To tribunal or to court?

The Queensland Civil and Administrative Tribunal (QCAT) began operations in late 2009. QCAT operates as a tribunal, not a court, and was established under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Section 3(b) of the QCAT Act provides objectives of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.

QCAT is able to hear a range of disputes including civil disputes where the monetary amount does not exceed $25,000 and includes property damage to a house or motor vehicle, debt dispute and consumer and trader disputes.

There are three major differences between QCAT and the Courts, in particular the Queensland Magistrates Court, which also has jurisdiction to deal with disputes that may be determined by QCAT.

Costs

In accordance with section 100 of the QCAT Act, parties bear their own costs of proceedings in the tribunal, unless otherwise provided under the Act, or an enabling Act. Section 102 of the QCAT Act limits the tribunal’s ability to award costs to the amount of any prescribed fee paid by the applicant on filing the application for the proceeding. This differs from the Courts where costs are at the discretion of the Court and the unsuccessful party is often liable for some or all of the legal costs incurred by the successful party.

Evidence

Section 28(3) of the QCAT Act states that the tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate. QCAT must allow all parties a reasonable opportunity to call or give evidence, examine, cross-examine and re-examine witnesses and make submissions to the tribunal. The QCAT Act under section 95(2), however, allows a discretion to limit the rights above if it is considered that the tribunal already has sufficient evidence about the matter.

Legal Representation

Section 43 of the QCAT Act provides that parties are to represent themselves unless the interests of justice require otherwise. This differs from the Courts where parties have a right to be represented by a lawyer. The parties to a QCAT matter must apply for leave to be represented whether by a lawyer or someone else. QCAT considers the following when deciding if leave should be granted for a party to be represented:

1. The party seeking permission is a State agency;
2. The proceeding is likely to involve complex questions of law;
3. Another party is being represented;
4. All of the parties have agreed to a party being legally represented; and
5. Any other relevant factors.

QCAT will not grant permission for a party to be represented if it is not in the interests of justice to do so, even if one of the above circumstances applies.

As legislation in Queensland currently stands, parties have a choice of which jurisdiction they wish to proceed. Sutton v Tang [2015] QDC 191 related to a minor motor vehicle accident. This matter commenced in the Magistrates Court, however, also fell into the definition of a ‘minor civil dispute’ in accordance with section 11 of the QCAT Act. Both parties had executed a request for trial date, however upon filing, received a notification to provide submissions as to why the proceedings should not be transferred to QCAT. The parties responded with joint submissions in support of the matter staying in the Magistrates court. At first instance, consideration of the matter on the papers provided the dispute was to be transferred to QCAT. The presiding Magistrate ordered that both parties had leave to be represented by their respective lawyers and determined that the potential liability of the parties’ legal costs, and its relevance to parties’ commercial decisions, was irrelevant.

The decision was appealed by the applicant and the decision by Reid DCJ granting the appeal highlighted the issue of costs and legal representation as the main errors made by the Magistrate. Reid DCJ concluded that the decision to grant legal representation pursuant to section 53 QCAT Act was not within the power of the Magistrate. The provisions of section 53(2)(b) QCAT Act merely provides the Court may make orders and give the directions ‘it considers appropriate to facilitate the transfer’. The decision to grant legal representation is not within the scope of facilitating the transfer and remains at the discretion of the tribunal.

Reid DCJ held that the legal costs incurred by the parties is a factor that should have been taken into account in exercising the discretion and the Magistrate was in error to conclude that costs were irrelevant. It was noted the costs the tribunal can order are limited to the amount of the filing fee paid by the parties on filing the claim and/or counterclaim in the initial proceedings. There is no power within QCAT to award any other costs, no matter the extent to which they may have already been incurred prior to the transfer from Magistrates Court to QCAT.

There are a number of factors that should be considered prior to bringing an action in either QCAT or a Court including but not limited to commercial basis, the nature of the dispute, the complexity of the matter and costs implications. The decision to commence proceedings in either QCAT or a Court should be considered on a case by case basis.