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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hicks v Lovett (No. 2)  QCATA 21
ORIGINATING APPLICATION NO/S:
10 February 2021
2 February 2021
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where Tribunal improperly constituted – where reconstituted Tribunal did not address or make findings about critical issue from original appeal – where reconstituted Tribunal failed to provide adequate reasons for decision – where parties must be satisfied that Tribunal has given them answer to their issues – where reconstituted Tribunal did not set out law being applied – where failure to give adequate reasons amounted to denial of procedural fairness – where errors of law for which leave should be granted to correct substantial injustice
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 121, s 143, s 146, s 147, s 165, s 166, s 167, s 168
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCATA 125
Cachia v Grech  NSWCA 232
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Hicks v Lovett  QCATA 179
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Mistero Pty Ltd v Cann  QCATA 56
Phu v NSW Department of Education and Training  NSWADTAP 76
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
What is this appeal about?
- On 13 August 2019, Member Howe sitting as the Appeal Tribunal made these Orders:
- Application to adduce fresh evidence at Appeal is refused.
- Leave to appeal granted.
- Appeal allowed.
- The matter is returned to the same tribunal of Justice of the Peace for reconsideration with the hearing of additional evidence as necessary.
- On 5 March 2020, the matter was reheard. Unfortunately – and contrary to the Appeal Tribunal’s Orders – it was not by the same tribunal, as one of the sitting Justices of the Peace noted:
JP: Okay. What happened was a decision was made by a differently constituted tribunal, of which I was not a member, previously. This has been appealed. The appeal has been upheld. We’re now rehearing it. It’s been sent back to us for rehearing. So what I’m going to be asking everybody who was involved before is if you will indulge us by going again as if you’re going for the first time. Are we okay with that?
- Only the President of the Tribunal and the Appeal Tribunal have the authority to determine who will hear matters. The President did not authorise the reconstitution of the Tribunal, nor did the Appeal Tribunal order it. This means the sitting Justices did not have jurisdiction to hear the matter and their orders are ultra vires. For this reason alone, leave to appeal must be granted and the appeal allowed.
- This is not a mere technical point. In allowing the original appeal, the learned Member emphasised the need for critical evidence to be taken:
At the hearing Mr Hicks claimed Mr Lovett had threatened to start a fire in his room after fighting or arguing with another female resident at the premises. He had sent her an SMS saying what he proposed to do. She told Mr Hicks. Mr Hicks called the police. He handed Mr Lovett the form R12 notice to leave and Mr Lovett left that night.
This evidence from Mr Hicks, if accepted, strongly suggests he was entitled to give the notice to leave to Mr Lovett, and the basis for the rejection of his claims to compensation and illegal eviction thereafter fall away. His claims for small items of repair, compensation for rent until a new resident was found and a separate ‘cost of relet’ fee (though there was not documentary evidence filed by Mr Hicks) may have been allowed had the Justices of the Peace properly considered the termination provisions in the Act that apply to rooming accommodation agreements.
The Justices of the Peace do not appear to have considered this. It seems clear therefore that they made a mistake in refusing the claim for compensation by Mr Hicks simply on the basis of the ‘eviction’. They made an error of fact and law.
Mr Hicks filed various documents with his counter application…[including] a photocopy of an SMS message appearing on a mobile telephone screen…
As stated, it is puzzling why the Justices of the Peace found the lack of evidence produced by Mr Hicks prejudiced his case… It appears the Justices of the Peace simply did not realize Mr Hicks had filed some documents under cover of his counter application. They thereby fell into error of fact and law in their conclusion that Mr Hick’s claims to compensation other than for arrears of rent were compromised through lack of evidence and on that basis they refused them…
A key issue in this matter is the effectiveness or otherwise of the termination of Mr Lovett’s rooming accommodation agreement. The copy of the SMS message attached to the counter application is rather compelling. However Mr Lovett said he did not send it. He said he showed his phone to the police on the night but ‘they could not find no (sic) phone calls, no phone messages stated on my personal phone.’
The difficulty persisting, however, is that the Justices of the Peace made no decision about Mr Lovett sending the SMS message nor about the termination of the rooming accommodation agreement consequent on that. If it was found he did send the SMS, then the claims for cleaning and repair, claim for lost rent through to entering into a new rooming accommodation agreement might appropriately be claimed against him. If not, then it would be unreasonable to make him pay, even if this left Mr Hicks out of pocket and even if Mr Hicks was entitled to terminate the rooming accommodation agreement.
As to the claim for cost of relet, there is no evidence about that.
In the circumstances it is most appropriate to return the matter to the Justices of the Peace for reconsideration and let them take the additional evidence necessary to decide these matters and make the appropriate orders following.
- The reconstituted panel’s reasons for its decision did not address or make findings about the critical issue of the original appeal: the SMS. The Appeal Tribunal’s original orders provided the most appropriate and cost-effective means to address the issue by having the matter remitted to the same panel. The improperly reconstituted Tribunal did not address the critical issue from the original appeal.
- Whatever the Tribunal’s findings of fact, the parties must be satisfied that the Tribunal has given them an answer to their issues. Was the SMS not accepted as evidence and if not, why not? Similarly, the reasons do not show the legal basis for the orders made or the law being applied. What provisions of the legislation were being applied?
Those reasons need not be… elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision. It has also been said, in Queensland, that the crucial element is for the Tribunal to give reasons which disclose what has been taken into account in a way that means any error is revealed.
- It is an error of law for the Tribunal not to provide adequate reasons for its decision if it amounts to a denial of natural justice. A failure to give adequate reasons is a denial of natural justice if a party cannot be confident that the case was understood and properly considered. Mr Hicks was not given procedural fairness because he does not know why the Tribunal at first instance found against him.
- Because this is an appeal from a minor civil dispute, leave is required. In determining whether to grant leave, the Tribunal will consider established principles including:
- (a)whether there is a reasonably arguable case of error in the primary decision;
- (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;
- (c)whether leave is needed to correct a substantial injustice caused by some error; and
- (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- The Tribunal was not properly constituted. It failed to address a critical issue in dispute. Its reasons were inadequate. These are errors of law for which leave should be granted to correct a substantial injustice.
- Leave to appeal is granted and the appeal allowed. Because of COVID-19 concerns, Justices of the Peace are not currently sitting. The matter is therefore remitted for rehearing before an Adjudicator.
 Hicks v Lovett  QCATA 179.
 Transcript, page 1-4, lines 34-39.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 165, s 166, s 167, s 168.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 168.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146(c), s 147(3)(c).
 Hicks v Lovett  QCATA 179,  – , -, , -.
 Transcript, page 1-51, lines 26-47; page 1-52, lines 1 to 21.
 Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCATA 125, .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
 Ibid, s 28(3)(a).
 Ibid, s 121.
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291,  (Wilson J and Member Ford), citing Phu v NSW Department of Education and Training  NSWADTAP 76 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
 Mistero Pty Ltd v Cann  QCATA 56,  (Senior Member Stilgoe OAM).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3).
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232, 2.
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 577, 580.
- Published Case Name:
Hicks v Lovett (No. 2)
- Shortened Case Name:
Hicks v Lovett (No. 2)
 QCATA 21
10 Feb 2021