Green v Hatchy Investments Pty Ltd

[2013] QCATA 274

CITATION: Green v Hatchy Investments Pty Ltd [2013] QCATA 274

PARTIES:	Mr Martin John Green
v
Hatchy Investments Pty Ltd

APPLICATION NUMBER: APL115-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice A Wilson, President
Senior Member P Stilgoe, OAM

DELIVERED ON: 10 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 7 January 2013 is set aside.

4.    The application filed 2 October 2012 is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY –  where application for compensation – where no dispute resolution request to Residential Tenancies Authority – where no conciliation – where member conducted conciliation at hearing – whether grounds for leave to appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 402, 416
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(b), 4(c)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Green was a tenant in a unit owned by Hatchy Investments Pty Ltd. The tenancy ended and Hatchy filed a claim for compensation. Mr Green filed an application to strike out Hatchy’s claim, because the parties had not attended conciliation as required by s 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The learned Member told the parties[1] that he would conduct a conciliation, which would comply with the Act, and that he would proceed to a hearing if conciliation was unsuccessful.

   [1]        Transcript at 3:34.

2. The learned Member went off the record. The file then records that the learned Member ordered Mr Green pay Hatchy $1,285.

3. Mr Green wants to appeal that decision. He says that the Principal Registrar should not have accepted Hatchy’s application. He says that the learned Member had no jurisdiction to hear the dispute, and that he had no power to conduct conciliation that would comply with s 416. He says that the conciliation process did not comply with s 402 of the Act. He says that, if there was an agreement, it did not comply with s 408 of the Act. He says that, if the order was the learned Member’s decision, he did not consider s 362 of the Act.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[2]  Is there a reasonable prospect that the applicant will obtain substantive relief?[3]  Is leave necessary to correct a substantial injustice caused by some error?[4]  Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[5]

   [2]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [3]        Cachia v Grech [2009] NSWCA 232 at 2.

   [4]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [5]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.

5. This appeal can be dealt with shortly. As Mr Green pointed out to the learned Member, Big4 Brisbane Northside Caravan Village v Schliebs[6] confirms the clear terms of s 416. A party can only apply to the tribunal if it has first made a dispute resolution request under s 402. Hatchy did not make a dispute resolution request. The tribunal, therefore, had no jurisdiction to consider its claim.

   [6][2012] QCAT 277.

6. The learned Member had no power to cure Hatchy’s omission by conducting conciliation at the hearing. The tribunal has an obligation to deal with matters in a way that is economical, informal and quick[7]. It must encourage the early and economical resolution of disputes, through alternative dispute resolution if appropriate[8] and ensure proceedings are conducted in an informal way that is as quick as is consistent with achieving justice[9]. But the tribunal can only meet those obligations when it has jurisdiction. If the tribunal has no jurisdiction, then its role is limited to giving the parties an opportunity to resolve the dispute without the tribunal’s formal intervention. The parties cannot give the tribunal jurisdiction – for example by a consent order – that it does not otherwise have through the QCAT Act or an enabling Act.

   [7]QCAT Act s 3(b).

   [8]QCAT Act s 4(b).

   [9]QCAT Act s 4(c).

7. It is unfortunate that the tribunal did not detect the lack of jurisdiction when Hatchy filed its application. It is also unfortunate that the tribunal did not deal with Mr Green’s application to strike out Hatchy’s claim, filed on 14 December 2012, prior to the hearing. The registry is constantly striving to improve its process and these matters will be drawn to the Principal Registrar’s attention.

8. Leave to appeal should be granted and the appeal allowed. The decision of 7 January 2013 is set aside and Hatchy’s application is dismissed for want of jurisdiction.