This matter relates to the QCAT Q1363-23 hearing on 29 August 2023, and heard by Tonya Marshall Adjudicator.
SOME FACTS:
The documents before the Adjudicator were:
• The unsigned and undated
Response by the Respondents;
• The
Notice that the Property Manager for the Respondents would not be appearing at the hearing.
• The
Nutshell by the Applicants and handed up to the Adjudicator at the hearing.
The complaints of the Applicant Gordon James Craven (tenant), with regard to how QCAT administers its Civil Procedures, are as follows:Complaint 1. Having been served with the
Notice prior to the hearing, the Applicant tenants were taken by complete surprise by the appearance of the Property Manager (PM) for the Respondents at the hearing and were not prepared for this appearance. Given the said
Notice, it is still not understood how the PM had authority to represent the First Respondents, when the tenancy agreement providing that authority had been terminated, and there being no record of an application for representation being made pursuant to
section 43 of the
QCAT ACT.
Complaint 2. As the Adjudicator had the
Notice before her, she did ask the PM to explain the situation, nor did she explain the situation to the Applicants as to why the PM was appearing as it is argued that she was required to do so by sections
28 and
29 of the
QCAT Act. This caused confusion in the minds of the Applicants who became immediately disadvantaged by that confusion. At a QCAT Tribunal hearing, it is not the place of the Applicants to remind an Adjudicator of the responsibilities that he or she is required to undertake.
Complaint 3. The
Response document did not address any of the numbered claims in the
Statement of Claim. It is understood by the Applicant that any matter that is heard before any Court or Tribunal, the normal and appropriate approach is that a statement of numbered claims is filed and served, and within the period for doing so, a response or defence is filed and served, responding to each and every numbered claim. This enables the numbered claims to be agreed upon or denied, which will then isolate the issues in dispute, which if denied the reasons for denial should also be provided. Queensland's
LawRight sets out the basics of a
statement of claim and a
defence or response. If this basic principle is not followed, and a Judge or Adjudicator allows ad hoc input from the parties, it is no wonder that we have arrived at this debacle.
Complaint 4.As there had been no proper
Response filed & served, that dealt with each of the numbered claims, the Adjudicator was obliged to follow the legislation referred to at 2 above. However the Adjudicator:
(a) did not inquire from the PM as to why no response had been filed that specifically responded to the numbered allegations and evidence within the
Statement of Claim; and
(b) then, as no proper response had been filed, did not request the PM to respond to those numbered allegations and evidence within the
Statement of Claim; or
[c] provide Summary Judgement for the Applicant tenants.
Complaint 5. Furthermore to the Applicants being taken by surprise, the PM had lied to the Tribunal by fabricating evidence that the Adjudicator relied upon, by referring those lies in her Reasons for her Decision to dismiss the Application and
Statement of Claim of the Applicants. The Adjudicator stated how the lies were relied upon by writing in her Reasons for Decision:
"The agent has given evidence in relation to the solar being put into the owners’ name as an administrative error. The owners were planning to give the solar rebates to the tenants".
These two sentences which Adjudicator Marshall mistakenly took to be truthful, are in fact the essence of the Fabricated Evidence and Lies. Clearly the PM for the Respondents at the hearing, had sought to conceal the onerous and predatory behaviour as set out in the
Statement of Claim. Given that the PM for the Respondents had
not introduced the so called
"Administrative Error" into the
Response, but five months after having unleashed their onerous and predatory behaviour on the tenants, announced that it had all been an administrative error, reveals a pattern of deceit that ultimately resulted in the unfair dismissal of the Applicant tenants' claims. A
brief of the evidence provides how the deceit was achieved, that led to the dismissal of the claims.
It is not only the current evidence showing the sentences to be fabricated lies, it is
also the fact that the Second Respondent and the PM reluctantly, have since arranged for their lawyers to oversee compensation to the Applicants for the dishonesty they suffered. This appears to be a clear implied admission to the Fabrication and Lies.
Most importantly these egregious and fabricated lies (which are potentially criminal), took the Applicants again by total surprise for which they were not prepared and to which they
loudly objected. It appears erroneous and unfair to the Applicants that the Adjudicator did not follow up on the objections, and in particular not dealing with the surprises which should have been obvious to the Adjudicator, which is not at all consistent with Procedural Fairness. SEE:
QCAT's established case law on "Surprise" at paragraphs [13] to [16]. Also SEE:
QCAT on Procedural Fairness.
Despite the
strong vocal objections by the tenants to the miscarriage of justice they were witnessing before their own eyes, Adjudicator Marshall dismissed their Application and
Statement of Claim, siding with the Property Manager’s fabricated claims raised by surprise at the hearing, thus highlighting the troubling procedure that QCAT operates under, in not following the principle outlined at Complaint 3 above.
Complaint 6.Paragraphs 18 and 19 of the
Statement of Claim relate to the Unconscionable Conduct provisions of Australian Consumer Law (ACL). Paragraph 19 of the
Statement of Claim states:
"Without limiting the matters to which the Tribunal may have regard, the Applicants submit that the Tribunal should give regard to the following paragraphs of section 22(1) of ACL",followed by 9 sub-paragraphs in the
Statement of Claim which outline instances of alleged Unconscionable Conduct.
Without any reference or analysis of any of those sub-paragraphs, the Adjudicator summarily dismissed all of the allegations by saying (as per the transcript page 15 lines 43 & 44):
"And your claim that it’s unconscionable conduct under the ACL, sir, I find that that’s not made out" to which the Applicants requested reasons.
As per page 16 and lines 5 to 9 of the transcript, the Adjudicator provided the following reasons:
"Well, the real estate agent and the owners can have – can adjust the terms of their lease as to suit their circumstances. The tenant can accept or not the new lease terms. So I know that you feel that they were dictatorial giving you that notice of time period for accepting the lease, or having a form 12 issued, but that’s just a common practice, sir. It’s not a threat or an intimidation".
By dismissing the 9 sub-paragraphs as being
"common practice" by real estate agent and the owners in offering tenancy lease
renewals with onerous and predatory conditions, and finding nothing wrong with that without any detailed analysis of the sub-paragraphs, with the utmost respect to the Adjudicator, the writer believes that the Adjudicator is not well versed in dealing with claims of Unconscionable Conduct, and simply put...
it is just not good enough.
And as the Unconscionable Conduct allegations were intrinsic to the tenants' reasons for not signing the tenancy lease
renewal, clearly, the Adjudicator being reliant on the fabricated evidence, was tricked into
not finding the real reasons for the tenants not signing a new lease. This behaviour of the Respondents could be described as a
Fraud upon the QCAT Tribunal and the Applicant tenants.
Consequently...
facts within these complaints have caused the tenants to have suffered substantial grief and aggravation at time of the hearing, and which lasts up until today 18 January 2025.
The follow on to this debacle (the Appeal debacle), is being developed and will be available at:
https://ann-fitzpatrick.qcat.review
