The Queensland Civil and Administrative Tribunal

QCAT commenced operations on 1 December 2009. It occupies three floors at the BOQ building 259 Queen Street, Brisbane.  It is a tribunal, not a court. The distinction is one which underpins all aspects of QCAT’s development and operation. As QCAT’s progenitors, the Tribunal’s Review Independent Panel of Experts, observed1 the tribunal is not bound by the rules of evidence but must observe natural justice; representation is not as of right in most cases; and, the tribunal may adopt an inquisitorial as opposed to an adversarial approach for many types of matters — a mode of operation which recognises that many of the parties who use QCAT will be unrepresented, and will need additional assistance to ensure that they are able to use an access the Tribunal effectively.

A primary task of the President, the Panel said,  will be “…to balance the competing requirements of the different QCAT jurisdictions ensuring that the tribunal has procedures and processes that generate fair outcomes but being vigilant that QCAT does not become a court”.

As the Panel also said,2 a formal, court-like approach will not assist users and is likely to impair the benefits the tribunal can deliver. At the same time, of course, QCAT needs to be flexible in the way it deals with matters, and to recognise that its procedural requirements will vary between jurisdictions.

What does QCAT do?

QCAT is a large multi-jurisdictional tribunal which makes decisions about a range of matters and, also, reviews decisions previously made by State or local government departments or regulatory authorities.

Its major jurisdictional areas include:

•    Residential tenancy disputes

•    Debt disputes

•    Consumer disputes

•    Minor civil disputes

•    Other civil disputes

•    Guardianship for adults matters

•    Administration for adults matters

•    Building disputes

•    Children and young people matters

•    Anti-discrimination matters

•    Occupational regulation matters

•    Retail shop lease disputes

•    Administrative decision

QCAT absorbed 18 existing tribunals, the most well known of which were the Commercial and Consumer Tribunal, the Guardianship and Administration Tribunal, the Children’s Services Tribunal, the Anti-Discrimination Tribunal, the Legal Practitioners Tribunal and the Heath Practitioners Tribunal.

The full list is:

•    Anti-Discrimination Tribunal

•    Appeal Tribunal (levee banks) under the Local Government Act 1993

•    Children Services Tribunal

•    Commercial and Consumer Tribunal

•    Fisheries Tribunal

•    Guardianship and Administration Tribunal

•    Independent Assessor under the Prostitution Act 1999

•    Health Practitioners Tribunal

•    Legal Practice Tribunal

•    Misconduct Tribunal

•    Nursing Tribunal

•    Panel of Referees under the Fire and Rescue Service Act 1990

•    Racing Appeals Tribunal

•    Retail Shop Leases Tribunal

•    Small Claims Tribunal

•    Surveyors Disciplinary Committee

•    Teachers Disciplinary Committee

•    Veterinary Tribunal

QCAT also reviews a range of decisions which previously went to the Supreme, District and Magistrates Court and other statutory bodies including the Gaming Commission, and the Information Commissioner.

Some of these jurisdictions were already very large, and busy. The Small Claims and Minor Debts jurisdiction, formerly in the Magistrates Court (and now called Minor Civil Disputes) has already received 4,292 new applications in the period 1 December 2009 — 31 January 2010. This is an increase of almost 50% over the same period in the Magistrates Court in 2008/2009. The increase is partly explained of course by the enlargement of the jurisdiction from $7,500 to $25,000.

The guardianship jurisdiction has, over the last 3 years, experienced annual growth in applications of between 10% and 20% but since QCAT opened its doors the increase in new matters lodged is 26%: some 1,313 applications were filed in QCAT after 1 December 2009.  Plainly this is the result of the changing demographic of the Queensland population, with an increasing number of retirees, and interstate migration.

The opening of QCAT was attended by a deal of publicity, and advertisement. As a consequence other jurisdictions have also seen jumps in the numbers of new matters filed — applications relating to anti-discrimination matters are up 600%, retail shop leases by 1,600% and general administrative review matters by 83%.

More information about QCAT’s activities can be found at its website: http://www.qcat.qld.gov.au.

The Independent Panel predicted that the range of work the new tribunal might do is likely to be supplemented. Its report observed that this new large, multi-jurisdictional tribunal has a greater capacity and ability to acquire new jurisdictions than the individual, amalgamating tribunals, and is likely to be an attractive and appropriate entity to deal with merely created jurisdictions (for example, new rights of external review).3

The tribunal is created under the Queensland Civil and Administrative Tribunal Act 2009, which sets out provisions relating to its establishment, the commencement and conduct of proceedings, the tribunal’s procedures and powers, and the appointment of members. The QCAT (Jurisdiction Provisions) Amendment Act 2009 has amended over 200 Acts giving authority to QCAT to hear particular matters. A list of all the affected legislation can be found via the QCAT website at http://www.qcat.qld.gov.au/qcat-legislation.htm.  The QCAT Rules 2009 were also promulgated on 1 December last year and the QCAT Regulation 2009 commenced on 1 December 2009.4

A number of Practice Directions have also been introduced, and can be found at http://www.qcat.qld.gov.au/practice-directions.htm.

Jurisdictional structure

The tribunal operates in 3 divisions: human rights, administrative and disciplinary, and civil disputes:5

The human rights division deals with guardianship and administration, child protection and anti-discrimination matters. The civil disputes division deals with minor civil disputes, building disputes, and retail tenancy and other civil disputes. The administrative and disciplinary division covers reviews of administrative decisions of various government departments, including local government and regulatory authorities, and disciplinary matters for a number of professions — teachers, doctors, lawyers, nurses, architects and the like.

An early policy decision has been made to avoid special lists within each division. The decision was based upon a number of factors: first, advice from other large tribunals in Victoria and Western Australia that special lists tended to create undesirable internal separation within the organisation, so that members tend to be corralled within their speciality and have little opportunity to spread their wings, as it were; secondly, a related concern that members should develop skills across a range of jurisdictions; and, thirdly, out of a desire to reduce the risk of what is known in the courts as ‘judge-shopping’ — or, the risk that members sitting constantly in one particular jurisdiction may become too set in their ways.

Appeals jurisdiction

QCAT has an internal and external appeal facility. Only a few Enabling Acts confer a right to appeal (not review) a decision by a government agency or statutory authority. Otherwise, the tribunal’s appeal jurisdiction arises out of decisions made by its members and adjudicators.

All decisions of the tribunal may be appealed, except decisions to accept or reject an application or referral under s 35.

Appeals from the following decisions must be made directly to the Court of Appeal:

•    decisions about costs fixed or assessed under s 107; and •    decisions made by a judicial member of the tribunal.

The President may transfer an appeal to the Court of Appeal if it can be dealt with more effectively or conveniently by that court, and it is otherwise appropriate to do so.

Appeals against decisions made by magistrates sitting as QCAT members must be heard by judicial members of the tribunal.

Leave to appeal is required for appeals from:

•    a decision in a proceeding for a minor civil dispute; •    a decision which is not the tribunal’s final decision in a proceeding; and, •    a costs order.

Generally, an appeal can only be brought upon a question of law.  Leave to appeal is required for appeals which raise a question of fact, or a question of mixed law and fact.

Applications for leave to appeal must be made within 28 days after receiving reasons for the decision. Appeals must be lodged within 28 days of receiving reasons for the decision or, if leave is required, within 21 days after leave is given. The tribunal may extend time. The start of an appeal does not affect the operation of the decision appealed against, unless a stay is granted.

If an appeal is made on a question of law, it will only succeed if there was an error of law. The appeal tribunal may:

•    confirm or amend the decision; •    set aside the decision and substitute its own; •    set aside the decision and return it to the tribunal for reconsideration (with or without directions, including about hearing additional evidence); and, •    make any other order it considers appropriate.

If an appeal is made on a question of fact or a question of mixed law and fact, the appeal is by way of rehearing and additional evidence may be heard. The appeal will only succeed if there was an error, unless fresh evidence is admitted or there has been a change in the law which the appeal tribunal takes into account. The appeal tribunal may confirm or amend the decision or set it aside and substitute its own decision.

Organisational structure

QCAT is a court of record.6 In exercising its jurisdiction, it must act independently and is not subject to the direction or control of any entity, including any Minister.7 That independence is reinforced through the appointment of a Supreme Court judge as President and a District Court judge as Deputy President and the specific provision, in s 172(5) that in performing the President’s functions, the President is not subject to direction or control by the Minister.

That said, QCAT operates within the Justice Administration Division of the Department of Justice and Attorney-General and the responsible Minister is the present Attorney-General and Minister for Industrial Relations.

QCAT is led by the President who is responsible for the overall successful operation and performance of QCAT, and the Deputy President. The President’s roles and responsibilities include QCAT’s efficient operation; overseeing the selection process for members and adjudicators; giving directions about the practices and procedures of the tribunal; and, as a member, hearing significant matters within the tribunal — in particular, matters within the former Legal Practitioners Tribunal. The Deputy President’s roles and responsibilities include assisting the President in the management of QCAT’s business, and the management of members and adjudicators and, also, hearing significant matters in the tribunal — in particular, matters formerly heard and determined in the Health Practitioners Tribunal.

Over and above the two judicial members, QCAT began operations with four Senior members, nine members and six adjudicators. The members conduct hearings and make decisions for QCAT matters; the adjudicators are primarily charged with work in the Minor Civil Disputes jurisdiction. (By arrangement with the Magistrates Court, QCAT’s adjudicators have taken over all minor civil disputes work in south-east Queensland; the balance continues to be performed by magistrates throughout the other regions of the State).

There are also about 120 sessional members, most of whom formerly had connection with one or more of the previous tribunals and “transitioned” to QCAT. They come from a variety of vocational disciplines and include a large number of lawyers.

Permanent and sessional members work together to conduct hearings (and compulsory conferences and mediations) and make decisions for QCAT matters. The size and constitution of each tribunal is a matter to be decided by the President, but never exceeds three members.  Some legislation specifically provides for the size of the tribunal; otherwise, the matter is within the President’s discretion.

Judges of the Supreme and District Courts and magistrates may also be appointed as supplementary members.

The adjudicators are lawyers whose primary work is in the Minor Civil Disputes jurisdiction but they do have the power and functions of a member and may be involved in compulsory conferences, or mediation.

Administratively QCAT is supported by a Chief Executive Officer, Ms Mary Shortland, and Principal Registrar, Ms Louise Logan. Together they share about 100 registry and support staff.

QCAT’s hearing and ADR rooms are all on level 10 at 259 Queen Street.

New practices and procedures The QCAT Act requires that the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick: s 3(b).  It must observe the rules of natural justice but is not bound by the rules of evidence or any practices or procedures applying to courts of record; and, must act with as little formality and technicality and with as much speed as the proper consideration of the matters before it permits: s 28(3). Interestingly, the Act appears to place a positive onus upon QCAT, including its tribunal members, to give such advice as is necessary to ensure that each party to a proceeding understands the Tribunal’s practices and procedures: s 29(1)(a).

Overall the tribunal must function in a way which encourages the early and economical resolution of disputes, including through ADR processes.

ADR in its various forms was already entrenched in many of the former tribunals. Some, like the Commercial and Consumer Tribunal, have long-established traditions of sending matters out to private mediators at an early stage. That strong emphasis on ADR and its importance as a vital part of the tribunal’s operations was emphasised by the Independent Panel from the time of its first report in June 2008.8

In particular, since it opened its doors QCAT has been referring a large number of matters to what the Act calls compulsory conferences — a procedure set up under Part 6. These are conferences chaired by a member of the tribunal with the primary purpose of identifying and clarifying issues in dispute; promoting settlements; identifying the questions of fact and law to be decided; if the dispute cannot be settled, making orders and giving directions about the conduct of the proceedings; and, giving directions that the member considers appropriate to resolve the dispute.

These conferences provide a private forum in which the parties can gain a better understanding of each other’s positions, and work together to explore options for resolution. Their informality and scope for open, frank communication has already produced good results in a variety of jurisdictions. They can also involve expert witnesses and, therefore, provide a forum where all matters arising in a proceeding may be explored.

The other matter strongly emphasised in QCAT is active case management. Through the use of early directions hearings, reviews and callovers, Judge Kingham and I have striven to revive a large number of dormant matters within the previous tribunals and get them moving again, towards a conclusion.  The directions power contained in s 62 is sufficiently broad to allow useful directions to be given in all of the tribunals’ wide variety of jurisdictions.  QCAT can give a direction at any time and do whatever is necessary for the speedy and fair conduct of the proceeding. The power enables most matters, the first time they come before QCAT, to be given sensible, case-specific directions which will advance matters towards resolution, either through ADR or an ultimate hearing.

These processes require the cooperation of the parties: under s 45 every party is obliged to act quickly in any dealing relevant to a proceeding.

When representing a party before QCAT, then, legal representatives can expect that within a short time after the application is filed they will be referred to a member for a compulsory conference, or for a review or directions hearing. Sensibly, lawyers would think in advance about ways to assist QCAT in formulating appropriate directions in their matters.

Overall, QCAT looks to lawyers to act speedily and diligently; in ways which reflect the plain, underlying philosophy of the QCAT Act; and, to develop novel and innovative ways to bring matters to a just but speedy conclusion.

Decisions

QCAT’s decisions are being published at the Supreme Court of Queensland Library website: http://www.scqld.org.au/judgments/qcat/.

The Honourable Justice Alan Wilson

Footnotes

1. Tribunal’s Review Independent Panel of Experts, Final Report May 2009, p 20 para 3.8
2. Ibid
3. Ibid, p 24, para 4.2.4.
4. The Regulation deals with procedural matters including oaths of office, prescribed fees, allowances for witnesses etc.
5. QCAT r 5.
6. QCAT Act 2009, s 164(1).
7. Section 162.
8. Tribunals Review Independent Panel of Experts Report: Stage 1, p 77, s 7.2.