Blue Gamers Pty Ltd v Conias Corporation Pty Ltd [2012] QCATA 256

CITATION: Blue Gamers Pty Ltd v Conias Corporation Pty Ltd [2012] QCATA 256 PARTIES: Blue Gamers Pty Ltd t/as The Bunker Internet Gaming Café v Conias Corporation Pty Ltd APPLICATION NUMBER: APL221-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member Kate Buxton, Member DELIVERED ON: 5 December 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: RETAIL SHOP LEASE – where tenant removed from premises – whether lease ended – where notice of dispute lodged more than one year after tenant removed – whether tribunal has jurisdiction PROCEDURE – where landlord’s submissions prepared by legal practitioner – where decision on the papers – whether procedure was fair Queensland Civil and Administrative Tribunal Act 2009, s 29 Retail Shop Leases Act 1994, ss 63(1)(b), 64(1)(b) McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129 Clarke v Langham and Anor [2011] QCATA 286 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Blue Gamers Pty Ltd operated an internet café at the top of Queen St. It leased the premises from Conias Corporation Pty Ltd. Blue Gamers got behind on its rent. [2] Conias issued notices to remedy breach and then took possession of the premises on 16 December 2010. Blue Gamers lodged a notice of dispute under the Retail Shop Leases Act 1994 on 6 January 2012. The parties attended mediation but the dispute did not resolve. The mediator refused to refer the dispute to the tribunal, so Blue Gamers filed an application for an order to resolve a retail tenancy dispute in the tribunal. It also filed an application to extend time. [3] A member of the tribunal, in a hearing conducted on the papers, refused the application to extend time. She found that the tribunal had no jurisdiction to hear the dispute because Blue Gamers had filed its application more than 1 year after the termination of the lease. Blue Gamers has filed an application to appeal that decision. [4] Blue Gamers says that the process leading to the learned member’s decision was unfair. Blue Gamers complains that the dispute never reached a “directions phase”. It says that, after the parties gave submissions about the application for extension of time, there was no directions hearing and the member did not put forward questions for clarification. Blue Gamers says it could not explain the complex factual situation “on the papers” without any direction or feedback from the learned member. [5] It says that it was obvious that a practising solicitor prepared Conias’ submission even though the tribunal had not given leave for legal representation. [6] Blue Gamers also says that it made a request for evidence but the tribunal did not make any direction about that and there was no explanation about why directions were not made. [7] It also says that the learned member erred in her decision because there was a dispute about whether or not the lease was terminated on 16 December 2010 and the learned Member did not hear or examine the evidence about that issue. [8] Blue Gamers also says that the learned member did not properly apply the principles articulated by the President in McDonald’s Australia Ltd v Emaaas Pty Ltd1. Was the procedure unfair? 1 [2011] QCAT 293. -- 2 of 5 -- 3 [9] Blue Gamers’ argument that the dispute did not reach the directions phase after the parties made submissions about the extension of time is not correct. [10] The parties were required to, and did, file submissions about the application to extend time by 27 April 2012. Conias had raised the issue of jurisdiction in its submission. [11] The tribunal conducted a directions hearing on 1 May 2012. A member of the tribunal directed Blue Gamers to file submissions in reply to the issue of jurisdiction. The directions of 1 May 2012 also provide that the application for an extension of time would be determined on the papers. [12] Members of the tribunal are obliged to ensure that parties before it understand the practices and procedures of the tribunal, the nature of the assertions made in the tribunal and the legal implications of such assertions2. That does not mean that members of the tribunal are required to give legal advice, or to tell parties how to present their material before the tribunal. [13] The material filed indicates that Blue Gamers did have the benefit of legal advice, at least early on. There is nothing in that material to suggest that it did not understand tribunal procedures or the issues to be determined by the tribunal. There is nothing to suggest that the learned member needed to put forward any questions for clarification or that Blue Gamers needed direction or feedback. [14] A party may call on a legal practitioner to assist in the preparation of documents without having to apply for leave for legal representation3. Blue Gamers had the same opportunity. That Conias took the opportunity, and Blue Gamers did not, does not make the process unfair. [15] The reasons why the tribunal did not make any directions about Blue Gamers’ request for evidence are clear. The “request for evidence” appears on the last page of Blue Gamers’ submissions in support of the application for an extension of time. It is not in a form that would alert the tribunal to the need to make orders about the request. There is nothing to suggest that Blue Gamers brought the request for evidence to the member’s attention during the directions hearing on 1 May. Blue Gamers did not file an application for a notice to produce. [16] We are not persuaded that the process for determining this dispute was unfair. There is no reason to set aside the learned member’s decision on this basis. The dispute about termination [17] In her reasons, the learned member acknowledged Blue Gamers’ submission that Conias invalidly terminated the lease on 16 December 2010. It is, however, true that her reasons for decision assume that the 2 Queensland Civil and Administrative Tribunal Act 2009, s 29. 3 See, for example, Clarke v Langham and Anor [2011] QCATA 286 at [8]. -- 3 of 5 -- 4 lease was validly terminated and the she did not make any independent assessment of the evidence before her. [18] The mediator’s ability to refer a dispute to the tribunal, and the tribunal’s ability to hear a dispute, has a precondition that: ...the retail shop lease has not ended (whether by expiry, surrender or termination) more than 1 year before the dispute notice was lodged.4 [19] The use of the words “whether by expiry, surrender or termination” suggest that the reason or the method of ending the tenancy are not so important in determining whether the tribunal has jurisdiction, it is only the fact that the tenancy has ended. [20] Blue Gamers suggests that Conias did not have a right to end the tenancy on 16 December 2010 but it must acknowledge that it lost possession of the tenancy on that date and that it took no action to recover possession or to confirm that the lease continued to operate beyond that date. Conias’ invoices for rent beyond that date, and its apparent failure to find a new tenant are not, in themselves, sufficient indicia for a finding that the retail shop lease did not end on 16 December 2010. [21] The evidence that Blue Gamers wants the tribunal to consider is relevant to a claim for unconscionable conduct but the tribunal will only consider that evidence once the parties have established that the tribunal has jurisdiction to hear the dispute. [22] The learned member correctly identified that the retail shop lease had ended more than a year before the notice of dispute was lodged and, therefore, the tribunal had no jurisdiction to consider Blue Gamers’ application. This ground of appeal must fail. The effect of McDonald’s Australia Ltd v Emaaas Pty Ltd [23] Blue Gamers relies on these passages from the decision to suggest that the tribunal’s approach to jurisdiction should be flexible and inclusive: [17] It is not apparent, however, that ss 63 and 64 are intended under the RSL Act to provide the only gateway to QCAT. Those provisions do not expressly qualify the broad jurisdiction given to QCAT under s 103.3 [18] It is to be observed that the contrary construction would mean that a party involved in a retail tenancy dispute who seeks to apply to the Tribunal and to use, for that purpose, powers under the QCAT Act like the injunctive power arising under s 59 would be precluded from doing so and must, of necessity, bring separate proceedings for injunctive relief in the Supreme or District Court. [19] In circumstances where QCAT is plainly invested with a broad jurisdiction to hear and determine retail tenancy disputes, that construction would be inimical to the objectives of QCAT Act to have the Tribunal deal with matters in ways that are accessible, economical, informal, quick and just.4 It would also expose the Tribunal, the Courts 4 Retail Shop Leases Act 1994, ss 63(1)(b), 64(1)(b). -- 4 of 5 -- 5 and the legislature to the criticism that they have allowed the dispute resolution system for retail shop matters to fall victim to the kinds of sterile jurisdictional questions referred to by Atkinson J in Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374 at 392. [24] The position in McDonalds was very different from that of Blue Gamers. The lease was still on foot. McDonalds sought injunctive relief to address a water leak. The issue was whether the parties could seek injunctive relief from the tribunal when they had not first engaged in mediation. The dispute was not concerned with the operation of s 64 of the RSL Act and nothing his Honour said in McDonalds detracts from the reasons of the Appeal Tribunal (of which the President was a part) in Stremo Pty Ltd v Opal Collections Pty Ltd5: Where the requirements of the section are not met, relevantly, when the lease has ended more than one year before the dispute notice was lodged, the section does not apply. There is no residual discretion which allows a mediator to refer the proceeding to the Tribunal if the section is not met. The provision is mirrored in 64(1)(b), whereby a party must apply to the Tribunal for orders to resolve a dispute either during the term of a lease, or within one year of it coming to an end. [25] The learned member was correct in her application of the decision in McDonalds and Stremo and there is no reason for the Appeal Tribunal to come to a contrary view. [26] Because this is an appeal that involves mixed questions of fact and law, leave to appeal is necessary. 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? [27] There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 5 [2011] QCATA 129 at [21]. -- 5 of 5 --