Critchley v Isabel[2021] QCATA 23

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this appeal about?

1. [1]
   Alternative dispute resolution is one of the Tribunal’s core functions. It facilitates the  Tribunal’s mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.^[1]
2. [2]
   It would appear that this was precisely what the Tribunal below was trying to achieve when it used the original hearing to conduct settlement negotiations to resolve this application to terminate a tenancy for excessive hardship. However, the conduct of settlement negotiations in proceedings can be a delicate exercise:

There are some occasions when on the day of the hearing it is appropriate for the presiding Member to offer the parties the opportunity to resolve the dispute before the proceeding commences. However it is not appropriate to carry out those negotiations with the parties on the record and then proceed with the hearing. The parties should leave the hearing room to conduct those discussions. Alternatively another member (if available) could chair a compulsory conference.

If the member allocated to conduct the hearing conducts a conference they should only do so off the record and after explaining to the parties that in all likelihood they will not be able to continue the hearing if the matter does not resolve.

[An] indication by the learned Member as to the likely outcome before and after the hearing commenced, and the conducting of settlement negotiations during the giving of evidence [can mean] that the parties were in all likelihood confused about the process which meant they were not given a satisfactory opportunity to present their case.^[2]

3. [3]
   Although the Tribunal’s intention for the parties to resolve their dispute may have been within its purview, on this occasion its execution has unfortunately resulted in the parties not being given procedural fairness. For example, midway through the hearing but before swearing the parties in, and while still on the record, the Tribunal suggested what it considered to be an appropriate outcome:

MR CRITCHLEY: Well, I’m disputing all her claims so she should still be on the lease.

TRIBUNAL: Yes, okay. Roll the dice. Go ahead, You see – see, you walk out this – out of this room and this matter will be finalised one way or the other. I don’t - - -

MR CRITCHLEY: So you’re saying I – you’re saying I take her $1200 bond now to make up for her back rent and then, from today, I’m liable for the full rent moving forwards until another housemate?

TRIBUNAL: That’s right.^[3]

4. [4]
   The transcript reveals a number of other instances where the Tribunal’s efforts may have confused the parties and affected their perception of the proceeding:

   1. (a)
      After the hearing started and after hearing some evidence and while on the record, asking the agent for “a practical solution”;^[4]
   2. (b)
      Later on and although not a matter for determination, asking one of the tenants whether she was prepared to forfeit her bond^[5] and then suggesting it as a viable proposition to the agent;^[6] and
   3. (c)
      Being privy to, and facilitating specific settlement proposals, while on the record.^[7] 
5. [5]
   The hearing began with the parties giving some limited unsworn evidence. This evolved into settlement discussions on the record, at times led by the Tribunal below,  before continuing with sworn evidence from the parties. The Appeal Tribunal cannot be satisfied the parties were afforded procedural fairness where the Tribunal below:

   1. (a)
      Indicated during the proceedings an appropriate outcome;^[8]
   2. (b)
      Attempted to facilitate a settlement of the dispute on the record during the course of the hearing with specific proposals;^[9] and
   3. (c)
      Led the negotiations between the parties on the record.^[10]
6. [6]
   It must be stressed that it is often appropriate for an Adjudicator or Member of the Tribunal to encourage the parties to settle a proceeding. However, this must never create any impression of prejudgement. On this occasion, it was open to the parties to conclude that the Tribunal had formed a view before testing all the evidence and hearing submissions.^[11]
7. [7]
   At the very least, the amorphous nature of the proceeding would have affected the way the parties presented themselves, their evidence and their submissions.^[12] The conduct of settlement negotiations after the giving of unsworn evidence but before the giving of sworn evidence meant that the parties were in all likelihood confused about the process.^[13] They were not given a satisfactory opportunity to properly frame and present their case.^[14] 
8. [8]
   The parties were self-represented. When they attended the hearing, they were entitled to expect that the Tribunal would proceed to hear their evidence and submissions and then make a decision.^[15] Any attempt by the Tribunal to facilitate a settlement should have been done at the start of the proceeding and before the taking of any evidence from the parties.
9. [9]
   The Tribunal must deal with minor civil disputes matters fairly, quickly and economically.^[16] Within this context, the Tribunal is not bound by the rules of evidence,^[17] and may inform itself in any way it considers appropriate.^[18] However, in all proceedings, the Tribunal must still act fairly and according to the substantial merits^[19] of the case and observe the rules of natural justice.^[20]
10. [10]
    The Appeal Tribunal is satisfied that the parties were not given natural justice. This is an error of law for which leave should be granted to correct a substantial injustice. ^[21] Because of this, the Tribunal’s findings of fact must be set aside and it is appropriate that the matter be remitted for rehearing^[22] where the parties will be given a fresh opportunity to present their cases in a manner which affords them procedural fairness.^[23]
11. [11]
    The remaining grounds of appeal relating to alleged bias^[24] and the agent being an incorrect respondent are without merit and are dismissed.
12. [12]
    Leave to appeal is granted and the appeal allowed. The Order made on 9 January 2020 is set aside. The matter is remitted for rehearing before a differently constituted Tribunal.