Remely v O'Shea & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Remely v O'Shea & Anor [2008] QCA 78

PARTIES: OTTO REMELY (applicant/appellant) v LEANNE O'SHEA (first respondent) GEOFF VANDENBERG AND LARAINE VANDENBERG (second respondents)

FILE NO/S: Appeal No 8395 of 2007 / SC No 01 of 2006

DIVISION: Court of Appeal

PROCEEDING: Miscellaneous Applications / General Civil Appeal

ORIGINATING COURT: Supreme Court at Bundaberg

DELIVERED ON: 4 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 13 March 2008

JUDGES: McMurdo P, Fraser JA and Mackenzie AJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.Application for leave to appeal from the decision of Dutney J refused / 2.Application concerning the orders made by Holmes JA refused / 3.Appeal dismissed / 4.Applicant/appellant pay the respondents’ costs of the appeal and the applications, to be assessed on the standard basis in each case / Ex tempore orders of the Court made on 13 March 2008: / 5.Application to disregard the second respondent’s supplementary record book refused / 6.Application to strike out the second respondent’s outline of argument refused / 7.Application for directions to the registry about filing and service of documents refused / Orders made ex tempore by McMurdo P on 4 April 2008

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant had sought judicial review – where the appellant’s application for judicial review was dismissed – where the appellant appealed that decision / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the appellant sought review of a decision of the Small Claims Tribunal – where the Small Claims Tribunal Act 1973 (Qld) provided that no appeal shall lie from a decision of the tribunal unless there had been a denial of natural justice or the tribunal lacked jurisdiction – where the appellant sought judicial review – where the appellant submitted that there were numerous issues that warranted review of the tribunal’s decision – whether the numerous issues raised by the appellant demonstrated that he had been denied natural justice or that the tribunal had lacked jurisdiction / APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the appellant submitted that he had been denied natural justice – where the appellant submitted that various evidence demonstrated that a denial of natural justice had occurred – whether the appellant’s evidence discharged the onus upon him to prove that the tribunal had denied him natural justice / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the trial judge exercised the discretionary power conferred by s 49 of the Judicial Review Act 1991 (Qld) to order that the appellant pay the respondents’ costs of his application for judicial review – where the appellant submitted that the disparity in income between the parties and the existence of significant matters of public interest meant that in the circumstances he should not be ordered to pay costs – whether the trial judge erred in the exercise of his discretion / Judicial Review Act 1991 (Qld), s 7(1)(a), s 20, s 49 / Residential Tenancies Act 1994 (Qld), s 38, s 53, s 59, s 78, s 92(3), s 94, s 134, s 141, s 165, s 170, s 171, s 172, s 249, s 250 / Small Claims Tribunals Act 1973 (Qld), s 14, s 16, s 18(1), s 18(2), s 19, s 32(2), s 32(5), s 33(1), s 33(1A), s 34(1) / Supreme Court Act 1995 (Qld), s 253 / Supreme Court of Queensland Act 1991 (Qld), s 43(4) / Uniform Civil Procedure Rules 1999 (Qld), r 681 / Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, cited / House v R (1936) 55 CLR 499; [1936] HCA 40, cited / Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480 cited / Remely v O'Shea & Anor [2007] QSC 225, referred to / VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117, cited

COUNSEL: The applicant/appellant appeared on his own behalf / R H Berry (sol) for the first respondent / R B Dickson for the second respondents

SOLICITORS: The applicant/appellant appeared on his own behalf / Crown Law for the first respondent / Payne Butler Lang for the second respondents

McMURDO P: The appeal should be dismissed with costs and the applications should be refused with costs for the reasons given by Fraser JA.

FRASER JA: The appellant appeals against a trial judge’s refusal of the appellant's application for judicial review of a decision of the first respondent acting as referee under the Small Claims Tribunals Act 1973 (Qld) ("the Act"). The appellant also seeks leave to appeal against the decision of the trial judge to strike out one part of the appellant’s application for judicial review.

The appellant, a tenant at the second respondents’ caravan park, had filed two claims in the Small Claims Tribunal. The first claim sought to set aside the second respondents' "notice to leave without ground" dated 27 November 2005, which required the appellant to leave the caravan park on 28 January 2006. The second claim concerned tenancy disputes about a variety of matters, including the handling of rubbish, electricity charges, bond and rent.

The tribunal dismissed the appellant’s claims.

Subsection 18(1) of the Act provides that no appeal shall lie in respect of an order made by the tribunal. Judicial review is restricted by s 19 of the Act, which provides:

"19 Immunity from judicial supervision

No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be taken by or before a small claims tribunal or in respect of any order made therein save where the court before which such writ or judgment is sought is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding."

Subsection 18(2) of the Judicial Review Act 1991 (Qld) provides that it does not affect the operation of specified enactments, including s 19 of the Act.

It follows, as the trial judge observed,¹ that the right to judicial review of a referee's decision under the Act is limited to issues of want of jurisdiction and breach of procedural fairness (or "natural justice", to use the terminology of the Act). It is necessary to bear that limitation in mind when considering the grounds of the appellant’s appeal to this Court.

Ground 1: Refusal to Order Compliance with Subpoena

The appellant complains that the trial judge refused to order one of the respondents, Mr Vandenberg, to appear at the trial of the appellant's application for judicial review pursuant to a subpoena issued by the appellant for that purpose.

The trial judge ruled against the appellant's application for enforcement of the subpoena for the reason that the evidence which the appellant wished to adduce from Mr Vandenberg was not relevant to the questions whether the tribunal lacked jurisdiction or had denied natural justice to the appellant. That followed from the undisputed evidence that Mr Vandenberg was not present at the hearing before the referee and the respondents did not rely upon any evidence from him at that hearing or at the trial of the appellant’s judicial review application.

The appellant argues that the trial judge’s ruling was in error because, so the appellant contends, he had intended to ask Mr Vandenberg questions about the appellant's claim that the respondents had overcharged him for electricity, had unjustifiably retained rent, had overcharged rent and had overcharged other residents of the caravan park.

Given that the appellant did not ask any such questions (or any questions) of Mrs Vandenberg at the trial of the judicial review application even though she (unlike her husband) was both present at the hearing in the tribunal and swore an affidavit dealing with those topics in the judicial review application, the appellant’s contention that he would have asked such questions of Mr Vandenberg is a curious one.

In any event, the appellant’s argument must be rejected because the decision by the trial judge to refuse to order compliance with the subpoena was correct for the reason given by his Honour.

Ground 2: Appointment of Agent

Section 32 of the Act provides:

"32****Presentation of cases

(1)Each party to a proceeding before a tribunal shall have the carriage of the party’s own case.

(2) A party to a proceeding before a tribunal shall not be entitled to be represented by an agent unless it appears to the tribunal that an agent should be permitted to that party as a matter of necessity and approves accordingly.

(3) In no case shall a tribunal approve of the appearance in a

proceeding of an agent who has a legal qualification under the laws of this State or of any other place, or who is of the nature of a professional advocate, unless—

(a) all parties to the proceeding agree; and

(b) the tribunal is satisfied that the parties, other than the party who applies for approval of an agent, or any of

them shall not be thereby unfairly disadvantaged.

(4) Where it appears to a tribunal that it should approve that an

agent may present to it the case of any party to a proceeding—

(a) it shall, where a particular agent is proposed for its

approval, satisfy itself that the proposed agent has

sufficient knowledge of the issue in dispute and is vested with sufficient authority to bind the party; and

(b)it may subject its approval to such conditions as to the type of agent as it considers reasonable to ensure that any other party to the proceeding is not thereby unfairly disadvantaged and, in such case, the entitlement of an agent to present that case shall be subject to compliance with those conditions.

(5) Contravention of any provision of this section shall not

invalidate the taking of the proceeding in which the

contravention occurs or of any order made therein."

The trial judge found:²

"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.

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."

There being no evidence of the necessity for an agent, the trial judge expressed the view that there was no basis for the referee’s decision to allow the second respondents’ son to act as an agent under s 32(2) of the Act.³

The trial judge nevertheless rejected the appellant’s application for review on this ground. Only a person who is "aggrieved" by a decision can apply for review under s 20 of the Judicial Review Act 1991 (Qld). His Honour found that the appellant was not a "person aggrieved" in terms of s 7(1)(a) because his interests were not adversely affected by the son’s appointment as agent.⁴

The trial judge formed that conclusion because of his Honour’s findings of fact that, despite the son’s appointment, he did not in fact 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.⁵

In this Court the appellant does not challenge those findings. Rather, he argues that a consequence of the alleged breach of s 32(2) of the Act was that Mr Vandenberg did not attend the hearing, with the result that he was thereby denied the opportunity of asking questions of him. This, the appellant argues, denied him natural justice.

The evidence does not justify the appellant’s assumption that, had the respondents’ son not been appointed as agent, Mr Vandenberg would have attended the hearing. That he did not attend even though the son did not in fact act as his agent at the hearing suggests the contrary. Nothing in the Act obliged Mr Vandenberg to attend. Rather, the Act contemplates that parties might not attend: s 34(1) of the Act empowers the tribunal to resolve the dispute on such evidence as has been adduced before it notwithstanding that the case of any party to a proceeding before the tribunal is not presented to it. The Act does not include provision for the issue of a subpoena.

It is not easy to identify any disadvantage to the appellant resulting from Mr Vandenberg’s non-attendance at the hearing in the tribunal. On the face of it, it advantaged the appellant because his version of events was not contradicted by any evidence from Mr Vandenberg; but if there was any disadvantage to the appellant, it was not a consequence of the appointment of the son as agent. It was a consequence of Mr Vandenberg’s liberty not to attend the hearing.

The appellant also contended that he was "aggrieved" for a further reason, namely that when he asked the referee "whether I was permitted to, say, have a secretary present" the referee responded that "that would not be allowed". He argued that proceedings under the Residential Tenancies Act 1994 (Qld) are closed to the public so that the trial judge’s acceptance that it was permissible for Mrs Vandenberg to have a family member present for moral support created a privilege that was not available to the appellant and his interests were adversely affected for that reason.

This argument should be rejected for a number of reasons. It is hypothetical: the appellant’s notice of appeal does not contend that he applied for leave to have anyone else present to assist him, as opposed to raising the topic in a hypothetical way. His contention is also based on a factual premise that is contradicted by the affidavit of Mrs Vandenberg, upon which the appellant did not cross-examine. Mrs Vandenberg deposed that what in fact happened was that, when the appellant, in an apparently agitated and angry manner, informed the referee that, had the appellant known about the "agent procedure", he would have brought an agent for secretarial purposes, the referee advised the appellant that "if he had applied for an agent to represent him, he would not be able to personally state his case". That response accurately described the likely result of use of an agent by the appellant. Finally, the appellant’s application for review, which specifically described the bases upon which he claimed to be "aggrieved", did not mention this point and it appears that he did not agitate it at the trial.

This ground of appeal should be rejected for those reasons, but there are three further points I should mention. First, the findings to the effect that despite the son’s "appointment" as agent he did not in fact present the respondents’ case establish that, contrary to the appellant’s argument, there was no contravention of s 32(2). Second, the appellant’s argument wrongly assumed that the presence of the second respondents’ son at the hearing contravened a stipulation in the Act that proceedings be held in private. The effect of s 33(1) and (1A) of the Act is that proceedings about a tenancy application are not required to be held in private, unless "domestic violence issues" intrude or the tribunal so orders: neither exception applied here. Third, s 32(5) of the Act, construed in the context of s 18 and s 19, may in any event preclude judicial review on the basis of the appellant’s claim that the alleged breach of s 32(2) denied him natural justice.

Ground 3: Affidavits

The appellant contends that the learned primary judge erred in rejecting his argument that he was denied natural justice because he was not provided with copies of three affidavits relied upon by the referee.

That evidence related to one aspect of the appellant’s second claim in the tribunal. The gist of his argument was that, whereas the park rules in force at the time of the commencement of his tenancy on 27 September 2004 provided for the management to place the bins out for rubbish collection, clean them and return them to the site, new park rules issued as at 1 December 2004 and a supplementary direction some weeks later required tenants to handle one bin for two sites between them, and imposed upon tenants the obligation to empty and clean the bin. The appellant argued that the second respondents did not comply with the notice requirements in s 134 of the Residential Tenancies Act 1994 (Qld) so that s 141 of that Act invalidated the change to the park rules.

The three affidavits about which the appellant complained he had no notice were in relevantly indistinguishable terms. Each deponent affirmed that he or she had been a resident of the caravan park during the relevant period; that during that time there had not been any changes to the park rules in relation to the shared rubbish bin arrangements; that those arrangements were that the tenants were responsible for putting the bin out for emptying and returning the bin to its original place one day a week; and that bins were shared by two tenants between adjacent sites.

An endorsement on the appellant’s second claim records the referee's satisfaction that "the bin situation is as it has been all throughout the tenancy". The tribunal did not make either of the orders sought in the appellant’s second claim that "1 That the Rubbish bin is handled by the park as it was prior to the Rule Changes" and "2 Alternatively that a separate bin be provided for the site".

The appellant's application for a statutory order of review claimed that he was not given copies of the three affidavits, he was unaware of the contents of them, and he was unable to make submissions relating to their content.

The trial judge recorded his Honour’s view that the appellant ought to have been provided with copies of the affidavits but his Honour nevertheless rejected the appellant’s claim that he had been denied natural justice.⁶

That finding was referable to the evidence of Mrs Vandenberg, who deposed:

"35. The Magistrate asked me whether the Park Rules had changed in relation to the rubbish bins. I answered 'no' and I had the Affidavits available at the Hearing. I exhibit hereto and mark 'LV5' a true copy of the Affidavit of Neil Rodwell, Michael Alan Jordan and Margaret Sylvia Jordan. I read out aloud all the information on those Affidavits including the name of the person and their address, and the content.

36. The Magistrate asked to see these documents so I handed them to her. I had a spare copy in my folder. Mr Remely would have clearly heard and understood the contents of these documents. The Magistrate did not ask me to hand a copy to Mr Remely, neither did Mr Remely ask me for a copy. The Magistrate then moved on to ask about another matter."

The appellant argued that the trial judge erred in not rejecting that evidence. He contended that the learned primary judge erred in observing⁷ that the appellant’s real complaint was that copies of the affidavits were not given to him and that the appellant's affidavits, whilst deposing that he had not received a copy of the affidavits, did not address Mrs Vandenberg's claim that the affidavits were read.

Paragraph 4 of the appellant's affidavit filed on 5 June 2006 and paragraphs 1 - 3 under the heading "Use of affidavits" in a document headed "Supplement to Judicial Review Application" filed on 16 October 2006 do appear to suggest that his real complaint was that copies of the affidavits were not given to him.

The appellant referred to paragraphs 11 and 12 of his affidavit filed on 5 June 2006, in which he deposed that he discovered after the hearing both that the documents handed up during the hearing before the referee were affidavits and that he was unable to make submissions relating to their content because he was unaware of it. Elsewhere, such as in paragraphs 4 and 5 of the "Supplement to Judicial Review Application", the appellant contended in general terms that the appellant was not aware of the affidavits’ content and had no opportunity to consider and respond to them. Perhaps the appellant’s clearest evidence in his favour on the point was in his affidavit sworn on 16 October 2006, in which he deposed:

"8. At one stage Mrs Vandenberg had some papers passed to the Magistrate. I did not know what they were and discovered several days later during a search of the file in the registry that they were affidavits relating to the rubbish bins. At that stage I noticed the very careful and identical wording of the affidavits and, were they in my possession for the hearing I would have wished to examine Mrs Vandenberg in relation to several aspects of their contents."

As contemplated by s 14 of the Act, there was no record of the evidence in the tribunal. There was no cross-examination of Mrs Vandenberg or of the appellant. The only relevant evidence on the topic was in the conflicting versions of those two witnesses.

Although the appellant’s evidence of his ignorance of the contents and the character of the "papers" handed to the referee is not readily reconcilable with Mrs Vandenberg’s evidence of her statements in paragraphs 35 and 36 of her affidavit to the effect that she identified and read out the content of the affidavits, the appellant did not specifically deny those statements. In any case, I can see no basis for the appellant’s contention that the trial judge was obliged to reject Mrs Vandenberg’s version of events to the extent that it conflicted with the appellant’s evidence. Contrary to the appellant’s submission, Mrs Vandenberg’s version of events was not inherently improbable.

It is trite law that the appellant bore the onus of proving the factual foundation for his allegation that the tribunal denied him natural justice.⁸ In light of Mrs Vandenberg’s detailed evidence, the absence of any challenge to it in cross-examination, the absence of any direct denial of her evidence by the appellant, and the difficulty of reconciling the conflict between their versions, it was open to the trial judge to decide, as his Honour did, that he was not persuaded that there had been any breach of natural justice.⁹ I am not persuaded that his Honour erred in that decision.

I would add that the tribunal’s refusal of the orders about the rubbish bin which the appellant sought in his second claim were deprived of practical significance for the parties by the appellant leaving the caravan park on 27 January 2006, following the tribunal’s rejection on 10 January 2006 of the appellant’s claim that the second respondents’ "notice to leave without ground" was invalid. It is not easy to identify the appellant’s legitimate interest in pursuing this ground of appeal.

The appellant made a further general complaint of bias by the referee. This was based in part on the appellant’s speculation that the Justice of the Peace who witnessed the affidavits must have discussed the case with the referee in the appellant’s absence and in a manner adverse to the appellant’s interests. The appellant also speculated that bias must be the explanation for the referee’s rejection of all of his claims. There is no evidence to justify these speculations. There was no error in the reasons given by the trial judge for rejecting the appellant’s similar argument at the trial.¹⁰

Ground 4: Electricity overcharges

The appellant argued that the trial judge erred in rejecting his contention that the tribunal failed to exercise its jurisdiction to determine the correct amount of the electricity charges. He argued that jurisdictional error was demonstrated by the referee’s third notation that "electricity charges are a matter for the relevant Qld Govt Dept".

In my opinion, there was no such error. To explain why this is so, it is necessary to refer to some of the evidence about the proceedings in the tribunal.

The appellant’s second claim sought three orders in relation to electricity charges, including:

"3. Reinstatement of pensioner discount scheme."

An attachment to the claim dealt with "electricity rebate and electricity charges" and, separately, "electricity calculation". Under the first heading, the appellant complained that on 29 November 2005 the second respondents had advised that they would discontinue administration of the "Queensland electricity pensioner rebate" scheme. The appellant argued that s 92(3) of the Residential Tenancies Act 1994 (Qld) obliged the second respondents to charge the appellant no more than the amount that the supplier would have charged the appellant for supplying electricity directly to the appellant, which amount would have been reduced by the rebate afforded by the supplier to pensioners.

That is not what s 92(3) provides. It provides:

"(3)The tenant must not be required to pay an amount for the outgoings that is more than –

(a)if a way for working out the amount payable by the tenant is prescribed under the regulations – the amount worked out in the way prescribed; or

(b)if a way is not prescribed – the amount charged by the relevant supply authority for the quantity of the thing, or the service or facility, supplied to, or used at, premises."

Clause 16(2) of the standard terms of moveable dwelling tenancy agreements in schedule 2 part 2 of the Residential Tenancies Regulation 2005 (Qld), under regulation 7(1) made pursuant to s 38 of the Residential Tenancies Act 1994 (Qld), provides that the landlord is not entitled to charge the tenant for electricity an amount that is greater than the amount that the landlord is charged for that electricity by the supplier. Absent any such prescription, s 92(3)(b) is to the same effect.

Accordingly, contrary to the appellant's argument, if (as apparently happened here) the landlord was charged for electricity at rates which did not include the "pensioner’s rebate", s 92(3) would not oblige the landlord to include that rebate in the landlord's charge to the tenant. The appellant did not point to any other statutory obligation in the second respondents to administer the "pensioner rebate scheme". Although the evidence about it is sparse, it appears to have been a voluntary scheme administered by a government department.

The appellant gave evidence to the effect that he obtained advice from the relevant government department that if the owners of the caravan park did not claim the rebate on his behalf then he could not claim it directly. That explains the referee’s third endorsement. It is not clear if it is a note of the evidence or the disputed issue, or one of the tribunal’s reasons,¹¹ but the better view is that it concerns only the appellant’s claim that the "pensioner discount" should be reinstated: given the absence of any statutory obligation binding the second respondents, it was a matter for the department whether or not it allowed the rebate to the appellant.

For these reasons, the trial judge did not err in rejecting the appellant's argument that the tribunal failed to exercise jurisdiction in this respect.

The appellant also argued that the trial judge erred in rejecting his other arguments about electricity charges. As I earlier mentioned, one attachment to the claim concerned "electricity calculation". Under that heading the appellant contended that there were over-charges of electricity amounting to "as much as 25.3%".

In that respect, the appellant’s second claim in the tribunal claimed the following orders:

"7. Order to discontinue electricity charges

8. Alternatively a reduction of electricity to the rate as required by the Acts."

The tribunal's jurisdiction comprehended those claims.¹² The tribunal exercised that jurisdiction when it dismissed them. The question whether the tribunal erred in dismissing those claims concerns only the merits of the tribunal’s decision. It was not amenable to challenge in the proceedings before the trial judge.

In this context, the appellant referred to the referee’s notation, that the tribunal was satisfied that there was no requirement for any refund of money "at this stage but can be adjusted". The evidence indicates that this reference to a possible adjustment in the future does not indicate any failure by the tribunal to exercise jurisdiction to deal with any claim by the appellant for a refund of electricity charges. There was no such jurisdiction because the appellant made no such claim. None appears on the face of the appellant’s two claims and that no such claim was made was deposed to by Mrs Vandenberg:

"[26] There were two (2) Applications, which had been filed. Neither stated a monetary amount. The Magistrate indicated that she could not find any monetary amount. When she asked Mr Remely directly whether he was seeking money, Mr Remely clearly answered 'no'. The Magistrate then stated that she had read that Mr Remely had been given formal Notice to Leave the Park. She asked whether he was seeking to have to the Notice To Leave overturned. Mr Remely answered 'yes'."

This notation is explicable by an undertaking volunteered by Mrs Vandenberg. Her evidence at the trial was to the effect that the appellant had not been overcharged for electricity, but she also said that in the course of a discussion in the tribunal hearing she had volunteered an undertaking that if the rate charged by the second respondents were incorrect she would reimburse any electricity overcharged to any tenant affected, including the appellant. In the context of that undertaking and in the absence of any claim for a refund, the referee’s notation does not establish any failure to exercise jurisdiction.

The appellant also challenged an alternative ground upon which the learned primary judge dismissed this part of the appellant’s claim, that it was moot because the appellant did not challenge Mrs Vandenberg's evidence at the trial that she had credited the appellant's account with the amount of the overcharges in accordance with her undertaking¹³. The appellant challenged this finding, contending that his detailed calculations on spreadsheets demonstrated error in Mrs Vandenberg’s evidence in the second respondents’ favour of some $150.

The trial judge's finding was understandable, given that the appellant did not put to Mrs Vandenberg that there was an error in her evidence that "the residents to not pay more than the prescribed charge, as set by Ergon" and that the appellant "enjoyed the benefit of the service which was charged at the appropriate rate, or lower, and that charge is set out in the park rules which he received on registration."

In my view, it is not appropriate to attempt to resolve the issue now agitated by the appellant because the trial judge was correct in rejecting this aspect of the application on the basis that the tribunal acted within its jurisdiction in dismissing the appellant’s claims. As I have mentioned, those claims did not include any claim for a refund of electricity charges and they have no continuing significance because the appellant left the caravan park years ago.

Ground 5: Bond

In the appellant's second claim in the tribunal, he sought an order: "For refund of unlodged bond". The claim was dismissed.

The appellant claimed that the bond which he paid was not lodged with the Residential Tenancy Authority as was required by s 59 of the Residential Tenancies Act 1994 (Qld). His Honour found that by the time of the hearing before the referee the bond had been repaid in full to the appellant by crediting that amount against his account, thus explaining why the referee made no order for a refund of the bond.¹⁴

The appellant's written submissions in the appeal contended that there was evidence to the contrary of the assertion that the bond had been refunded in full, but during the hearing the appellant appeared to accept that the full amount of the bond had been credited against his account.

The appellant's written submissions referred to the power conferred on courts by s 78 of the Residential Tenancies Act 1994 (Qld) to fine persons found guilty of an offence against s 59. That power was not enlivened because the second respondents had not been charged with an offence against s 59, much less found guilty of it.

The trial judge correctly refused the application for statutory review of this decision on the ground that the issues raised by the appellant did not concern breach of natural justice or jurisdiction.¹⁵ The appellant did not identify any error in that reasoning.

Ground 6: Rent increase

The appellant contended that rent had been overcharged when he accepted the respondents' offer to carry out gardening for an extra $2.50 per week in lieu of him cutting grass on his own site, which he had earlier done using an old lawnmower and other equipment apparently provided for that purpose. The appellant claimed that he had no choice but to accept that agreement, that no notice was given for the increase in "rent", that it was not made in accordance with s 53 of the Residential Tenancies Act 1994 (Qld) and was therefore illegal, and that since the rent increase to incorporate the gardening only the mowing had been done.

The claim was rejected by the referee. The appellant challenged the conclusion of the trial judge that the lawnmowing fee did not constitute rent. The reason for the trial judge's dismissal of the application for a statutory order of review in this respect, however, was that the appellant’s arguments concerned the merits of the referee's decision; there was no alleged breach of natural justice and no alleged lack of jurisdiction in the referee to determine the issue.¹⁶

The appellant's submission in the appeal repeated and elaborated upon the arguments on the merits he had put to the trial judge, but he made no submission to the effect that the trial judge erred in concluding that the appellant did not contend for any breach of natural justice or absence of jurisdiction.

That being so, there is no substance in this ground of appeal.

Ground 7: Termination of tenancy

The appellant contended in the tribunal that the second respondents’ "notice to leave without ground" was invalid because it was made in retaliation to the appellant’s earlier notice to remedy breach concerning the collection of the rubbish bins, in which he had foreshadowed a claim for an order to reinstate the service as it was at the commencement of the tenancy.

Section 165 of the Residential Tenancies Act 1994 (Qld) empowers a lessor to give a notice to the tenant to leave the premises without stating a ground for the notice. By virtue of s 165(1A)(i) a lessor must not give such a notice "because" the tenant has applied, or is proposing to apply, to the tribunal for an order under that Act. If a tribunal is satisfied that a lessor's "notice without ground" was given in contravention of s 165, then the tribunal is empowered to make an order setting aside the lessor's notice: s 165 A.

There was evidence before the trial judge that, during the hearing, the referee asked Mrs Vandenburg why she wanted the appellant to leave the park, to which Mrs Vandenburg responded that she found the appellant disruptive and difficult and felt intimidated by him. That evidence arguably suggested that the appellant's "notice to leave without ground" was not given "because" the appellant was proposing to apply to the tribunal for an order under the Residential Tenancies Act 1994 (Qld), but the assessment of the evidence was a matter for the tribunal. The appellant's argument that the tribunal wrongly failed to conclude that the second respondent's "notice to leave without ground" was invalid goes only to the merits of the decision. It does not involve any question of jurisdiction or denial of natural justice.

The appellant also contended that the learned primary judge erred in rejecting the appellant's submission that, because of the referee’s question and Mrs Vandenberg’s answer to it, the second respondents’ notice ceased to be one under s 165 and became one which specified grounds (under s 170, s 171 or s 172) of objectionable behaviour, incompatibility or repeated breaches. There is no merit in that contention. The tribunal’s sixth order indicates that the tribunal's decision was based upon the "notice to leave without ground". The evidence does not establish that the tribunal treated it as a notice under any other provision. As I have mentioned, Mrs Vandenburg's answer was relevant for a different reason.

The trial judge correctly concluded that there was no reviewable error in this regard.¹⁷

Ground 8: Public interest

The appellant argues that his application raises matters of public interest, but his submissions on that topic do not identify any error in the judgment below. In particular they do not assert any absence of jurisdiction or denial of natural justice in the conduct of the tribunal. Nor do I accept that the appellant's case involved any significant public interest. The appellant’s claims in the tribunal plainly sought to advance his own private interests, including his financial interests and his tenancy. His application for review also sought to advance those interests. If, as he asserts, other tenants might have made similar claims in their interest, that does not convert the appellant’s private interests into a public interest.

Costs of the application for a statutory order of review

The appellant made an application for costs under s 49 of the Judicial Review Act 1991 (Qld) on 23 May 2007, five days before the trial. He sought an order that the first respondent, the referee, pay his costs or alternatively that the parties bear their own costs. The trial judge was empowered by s 49(1)(d) and (e) to make either order, the only limitation being that the first of those orders could relate only to costs incurred after the application was made.¹⁸ The trial judge, having considered the submissions on costs from the parties, ordered the appellant to pay the respondents' costs to be assessed on the standard basis.¹⁹

There would plainly be no merit in an appeal from the order concerning the referee's costs and the appellant did not pursue that in argument. Nor in my opinion, is there merit in an appeal from the order that the appellant pay the second respondents' costs.

Subsections 49(2)(a)-(c) of the Judicial Review Act 1991 (Qld) set out factors which a court must take into account in considering an application by an applicant for a statutory order of review for an order under s 49(1)(e) that the applicant bear only that party's own costs:

"...(2)In considering the costs application, the Court is to have regard to—

(a)the financial resources of—

(i)the relevant applicant; or

(ii)any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and

(b)whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and

(c)if the relevant applicant is a person mentioned in subsection (1)(a) - whether the proceeding discloses a reasonable basis for the review application; and …"

The appellant argued that he should not have been ordered to pay the second respondents' costs because the Residential Tenancies Act 1994 (Qld) does not provide for costs orders, because there was a large difference in resources between the appellant and the second respondents, because the appellant's income was derived only from a pension, and because matters of public interest supported a different order.

The first of those matters is irrelevant. The trial judge was obliged to exercise the discretionary power to order to costs conferred by s 49 of the Judicial Review Act 1991 (Qld) and, subject to s 49, under UCPR r 681. The second and third matters are relevant, but whilst there was plainly a large disparity in the incomes of the parties the evidence did not demonstrate that the appellant lacked assets out of which he could readily afford to pay the costs. As to the final matter, I have already explained why I do not accept that the appellant’s application for review involved any significant public interest.

In light of the appellant’s failure on all issues in his application and his pursuit of some hopeless contentions (such as his assertions of bias by the referee and the appellant's attempts to re-litigate some of the claims on the merits), in my opinion the correct order was that which was made by the trial judge, namely that the appellant pay the respondents’ costs. Certainly, the order was within the trial judge's discretion and no basis for an appeal has been demonstrated.²⁰

I would add that my view is that the appellant's purported appeal from the trial judge's order is incompetent.

Section 253 of the Supreme Court Act 1995 (Qld) provides that no order as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge who made the order. The usual order for costs made under UCPR r 681 is within s 253. Similarly, an order under s 49 of the Judicial Review Act 1991 (Qld) is made in the exercise of a discretion which, subject to any contrary effect of s 49(5), also falls within s 253.

Subsection 49(5) of the Judicial Review Act 1991 (Qld) provides that an appeal may be brought from "an order under this section" only with this Court’s leave, but the trial judge did not make one of the beneficial orders contemplated by s 49(1) of that Act. It is questionable whether in these circumstances s 49(5) of the Judicial Review Act 1991 (Qld) authorises this Court to give leave to appeal from the trial judge’s order or whether s 253 of the Supreme Court Act 1995 (Qld) precludes such an appeal without the leave of the trial judge.

If the latter provision applies, then because the appellant does not have the leave of the trial judge his appeal against the costs order is incompetent, at least if, as I think should be ordered, the appellant’s substantive appeal is dismissed.²¹ If s 49(5) of the Judicial Review Act 1991 (Qld) applies, the appeal is incompetent regardless of the merits of the substantive appeal because the appellant does not have this Court’s leave to appeal and no such leave was sought.

Costs of the Appeal

Section 49 of the Judicial Review Act 1991 (Qld) also applies in the appeal to this Court from the trial judge’s decision on the appellant’s application for a statutory order of review.²² The reasons that I gave for rejecting the appellant’s challenge to the costs order made by the trial judge support the conclusion that the appellant should be ordered to pay the respondents’ costs of the appeal.

Application to set aside the decision of Holmes JA

Holmes JA refused the appellant’s interlocutory application to stay the operation of the trial judge’s orders (the relevant order being that the appellant pay the second respondents’ costs) and ordered the appellant to pay the costs of that application.

It is unclear whether the appellant seeks an order setting aside the decision by Holmes JA in so far as it refused the appellant's application for a stay. There would, of course, be no utility in that. Nor is there any ground for doing so. Her Honour’s reasons for that order were unimpeachable: the appellant did not have an obviously strong appeal, the evidence of his means to pay the costs was inadequate, and the appellant would have no difficulty in recovering the costs back from the second respondents should they be paid and should the appellant ultimately be successful in appeal.

The real purpose of this application may be to seek this Court’s review only of the costs order made by Holmes JA. That may be authorised by s 43(4) of the Supreme Court of Queensland Act 1991 (Qld) without the necessity for leave, because a review under s 43(4) is arguably not an "appeal" within the meaning of s 253 of the Supreme Court Act 1995 (Qld). It is not necessary to determine that question because the order that the appellant pay the respondents’ costs of the stay application was plainly within the discretion of Holmes JA.

The appellant emphasised the alleged disparity of financial resources of the appellant compared with those of the second respondents, but there was no error in Holmes JA’s conclusion that the evidence about the appellant’s financial resources was unsatisfactory: the appellant did not give evidence of his assets or their value.

The appellant also argued that it was only at the commencement of the hearing of his application for a stay that he discovered that the second respondents would be represented and that he was given a document containing their submissions. That is not significant. The appellant did not contend that he sought or required an adjournment of his application. He persisted in it and it was dismissed because it lacked merit.

Orders

I would dismiss the appellant's appeal and I would refuse the appellant’s application for leave to appeal from the decision of Dutney J and his application concerning the orders made by Holmes JA. I would order that the appellant pay the respondents’ costs of the appeal and the applications, to be assessed on the standard basis in each case.

MACKENZIE AJA: I agree with the reasons of Fraser JA and with the orders proposed by him.

Footnotes

1. Remely v O'Shea & Anor [2007] QSC 225 at [3]. ↩

2. Remely v O'Shea & Anor [2007] QSC 225 at [18] – [19]. ↩

3. Remely v O'Shea & Anor [2007] QSC 225 at [20]. ↩

4. Remely v O'Shea & Anor [2007] QSC 225 at [22]. ↩

5. Remely v O'Shea & Anor [2007] QSC 225 at [21]. ↩

6. Remely v O'Shea & Anor [2007] QSC 225 at [15]. ↩

7. Remely v O'Shea & Anor [2007] QSC 225 at [10]. ↩

8. VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. ↩

9. Remely v O'Shea & Anor [2007] QSC 225 at [15]. ↩

10. Remely v O'Shea & Anor [2007] QSC 225 at [16]. ↩

11. The Act provides that the tribunal is not obliged to give reasons about tenancy applications, but may do so in certain cases: s 22A. The referee was entitled, but not obliged, to makes notes of evidence, which do not form part of the record: s 14(1), (1A). The record includes the notation of the issues in dispute: s 14(2)(b). ↩