Published: 17 March 2007.

Jurisdiction of Small Claims Tribunal
The first comment that I wish to make is in relation to a report which appeared in the Spring edition of United Times, the newsletter of the Tenants’ Union of Queensland (TU). At the time of writing this article I have not had the opportunity of discussing the issue raised in the report with a representative of that organisation due to the time frame required for the submission of this article for publication. My comments should not be taken as a criticism of the TU but merely my view of what was reported in the United Times.

The article relates to a decision of a Magistrate who was conducting a trial in the Magistrates Court in relation to a claim by a lessor against a tenant for damages arising out of the tenant’s neglect of the premises. The article reports that the Magistrate decided the Small Claims Tribunal had the exclusive jurisdiction to deal with these types of tenancy matters. It is my view that this comment, attributed to the Magistrate, is not the correct interpretation of the law.

Section 18 of the Residential Tenancies Act 1994 provides as follows:—“A right or remedy given to a person under this Act is in addition to, and not in substitution for, a right or remedy the person would have apart from this Act.�
Prior to the commencement of the Residential Tenancies Act 1994, a lessor could sue a tenant for damages in the Magistrates Court and is therefore still able to do so. The effect of the Residential Tenancies Act 1994 is that jurisdiction was given to the Small Claims Tribunal to deal with matters under that legislation provided certain procedures were followed by the parties. One procedure that has to be followed is that, in respect of compensation claims by lessors or tenants, the claims can only be heard in the Tribunal after unsuccessful conciliation with the RTA and the claim must be lodged within six months of the party being aware of the breach. It is my opinion that all compensation claims for damages or for arrears of rent can still be heard in the Magistrates Court. Actions for termination of tenancies and bond disputes can only be heard in the Small Claims Tribunal.

I trust that my comments on this jurisdictional matter have clarified the issue. Should any party require further information, please contact the Editor.

Non-livability of premises
I will discuss here the circumstances where premises are destroyed, or made completely or partly unfit to live in other than due to a breach of the tenancy agreement by one of the parties. These circumstances generally occur as a result of fire or flood. The Residential Tenancies Act 1994 provides that either party may give notice in the prescribed form to the other party within one month after the happening of the event, and the handover takes place on the date the notice is given.

There is no provision in the legislation for the requirement of the lessor to provide temporary accommodation to the tenant as the tenancy has been terminated and can only be taken up again by the parties signing a new agreement. It should be noted that this applies ONLY where there has been no breach of the agreement by either of the parties.

Where the tenant has willfully or negligently caused the damage e.g. by lighting a fire or leaving water running, the lessor may be able to claim compensation against the tenant. Where the tenant suffers a loss of amenities, short of the premises being unlivable, the tenant may apply for compensation, or reduction of rent.
Compensation

The Residential Tenancies Act 1994 contains several references to the term “compensation� in the context that the Small Claims Tribunal can make an order for compensation. The two main provisions are
Section 250 (Orders about breach of agreements) and Section 255 (Tenant remaining in possession).

There is no definition of “compensation� in the legislation and therefore the meaning of the word must be considered within the general rationale of the Residential Tenancies Act 1994 and the Small Claims Tribunal Act 1973.

The Tribunal will not allow costs in respect of “out of pocket� expenses such as phone calls, postage, petrol expenses, photocopying. A party cannot claim for legal fees or other professional fees including agent’s fees. These types of expenses are deemed to be prohibited costs under the Small Claims Tribunal Act.

There is no express provision in the Residential Tenancies Act 1994 in relation to claims for damages for pain and suffering, economic loss and damage to a tenant’s personal property and it is my view that the Tribunal does not have the jurisdiction to make orders in respect of these matters unless there is a specific provision in the legislation.

Bill Randall, Magistrate, Small Claims Tribunal – reprint from Update – Residential Tenancies Authority Queensland

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