Mark Coker v Ray White Moranbah

[2011] QCATA 206

CITATION: Mark Coker v Ray White Moranbah [2011] QCATA 206

PARTIES:	Mark Coker
v
Ray White Moranbah

APPLICATION NUMBER:   APL168-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 1 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Leave to appeal is granted.

2.    The appeal is upheld.

3.    The decision of the Tribunal to dismiss the application made on 11 April 2011 is set aside.

4.   Moranbah Minor Civil Dispute claim 8/11 is listed for rehearing in Moranbah at a date and time to be advised by the Registrar.

CATCHWORDS : 

APPEAL – Minor Civil Dispute – Natural Justice – whether party properly heard

APPEAL – Minor Civil Dispute – Residential Tenancy – where rent increase for new fixed term tenancy – whether Tribunal had jurisdiction to hear an application objecting to the increase

Queensland Civil and Administrative Tribunal Act 2009 ss 3, 11, 28, 29, 43, 142(3)(a)(i), sch 3 (definition of ‘minor civil dispute’).

Residential Tenancies and Rooming Accommodation Act 2008 ss 71, 92

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ray White Moranbah is the agent-lessor of a property in Moranbah. Mr Coker is their tenant.  On 11 April 2011 Mr Coker lodged an application in the Minor Civil Dispute jurisdiction of QCAT to have an increase ($250 per week) in his rent declared excessive, and for an order that the rent be reduced.

1. On 21 April 2011 a Magistrate in Moranbah, acting in his capacity as a QCAT Member, struck out Mr Coker’s application for lack of jurisdiction. On his application, Mr Coker had ticked a box to indicate his application was brought under s 91 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act).  The Magistrate, correctly, determined that Mr Coker could not proceed under that section.

1. Leave to appeal is required to appeal from a decision arising from a Minor Civil Dispute.[1]  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i).

1. The Tribunal has jurisdiction to hear certain residential tenancy disputes.[2] Rent increases can be challenged under the RTRA Act. Which section confers jurisdiction is determined by the nature of the tenancy. If the increase relates to a periodic tenancy or is made during a fixed term tenancy, the application may be brought under s 92. If the increase relates to a new fixed term tenancy agreement entered after a previous fixed term tenancy expires, s 71 applies.

   [2]Queensland Civil and Administrative Tribunal Act 2009 ss 11, sch 3 (definition of ‘minor civil dispute’).

1. Mr Coker has applied for leave to appeal (and if successful appeal) the Magistrate’s decision to dismiss the application. His ground for appeal is that the Magistrate did not give him an opportunity to explain the substance of his claim. If he had been given the opportunity, he says it would have been apparent that the Magistrate had jurisdiction to hear the matter under s71 of the RTRA Act.

1. Mr Coker had been in a residential tenancy agreement with Ray White Moranbah for the previous 12 months paying $750 per week in rent. He signed a new 12 month fixed term agreement on 1 April 2011 that provided for rent to be paid at a rate of $1000 per week. On the facts, it is clear that Mr Coker’s application should have been brought under s 71 of the RTRA Act which allows a tenant to apply to the Tribunal about a significant change in a subsequent agreement.

1. Ms Holmes, of BMA Pty Ltd, Mr Coker’s employer, represented Mr Coker at the hearing.  Ms Holmes is not a legal representative; she was appearing on behalf of Mr Coker’s employer, because his employer pays part of Mr Coker’s rent.  The Transcript clearly indicates that Ms Holmes was not sure about the section the application was brought under and made some attempt to explain the basis of the tenancy agreement and the resulting application.  Unfortunately, the Magistrate did not allow her to explain and, therefore, wrongly determined he did not have jurisdiction when he plainly did.

1. One of the objects of the QCAT Act is to establish a Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. To that end, the QCAT Act provides that the starting point for most proceedings is that parties are not represented.[3]  The QCAT Act places a positive mandate upon the Tribunal to act fairly and according to the substantial merits of the case in all proceedings.[4] 

   [3]        Queensland Civil and Administrative Tribunal Act 2009 s 43.

   [4]        Queensland Civil and Administrative Tribunal Act 2009 s 28(2).

1. Of particular relevance to the present case, the Tribunal must observe the rules of natural justice,[5] act with as little formality and technicality as permitted[6] and 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.[7]  Further, the Tribunal must take all reasonable steps to ensure each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions.[8]

   [5]        Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(a).

   [6]        Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(d).

   [7]        Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(e).

   [8]        Queensland Civil and Administrative Tribunal Act 2009 s 29(1)(a)(ii).

[10]  The Magistrate did not fulfil these obligations. Mr Coker was denied natural justice in the way the hearing was conducted.  This is an error of law.  The Magistrate also erred in his determination that he did not have jurisdiction to hear the application.  The decision to dismiss the application will be set aside.  That application remains on foot.

[11] This Tribunal does not have sufficient evidence before it to decide the substantive matter. Whilst it is not for the appeal tribunal to comment on the likely success or not of the substantive application, it is clear that there is a real dispute on the evidence in regards to the rent raise. Finally, there is no evidence that the respondent would suffer any prejudice by the matter being re-heard. Leave to appeal is granted. The appeal is allowed. The decision to dismiss the application is set aside. The matter will be returned to the Magistrate at Moranbah to be reheard as an application pursuant to s 71 of the RTRA Act.