Proctor : March 2019
10 PROCTOR | March 2019 QLS seeks changes to QCAT Bill by Pip Harvey Ross In September last year Attorney- General Yvette D’Ath tabled a report reviewing the operation of the Queensland Civil and Administrative Tribunal (QCAT) over the last nine years. ‘The Review of the Queensland Civil and Administrative Tribunal Act 2009’ (QCAT Act report) made several recommendations to improve the efficiency of tribunal proceedings, but also indicated that limited legislative amendment would be required. The Queensland Civil Administrative Tribunal and Other Legislation Amendment Bill 2018 was introduced to implement the recommendations of the QCAT Act Report and also recommendations from the ‘Lemon Laws – An inquiry into consumer protections and remedies for buyers of new motor vehicles’ report (Lemon Laws Inquiry report). The QCAT Act report found there was a need to clarify QCAT’s jurisdiction in tenancy matters based on a perceived inconsistency between section 13(4) of the QCAT Act and the operation of section 516 in the Residential Tenancies and Rooming and Accommodation Act 2008. The Bill seeks to clarify the jurisdiction of QCAT to hear tenancy matters up to $25,000. The Lemon Laws Inquiry report recommended that the QCAT jurisdictional limit of $25,000 for matters involving new motor vehicles with major defects be changed. Government members of the committee of inquiry recommended that the jurisdictional limit be removed, while non-government committee members recommended that the limit be increased to $40,000. The Bill will action the Government’s commitment to lift the jurisdictional limit for disputes made under Australian Consumer Law (ACL) consumer guarantees for the supply of goods that are vehicles costing up to $100,000. In response to the Bill, Queensland Law Society raised significant concern regarding the inability of solicitors to appear in the tribunal as of right. QLS considers legal representation as of right would assist the tribunal in dealing with matters that come before it and promote access to justice for Queenslanders. As the Bill seeks to raise the jurisdictional limit of QCAT to $100,000, QLS considers that such a significant sum of money justifies the need for legal representation in QCAT. QLS was supportive of the reforms aimed at facilitating increased engagement in alternative dispute resolution when appropriate. However, QLS suggested that guidance should be provided on the types of matters appropriate for conciliation. This could include the consideration of matters in which there is any obvious power imbalance between the parties. QLS also raised an issue often faced by members in respect of relatively minor motor accidents between an insured party and an uninsured party when it is not clear who is at fault. Uninsured parties will often be pursued by debt collectors following such an incident with the collector commencing a proceeding in the Magistrates Court if they are unable to claim the debt. This means that, often, the best advice for an uninsured party is not to fight a claim even when they believe that they were not at fault. The QCAT Act creates a ‘cost- free’ process for resolving disputes about property damage after a minor motor vehicle accident, however, the experience of QLS members is that debt collectors are unlikely to use this process because they are not able to recover legal costs. Uninsured parties cannot, however, bring a pre-emptive claim in QCAT to avoid Magistrates Court proceedings as the process is available only to the party seeking the payment and not to a party seeking to avoid a payment. QLS has suggested that parties to minor motor vehicle claims should be entitled to bring pre-emptive proceedings in QCAT to avoid the costs associated with disputing fault in the Magistrates Court. QLS also reiterated previous concerns that no additional training or resources have been provided to QCAT despite the additional legislation nominating the tribunal as the body to hear and determine disputes. QLS sought a response from the Government to address the concern that, without adequate resourcing, QCAT will be unable to adequately deal with its new jurisdiction. QLS President Bill Potts, representative of the QLS Competition and Consumer Law Committee Anthony Haly and QLS Policy Solicitor Kerryn Sampson appeared at the public hearing on the Bill on 29 January to discuss the QLS submission in more detail. Pip Harvey Ross is a QLS legal policy clerk. This article was prepared under the supervision of solicitors on the QLS Legal Policy Team. Legal policy | News Appointment of receiver for Stenton & Moore Solicitors, Mudgeeraba On 7 February 2019, the Council of the Queensland Law Society Incorporated (the Society) passed resolutions to appoint officers of the Society, jointly and severally, as the Receiver for the law practice, Stenton & Moore Solicitors. The role of the Receiver is to arrange for the orderly disposition of client files and safe custody documents to clients and to organise the payment of trust money to clients or entitled beneficiaries. Enquiries should be directed to Sherry Brown or Bill Hourigan, at the Society on 07 3842 5888.