Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow
[2013] QCATA 262
•6 August 2013
| CITATION: | Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow [2013] QCATA 262 |
| PARTIES: | Warwick Real Estate & Property Sales Pty Ltd (Appellant) |
| v | |
| Ashleigh Bailey Jonathon Morrow (Respondents) |
| APPLICATION NUMBER: | APL084-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 6 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal allowed. 2. The Tribunal’s decision of 16 January 2013 is set aside. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where respondents vacated property – where applicant claims respondents responsible for damage caused to blinds and carpet – where respondents accept responsibility for damage to blinds but claim damage to carpet is fair wear and tear – where applicant commenced proceedings in the Tribunal by filing non-urgent application – where Tribunal directed payment of the rental bond – where applicant seeks to appeal that decision – whether leave to appeal should be granted ADMINISTRATIVE LAW – JURISDICTIONAL MATTERS – ERROR OF LAW – where s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 provides for mandatory conciliation process for ‘non-urgent applications’ – where applicant commenced proceedings in the Tribunal by filing a non-urgent application – where applicant did not comply with s 416 – where Tribunal heard and decided matter – whether decision is void or liable to be set aside Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(b), s 6(2)(a), s 6(7), s 7(2), s 7(3), s 29, s 164(1) Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Jonathon Morrow and Ashleigh Bailey were tenants in a home unit at Law Road, Warwick which is managed, for its owners, by Warwick Real Estate & Property Sales Pty Ltd. The tenancy agreement was for 6 months from 11 December 2011. After the term expired, the tenancy agreement continued to apply on the basis that Mr Morrow and Ms Bailey were holding over under a periodic agreement.[1]
[1]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70(2)(b) (‘RTRA Act’).
On 5 November 2012, Mr Morrow and Ms Bailey vacated the property.
At the final inspection it was noted that parts of the unit still needed to be cleaned, there were marks on the blinds and window sills, and the carpet in the living room had noticeable wear marks which, Warwick Real Estate alleged, were caused by the legs of a lounge suite.[2]
[2]Transcript of proceedings, Warwick Real Estate & Property Sales Pty Ltd v Bailey & Anor (QCAT, Acting Magistrate Beutel, 16 January 2013) 3, 5.
The agent contacted Mr Morrow and Ms Bailey regarding the condition in which the property was left, and it appears they attended to those parts of the unit that required further cleaning and removed the marks on the window sill. The agents then received a quote of $1,148.00 to replace or patch the carpet in the living room and replace the marked blinds. It appears Mr Morrow and Ms Bailey agreed to bear the cost of replacing the blinds, but believed the damage to the carpet was ‘general wear and tear’ which was present when the tenancy commenced albeit not included in the entry condition report.[3]
[3]Ibid 7.
On 26 November 2012, Warwick Real Estate commenced proceedings in the Minor Civil Dispute jurisdiction of the Tribunal seeking an order that $1,148.00 be paid out of the rental bond.
On 16 January 2013, the matter was heard and determined by an Acting Magistrate sitting as a member of the Tribunal. The learned Acting Magistrate ordered that the Residential Tenancies Authority distribute the rental bond of $1,160.00 as follows:
Lessor: $371.00
Tenants: $789.99
It appears the learned Acting Magistrate accepted Mr Morrow and Ms Bailey’s claim that the damage to the carpet was caused by fair wear and tear, but decided that they were liable for the cost of replacing the blinds and the fee charged to apply to the Tribunal.
Warwick Real Estate seeks leave to appeal that decision. Leave to appeal is necessary.[4]
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).
In its application for leave to appeal, Warwick Real Estate contends the Acting Magistrate’s finding that the damage to the carpet was caused by fair wear and tear was not reasonably open on the evidence presented to him and was, in fact, contrary to that evidence.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Cachia v Grech [2009] NSWCA 232 at [2].
[7]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
For the reasons that follow, it is unnecessary to consider the grounds for leave to appeal because the Acting Magistrate fell into error by failing to recognise the limits placed on the Tribunal’s jurisdiction to hear and determine matters under the RTRA Act.
Chapter 6 of the RTRA Act headed ‘Dispute resolution’ provides the ways in which an issue in dispute relating to a residential tenancy agreement can be resolved.
Part 1 of that chapter establishes a conciliation process designed to help and encourage parties achieve a resolution.[9] The conciliation process provides an opportunity for participants to reach agreements by self-determination and is consistent with the Tribunal’s function to encourage the early and economical resolution of disputes through alternative dispute resolution processes.[10] Part 2 is headed ‘Application to tribunals’; its first section, s 414, states that it applies to applications to the Tribunal by lessors and tenants under residential tenancy agreements.
[9]RTRA Act s 398.
[10]QCAT Act s 4(b).
The RTRA Act distinguishes between applications for orders that are urgent, and those that are non-urgent. Section 415 of the RTRA Act provides that an application to the Tribunal is an urgent application if it is an application for a termination order made, among other things, because of a failure to leave. The section goes on to define a number of other kinds of application under the RTRA Act, which also qualify as urgent applications. They include applications for an order to restrain a person from causing damage or injury; applications that arise because of an emergency, or for health or safety reasons; and, applications about such things as goods left upon premises.
Under the immediately following section, s 416, a lessor or tenant under a tenancy agreement may not make an application to the Tribunal until the parties have attended a conciliation process with the Residential Tenancies Authority. If the dispute is not resolved by the RTA, a notice of unresolved dispute is issued to the party bringing the dispute which must be filed with its originating application in the Tribunal. Under s 416(2), however, that mandatory conciliation process does not apply or attach to an urgent application.
Warwick Real Estate commenced proceedings in the Tribunal notwithstanding that the conciliation process had not been requested or conducted. While the matter has not been raised by either party, the question for this Appeal Tribunal is whether the Tribunal fell into jurisdictional error by hearing and determining a non-urgent matter in which the applicant did not comply with s 416 of the RTRA Act.
The Tribunal does not have unlimited jurisdiction. While s 164(1) of the QCAT Act provides that the Tribunal is a court of record and has been recognised, for certain purposes, to be a court,[11] it is not established as a superior court of record. In Jackson v Sterling Industries Ltd[12], Wilson and Dawson JJ commented:
Ordinarily, a superior court of record is a court of general jurisdiction which means that, even if there are limits to its jurisdiction, it will be presumed to have acted within it. That is a presumption which is denied to inferior courts and is denied to a federal court such as the Federal Court.[13]
[11]Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen (2012) 265 FLR 392 at 396-400 per de Jersey CJ; 405-408 per McMurdo P; 430-431 per Muir JA.
[12](1987) 162 CLR 612.
[13]Ibid 618.
The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act, or an enabling Act. Section 6(2)(a) of the QCAT Act defines an ‘enabling Act’ as an Act that confers original, review or appeal jurisdiction on the Tribunal. Section 7(2) of the QCAT Act provides that a modifying provision will prevail over the provisions of the QCAT Act to the extent of any inconsistency between them. A ‘modifying provision’ is defined to include a provision of an enabling Act which provides for the Tribunal’s functions in jurisdiction conferred by the enabling Act or for a matter mentioned in s 6(7) of the QCAT Act. That section provides that an enabling Act may include provisions about matters which may add, vary, or exclude provisions of the QCAT Act regarding:
(a) requirements about applications, referrals or appeals;
(b) the conduct of proceedings including practices and procedures, and the Tribunal’s powers; and
(c) the enforcement of the Tribunal’s decisions.
Section 7(3) continues that where an enabling Act contains a modifying provision, the QCAT Act must be read as if the modifying provision were part of the QCAT Act.
Section 416 of the RTRA Act adds a further requirement for applications for certain types of matters in the Minor Civil Disputes jurisdiction of the Tribunal. It follows that it is necessary to read the QCAT Act as if s 416 of the RTRA Act was part of it.
Once that is appreciated, it is clear that non-urgent applications, as discussed by the Tribunal in Big4 Brisbane Northside Caravan Village v Schliebs[14], must comply with s 416 of the RTRA Act; and, in particular, the parties must attend the RTA conciliation process. While the parties can not be compelled to participate in the conciliation process,[15] attendance is a condition of the Tribunal’s jurisdiction to hear and determine non-urgent residential tenancy matters.[16]
[14][2012] QCAT 277.
[15]RTRA Act s 406.
[16]Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531 at 573-574.
In Project Blue Sky Inc v Australian Broadcasting Authority[17] the High Court held:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[18]
[17](1998) 194 CLR 355.
[18]Ibid 388-389.
The major purposes of the RTRA Act have largely been mentioned above but may be summarised, so far as they relate to this matter, as providing for the resolution of disputes about residential tenancy agreements.
A conciliation process is established under the RTRA Act to help and encourage parties achieve a resolution. Exemptions to that process are provided for urgent applications because, unlike non-urgent matters, conciliation is unlikely to be of any benefit to the parties or appropriate considering the circumstances of the dispute (e.g. an application to set aside a notice to leave issued to a tenant in retaliation for lawful conduct).
Section 401 of the RTRA Act provides that the functions of the conciliator include encouraging the settlement of a dispute; and promoting the open exchange of information relevant to the dispute by the parties. Attendance at the conciliation process should not be viewed as a stepping stone to receiving a notice of unresolved dispute and, upon receipt, access to the Tribunal. Hearings of non-urgent applications should operate as a remedy of last resort after common-sense and mandatory conciliation has been exhausted.
In Clarepede & Co v Commercial Union Association[19] Lord Bowen wrote that ‘courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy’[20]. The same can be said for this Tribunal. Such a focus ensures that time is not wasted on irrelevant or minor matters; that the parties receive the guidance they are entitled to under s 29 of the QCAT Act; and, that hearing processes are as short and efficient as they can be.
[19](1883) 32 WR 262.
[20]Ibid.
Unsurprisingly, in light of this approach, the Tribunal expects of parties that they will provide assistance in this exercise by complying with the requirements of the Act. Parties must assume a responsibility to take care in preparing material upon which they seek to rely, and to lodge the correct form of application. The forms are not difficult to understand, and may even be fairly described as intuitive.
The legislative scheme – the RTRA Act read in conjunction with the QCAT Act – makes it clear that compliance with s 416 is mandatory and the consequence for the parties of holding void every decision made in circumstances where there has been non-compliance with that section was the intention of the legislature.
The result has been described by the High Court as a ‘jurisdictional error’. The court discussed errors of that kind in Kirk v Industrial Relations Court of NSW[21] and said, discussing its earlier decision in Craig v South Australia[22]:
First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist” (emphasis added). … Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.[23]
[21](2010) 239 CLR 531.
[22](1995) 184 CLR 163
[23]Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531 at 574.
In this case, the Acting Magistrate’s error can be categorised as a jurisdictional error of the third kind identified in Craig: i.e., the Tribunal purports to act in circumstances where the matter is of a kind which the Tribunal has jurisdiction to entertain (a residential tenancy dispute), but a condition attached to the exercise of the jurisdiction has not been satisfied.
While tribunals like QCAT operate under a statutory exhortation not to be bound up by procedural questions, jurisdictional error goes to the heart of the power to provide an effective, and just, remedy and is not, usually, the kind of mistake that is amenable to easy repair. In Anisminic Ltd v Foreign Compensation Commission[24] Lord Pearce wrote that:
It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry… were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.[25]
[24][1969] 2 AC 147.
[25]Ibid 194.
The Acting Magistrate’s failure to identify Warwick Real Estate’s non-compliance with s 416 of the RTRA Act was an error which led to him making orders where he had no power to do so. The decision must, for that reason, be set aside; the appeal is allowed.
Jurisdictional error is, on its face, something that involves a question of law. The Appeal Tribunal has various powers under s 146 of the QCAT Act when it finds an error of law, including setting the decision aside and remitting it for re-hearing, or substituting its own decision. This case did not involve a large sum of money and it was determined by a member after a hearing in which the parties were able to ventilate their evidence and arguments. It is not improbable that the bond authority has already paid out the bond in a way that accords with the learned Acting Magistrate’s order. To order a re-hearing in those circumstances, and when the applicant for leave to appeal must accept primary responsibility for the absence of proper compliance with the RTRA Act which lead to the jurisdictional error, is unattractive. The applicant can decide if it wishes to pursue the matter by re-applying. No further order will be made here.
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