When veteran litigator Edward Amos was awarded a fraction of the compensation claimed from a tenant who walked out on a six month lease with half the term still to run, he naturally enough appealed.
Amos had commenced Magistrates Court proceedings in April 2015 to recover $2.24k for rent foregone and other losses that extended back to the start of the tenancy September 2014.
By taking that course, Amos avoided two features that most rent recovery claims must negotiate.
First, QCAT’s own rules that require parties to attempt resolution through conciliation, before any hearing.
And second, the 6 month limitation period for claims specified by the Residential Tenancy and Rooming Accommodation Act (whose procedures prevail in the event of any inconsistency over those of the tribunal’s inherent jurisdiction).
When they received the claim, tenants Desma & Cynthia Fett successfully applied ex parte in the Magistrates Court for the matter to be transferred to QCAT.
Once safely before QCAT, they contended it had exclusive jurisdiction over such disputes and that absent any pre-hearing conciliation, Amos was barred from proceeding with the claim.
They also argued that Amos was prevented – due to the RTAA limitation period – from recovering losses more than six months prior to the transfer of the dispute to QCAT.
Their substantial defence arose from Amos’ alleged failure to remedy various (disputed) landlord breaches regarding the condition of the premises.
The battle came before Supreme Court Justice Tim Carmody sitting in QCAT’s appeal jurisdiction.
He reflected that a transferred tenancy proceeding is taken to have been commenced on the day it was filed in the court and that although any QCAT or RTAA formalities for the bringing of a claim can be deemed to have been fully complied with, the transferring magistrate neglected to make such an order in this case.
Does QCAT have exclusive jurisdiction over residential tenancy matters just as it does over retail lease disputes?
In formulating his answer to this question, Justice Carmody noted the RTAA itself specifies in s 4 that its remedies are “in addition to not in substitution for a right or remedy the person would have apart from this Act”.
Moreover, “debt enforcement is an intangible common-law property right,” he ruled. “Access to courts has also been guaranteed by no less than the Magna Carta, the United Nations Universal Declaration of Human Rights and Chapter III of the Australian Constitution”.
If intended to be “ousted” by statute, such intention – that he decided was nowhere to be found – must be “unmistakable and unambiguous”.
On that basis he concluded, court and tribunal remedies for tenancy breaches are “concurrent” and do not displace one another.
Notwithstanding Amos’ success thus far, Justice Carmody had still to consider whether to allow an appeal on the grounds of the magistrate’s error in failing to conclude that “two of the tenants’ breach notices were fictitious”.
Demonstration that his version of events was at least as plausible as that of the tenants – which might in a court constitute an appealable error – was not enough for Amos to satisfy the higher QCAT appeal threshold.
In QCAT, the error must be so significant – for example the conclusion was unsupported by evidence, was “glaringly improbable” or was contrary to irresistible contrary inferences – that justice calls for its reconsideration.
The rough justice meted out by QCAT is not meant to be perfect. It is a “court substitute” which according to “sound public policy is aimed at conserving finite judicial and administrative resources as well as promoting finality of litigation”.
Amos failed to clear that hurdle and the tribunal’s $150 order of compensation payable by the Fetts, was left to stand.