note— See the Fair Work Act 2009 (Cwlth), section 539 for the conferral of jurisdiction on eligible State or Territory courts in relation to the contravention of civil remedy provisions under that Act. In relation to Industrial Magistrates Courts, see the Industrial Relations Act 2016, chapter 11, part 3, division 4. In relation to Magistrates Courts, see the Magistrates Courts Act 1921.
- [69]A claim within paragraph 1(a) of the definition of ‘minor civil dispute’, that is a claim to recover a debt or liquidated demand of money, is called a ‘minor debt claim’.[49]
- [70]As can be seen from paragraph 2 of the definition combined with section 11 of the Act, a minor debt claim will not be within the minor civil dispute jurisdiction of the tribunal if an enabling Act confers the tribunal jurisdiction to deal with the claim, unless the enabling Act expressly states it is a minor civil dispute.
- [71]An enabling Act is one which confers original, review or appeal jurisdiction on the tribunal, but also includes subordinate legislation that confers review jurisdiction on the tribunal.[50]
- [72]There is no doubt that the Retail Shop Leases Act is an enabling Act. Under section 103 of that Act, the tribunal has jurisdiction to deal with a ‘retail tenancy dispute’. A retail tenancy dispute is defined in the Act as follows:
retail tenancy dispute means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.
- [73]The Adjudicator took it that a claim for unpaid rent or other charges payable under a retail shop lease is a ‘dispute under a retail shop lease’. If this is correct, then since the claim is a debt claim, such a claim could not be heard by the tribunal as a minor civil dispute claim. And relying on Real Management Solutions the Adjudicator decided it made no difference that the respondent’s liability to pay arose under a guarantee.
- [74]The reason why such claims are excluded from the tribunal’s jurisdiction seems to be to ensure that those specialised types of claim which the tribunal can deal with under an enabling Act could not also be dealt with as a minor debt claim in the tribunal’s minor civil dispute jurisdiction of the tribunal. Typical examples are building disputes and retail tenancy disputes.
- [75]In the case of retail tenancy disputes, one reason for this restriction would seem to be that these need to be mediated first before they can be referred to the tribunal.[51]
- [76]The restriction does not apply to consumer claims, that is claims under paragraph (b) of the definition of ‘minor civil dispute’. In the context of a retail tenancy dispute this is not a difficulty because the parties will not be ‘trader’ or ‘consumer’ as defined in the QCAT Act. But in the context of building disputes the house owner will often be a ‘consumer’ and the builder a ‘trader’. This means that many such claims could be brought either as minor debt claims or as consumer claims, and so the jurisdictional block can be difficult to manage in practice.
- [77]This is the current anomaly which has brought this matter to the Appeal Tribunal. On the face of it, it seems odd that the tribunal does not have jurisdiction to deal with a simple claim for debt under a guarantee where the guaranteed debt is rent under a rental shop lease, but does have jurisdiction where the guaranteed debt is rent under a residential tenancy or under a loan or mortgage, or for repayments of a purchase of a car or boat.
Ground of appeal (a) – insufficient findings of fact
- [78]On this ground it is said that the Adjudicator did not make sufficient findings of fact or consider the evidence sufficiently to be able to decide about jurisdiction. But the Adjudicator had the lease and the guarantee in their forms as registered in the Titles Registry, correspondence between the parties’ solicitors about the liability under the guarantee and submissions from the appellants on that question. In my view there was certainly enough material before the Adjudicator to be able to make a decision about whether the tribunal had jurisdiction to hear the claim as a minor civil dispute.
- [79]It is said however, that in particular the Adjudicator should have had regard to the clauses in the lease which had been crossed out and seemingly only initialled by one party.[52] The first of these alterations appears simply to correct a typographical error. The second removed a ‘ratchet’ type clause which only permitted the rent to go up and not down on review following the exercise of an option for a further lease.
- [80]In the defence to the claim on the guarantee these changes were said to render the guarantee void, but the correctness of this assertion is irrelevant to the question of jurisdiction. It is said that, in some way, factual findings about the changes and about why they were not counter-initialled would affect whether the claim was a retail tenancy dispute. I cannot see that this would be the case.
- [81]It follows that this ground of appeal fails.
Ground of appeal (b) – the tribunal cannot decide a claim for rent arrears except as a minor civil dispute
- [82]Here it is suggested that changes made to the Retail Shop Leases Act 1994 (Qld) in 2016 have had the effect of removing from the tribunal’s jurisdiction under the Retail Shop Leases Act any ability to hear claims for arrears of rent. In turn, it is said that such claims can be heard as minor civil disputes after all, and indeed they could only be heard by the tribunal as minor civil disputes.
- [83]To follow this contention it is necessary to trace back the relevant provisions in the Retail Shop Leases Act in particular section 103 which describes the tribunal’s jurisdiction. Section 103 needs to be read in the light of the definition of retail tenancy dispute in the Schedule to the Act, which has remained the same throughout the changes being considered here:
retail tenancy dispute means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.
- [84]The 1 July 2015 version of the Retail Shop Leases Act provided:
103 QCAT’s jurisdiction
- (1)QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute—
- (a)about an issue between the parties that—
- (i)is the subject of arbitration; or
- (ii)has been the subject of an interim or final award in an arbitration proceeding; or
- (iii)is before, or has been decided by, a court; or
- (b)about—
- (i)arrears of rent under a retail shop lease; or
- (ii)the amount of rent payable under a retail shop lease; or
- (iii)the amount of a lessor’s outgoings under a retail shop lease; or
- (c)if the amount, value or damages in dispute is more than the monetary limit within the meaning of the District Court of Queensland Act 1967, section 68; or
- (d)… (omitted here)
- (2)However, QCAT has jurisdiction to hear a retail tenancy dispute about—
- (a)the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent; or
- (b)the basis on which the lessor’s outgoings are payable by, and the procedure for charging the lessor’s outgoings to, a lessee under a retail shop lease, but not the actual amount of the outgoings; or
- (c)whether an item, or part of an item, of the lessor’s outgoings for the retail shopping centre or leased building in which a leased shop is situated was reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building; or
- (d)arrears of rent payable under a retail shop lease if the dispute is also about the payment of compensation by the lessor to the lessee under the lease.
- (3)For subsection (1)(a)(i), a retail tenancy dispute is only the subject of arbitration if the arbitration proceeding has started.
- [85]Amendments made by the Retail Shop Leases Amendment Act 2016 (Qld) took effect on 25 November 2016. The new wording was:
103 QCAT’s jurisdiction
- (1)QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute—
- (a)about an issue between the parties that—
- (i)is the subject of arbitration; or
- (ii)has been the subject of an interim or final award in an arbitration proceeding; or
- (iii)is before, or has been decided by, a court; or
- (b)about—
- (i)the amount of rent payable under a retail shop lease; or
- (ii)the amount of a lessor’s outgoings under a retail shop lease; or
- (c)if the amount, value or damages in dispute is more than the monetary limit within the meaning of the District Court of Queensland Act 1967, section 68; or
- (d)… (omitted here)
- (2)However, QCAT has jurisdiction to hear a retail tenancy dispute about—
- (a)the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent; or
- (b)the basis on which the lessor’s outgoings are payable by, and the procedure for charging the lessor’s outgoings to, a lessee under a retail shop lease, but not the actual amount of the outgoings; or
- (c)whether an item, or part of an item, of the lessor’s outgoings for the retail shopping centre or leased building in which a leased shop is situated was reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building.
- (3)For subsection (1)(a)(i), a retail tenancy dispute is only the subject of arbitration if the arbitration proceeding has started.
- [86]It can be seen that prior to 25 November 2016 the tribunal only had jurisdiction under the Retail Shop Leases Act to hear a retail tenancy dispute about arrears of rent if the dispute was also about the payment of compensation by the lessor to the lessee under the lease.[53] The amended version of the section omitted altogether any reference to arrears of rent. The Appellants submit that ‘arrears of rent’ is included in the words ‘the amount of rent payable’ under the lease in the amended section 103(1)(b)(i) and therefore the amendment excluded arrears of rent claims entirely from the tribunal’s jurisdiction.
- [87]The appellants refer to Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394 where Member Kanowski sitting with Members Judge and McBryde considered this exact point in a counter application claiming arrears of rent and outgoings, saying:[54]
At first glance, the exclusions could be read as removing jurisdiction in this case, on the basis that there is a dispute about the amount of rent and outgoings payable under the lease which is not merely about the procedure for determining those amounts.
- [88]However, the tribunal in Fu Manchu Dining saw from the legislative history that in earlier versions there was a distinction between ‘arrears of rent’ and ‘the amount of rent payable’ so that the latter term was perhaps referring to the amount of the monthly rental liability. On that basis it appeared that in making the amendment the legislature had intended to remove the requirement in section 103(2)(d) that there be a joined lessees compensation claim for the tribunal to have jurisdiction over rent arrears, and therefore that the tribunal would have jurisdiction over rent arrears in every case.
- [89]Fu Manchu Dining was followed in Roll’d Australia Pty Ltd t/as Roll’d Australia v Challenger Life Nominees Pty Ltd [2021] QCAT 210 where Member Fitzpatrick sitting with Members Judge and McBryde held that the tribunal had jurisdiction under the Retail Leases Act to deal with a rent arrears claim.
- [90]The appellants refer also to a decision by Member Gardiner sitting with Members Judge and McBryde, Carmelo Peter Scuderi & Caterina Scuderi ATF The C & C Group Trust v Perez [2018] QCAT 45 where the tribunal came to the same conclusion.
- [91]The Appellants submit however, that Fu Manchu and Carmelo were wrongly decided, pointing to the mediator’s pre-25 November 2016 jurisdiction in section 97. Before the amendment, a mediator could not mediate a rent arrears claim at all. This was because it was excluded in all cases of arrears of rent under a shop lease by section 97(1)(b)(i).[55] The 2016 amendment removed that restriction but retained the mediator’s restriction from being able to mediate ‘the amount of rent payable under a retail shop lease’. In other words, after the amendment the powers of the mediator were aligned with those of the tribunal under section 103.
- [92]Aligning the powers of the mediator and the tribunal was obviously necessary to do, but it then begs the question whether the final result is that:
- (a)a dispute about arrears of rent is included in a dispute about ‘the amount of rent payable under a retail shop lease’ so that neither a mediator nor the tribunal has jurisdiction under the Retail Shop Leases Act to deal with such a claim; or
- (b)a dispute about arrears of rent is different from a dispute about ‘the amount of rent payable under a retail shop lease’ so that both a mediator and the tribunal have jurisdiction under the Retail Shop Leases Act to deal with such a claim.
- (a)
- [93]The appellants submit that (a) is more likely since, in order to decide an arrears claim it is necessary to know the amount of rent payable under the lease, yet that is outside the mediator’s and the tribunal’s jurisdiction. I would not agree that this helps because the amount of rent payable under the lease is normally known from the lease or from a rent review.
- [94]Help comes from the explanatory notes[56] to the Retail Shop Leases Amendment Bill 2015 which explain that:
Clause 56, in relation to section 97 (Mediator’s jurisdiction), removes the limitation on a mediator’s jurisdiction in relation to disputes about arrears of rent ..
Clause 57 in relation to section 103 (QCAT’s jurisdiction), removes the limitation on QCAT’s jurisdiction in relation to disputes about arrears of rent ..
- [95]In the light of the explanatory notes is it is clear that Fu Manchu Dining and Carmelo were correctly decided and that a retail tenancy dispute about rent arrears is within the tribunal’s jurisdiction under the Retail Shop Leases Act.
- [96]It follows that this ground of appeal fails.
Ground of appeal (c) – the guarantee and indemnity were sufficiently separate from the lease so that a claim was not a retail tenancy dispute
- [97]What is said here is that the guarantors were liable in the claim under two separate provisions. One was in clause 1 of the guarantee which was an annexure to the lease. It was in these terms:
The Guarantors jointly and severally guarantee to the lessor that they will with the lessee be jointly and severally liable to the lessor for the due payment of all monies hereby covenanted or agreed to be paid or payable under the said lease and all covenants provisions stipulations and conditions on the part of the lessee to be performed and observed.
- [98]Then clause 2 which was in these terms:
The Guarantors hereby indemnify the lessor and agree at all times hereafter to keep the lessor indemnified from and against all losses and expenses which the lessor may suffer or incur consequent upon any breach or non-observance of any of the covenants and provisions of the said lease and on the part of the lessee to be observed and performed and the Guarantors agree that the Guarantors shall remain liable to the lessor under this indemnity notwithstanding that as a consequence of such breach or non-observance the lessor has exercised any of its rights hereunder including its rights of re-entry and notwithstanding that the lessee (being a company) may be wound up or (being a natural person) may be declared bankrupt and notwithstanding that the guarantee hereby given may for any reason whatsoever be unenforceable either in whole or in part.
- [99]It is said that these obligations were sufficiently separate from the lease so that any dispute seeking to enforce the obligations was not ‘under or about a retail shop lease’ and therefore was not a ‘retail tenancy dispute’ as defined.
- [100]In Real Management Solutions, the factors which Senior Member Brown took into account when deciding whether the guarantee in that case was under or about a retail shop lease were:[57]
- (a)The obligations arising under the guarantee only arose from the obligations under the lease.
- (b)The guarantee was entered into as consideration for the lessor agreeing to grant the lease.
- (c)There was a close connection and entanglement between the lease and the guarantee because the lease required the lessee to give notice to the lessor on the death, bankruptcy or loss of capacity of the guarantor so that a new guarantor could be found.
- (d)The guarantee was part of the lease. Registration of the lease resulted in the deed of guarantee being also recorded.
- (e)Guarantees were often given by directors where there were such leases and so it was consistent with the objects of the Retail Shop Lease Act and the QCAT Act to permit claims to be made against guarantors at least where the lessee was already a party.
- (a)
- [101]When referring to the definition of retail tenancy dispute Senior Member Brown said:[58]
The definition of a retail tenancy dispute as meaning ‘any dispute under or about a retail shop lease …’ should be given its plain meaning according to the text, the context in which it is found and the object of the RSLA. A retail tenancy dispute is not confined to a dispute under a lease. The dispute may be one ‘about’ a lease. ‘About’ given its ordinary definition means ‘on the subject of’ or ‘concerning’, ‘with reference to’ or ‘with regard to’. I accept the submission by the BCC that while the degree of connection between a dispute and a lease is not expanded upon in the definition, that connection must necessarily be a close one.
- [102]Romano v Capitol Bikes Pty Ltd & Anor [2018] QCAT 108 followed Real Management Solutions in holding that a claim against a guarantor was a retail tenancy dispute for the purposes of the Retail Shop Leases Act.
- [103]And as pointed out by the appellants, the Acts Interpretation Act 1954 (Qld) provides in Schedule 1:
under, for an Act or a provision of an Act, includes—
(a) by; and
(b) for the purposes of; and
(c) in accordance with; and
(d) within the meaning of.
- [104]Although the appellants seek to make a distinction between the two clauses referred to above, that they call respectively the guarantee clause and the indemnity clause, in reality for the purposes of this analysis there is no distinction. Both clauses do the same thing albeit in slightly different ways – they make the guarantors liable to pay to the lessor amounts of money owed by the lessee under the lease.
- [105]In turn, this means that a claim against the guarantors under the guarantee is also under the lease. It is for money owed under the lease. It just happens to be a claim against the guarantors instead of against the lessee.
- [106]As such, such a claim must be a retail tenancy dispute. It is noticeable that the word ‘dispute’ used in this sense has a much wider meaning than it does in ordinary use. Even when there is no disagreement at all, for example in claim where liability is admitted, it can still be a dispute. This is shown by the use of the word ‘dispute’ in many similar situations – in this jurisdiction it is used in this much wider way in ‘dispute resolution’, ‘building dispute’, ‘minor civil dispute’.
- [107]If it is necessary to consider connections between the guarantee and the lease as was done in Real Management Solutions, this is also apparent. Here the lease was on Form 7 subject to the covenants and conditions contained in a schedule. Both the Form 7 and the schedule were registered at the Titles Registry. The guarantors were named in that schedule. The guarantee formed part of the schedule and was executed by the guarantors as a deed. Clause 20.1 provided that the landlord was not bound by the lease unless each person named as a guarantor had signed the guarantee. Clause 13.5.8 provided that if the guarantors of any of them were in breach of the guarantee this would amount to default by the tenant, giving the landlord a right to forfeit the lease. Finally in its terms, the guarantee was closely tied to the lease in that although the lessor was not obliged to grant a further lease on the lessee’s exercise of an option to that effect without a new or continued guarantee, if there was a renewal or extension of the lease the guarantors’ obligations also continued. The guarantors’ obligations continued despite indulgencies given to the lessee. And upon an assignment of the reversion the lessors’ rights under the guarantee were deemed to be assigned to the assignee, and the guarantors were obliged to execute documents to give effect to this.
- [108]It is true that in Rock Bottom Fashion Market Pty Ltd v Innes, Innes and H R and C E Griffiths Pty Ltd [1998] QCA 33 Dowsett J (with whom Pincus JA and Helman J agreed on this point), having recited the definition of retail tenancy dispute in the Retail Shop Leases Act said:
I can see no justification for extending the operation of the dispute procedure under the Act to include a dispute arising under a guarantee, but as the dispute between the respondent and the second appellants has never been the subject of a dispute notice under the Act, it is not necessary to decide that question.
- [109]The reference here to the second appellants was to guarantors under the lease and the question was whether the Supreme Court’s jurisdiction was ousted by the issuing of a dispute notice under the Act. As can be seen from the quoted passage, the view expressed was obiter and was on a point not argued by the parties. The passage does not seem to be expressing a view as to the objective intention of the legislature but more a view about policy. As such it seems to me that it is more appropriate for me to follow the view clearly expressed in the tribunal’s line of authority on this issue.
- [110]It must follow that the Adjudicator was right that the claim was a retail tenancy dispute and that, because it was a debt claim, it could not be heard as a minor civil dispute. This ground of appeal fails.
Conclusions in this appeal
- [111]All the grounds of appeal challenging the tribunal’s decision that it had no jurisdiction to hear the claim as a minor civil dispute have failed. I turn back therefore to the ground of appeal that the tribunal denied a fair hearing by failing to allow the parties an opportunity to make submissions on that jurisdictional point.
- [112]The tribunal must provide a fair hearing. What is fair will depend on the circumstances of each case and is informed by the statutory provisions governing the tribunal’s jurisdiction and operations.
- [113]Having regard to the right of access to the courts and tribunals, and in particular to the right of access to the efficient dispute resolution process offered by the tribunal, dismissing a claim for want of jurisdiction will only be done with some care.
- [114]If the tribunal dismisses a claim or part of a claim for want of jurisdiction, section 29 of the QCAT Act, and fairness generally, will require the tribunal to explain to the parties why this is so.
- [115]The tribunal has a discretion whether to allow a party an opportunity to make submissions on such a jurisdictional issue in advance of the final decision being made about it. This is not a blanket right in every case. Where such submissions would be futile because the limits of the tribunal’s jurisdiction are well understood and immutable, it is not necessary in order to provide procedural fairness to give the parties an opportunity to make submissions on the issue.
- [116]In this particular case, it was clear to the Adjudicator having considered the matter between the two hearings, that the tribunal had no minor civil disputes jurisdiction to hear the claim. As has been found in this appeal, any submissions by the parties to the contrary would have been futile. Having raised the jurisdictional issue with the parties at the first hearing, and having explained to them the jurisdictional issue which arose, and they having expressed no wish to make submissions on the matter, the Adjudicator was justified in deciding the matter without calling for submissions.
- [117]In the circumstances, although leave to appeal has been given, the appeal fails.
- [118]It may be helpful to add that where jurisdictional matters are not so clear or where they require some evidential enquiry before they can be resolved, then procedural fairness may well require contributions from the parties. There are many such areas of uncertainty in minor civil disputes heard by the tribunal, from whether a particular claim is one for recovery of a debt of liquidated demand of money[59] to the territorial limits of the tribunal’s jurisdiction and when the tribunal is an appropriate forum, to whether a party is a ‘trader’[60] and other similar issues. The minor civil dispute decision makers are well aware of these difficult areas which arise on a daily basis.
Footnotes
[1] The details of this debt appear in a solicitor’s letter dated 20 August 2019 in exhibit ‘I’ to submissions filed in the minor civil dispute proceedings.
[2] Solicitor’s letter of 20 August 2019, exhibit “C” to submissions dated 15 October 2019.
[3] Transcript 23 January 2020 1-2, line 44.
[4] That is, the type of minor civil dispute which is a claim for recovery of a debt or liquidated demand of money.
[5] Transcript 1-3 line 13.
[6] Transcript 1-3 lines 15, 27, 31.
[7] Transcript 1-4 line 34, line 45, 1-5 line 8.
[8] Appeal Tribunal, Senior Member Howard and Member Howe, [50], [51].
[9] Chandra v Queensland Building and Construction Commission [2014] QCA 335, [89].
[10] [55].
[11] Lord Reid in Wiseman v Borneman [1971] AC 297, 308 cited by Brennan J at [18].
[12] Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 118 cited by Brennan J at [15] and Wilson J at [11].
[13] Kitto J. in Mobil Oil Australia Pty.Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, 504 cited by Brennan J at [16].
[14] Section 31 Human Rights Act.
[15] As translated: We will sell to no man, we will not deny or defer to any man either Justice or Right: Chapter 40.
[16] Such as court fees imposed in such a way that they are a serious hindrance to access to the courts: R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
[17] Rules 83 and 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
[18] Section 18 of the Magistrates Courts Act 1921 (Qld).
[19] Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld).
[20] The tribunal is bound to examine jurisdictional issues on its own initiative if necessary, whether hearing matters at first instance, or on appeal: Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89, Dr J R Forbes.
[21] A matter which, in the context of minor civil disputes I had to examine in Van Zyl & Anor v Rentstar [2021] QCATA 120.
[22] Peter Lyons J, having reviewed the statutory provisions applicable to the tribunal, [69].
[23] Section 3(b).
[24] Italiano v Carbone & Ors [2005] NSWCA 177, [106].
[25] [19].
[26] Express mention of one matter indicates that other related matters are excluded.
[27] [37].
[28] R v Wise [2000] VSCA 169, [19].
[29] Which is said now to be ‘reflected and applied in the body of learning that has developed about procedural unfairness’: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, [4].
[30] Deane J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
[31] Examples are L J Hooker Stafford v Roberts [2020] QCATA 94 (Dr J R Forbes), Bundaberg ATSI Housing and Advancement Society v Eggmolesse [2014] QCATA 153 (Justice DG Thomas, President), Hartley v Di Russo [2018] QCATA 46 (Member Hughes), Aguilar v Egnalig [2014] QCATA 219 and Wong v Ong [2015] QCATA 51 (Senior Member Stilgoe OAM), Christensen v Complete Body Corporate Services Pty Ltd & Ors [2020] QCATA 137 (Member Howe), Right v Burrett [2020] QCATA 71 (Member Gordon), Gould v Mazheiko & Gill [2020] QCATA 10 (Justice Daubney, President).
[32] As in Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89 (Dr J R Forbes).
[33] For example, Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129, [16] (Justice Alan Wilson, President Michelle Howard, Member) in a retail shop lease matter, and Karaday Pty Ltd v RSB Australia Pty Ltd [2015] QCATA 84 in a minor civil dispute where senior member Stilgoe received evidence and submissions in an Appeal Tribunal hearing whether the respondent was a ‘trader’.
[34] For example, Ritson v Ryan [2018] QCATA 148 (Member Gordon).
[35] [11] and [18].
[36] Kioa v West (1985) 159 CLR 550: procedural fairness having been shown, it would frustrate the Judicial Review Act if that could be condoned on the basis that the fairness would have made no difference (Wilson J); a party denied an opportunity to make submissions might have been denied an opportunity to raise matters ‘not already obvious’ (Deane J).
[37] This was probably the approach taken in Smith v Superannuation Complaints Tribunal [2008] FCA 1528 (where the issue was whether the tribunal had jurisdiction having regard to the timing of the complaint, which was a question of fact).
[38] Unfortunately the Appeal Tribunal is unable to provide the parties to this appeal with a copy of the transcript for copyright and cost reasons.
[39] Submissions received on 14 October 2020, page 2 paragraph 3, page 5 paragraphs 4 and 8.
[40] Submissions received on 14 October 2020, page 5 paragraph 4.
[41] Submissions received on 14 October 2020, page 5 paragraph 4.
[42] Permitting the tribunal to strike out or dismiss a claim which (amongst other things) which is misconceived or an abuse of process.
[43] Submissions received on 14 October 2020, page 3 paragraph 9, page 7, page 22 paragraph a.
[44] Submissions received on 14 October 2020, page 2 paragraphs 5 and 6, page 4 paragraph ii(b)(B), (D) and (E), page 5 paragraphs iii and iv, page 8, page 9 paragraph 1, pages 18 to 20, 22 to 28.
[45] Section 146 of the QCAT Act – ‘deciding appeal on question of law only’.
[46] Submissions received on 14 October 2020, page 4 paragraph ii(d), page 9 paragraph 8, page 23 paragraph c.
[47] Submissions received on 14 October 2020, page 3 paragraph ii(b)(A), pages 14 to 17.
[48] Submissions received on 14 October 2020, page 2 paragraphs 4, 7 and 8, page 3 paragraphs 1 and 2, page 4 paragraph ii(b)(B) and (C), pages 11 to 14, 21.
[49] Definition of ‘minor debt claim’ in the schedule to the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
[50] Section 6(2) of the QCAT Act.
[51] Sections 63 and 64 of the Retail Shop Leases Act 1994 (Qld).
[52] Clauses 16.1.2 and 16.3.5.
[53] The combined effect of sections 103(1)(b)(i) and 103(2)(d).
[54] [56].
[55] There was no proviso similar to that in section 103(2)(d) which permitted mediation of a dispute about arrears of rent if there was a joined lessees claim about payment of compensation.
[56] Here, it is permissible to consider these: section 14B of the Acts Interpretation Act 1954 (Qld).
[57] [41] to [43].
[58] [39]. This is corrected slightly to correct a typographical error in the definition of retail tenancy dispute.
[59] On the last count there were some 49 different factual and legal scenarios in reported minor civil dispute cases where this question had to be specifically considered.
[60] So far, there is a list of 24 disciplines who have been identified as normally not ‘traders’ as defined in the QCAT Act but the list cannot be relied on in every case – sometimes a trial within a trial is required to establish jurisdiction: Pike v Rockhampton Optical Pty Ltd [2011] QCATA 200, Edwards v Edgar & Wood Solicitors [2018] QCATA 154.