QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Tuck v Kanti-Paul  [2024] QCATA 57	
PARTIES:	stuart tuck	

(applicant/appellant)	

	v	
	rezan troy kanti-paul	

(respondent)	

APPLICATION NO/S:	APL251-22	
ORIGINATING APPLICATION NO/S:	MCT182-22 Cairns	
MATTER TYPE:	Appeals	
DELIVERED ON:	12 June 2024	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member D J McGill SC	
ORDERS:	1.	Leave to the applicant to appeal from the decision of the Tribunal of 22 August 2022.
2.	Allow the appeal.
3.	Set aside the decision of the Tribunal of 22 August 2022.  
4.	Order that the proceeding be remitted to the Tribunal for rehearing by a different person from the magistrate who conducted the original hearing.  
5.	There be no order as to the costs of the appeal. 	
CATCHWORDS:	ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — application for leave to appeal from decision in minor civil dispute — failure to give reasons — leave granted — failure to accord parties natural justice at hearing — failure to identify relevant issues — decision set aside — remitted for rehearing   
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(c), s 28(3), s 121(4)
Bakker v Richards Projects Pty Ltd [2014] QCATA 99 
McVicker v Bunnings Group Ltd [2021] QCATA 88 
Van Zyl v Rentstar [2021] QCATA 120	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	This is an application for leave to appeal from the decision of a magistrate in a minor civil claim – tenancy dispute, who determined to whom the rental bond was to be paid.  The appellant was for a time the tenant of the respondent in residential premises in Cairns, which came to an end on 26 May 2022.  There was a rental bond of $1,600 held by the Residential Tenancy Authority (“RTA”) and on 12 July 2022 the appellant filed an application in the Tribunal seeking an order that the full amount of the bond be paid to him.  
[2]	On 22 August 2022 the magistrate ordered that the bond be paid, as to $1,075.30 to the respondent, and as to the balance of $524.70, to the appellant.  On the same day the appellant filed an application for leave to appeal or appeal from that decision, and on 2 September filed an application to stay the decision pending the hearing and determination of that application.  I dismissed that application on 8 February 2023: Tuck v Kanti-Paul [2023] QCATA 4.  At that time, I did not have available a transcript of the hearing, or any reasons of the magistrate.  I now have the former.    
Proceeding at First Instance
[3]	At the hearing the respondent sought to claim against the bond the cost of having the premises cleaned, $700, of replacing a damaged ceramic cook-top, $575.30, of repainting a ceiling, $119.50, of replacing the front doorknob $49.07, and for labour $100.  The magistrate rejected the claims for repainting the ceiling, for replacing the front doorknob and for labour, and reduced the cost of cleaning on the basis that she was not satisfied that the ceiling required cleaning or repainting.  The amounts allowed were $500 for cleaning, and $575.30 for the damaged cook-top, with the balance of the bond being returned to the appellant.  
[4]	At the hearing the appellant’s case about the cleaning charge was that there was no requirement in the agreement for the premises to be professionally cleaned, and after vacating the unit his wife and daughter had returned to the premises and cleaned them thoroughly.  He said that photographs taken by the respondent and put in evidence, purporting to show a failure to clean, had been taken before that cleaning occurred.  
[5]	At one stage the appellant advanced an argument that, if the tenancy agreement included a special condition that the premises be professionally cleaned at the end of the tenancy, that provision was invalid as being contrary to the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (“the Act”) s 188(4).  It may be that, at one stage, the respondent was asserting that the tenancy agreement did contain such a special condition, but in submissions in writing filed in the Tribunal the respondent accepted that the agreement contained no such special condition.  This issue therefore had gone away, but it is not clear that the magistrate was aware of this.  At one point she said she believed that a professional clean was compulsory, but under this agreement the only obligation was in Clause 37 which followed the terms of the Act s 188(4), to leave the premises in the same state as they were in at the beginning of the tenancy, fair wear and tear excepted.  
[6]	The submissions in writing at first instance also contain a ground, that it was agreed between the parties that the cost of a professional clean would be taken out of rent paid by the appellant in advance.  This issue was not investigated by the magistrate, indeed it was not mentioned at the hearing at all, but potentially offered an answer to the respondent’s claim for cleaning costs.  
[7]	In relation to the broken cook-top, the appellant accepted that it cracked during the tenancy, but submitted that it had not been properly installed, so that the corner which broke was not properly supported, so that the damage could be regarded as fair wear and tear, and that the respondent was entitled to claim on his insurance in respect of it, and should have done so.  
Grounds of Appeal
[8]	Most of the grounds of appeal can be summarised by saying that there was a breach of natural justice in that the magistrate did not gave the appellant a fair hearing.  It was alleged that she had failed to read and consider all the material filed by the appellant, would not allow him to speak to his submissions, and that the conclusions and orders were not reasonable nor carefully considered. There was one specific error of law alleged, that the magistrate had not properly applied the Act s 188(4).  
[9]	In support of these grounds, the appellant made submissions in writing, and provided some material, including an affidavit by his wife, which largely reproduced the contents of a statement the appellant put in evidence at the hearing, although the magistrate was reluctant to accept the statement as evidence.  The reason for this reluctance was not explained in the transcript, but seemed to be because the wife was not present at the hearing.  On the face of it, however, she had a good reason to be absent.  In any case, that did not go to admissibility, but may have been of some relevance as to weight.  
[10]	On 14 September 2022 a Senior Member gave directions in the usual terms, that if either party sought to rely on evidence or a document that was not before the Tribunal at first instance, an application seeking leave to do so had to be filed together with submissions in support.  No such application has been filed, and I will not take into account any material included with the appeal submissions which was not before the Tribunal at first instance.  No submissions on the appeal were filed by the respondent.  
Application for Leave to Appeal
[11]	A residential tenancy dispute is an example of a minor civil dispute, and as a result a party requires leave to appeal on any ground.  As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1).  The Tribunal was also required to comply with the QCAT Act s 28 and s 29.  
[12]	It is apparent from the transcript of the proceeding at first instance that the proceeding was conducted in an unstructured way, with neither party being given a clear opportunity to give evidence, to cross-examine the other party, or to make submissions.  The hearing ran from 9.27 am to 9.55 am, and was conducted on an inquisitorial basis.  At one point the appellant was stopped from making a submission on the basis that the magistrate had already made her decision.  It would be understandable that the appellant had not noticed that a decision had been made; at no point before then did the magistrate indicate that she had decided anything.  
[13]	Perhaps more importantly, at no point did the magistrate give any reasons for any decision she made, either before or after then.  There is a statutory obligation to give reasons, and it is now recognised as inherent in the nature of the judicial process that reasons be given, at least in a case where there is the possibility of an appeal.  It follows that, in this respect, the hearing was not conducted according to law.  I consider that it is therefore appropriate for leave to appeal to be given.   
Breach of Natural Justice
[14]	There is no doubt that the magistrate was required to comply with the rules of natural justice in this matter.  This issue, and how it was to be applied in the minor civil disputes jurisdiction, were considered by Member Oliver in McVicker v Bunnings Group Ltd [2021] QCATA 88 at [40] – [42].  I will not quote the passage, which is lengthy, but endorse and commend it.  Going through it, a number of matters mentioned also arose here.  There was no reference at the hearing to the right of each party to cross-examine the other.  The magistrate did not ensure that the appellant (or for that matter the respondent) had presented all the evidence each had intended to rely on, and neither party was given a proper opportunity to put forward evidence, to question the other party, or to make submissions.  Indeed, the matter proceeded as if the magistrate believed she had all the necessary evidence and submissions from the filed material, and just needed to ask a few questions in order to clarify the issues she had identified, or was unsure about.  
[15]	To go through the transcript, the magistrate spent the first two pages with the parties back to front, that is, assuming that the appellant was the landlord and the respondent the tenant.  She complained about the absence of entry and exit reports, which she seemed to think had to be filed with the RTA.  She then complained about the absence of photographs, apparently came upon them, and was distracted by the issue of the respondent’s insurance.  She complained about the absence of any photographs from the appellant taken after the premises were cleaned.  The appellant said that the respondent’s photographs were taken before the premises were cleaned, but that question was not explored by the magistrate, who appears to have accepted that they were taken after any cleaning done in the unit. 
[16]	The magistrate asked the respondent about invoices, there was more discussion about the statement of the wife, and then the magistrate said she accepted the discoloured ceilings, which in context meant that she rejected that claim of the respondent, with the only explanation being that she could not see any discolouration in the photographs.  Later she said that she did not think a tenant could cause that sort of mould in twelve months.  These are hardly convincing reasons: it was common ground that there was something on the ceiling, and I doubt if the QCAT Act s 28(3)(c) entitles a magistrate to act on such a belief. At p 8 it appears that the magistrate finally accepted the wife’s statement, and then the appellant raised the issue that there was an agreement between the parties, something which he said the respondent had accepted at an earlier hearing.  The magistrate said that she thought she had read a note of a Registrar to that effect, but then took that issue no further.  
[17]	The respondent was allowed to make a submission about the ceilings, that he had never had this problem before, but it appears that the magistrate then made a decision, because when the appellant wanted to say something else about the cleaning, he was stopped for that reason.  The magistrate also rejected the claim for damage to the doorknob, apparently just on the basis that the damage was caused by an attempted break in.  As I said, no reasons were given.  There was not even a systematic attempt to identify the relevant issues to be decided.  
[18]	For example, there was an issue about when the respondent’s photographs were taken, and in what state the premises were after the appellant’s wife had cleaned them.  In the absence of reasons, it is impossible to know how, or even whether, these issues were addressed.  The appellant also raised an issue that the cleaners used by the respondent were not registered for GST, and so could not provide a tax invoice.  I doubt if that matters if the respondent actually paid them, but the appellant should have been invited to support his position on this if he could, and something should have been said in reasons about it.  
[19]	I might add that, when it came to not listening to submissions, the respondent probably fared worse than the appellant, who at least tried to make submissions, and generally tried to speak when the magistrate was asking questions, so that she had to indicate once that she was speaking to the respondent.  But the fact that the failure to comply with the rules of natural justice fell on both parties does not justify that failure.  Presumably the respondent did not also apply for leave to appeal because overall he did better than the appellant, and may take the approach that the prospects of getting any money back from the appellant do not justify the trouble.  
[20]	The QCAT Act identifies among its objectives that the Tribunal deal with matters in a way that is informal and quick, but also in a way that is fair and just.  It is made clear by s 4(c) that the objective of achieving justice is not to be sacrificed to conducting proceedings quickly.  One manifestation of this is the obligation to comply with the rules of natural justice.  In the present case the parties did not receive a fair hearing, the rules of natural justice were not complied with, and I cannot be confident that justice was achieved.  I consider there is no reason to think it was achieved.  In view of the contents of the transcript, if the magistrate did hit upon the correct outcome, it was by accident.  The decision must therefore be set aside.    
Appropriate relief
[21]	It would be efficient if I could proceed by way of rehearing, and resolve the whole dispute now, but I consider that the conduct of the hearing was so defective, the identification of the points on which the parties were in dispute so lacking, and the inadequacy of the evidence so great that it would be impossible for me to do justice in the matter by conducting an appeal by way of rehearing.  As well, I have no findings of primary fact by the magistrate to which I could have regard, for what they were worth, when conducting a rehearing.  
[22]	It follows that the dispute must go back for a fresh hearing, before a different magistrate or other Member, unless the parties can resolve the matter by agreement.  I will however address a couple of questions of law raised in the appeal, since they do arise on the submissions of the appellant, and the respondent has had the opportunity to make submissions on them, in accordance with the directions referred to earlier. 
[23]	The first is as to the effect of the respondent’s landlord’s insurance.  As a general proposition, questions of the existence and content of any insurance policy are irrelevant in relation to a claim for breach of contract other than the contract of insurance, and where the term allegedly breached does not itself concern the insurance in issue.  An aspect of this is that the mere existence of a policy of landlord’s insurance has no effect on the existence or extent of any liability of a tenant to a landlord under the terms of the Act or of the tenancy agreement.  
[24]	If however there was an agreement made between the appellant and the respondent, and if it was a term of that agreement that the respondent would not pursue the appellant for the cost of replacing the damaged ceramic cook-top and instead make a claim on his landlord’s insurance, and if that agreement is still binding on the respondent, it would follow that he was and is not entitled to pursue the claim for the replacement of the cooktop.  None of these issues were identified or addressed by the magistrate, and there were no findings on them.  
[25]	The second is the effect of the Act s 188(4).   In submissions in support of the appeal, the appellant submitted that the magistrate had not applied the standard applicable under this tenancy agreement, of comparing the cleanliness of the unit at the end of the tenancy with the standard at the beginning of the tenancy, which was what was required by Clause 37 and the Act s 188(4).  There is certainly no indication from the transcript that this was the way in which the magistrate approached the matter.  It may be that the magistrate did misunderstand the obligation under s 188(4), but that does not appear, particularly because of the absence of reasons.  There is therefore nothing meaningful I can say about the proper operation of the Act s 188(4), except that it appears to me, on the material I have seen, that that was the correct test in relation to the cleaning issue, subject to the operation of any relevant agreement between the parties.  On any rehearing however that will not be binding on the Tribunal, as the issue will depend on the evidence and arguments at that time.    
[26]	I will say one more thing, about the cook-top issue, in case it assists in any settlement negotiations.  If the damage to the cook-top was due to defective installation, I expect the damage would not be the responsibility of the appellant under s 188(4); but it would be a matter for the appellant to show that at a rehearing, and I do not think that his opinion to that effect, which does not appear to rise above the level of speculation, would be enough to show that.  But if the matter is not resolved by negotiation, the Tribunal conducting the rehearing will be in no way bound by that view, and will have to decide the issue (if it arises) on the evidence and submissions presented at the rehearing.  
[27]	As to the costs of the appeal, that would be the filing fee of $100 paid by the appellant.  The respondent was in no way responsible for the conduct of the magistrate in failing to conduct a fair hearing in accordance with the rules of natural justice, and failing to give reasons, nor has he sought to support the decision on appeal.  In the circumstances, given the modest amount involved, I consider that the interests of justice do not require an order for costs in favour of the appellant, and that the usual position, that there be no order for costs, apply.  
[28]	The decision of the Appeal Tribunal is therefore as follows:
1.	Leave to the applicant to appeal from the decision of the Tribunal of 22 August 2022.
2.	Allow the appeal.
3.	Set aside the decision of the Tribunal of 22 August 2022.  
4.	Order that the proceeding be remitted to the Tribunal for rehearing by a different person from the magistrate who conducted the original hearing.  
5.	There be no order as to the costs of the appeal.