**CITATION:** _Remely v O'Shea & Another_ [2007] QSC 225 - QSC 2007 case summary

Supreme Court of Queensland|2007-08-28|Before: Dutney J, Mr J, Owen J

[1] Mr Otto Remely has sought judicial review of a decision of the first respondent ("the Referee") under the Small Claims Tribunal Act 1973 (QLD) ("the Act"). The referee's decision was in relation to Mr Remely's disputes with the second respondents, Mr & Mrs Vandenberg, over Mr Remely's tenancy at the Vandenberg's caravan park ("the caravan park"). Mr Remely had filed two applications in the Small Claims Tribunal ("the tribunal"). The first application was to set aside a notice to leave the caravan park. The second was in relation to a number of charges Mr Remely alleges were illegally levied by the second respondents and in relation to his bond.

[2] Mr Remely had ceased to reside at the caravan park more than 12 months time prior to the hearing of this matter.

[4] No party has contended that judicial review is not available for the matters raised by Mr Remely and I intend to proceed on the basis that the decision is reviewable on the grounds raised.

[5] Mr Remely has raised six matters as grounds for review. First, he submitted that he was denied natural justice because the male second respondent did not attend the hearing and was thus unavailable for cross-examination. He was also denied natural justice in not receiving copies of three affidavits relied on by the second respondents during the hearing. Secondly, Mr Remely submits that the Referee permitted an agent to appear for Mr Vandenberg without any reason for the agent having been identified. Thirdly, Mr Remely submitted that electricity charges were levied unlawfully by the second respondents. Fourth, Mr Remely submitted that an alleged rent increase by the second respondents was unlawful. Fifthly, Mr Remely submitted that the termination of his tenancy was contrary to law. Finally, Mr Remely submitted that the second respondents' failure to lodge his bond money with the Residential Tenancies Authority was unlawful.

[6] I shall deal with these points seriatim acknowledging that this is a procedural review and not an appeal.

Mr Vandenberg's failure to be available for cross-examination

[7] Mr Vandenberg did not appear at the hearing before the Referee. It had been Mr Remely's intention to cross-examine him concerning the electricity charges and other matters. Mr Remely submitted that the rules of natural justice entitled him to examine any witness relevant to his case, including Mr Vandenberg. In support of this submission Mr Remely referred me to a decision of Owen J in Ex parte Taylor; re Butler (1924) 41 WN (NSW) 81 and in particular to this passage from the judgment where Owen J quotes from an earlier decision of Ex parte Fealey 18 NSWLR 282:

"A decision contrary to natural justice is where the presiding judge or magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or in cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court."

[8] I do not accept that there has been such a denial of natural justice in this case for the following reasons. A party to proceedings is not necessarily a witness. Mr Vandenberg did not give evidence either orally or by affidavit. Section 34 of the Act makes it clear that the attendance of all parties is not a prerequisite to a determination by the Referee. The only consequence of Mr Vandenberg's failure to appear was that the Referee proceeded to determine the dispute without any input from him. In those circumstances I can see no basis for a finding that Mr Remely was denied natural justice by reason of that failure to appear.

[9] Mr Remely argued that he was denied natural justice because he was not provided with copies of affidavits relied on by the second respondents and the Referee during the hearing.

[10] The real complaint is that copies of the affidavits were not given to Mr Remely.

[11] The affidavits were of three caravan park resident. They dealt with a change in the caravan park rules.

[12] Mrs Vandenberg's evidence was that the referee asked her whether there had been any change in the caravan park rules concerning rubbish bins. Mrs Vandenberg said, "No" and mentioned that she had three affidavits with her as evidence. She deposes to having read aloud the contents of the affidavits including the name of each deponent. Each affidavit was less than an A4 page in length and contained only one substantive paragraph. The substantive paragraph in each affidavit was identical. The Referee asked if she could see the affidavits and they were handed up to her. Mr Remely did not ask for a copy of the affidavits or make any objection to the affidavits being handed up. By reason of them having been read aloud, Mr Remely was aware of the contents of the affidavits.

[13] Mr Remely denied in argument that the contents of the affidavits were read in Court and referred me to his affidavit filed in the present proceedings. In his affidavit filed on 5 June 2006, Mr Remely said that he did not receive a copy of the affidavits which had not previously been filed. This is repeated in a document entitled "Supplement to Judicial review Application" filed on 16 October 2006. Neither document addresses Mrs Vandenberg's claim that the affidavits were read.

[14] It might in fact be that what Mrs Vandenberg did was to identify the three deponents and then read one of the affidavits which were all in identical terms. Even so Mr Remely was aware of the nature of the allegation he had to meet.

[15] Of course, Mr Remely ought to have been provided with copies of the affidavits. However, in all the circumstances I am not persuaded that there has been any breach of natural justice.

[16] Mr Remely further argued that the affidavits in question were witnessed by a Justice of the Peace ("JP") from the courthouse and that the JP may then have discussed the matter with the Referee prior to the hearing. There is no evidence of this and it seems inherently unlikely that a JP would have done so. JP's who are also members of the court staff regularly witness affidavits for members of the public. I would be surprised if the JP's in fact read the contents of the affidavits, except, perhaps, in a particularly notorious matter, I would be even more surprised if a JP then discussed the affidavits with anyone else, much less the Magistrate who would be acting as Referee. In any event, there is no evidence that the scenario feared by Mr Remely actually occurred.

[17] Section 32 of the Act requires each party to conduct his or her own case unless it appears to the Referee that a non-legally qualified agent should be permitted to represent a party as a matter of necessity.

[18] In this case, Mr & Mrs Vandenberg attended at the registry on the day prior to the hearing and enquired as to whether Mr Vandenberg could be represented by their son ("the agent"). Mr and Mrs Vandenberg were told that this was possible and were provided with an application form. The application form is a printed document on which the names of the parties, the time and date of the hearing and the particulars and consent of the agent have to be completed. There is no provision on the form for any reason for the appointment to be included. Mr and Mrs Vandenberg completed the form but in view of its contents did not specify any reason for the appointment of their son as agent.

[19] On the day of the hearing, the agent attended with his mother. Mr Remely objected. The Referee indicated that she could see no basis for Mr Remely's objection to the agent's attendance. No reason was advanced at the hearing as to why the attendance of the agent was necessary.

[20] The jurisdiction to allow a party to be represented by an agent is conditional upon the Referee being satisfied that such attendance is necessary. If no reason is advanced for the appointment of the agent, that jurisdictional hurdle cannot be met. Therefore, the Referee had no basis for allowing the second respondents' son to be appointed as an agent.

[21] Despite the above, it is common ground that the agent in this case did not play any active role in the proceedings. He did not speak during the hearing and the sole purpose of his attendance was to provide moral support for his mother who had not previously been involved in such proceedings.

[22] To be entitled to judicial review the applicant must be "person aggrieved" as defined in s 7 of the Judicial Review Act 1991 (Qld). To be so aggrieved, Mr Remely must be a person whose interests are adversely affected by the decision. Regardless of my finding that the Referee had no grounds to allow the agent to appear for Mr Vandenberg at the hearing, the appointment had no effect at all on Mr Remely's interests and he is thus not a "person aggrieved" within the statutory definition. His application must fail on this ground.

[23] Next the applicant alleges that the second respondents overcharged him for electricity and consequently contravened the relevant statutory regime. For the purposes of this application, Mr Remely submitted that the referee failed to deal with this contravention when she was obliged to do so at the hearing.

[24] Mr Grose for the Vandenbergs submitted before me that the issue was moot because Mrs Vandenberg had in fact credited Mr Remely's account with the amount of the overcharges in accordance with an undertaking she gave to the Referee at the hearing.

[25] Mr Vandenberg did not challenge Mrs Vandenberg's evidence on this issue. Accordingly, I accept that, in fact, Mr Remely has been refunded the amount of any overcharge and is not now out of pocket. It follows that he has suffered no detriment by the Referee's refusal to determine the issue and is thus not a person aggrieved by that decision for the purposes of s 7 of the Judicial Review Act.

[26] In any case, I am not satisfied a breach of natural justice or a jurisdictional error has occurred. Consequently, I dismiss Mr Remely's application on this ground also.

[27] The next matter concerns the bond paid by Mr Remely.

[28] Mr Remely alleged that the bond paid by him was not lodged with the Residential Tenancy Authority as required by Residential Tenancies Act 1994 (Qld). Despite this, by the time of the hearing before the referee the bond had been repaid in full to Mr Remely by crediting the amount against his account. In the circumstances, the Referee made no order in relation to Mr Remely's complaint.

[29] Mr Remley further submitted that, notwithstanding the fact that he had recovered the bond, there was an obligation on the referee to make findings about Mr and Mrs vandenberg's initial failure to lodge the bond money with the Authority. Mr Remely indicated that what he sought was an admonishment of Mr and Mrs Vandenberg.

[30] I am not satisfied that there was any such obligation on the part of the Referee. Since Mr Remely had recovered what was owed to him, I do not consider the Referee's failure to deal with the matter further can be criticised. Again, the issues raised go neither to breach of natural justice nor to jurisdiction.

[31] Mr Remely complained that the second respondents increased the rent in breach of s 53 of the Residential Tenancies Act.

[32] From the commencement of their tenancies, residents of the caravan park were required to cut the grass surrounding their sites. For this purpose the residents were able to use a lawn mower and whipper snipper provided by the second respondents free of charge.

[33] At some stage, the second respondents' lawn mower and whipper snipper ceased to be available to the residents. Residents were then required to source the equipment elsewhere. Alternatively, the second respondents offered to have the work carried out for the residents for a fee of $2.50 a week.

[34] According to Mr Remely, the Referee found that having paid the $2.50 for 12 months without objection, Mr Remely must be taken to have agreed to the fee being charged. Mr Remely submitted that this was wrong in law because s 53(6) of the Residential Tenancies Act excused payment of any rent increase made otherwise than in accordance with the section. The only finding recorded on the Tribunal's file is that no money was refundable by the Vandenbergs to Mr Remely as a result of the lawn mowing fee being charged.

[35] Whatever the reason for the finding, I am not satisfied that the lawn mowing fee constituted rent. The tenancy agreement always imposed the obligation on residents to mow the areas surrounding their caravan sites. There was no obligation on the caravan park managers to provide the equipment to do so. There was no evidence, or even submission, that the service offered by the second respondents was compulsory or that residents were not free to carry out the mowing themselves. Neither was there any evidence that the fee charged by the managers to have the mowing carried out was unreasonable. In the light of these findings, the fee does not seem to me to constitute rent. In any event, the arguments raised in relation to this matter of complaint go to the merits of the Referee's decision rather than to the process.

[36] I am not persuaded that the Referee has made any reviewable error in relation to the mowing charge. No breach of natural justice is alleged and there is no allegation that the Referee lacked jurisdiction to determine the issue. What is really complained of is that the Referee's decision was wrong. For the reason I have outlined above, I consider the Referee's decision to be correct.

[37] The final complaint advanced by Mr Remely concerned the termination of the tenancy.

[38] Mr Remely submits that the notice to terminate the tenancy was invalid under the Residential Tenancies Act. He contends that the Referee's decision to dismiss his application to set aside the notice terminating the tenancy was wrong. In other words, Mr Remely seeks a merits review which the Smalls Claim Tribunal Act does not permit.

[39] The other difficulty faced by Mr Remely in relation to this complaint is that he no longer resides in the caravan park and has not done so for more than a year. He does not want to return to the caravan park. The setting aside of the order would therefore serve no useful purpose. No claim was made for any compensation for wrongful determination of the tenancy.

[40] In those circumstances, it seems to me that the application in this respect is frivolous and should be struck out under s 48 of the Judicial Review Act. I regard the application on this issue as frivolous because in the circumstances outlined, the applicant does not seek any relief based on a positive outcome. If ultimately he succeeded in having the notice set aside nothing would flow from that since he has already left the park, does not wish to return and did not seek any compensation.

[41] In any case, I do not consider Mr Remely's complaint to have merit. In essence, he argues that although the notice purports to have been issued under s 165 as a notice to leave without ground, the character of the notice changed.

[42] At the hearing, the referee asked Mrs Vandenberg why she wanted Mr Remely to leave the park. Mrs Vandenberg responded to the effect that she found him disruptive and difficult and felt intimidated by him.

[43] Mr Remely submitted that, having given a reason, the notice ceased to be a notice under s 165 and became one under s 170, s 171 or s 172 on grounds of objectionable behaviour, incompatibility or repeated breaches. Termination on these grounds had not been applied for and thus the Referee had no jurisdiction.

[44] This submission is misconceived. The Residential Tenancies Act permits a landlord to give a tenant a notice to leave on a number of grounds. In any particular case, more that one basis for giving a notice may exist. The consequence of giving a notice under s 165 is that the minimum time which must be allowed to the tenant to vacate the premises is longer than the minimum time the landlord must allow if the termination is for stated reasons. The landlord is free to choose the section of the act under which to give notice. That choice is not taken away merely because the Tribunal questions the landlord. The questions from the Referee are explicable if regard is had to the prohibition in sub-section (1A). Section 165 (1A) prohibits the giving of a notice to leave without reason if the real reason for such a notice is that the tenant is taking or proposing to take action to enforce his or her rights under the Residential Tenancies Act. Prior to the notice being served, Mr Remely had given a notice to remedy breach in relation to some of the matters raised in these proceedings.

[45] In the light of Mr Remely's application to have the notice to leave without reason set aside, the referee had to determine whether the prohibition applied. Neither the questions asked by the referee nor any answers given to those questions by Mrs Vandenberg can affect the basis of the notice already given.

[46] By dismissing Mr Remely's application to set aside the notice to leave, the Referee must be taken to have been satisfied by Mrs Vandenberg's answers to questions concerning her motive that the second respondents were not prohibited by sub-section 165(1A) of the Residential tenancies Act from giving a notice to leave without reasons. The Referee then had to deal with the notice as a notice without reasons. It is thus impossible to find procedural error in what the Referee has done.

[47] In the result Mr Remely's application must fail for the reasons I have outlined.

[48] I have received submissions on costs from the parties. I am not persuaded that there is any reason to depart from the usual rule that costs should follow the event.

[49] I therefore dismiss the application and order the applicant to pay the respondents' costs to be assessed on the standard basis.

CITATION: _Remely v O'Shea & Another_ [2007] QSC 225

At a glance

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Judgment (51 paragraphs)

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