SUPREME COURT OF QUEENSLAND

1. THE COURT:  William “Billy” Peter Tait (“the appellant”) took up residence in a room at Rotary International House (“RIH”) at James Cook University on 4 December 2000 during the vacation period.  As the room was required for a returning student, he was requested by Mr Bruce Knight who was the warden of RIH on 14 February 2001 to vacate the room by 21 February 2001.  He indicated that he would not do so.  By letter dated 21 February 2001 the warden confirmed that the room was to be vacated by 5pm on that date.  The appellant did not do so.  While he was away from the room on 22 February 2001, the lock on the door of the room was changed and his personal belongings were removed.  The appellant was effectively excluded from occupancy of the room. 

2. On 21 February 2001 the appellant had filed an urgent claim in the Small Claims Tribunal (“the Tribunal”) under the Residential Tenancies Act 1994 (“RTA”) seeking a declaration that the RTA applied to his periodic tenancy of the room at RIH and interim or final orders under s 250 of the RTA or some other law.  The application was heard on 28 February 2001 by Mr Graham Tatnell (“the respondent”) as a referee under the Small Claims Tribunals Act 1973 (“SCTA”).  The warden who had been named as respondent to the application did not appear in person at the hearing, but one Michael Kern sought to appear on the warden’s behalf.  The respondent permitted Mr Kern to appear as agent for the warden and allowed Mr Kern to file an affidavit of the warden and a written submission.  The appellant was shown this material in order to read it, before it was handed to the referee but was not given a copy.  The respondent dismissed the application on the basis that there was no jurisdiction to bring the claim in the tribunal. 

3. By letter dated 28 February 2001 addressed to the respondent, the appellant requested written reasons for “any order” made in relation to his application. The request was made pursuant to s 32 of the Judicial Review Act 1991 (“JRA”), s 22A of the SCTA or some other law. 

4. By letter dated 1 March 2001 addressed to the respondent, the appellant requested a written statement of reasons pursuant to s 32 of the JRA with respect to the decision of the respondent in respect of the appellant’s application.

5. Under cover of letter dated 13 March 2001 from a registrar, the appellant was forwarded a photocopy of the written reasons of the decision made by the respondent which stated:    

“I read the material filed and hear from the parties.

Having considered Sections 10(2) and 23(1) of the Residential Tenancies Act 1994 and Sect 16 of the Small Claims Tribunal Act 1973 (and including the definition of a tenancy application contained with (sic) the Small Claims Tribunal Act 1973), I am satisfied on the evidence before me that Rotary International House is a part of an educational institution and therefore there is no jurisdiction to bring this claim in the Small Claims Tribunal.

Claim is struck out for want of jurisdiction.”

Section 23(1) of the RTA provides that that Act does not apply to a residential tenancy agreement for premises that are part of an educational institution.

6. On 15 March 2001 the appellant filed an application in the Supreme Court at Townsville claiming, amongst other things, that the appellant was entitled to a statement of reasons for the respondent’s decision and that he had not received such a statement from the respondent. In the appellant’s supporting affidavit filed on the same date, the appellant clarified that he was seeking an order pursuant to s 38(2) of the JRA.

Supreme Court hearing

7. The appellant conducted his own case on the hearing of the application before the Chief Justice on 15 June 2001. The respondent who was the only responding party to the application was represented by Counsel. The appellant relied on his affidavits and a written submission which had been filed. There was no material filed or read on behalf of the respondent. During the course of the hearing of the application, reference was made to the affidavit of the warden which had been before the respondent. That had not been exhibited in the appellant’s material, as he did not have a copy. The respondent’s counsel produced a copy of the warden’s affidavit and submission that had been relied on by the warden before the referee. That material was made Exhibit 1.

8. The appellant argued that the statement of reasons given by the respondent did not conform to the definition of “reasons” set out in s 4 of the JRA in that the statement did not refer specifically to any particular details of any relevant evidence and did not provide the actual reasons for the decision, ie. the reasons which would indicate how the decision was grounded in the relevant facts and law on which the decision was based and did not explain if there was, nor the nature of, any relationship between the statement of reasons that was given and s 22A of the SCTA. In the course of argument the applicant stated that the only thing that he could find that the referee could purport to have based his decision upon was the claim by the warden in his affidavit that RIH is a college of the University.

9. For the purpose of disposing of the application the Chief Justice assumed that the JRA could apply to the provision of a statement of reasons by the respondent. The Chief Justice referred to the statement that had been made in the warden’s affidavit that was before the respondent to the effect that RIH is a college of James Cook University and the proposal to establish RIH was approved by the University Council at its meeting held on 3 November 1988. The Chief Justice found that the respondent’s finding on the question of fact was covered by the finding that the college is a part of an educational institution. The Chief Justice stated:

“Mr Tait complains that there was no specific reference to the evidence relied upon for the finding of fact.  In a sense, that is true, in that there is only in the statement of reasons a global reference to the evidence in the case, but as Mr Tait conceded before me, this finding could have been based only on the evidence of Mr Knight, that is, as contained in his affidavit which I marked before me as Exhibit 1.”

10. The Chief Justice refused the appellant’s application and ordered that the appellant pay the respondent’s costs of the application to be assessed. The Chief Justice stated that the appellant had been wholly unsuccessful and the application did not disclose a reasonable basis. The applicant requested the Chief Justice to allow him to make an oral application for review of the decision of the respondent. That request was refused, as the Chief Justice considered that the respondent’s decision was so plainly right, that it was a waste of time to seek to review it. The Chief Justice informed the applicant that if he wished to make an application for review, it would have to be done in the ordinary way by an application as contemplated by the JRA.

Grounds of appeal

11. The grounds of appeal set out in the notice of appeal filed on 29 June 2001 are lengthy and have been developed by several extensive written submissions filed by the appellant. The grounds of appeal can be grouped as follows:

1. the decision of the Chief Justice was based on errors of law and fact and the appellant is entitled to an adequate statement of reasons for his decision from the respondent;

2. there has been a breach of the Hardiman principle;
3. there has been a breach of the doctrine of the separation of powers;
4. the hearing before the Chief Justice was too inquisitorial in nature and the applicant was not allowed to remain as an adversary in control of the development of his case before the court;
5. the just and expeditious resolution philosophy of the Uniform Civil Procedure Rules 1999 and s 56 of the JRA ought to have been applied, so as to grant the appellant a review of the decision of the respondent.

Whether decision appealed from was wrong

12. As it favours the appellant, we will proceed on the same assumption that was made by the Chief Justice that the JRA could apply to the provision of a statement of reasons by the respondent in respect of the respondent’s decision made on 28 February 2001.

13. Despite the extensive submissions and accompanying materials provided by the appellant for the purpose of this appeal, the issue before the Chief Justice was of narrow compass, namely whether the statement of reasons provided by the respondent was sufficient.

14. The sufficiency of the reasons provided by the respondent must be judged in the context of the issue which was before the respondent and the extent of the evidence and submissions before the respondent: Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462, 485.  The respondent was asked to decide whether the Tribunal had jurisdiction to entertain the applicant’s application.  The respondent made the decision that the Tribunal had no jurisdiction by applying identified legislative provisions to the one factual matter that was relevant to those legislative provisions which was that RIH is part of an educational institution.  There were limited materials before the respondent relevant to that issue.  As was conceded by the appellant before the Chief Justice, the evidence of the warden was the only source of the one factual finding that it was necessary for the respondent to make in order to decide the question of jurisdiction.

15. There is clearly no error of law or fact in the reasons of the Chief Justice.

Breach of Hardiman principle

16. The so-called “principle” on which the appellant seeks to rely is not an absolute rule. It is a recognition of the general undesirability of tribunals participating in a partisan way in subsequent proceedings in order to defend their own decision. The rule of practice, as stated in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-36 is that a tribunal should not normally present a substantive argument upon an application to a superior court for a prerogative writ directed to it, but should submit to such order as the court might make.  There are however occasions when it is perfectly appropriate for a tribunal or a member of a tribunal to participate in further proceedings in which its decision is challenged.  Carruthers v Connolly [1998] 1 Qd R 339, 342 is an example where submissions were appropriately made on a limited issue.

17. The general rule works comfortably when the true adversary is a party to the further proceedings and is in a position to make adversarial submissions. However that situation does not generally arise in an application of the present kind where a disappointed claimant seeks reasons from the decision-maker for the decision. The issue as to whether or not the decision-maker is obliged to give such reasons is primarily between the claimant and the decision-maker rather than between the claimant and the original adversary. This would seem to be the way in which the appellant has seen the situation, as he chose to make the decision-maker the sole respondent to his application. In such a situation, (i.e. in applications under Pt 4 of the JRA) if the applicant chooses not to join the adversary, the only party available to defend the decision not to give further reasons is the decision-maker, and in our view there is no good reason why the decision-maker should in such circumstances be precluded from presenting a substantive argument to the Court. The so-called principle in Hardiman does not comfortably cover such a situation.

18. It appears from the transcript of the hearing before the Chief Justice that the respondent’s counsel wished to be heard on whether or not the JRA did apply to the decision of the respondent. Because of the assumption made by the Chief Justice in disposing of the matter, it was unnecessary for submissions to be made by the respondent on that issue.

19. When the respondent’s counsel was requested by the Chief Justice on whether he wished to make any response to what the appellant had said on the sufficiency of the reasons, assuming that the JRA was applicable, the respondent’s counsel did not wish to be heard.

20. The role taken by the respondent on the hearing of the application before the Chief Justice was to ensure that all relevant material was before the Chief Justice and to be prepared to assist on the issue of whether the respondent’s decision was reviewable under the JRA, if that were required.

21. The appellant’s contention that the respondent “actively sought to defend its purported decisions” does not reflect the role that the respondent took before the Chief Justice.

22. This ground of appeal must fail.

Separation of powers

23. The appellant has given notice under s 78B of the Judiciary Act 1903 that this appeal involves matters arising under the Constitution or involving its interpretation.  The allegation of the appellant is that:

1. the SCTA contravenes “the constitutionally derived doctrine of the Separation of Powers and therefore invalidated by the way of the Boilermakers incompatibility principle”;
2. interpretations of the RTA by the respondent and the Chief Justice and the proceedings conducted before each of them have not been made, nor held, with due consideration for the constitutionally implied freedom of communication and the international law which is relevant to the interpretation of the constitution.

24. The submission in (a) above is curious. If it were correct, it would have the effect of denying jurisdiction to the Tribunal to grant the relief which the appellant sought. The submission is, in any event, devoid of substance.

25. Stating the other basis on which the appellant seeks to raise a constitutional matter which is set out in (b) above is sufficient to show that there is absolutely no substance in the appellant’s claim.

Inquisitorial nature of the hearing

26. The appellant complains about what he describes as the “inquisitorial” nature of the hearing before the Chief Justice.

27. The Chief Justice had a number of questions for the appellant in order to clarify expeditiously the true issue which had to be determined. A perusal of the transcript reveals no justification by the appellant for his complaint.

Whether appellant should have been granted a review of the decision

28. It appears that the appellant was seeking to have the Chief Justice entertain an oral application for review of the decision of the respondent at the hearing on 15 June 2001 and then proceed immediately with determining that application for review.

29. The appellant sought to invoke the philosophy expressed in r 5(1) of the UCPR at the expense of the rights of the proper respondent to the application for review.  The warden was not a party to the application which was before the Chief Justice on 15 June 2001.

30. There is no basis whatsoever for the appellant to impugn the exercise of the discretion of the Chief Justice to refuse that oral application of the appellant.

31. The appellant seeks an order that this Court proceed as soon as practicable on the papers with an application for review of the decision of the first respondent made on 28 February 2001 or remit the question to the trial division for it to proceed with such a review at Townsville, as soon as is practicable.

32. The appellant requires an extension of time in which to make the application for review as more than 3 months have passed, since the decision of the respondent. There is no basis whatsoever for granting the indulgences which the appellant seeks to enable an application for review to proceed without the filing of a proper application, as required by the JRA, on notice to the warden and seeking the requisite extension of time in which to make that application.

Costs

33. The appellant challenges the Chief Justice’s exercise of discretion in ordering that the appellant pay the respondent’s costs of the application for the statement of reasons that was heard on 15 June 2001.

34. In his notice of appeal, the appellant seeks orders made pursuant to ss 49 or 50 of the JRA. This has been expanded upon by the appellant by the application which he forwarded to the Registrar of this Court under cover of letter dated 15 November 2001 seeking that special costs orders be made pursuant to s 49 of the JRA in the terms set out in that application.

35. In view of the basis on which the Chief Justice disposed of the application before him, the Chief Justice relied on s 50(b) of the JRA to order that the appellant pay the costs of the respondent of that application. On the assumption that the JRA applied to the appellant’s application, the jurisdiction to make an order under s 50(b) of the JRA was enlivened. Even if it were not, no error can be shown in the exercise of the discretion of the Chief Justice to order costs against the appellant on the basis that the application before him disclosed no reasonable basis.

36. The jurisdiction under s 49 of the JRA arises in the circumstances provided for in s 49(1) of the JRA.  The first requirement is that the person seeking a costs order under s 49 has made a review application.  That does not apply to the application for statement of reasons made by the appellant before the Chief Justice or the appeal from the Chief Justice’s decision in respect of that application.  There is no jurisdiction to make an order under s 49 of the JRA. 

Orders

37. It is appropriate that an order for the costs of the appeal be made in the respondent’s favour, having regard to the nature of the issues raised by the appeal and the proper approach taken by the respondent in assisting the court with written submissions, when there was no other respondent to the appeal.

38. It follows that the order which should be made is that the appeal be dismissed with costs.