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Ross v Council of the City of Logan[2008] QCA 280

Ross v Council of the City of Logan[2008] QCA 280

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Ross v Council of the City of Logan [2008] QCA 280

PARTIES:

MARY ELAINE ROSS
(respondent/applicant)
v
COUNCIL OF THE CITY OF LOGAN
(applicant/respondent)

MARY ELAINE ROSS
(respondent/appellant)
v
COUNCIL OF THE CITY OF LOGAN
(applicant/respondent)

FILE NO/S:

Appeal No 2987 of 2008

SC No 11167 of 2007

SC No 561 of 2008

SC No 1533 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

10 June 2008

JUDGES:

Holmes JA and Fryberg and Daubney JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In SC No 561/08 and SC 11167/07: Application for extensions of time within which to appeal dismissed.

2. In SC No 1533/08: Appeal allowed in part. Set aside para 1 of the order made herein on 11 March 2008. Grant the respondent five working days from 12 September 2008 to file and serve any further submissions concerning a possible injunction. If the respondent files and serves any such submissions, grant the appellants five working days from the date of service on them of such submissions to file and serve any submissions in response.

3. In SC No 1533/08: Grant all parties five working days from the date of delivery of these reasons for judgment to file and serve any submissions as to costs. If any party files and serves any such submission, grant the other party five working days from the date of service on them of such submissions to file and serve any submissions in response.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant for extension of time submitted that she had been of ill health at the time of hearing – where applicant submitted that there were grounds on which the respondent’s applications at the hearing should have been dismissed – where appeal without substantive merit – whether application for extension of time should be allowed

ADMINISTRATIVE LAW – PRIVATIVE CLAUSES – PARTICULAR CASES – where Small Claims Tribunal declined to hear an application on  the basis that a related application in the Supreme Court had not been finalised – where Small Claims Tribunal continued to decline to hear the matter following an order of the Supreme Court substantially determining that application – where the respondent in this matter, the Council of the City of Logan, sought judicial review of the Tribunal’s refusal to hear the matter – whether right of judicial review ousted by s 19 of the Small Claims Tribunals Act 1973 (Qld)

ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – MANDAMUS – ON WHAT GROUNDS AND FOR WHAT PURPOSES – NON-EXERCISE OR WRONGFUL EXERCISE OF JURISDICTION – where the learned primary judge made a prerogative order in the nature of mandamus, directing a referee of the Small Claims Tribunal to hear and determine a matter by making a termination order and issuing a warrant of possession – whether the order in the nature of mandamus was correctly made

Judicial Review Act 1991 (Qld), Part 5, s 41, s 43, s 47

Justice and Other Legislation Amendment Act 2007 (Qld)

Land Title Act 1994 (Qld), s 126(4), s 188C

Local Government Act 1993 (Qld), s 636, s 637, s 638, s 639, s 640, s 642, s 644, s 646

Magistrates Act 1991 (Qld), s 49

Residential Tenancies Act 1994 (Qld), s 16, s 93, s 165, s 166, s 197, s 208, s 216, s 218, s 248(1)

Small Claims Tribunals Act 1973 (Qld) s 10, s 17, s 19, s 25(1)(b), s 29(1)

Supreme Court Rules

Uniform Civil Procedure Rules 1999 (Qld)

Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292, considered

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61, cited

Commissioner of Taxation v Futuris Corporation Ltd (2008) 247 ALR 605; [2008] HCA 32, considered

R v Webster Ex Parte Trueline Aluminium Pty Ltd [1987] 1 Qd R 45, considered

R v Young (1999) 46 NSWLR 681, approved

Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379; [1993] HCA 40, cited

W & T Enterprises (Q) P/L v K O Taylor, Referee, Small Claims Tribunal & Ors [2005] QSC 360, considered

COUNSEL:

The appellant appeared on her own behalf
G D Beacham for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Corrs Chambers Westgarth for the respondent

  1. HOLMES JA:  The appellant, Mrs Ross, appeals against a prerogative order in the nature of mandamus made by de Jersey CJ under the Judicial Review Act 1991 (Qld).  That order was directed to a referee of the Smalls Claims Tribunal, and required, firstly, that he hear and determine the respondent Council’s claim, a tenancy application under the Residential Tenancies Act 1994 (Qld), according to law, and secondly, that he make a termination order and issue a warrant of possession under ss 166 and 216 respectively of that Act.  The notice of appeal discloses no grounds; rather it makes a litany of complaints about the conduct of the Council in relation to its dealings with the property in question, residential premises at Woodridge.
  1. Mrs Ross also seeks an extension of time within which to appeal against earlier decisions of Atkinson J, ordering the removal of her caveat over the property and giving summary judgment against her on a related application. The application for an extension of time was irregular for a number of reasons, but the Council took no issue with its being heard, and because of its factual links with the appeal from the Chief Justice’s decision, the court has thought it expeditious to entertain it.

Background

  1. The Council’s application for judicial review arose out of the tribunal’s refusal to hear its application for a termination order and warrant of possession on the basis, inter alia, of the Ross’ failure to leave the property, which they had previously leased from the Council. Originally, Mrs Ross and her husband were registered owners as joint tenants of the property in question, which was subject to a mortgage in favour of the Queensland Housing Commission. It is necessary to trace how their relationship with the Council changed from one of landowners and local authority to one of tenants and landlord, and the litigation which followed.
  1. From 1992 to 1995, general and other rates on the Rosses’ property remained unpaid. Part 5 of Chapter 10[1] of the Local Government Act 1993 (Qld), which is headed “Levying and Payment of Rates”, deals with what may be done to recover unpaid rates; in particular, s 636 permitted the local government to sell the land, subject to a resolution to that effect and certain other steps.  Council duly passed a resolution for the sale of the property; that resolution appeared in minutes which referred, in a subject heading, to a “sale of vacant land”.
  1. Section 639 of the Local Government Act required that the land be offered for sale by auction, and s 640 that the reserve price be at least the amount of the overdue rates or the unimproved value of the land, whichever was greater.  However, the Council set the reserve rather higher, at $51,000, to reflect the total of the mortgage debt and the overdue rates.  The reserve was not reached, and the property was passed in at auction on 21 June 1996.  Because the auction and subsequent negotiations did not produce a sale, the land was taken, pursuant to s 642 of the Act, to have been sold at the auction to the Council at the reserve price.  The Council paid out the mortgage debt; the sale operated, by virtue of s 644, as a discharge of the unpaid rates.  Section 646 required the local government to apply to the registrar of titles to be registered for the interest held by the land’s owner immediately before the sale, free of encumbrances.  That step was taken, and on 5 November 1996, the Council became registered on the certificate of title as owner of an unencumbered estate in fee simple. 
  1. Rather than requiring the Rosses to vacate the property, the Council entered into a series of written tenancy agreements with them, the last of which commenced on 1 July 2007 and ended on 30 September 2007.  In 2007, the Council decided to sell the property, and confirmed its intention to do so in the letter under cover of which the last of the tenancy agreements was forwarded to the Rosses for signature.  The auction was set down for 20 October 2007.
  1. On 19 October, however, Mrs Ross lodged a caveat over the title to the land claiming “an interest having been registered proprietor, in this property, and disputes [sic] the manner of takeover and subsequent actions”.  In an attachment, Mrs Ross explained that she had had a number of personal and financial difficulties at the time the property was put up for sale in 1996.  She said that a Council employee had suggested that she try to obtain finance from a particular lender; that lender had made her obtain a valuation for the property which was somehow skewed in the Council’s favour; and in consequence that she was unable to borrow.  The Council’s acquisition of the property was, Mrs Ross asserted, therefore “immoral and possibly illegal”.  Mrs Ross said she had “recently learned” that the mortgage had not been paid out after the property’s sale, and she made a series of complaints about the Council’s failure to maintain the property adequately and about the content of the current “For Sale” sign.
  1. On 20 October 2007, the auction proceeded, and a contract for the sale of the property was executed, followed, in due course, by the Council’s provision of transfer documents to the purchaser. On 6 December 2007, Mrs Ross filed an originating application seeking orders that the Council be restrained from selling the property, that the registrar of titles remove it from the title and reinstate her husband and her as registered owners, and that the Council be made “accountable for breaching Local Government Act 1993, Land Titles Act 1994 and Residential Tenancies Act 1994”. 
  1. Meanwhile, the Council lodged, and had registered, a request for the removal of the caveat. Subsequently, however, the registrar of titles took the view that the documentation lodged with the request was inadequate to establish the basis for cancelling the caveat, and registered his own caveat to preserve the position. By now the prospective purchaser of the property was refusing any further extensions of time under the contract and threatening to sue if settlement did not proceed on 8 February 2008.  The Council applied to the Supreme Court for removal of the caveat, relying on affidavits which documented the history of its dealings with the property. 
  1. In response, Mrs Ross filed an affidavit setting out her various activities in relation to the litigation and raising matters similar to those relied on in lodging the caveat: the various financial and other difficulties she had had in meeting her rates and mortgage payments, her discontent with the Council’s marketing strategy, and her view that the Council had somehow intervened to ensure the property’s valuation was too low for her to re-finance. There were a number of complaints about the poor condition of the house, the inconvenience involved in the Council’s fresh endeavours to sell it, and what Mrs Ross perceived as the impropriety of the Council’s proceeding to sale notwithstanding the caveat.
  1. Mrs Ross adverted in the affidavit to her husband’s ill-health and pointed out that she herself had been suffering from some respiratory problems. In that connection she annexed an X-Ray report which described the appearance of her lungs on X-Ray as “most likely due to mild inflammation” and a general practitioner’s certificate, which certified that she had been examined on 1 February and had been unfit for normal work from 28 January until 1 February. On 6 February 2008, when the application was set for hearing, she sought an adjournment on the basis that she was too ill to proceed. The Council resisted any adjournment because of the urgent need to have the caveat removed to enable the sale to settle.
  1. Atkinson J, unconvinced that the evidence warranted an adjournment, proceeded to hear the application. She gave a lengthy ex tempore judgment in which she reviewed the history and the documentary evidence. Her Honour was unable to identify any caveatable interest on the Ross’ part. She found that the Council had complied with the relevant provisions of Part 5 of Chapter 10 of the Local Government Act, so that it had properly become the registered owner of the property.
  1. Meanwhile, however, there was another set of proceedings on foot. On 16 November 2007, Mrs Ross made an application under the Residential Tenancies Act 1994 in the Small Claims Tribunal.  She set out these details of the dispute:

“Ongoing dispute - tenants for 22 yrs (and owner) property not maintained and caveat lodged.  Tenancy needs to continue until the dispute is settled or extreme hardship will result.  Council and auctioneers advised of dispute and caveat prior to sale/auction”.

The Council lodged its own application, seeking a termination order and a warrant of possession on grounds which included the Rosses’ failure to leave, the tenancy having expired on 30 September 2007.  Both applications were set down for hearing on 7 December 2007 but the tribunal declined to hear them until the proceedings in the Supreme Court were resolved.  On 7 February, the Council sought once more to have its application heard, since Atkinson J had found the Rosses had no caveatable interest, but the referee refused to proceed on the ground that Mrs Ross’ application remained on foot and could result in an order establishing that she and her husband had an interest in the property.

  1. Faced with that response, the Council returned to Atkinson J on 8 February 2008 with an application for summary judgment in respect of those parts of Mrs Ross’ originating application which sought orders removing the Council from the Register and reinstating her husband and her on the title. Atkinson J, consistently with her reasons for ordering removal of the caveat, gave summary judgment for the Council.
  1. Armed with that decision, the Council requested that the claims be re-listed for hearing. The registrar of the Small Claims Tribunal, at the request of the referee, responded by saying that the claims would be listed when the tribunal was notified that the Supreme Court proceedings had been finalised. By this time, of course, all that remained outstanding was a nonsensical application for an order that the Council be “accountable for breach” of various pieces of legislation; but the Council’s endeavours to explain that fell on deaf ears. The referee continued to refuse to re-list the matters for hearing, the registrar in his letter saying that the “order made by the Referee on the 7th” would stand. 
  1. The Council then brought an application under part 5 of the Judicial Review Act, seeking orders directing the referee to hear the matters and determine them by making a termination order and issuing a warrant of possession.  An affidavit was filed setting out the history of the Council’s attempts to have its claim heard.  Mrs Ross also filed an affidavit.  In it, she set out s 19 of the Small Claims Tribunal Act 1973 (Qld), which, with certain exceptions, preserves proceedings in the Small Claims Tribunal from judicial supervision.  As to the substance of the application, Mrs Ross took issue with the form of the resolution passed by Council to acquire the land, objected once more to the valuation and marketing of the property and again asserted a caveatable interest.  She contended that she had not presented any evidence of a caveatable interest before Atkinson J because she had not been well. 
  1. The Chief Justice, not surprisingly, regarded Mrs Ross and her husband as bound by Atkinson J’s decisions, and in any event did not accept that any of the matters raised amounted to new evidence which could warrant the setting aside of the orders she had made. He concluded that the referee had refused to exercise his statutory responsibility. Since, in his view, the referee could have determined the matter only in accordance with the relief claimed by the Council, he made the orders sought.

The application to extend time for appeal against Atkinson J’s orders

  1. Mrs Ross did not appeal against either of the decisions of Atkinson J. On 22 May 2008, she made an application for extensions of time in which she contended that the applications before Atkinson J should have been adjourned because she was unwell and unfit to appear, and that there were grounds on which the Council’s applications should have been dismissed. To support the first contention, Mrs Ross filed an affidavit from a Mrs Noah, who had been present at the hearing of the application to remove the caveat. Mrs Noah deposed that Mrs Ross, tendering the general practitioner’s certificate and X-Ray report, had told Atkinson J that she was not well enough to proceed; she was, Mrs Noah said, frail, shaking, and “barely cohesive” [sic]. Mrs Ross sought Atkinson J’s permission for Mrs Noah to speak for her, which was granted. When the latter sought an adjournment, Atkinson J said there was insufficient evidence of Mrs Ross’ medical condition to warrant an adjournment.
  1. Mrs Ross also filed a letter of 12 February 2008 from a general practitioner advising that she had had an allergic reaction and was seen at the Logan Hospital and discharged with medication. (A copy of the Logan Hospital notes confirms that Mrs Ross presented there on 20 January 2008 with an allergic reaction; she was to be treated with a corticosteroid for two days and given medication for gastric problems, with follow up by her general practitioner.) Following that she had had continuing chest infections.  The doctor concluded his letter by saying:

“Her ability to work and concentrate effectively would have decreased significantly since 6 November 2007 until 30 March 2008.” 

  1. The grounds Mrs Ross put forward for the prospective appeals against Atkinson J’s orders were, that the Council had fraudulently classified the land as vacant; that the Council had organised a false valuation of the property by directing Mrs Ross to a particular lender; that in August 1996 she had tried to pay $300 in rates, which the Council had declined to accept although she should, she said, have been permitted to pay them up until January 1997; that there was no registered writ of execution over the property; that internal documentation of Council referred to it as “acquiring” the property in the second half of 1996, which showed that its claims to own it, made in other correspondence at that time, were fraudulent; and that the Council had then fraudulently obtained title to the land by tricking the Rosses into signing a rental agreement. Although Council was registered as the owner of the property, s 188C of the Land Title Act 1994 (Qld) gave her and her husband 12 years to claim their interest in the property (a misconception: s 188C of the Land Title Act relates to no more than the period within which a compensation claim may be made.)  As to the reasons for the delay, Mrs Ross said that she had not been able to obtain copies of Atkinson J’s orders until 26 days after they had been given and could not have prepared and lodged appeals within two days.  Thereafter, because she was not a lawyer, it was difficult for her to mount the appeals.
  1. Putting to one side the state of Mrs Ross’ health and the question of whether any real explanation for the delay has been offered, it is apparent that the proposed grounds for the appeals are quite without merit. Mrs Ross seems to have reasoned that because of the description of the land as “vacant”, the Council must have been proceeding under ss 647-649 of the Local Government Act, which relate to valueless land.  Under those provisions, the local government had to give a notice of intention to acquire to the land’s owner and then could apply for registration after six months, provided any rates were overdue.  But the Council’s reference to the property as “vacant land” in its minutes was irrelevant.  Mrs Ross offered no reason for equating “vacant” with “valueless”, and it is quite clear that the Council was acting not under ss 647-649, but under ss 636-646.  Under those provisions it was entitled to sell the property for rates which had been outstanding for more than three years, and no writ of execution was required.  The Council became the owner of the property by virtue of s 642 on the date of the auction, and the outstanding rates were then discharged; so it was too late for Mrs Ross to attempt to pay rates in August 1996. 
  1. In any event, s 651 of the Local Government Act 1993 rendered the transfer valid and effective notwithstanding any irregularities; although, indeed, despite Mrs Ross’ many allegations, no irregularity, much less fraud was demonstrated.  The Council having become the registered owner of the land in November 1996, it is quite clear that after 1996 Mr and Mrs Ross held no interest in the property and were never more than tenants.  Since the proposed appeals against the decisions of Atkinson J are entirely without substance, the application for an extension of time within to file them should be dismissed.

The appeal against the decision of de Jersey CJ

  1. The Notice of Appeal filed by Mrs Ross asserts that the Council fraudulently acquired the land, had itself registered as owner, and then tricked the Rosses into signing lease agreements. Quite apart from the lack of substance in those grounds, for the reasons already canvassed, they do not in the slightest bear on whether the Small Claims Tribunal was correct in declining to exercise its jurisdiction or the Chief Justice correct in ordering it to do so.
  1. However, as was very properly acknowledged by Mr Beacham, counsel for the Council, there was a real issue as to whether s 19 of the Small Claims Tribunals Act precluded the making of those orders.  That section is in these terms:

“Limitation on orders Supreme Court may make for tribunal proceedings

The Supreme Court may not make a statutory order of review or give a declaratory judgment in relation to a proceeding taken, or to be taken, before a small claims tribunal, or in relation to an order made by a small claims tribunal, unless the court is satisfied that—

(a) the tribunal had or has no jurisdiction under this Act to take the proceeding; or

(b) during the proceeding there has been a denial of natural justice to a party to the proceeding.”

  1. Section 19 was introduced into the Small Claims Tribunals Act in its present form by the Justice and Other Legislation Amendment Act 2007 (Qld).  Previously, it had been in these terms:

“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.”

  1. There is this difference: in its present form the section refers to a “statutory order of review”, a term defined in the Judicial Review Act as meaning an order on an application made under Sections 20, 21 or 22, all of which appear in Part 3, “Statutory Orders of Review”, of the Act.  The present application was made under Part 5, which is headed “Prerogative Orders and Injunctions”.  Mr Beacham, who presented the Council’s case with admirable fairness and clarity, conceded, however, that it was unlikely that the legislature meant to limit the application of Section 19 to Part 3, since the Small Claims Tribunal was not exercising an administrative function.  That was made more clear by the explanatory note to the Justice and Other Legislation Amendment Bill 2007, by which the amendment was introduced, which said that it was intended -

“To update the language of the section so that it refers to statutory orders for review rather than writs of certiorari or prohibition, which were abolished by the Judicial Review Act 1991”. 

  1. In my view, the expression “statutory order of review” appearing in s 19 should not be given the limited meaning that it has in the Judicial Review Act.  The Small Claims Tribunals Act does not require that the Acts be read together, and itself contains no equivalent limiting definition.  In the absence of such a definition, the ordinary meaning of “statutory order of review” would be an order of review available under statute, encompassing any order of review available under the Judicial Review Act.  That appropriateness of that reading is reinforced by the need for a more expansive interpretation of the term in order to give s 19 practical effect, and is consistent with the purpose identified in the explanatory memorandum.
  1. The question then is whether the case fell within either of the exceptions in s 19 so as to be susceptible to review. Nothing suggested a breach of the rules of natural justice. The tribunal had taken no step which would deny the Council procedural fairness in the (deferred) hearing. Mr Beacham argued that the other exception in s 19(a), that the tribunal had “no jurisdiction … to take the proceeding” should be read in the wider sense of jurisdictional error.  Since the Small Claims Tribunal had clearly fallen into jurisdictional error in refusing to exercise jurisdiction, the exception was enlivened.  In support of his argument, he drew our attention to the second reading speech for the Small Claims Tribunals Bill, in which the Minister said that Clauses 18 and 19[2] -

“Ensure that the proceedings of the tribunal are final and not subject to appeal or other forms of supervision by superior courts unless there has been an excess of jurisdiction or a party has been denied natural justice.” 

  1. The expression “no jurisdiction … to take the proceeding” in s 19(a) is ambiguous: does it limit review to cases of erroneous assumption of jurisdiction (and denial of natural justice) or does it embrace any case of jurisdictional error? Mr Beacham pointed out that when the Small Claims Tribunals Act was passed in 1973, “proceeding” was not generally used in the broader sense it acquired under the Uniform Civil Procedure Rules 1999, of action, application or appeal.  It was, for example, the expression used in Order 90 Rule 9 of the Supreme Court Rules, which provided that when “no proceeding has been taken in a cause”, a month's notice was required, and that where three years had lapsed since “the last proceeding was taken”, an order of the Court was required.  Mr Beacham suggested that a similar reading should be given to the provision here, so that “proceeding” in s 19(a) was to be regarded as akin to “step”. 
  1. Mr Beacham’s argument is consistent with the approach of Thomas J in R v Webster Ex Parte Trueline Aluminium Pty Ltd.[3] In Webster, the questions were whether the Small Claims Tribunal had jurisdiction firstly, to join two claims and secondly, to make an order combining two forms of relief.  The Full Court held that there was no impediment to the joinder, but that the Small Claims Tribunal Act did not allow the combined form of order.  Connolly J (with whom de Jersey J as he then was, agreed) proceeded on the basis that because the claim was for relief which could not be given, the tribunal had “no jurisdiction to take the proceeding”.  Thomas J reasoned differently: he explained that “[t]he proceeding which the tribunal took without jurisdiction … was the making of the dual order in circumstances in which [it had] no power to do so”[4].
  1. Having regard, however, to the use elsewhere in the Act of the cognate expression “taking a proceeding”, I would be inclined to think that “take the proceeding” refers to dealing with the matter, whether by attempting settlement or undertaking the hearing of it; not to the taking of particular steps in the course of doing so.[5]  If that is so, “no jurisdiction ... to take the proceeding” would, correspondingly, have a more limited application; a reading reinforced by the fact that if one accepts denial of natural justice as a form of jurisdictional error, its inclusion as an additional exception would, on the contrary view, be otiose.  Against that is the presumption that -

“The Parliament or, it may be interpolated, a State parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies”.[6]

One would hesitate to construe a privative clause so as to prevent review of a decision infected by jurisdictional error.  But in the result it is unnecessary for me to reach a concluded view as to whether s 19 is effective in precluding review where jurisdictional error short of mistaken assumption of jurisdiction is shown.  On any view, I do not think the tribunal’s error was of a kind susceptible to a statutory order of review.

  1. As Fryberg J has explained in his reasons at pars 53-59, the evidence does not support an inference that the tribunal committed any form of jurisdictional error. Its mistake lay not in any misconception of its jurisdiction but in a misapprehension that the proceedings in the Supreme Court in some way impinged on what it had to determine so that the proper course was to adjourn the application before it. The tribunal had the power of adjournment “to such times and places and for such purposes”[7] as it considered necessary.  Its exercise of that power, under the misapprehension described, was not, in terms of s 19, a proceeding which the tribunal “had … no jurisdiction conferred by [the] Act to take”.
  1. Consequently, in my view, s 19 did operate to prevent the making of any declaration or order in the nature of a prerogative writ under the Judicial Review Act.  That leads to the question canvassed by Fryberg J in his reasons, of whether the remedy of mandatory injunction would nonetheless remain open.  In that regard, I respectfully agree, for the reasons he gives, that s 19 ought not to be construed by implying into it a bar on injunctive relief.  The first part of the order made below could, but for the referee’s retirement, have been given effect, by the different means of injunction.
  1. However, there is a further issue, as to whether the second part of the Chief Justice’s order, that the tribunal determine the application by making a termination order and issuing a warrant of possession, was correctly made. The case may arise, exceptionally, where a discretion can, conformably with the law, only be exercised in a particular way, so that an order may properly direct that the matter be decided in that way.[8] But as Fryberg J has explained, the decision complained of by the Council was really the decision not to list the matter for hearing, not any determination of its merits.  The remedy was to require the tribunal to re-consider its decision not to list; and since only one result could properly have been arrived at on that consideration, an order that it decide the issue in a particular way, by listing the application for hearing, was appropriate.  But the order that the tribunal determine the application, in effect in the Council’s favour, was, in my view, wrongly made and should be set aside.
  1. The appropriate course now is, as Fryberg J has indicated, to permit the Council to make any further submissions it wishes to on whether any injunction should now issue; with, in that event, a right of reply to the Rosses. It may be that the simpler course is for the Council to return to the tribunal with the benefit of this judgment identifying the error in the tribunal’s approach.
  1. Having arrived at the same result by a slightly different route, I agree with the orders Fryberg J proposes.
  1. FRYBERG J:  The circumstances giving rise to the application and the appeal in this matter are set out in the reasons for judgment of Holmes JA.  There is little I need add.

The application for extensions of time within which to appeal from the orders made by Atkinson J

  1. The application should be dismissed. I agree with Holmes JA's reasons for so ordering, although, left to my own devices, I might have expressed my distaste for Mrs Ross's arguments in stronger terms. Because Mrs Ross was not legally represented, I will for completeness refer to one other matter.
  1. The Small Claims Tribunals Act 1973 (“SCTA”) provides:

“16Extent of jurisdiction

(1)Subject to this Act, a small claims tribunal has jurisdiction with respect to—

(a)any claim referred to it that is a small claim; and

(b)a claim that is the subject of a dispute arising under the Dividing Fences Act 1953 if the claim is in relation to an amount or value less than the prescribed amount; and

(d)a tenancy application.

17Exclusion of other jurisdictions

(1)Where a claim, being one referred to in section 16, is duly referred to a small claims tribunal the issue in dispute in that claim (whether as shown in the initial claim or as emerging in the course of the hearing of the claim by the tribunal) shall not be justiciable at any time by a court or by a tribunal of any other kind save—

(a)where the proceeding before that court or tribunal of any other kind was commenced before the claim was duly referred to a small claims tribunal; or

(b)where the claim before a small claims tribunal has been withdrawn or has been struck out for want of jurisdiction … .”

  1. Mrs Ross's application to the tribunal was lodged on 16 November 2007 and the Council's application was lodged on 20 November 2007. Her application to this court, which was the subject of the decision of Atkinson J on 8 February 2008, was filed on 6 December 2007, the day before the tribunal applications were listed for hearing.  The Council’s application to this court, which was the subject of her Honour's decision on 6 February 2008, was filed on 21 January 2008.  On 6 and 8 February 2008, both parties’ applications in the tribunal remained alive.  It follows that neither application in this court fell within the exceptions to s 17(1).
  1. The application made by Mrs Ross to the tribunal was made under the Residential Tenancies Act 1994 (“RTA”) and was therefore a tenancy application within the meaning of s 16.  Few particulars of the claim were given, but it did specify “248(1)”.  That was apparently a reference to s 248(1) of the RTA, which provides:

“248 Application of Act to agreements

(1)A person may apply to a tribunal for an order, and the tribunal may make an order, declaring that a stated agreement is, or is not, a residential tenancy agreement to which this Act applies.”

The claim did not state the order sought and, more importantly, did not state the agreement which was its object.  It therefore did not comply with the Act.  Under the heading “Other relevant details” Mrs Ross wrote:

“Ongoing dispute - tenants for 22 yrs (and owner) property not maintained and caveat lodged.  Tenancy needs to continue until the dispute is settled or extreme hardship will result. Council and auctioneers advised of dispute and caveat prior to sale/auction.”

  1. Clearly, Mrs Ross was not applying for an order that any agreement was not a residential tenancy agreement to which the RTA applied.  She was seeking an order that some agreement was one such (and, presumably, that it continued in effect).  That is apparent from her reference to the necessity for the tenancy to continue.  For the tenancy to continue she could not be alleging that she owned the land. 
  1. The Council's application to the tribunal sought a termination order under s 208 and a warrant of possession under s 216 of the RTA.  It referred among other things to the caveat, the absence of any interest in the land on the part of the Rosses, the auction and the application for removal of the caveat, but only to demonstrate urgency.  The issue was whether the Rosses had a continued right of occupation under a lease or tenancy.  Proof of title formed no part of the Council's cause of action and having regard to her stance in relation to her own application, being heard at the same time, there is no reason to suppose that Mrs Ross wished to argue that question in the tribunal.  On the contrary, the terms of her application to the tribunal show that her position was that the Supreme Court would determine the question of ownership.  She secured the adjournment of the tribunal hearing before the Tribunal applications were listed for on 7 December 2007 to await that determination.
  1. Her application to the Supreme Court sought the following substantive relief:

“1.That an injunction be granted prohibiting the Council of the City of Logan from selling the property known as Lot 126 on RP73277 from County of Stanley in Parish of Yeerongpilly (title reference 3303/236) pending discrepancies on title being rectified in accordance with Local Government Act 1993 and Land Title Act 1994.

  1. Directing Registrar General of Titles to remove Council of the City of Logan as Registered Owner/Proprietor of the property known as Lot 126 on RP 73277 from County of Stanley in Parish of Yeerongpilly (title reference 3303/236) and reinstate Mary Elaine Ross and Denis Ashly Ross as joint Registered Owners/Proprietors.
  1. Making Council of the City of Logan accountable for breaching Local Government Act 1993; Land Titles Act 1994 and Residential Tenancies Act 1994.”

The Council's application sought removal of the caveat.  As Holmes JA has observed, the application contained in para 3 of Mrs Ross’s application was “nonsensical”.[9]  Neither paras 1 and 2 of that application nor the Council's application involved the tenancy issue raised in either of the tribunal applications.

  1. It follows that even assuming her claim had been duly referred to the tribunal, the issue in dispute in the proceedings before the tribunal was not in issue in Mrs Ross's application to this court. The justiciability in this court of the issues decided by Atkinson J was not displaced by s 17 of the SCTA.

Prerogative order in the nature of mandamus

  1. The proceedings before the Chief Justice arose out of the referee’s decision to list the Council's application against Mr and Mrs Ross in the tribunal for hearing “when the Small Claims Tribunal has received notification that proceedings lodged by Mrs Ross in the Supreme Court have been finalised”. That decision was conveyed to the Council by a letter from the registrar of the tribunal dated 12 February 2008. A decision when to list a matter is one wholly within the control of the tribunal. Section 37 of the SCTA provides:

“37Control of tribunal’s procedures

Save to the extent that the procedure of small claims tribunals is prescribed, every tribunal shall have control of its own procedures and in the exercise thereof shall have regard to natural justice.”

The Council did not object to Mr Randall's decision to list the application, but to the time at which he proposed to list it.  It wished the application to be listed urgently, regardless of the Supreme Court proceedings.

  1. The Council challenged that decision by an application for a prerogative order in the nature of mandamus under the Judicial Review Act 1991 (“JRA”).  Historically this court as a court of general and supervisory jurisdiction had jurisdiction to grant the writ of mandamus.  In modern times that jurisdiction has been replaced (as in a number of other jurisdictions) by a power to make “an order, the relief or remedy under which is in the nature of, and to the same effect as” the relief or remedy under mandamus.[10]  Such orders are called prerogative orders.[11]
  1. The nature of mandamus has been “compendiously stated” by Aronson, Dyer and Groves in these terms:

“[M]andamus may be granted to an applicant of sufficient standing who proves that the respondent has refused to comply with the applicant's demand that the respondent perform a duty of a public nature, and that there is no other equally convenient, beneficial and effectual remedy available to the applicant.”[12]

Other writers give similar descriptions.[13]  However it must be remembered that such descriptions are not, and are not intended to be, statutory definitions.

Demand and refusal

  1. Mr Randall's decision to list the application for hearing “when the Small Claims Tribunal has received notification that proceedings lodged by Mrs Ross in the Supreme Court have been finalised” was not in terms a refusal to comply with a demand (or even a polite request) that he perform his duty. That did not necessarily preclude a prerogative order. In Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd, six judges of the High Court wrote:

“Quite apart from discretionary considerations relevant to the question whether mandamus should issue in a particular case, there is a general rule that mandamus will not be granted unless there is a ‘clear demand for the exercise of ... jurisdiction based on proper materials’.(40)  That is not a rule of law, but a convenient method of testing whether there has been a refusal, actual or constructive, to exercise jurisdiction. Thus, mandamus has issued where, although there was no demand, there was no doubt as to what was required …

(40)R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR 54, per Fullagar J at pp 91-92.  See also R. v. The Brecknock and Abergavenny Canal Company (1835) 3 Ad and E 217, at pp 223-224 (111 ER 395, at p 398); R. v. Wilts and Berks Canal Company (1835) 3 Ad and E 477, at pp 483-484 (111 ER 495, at p 497); Reg. v. The Bristol and Exeter Railway Co. (1843) 4 QBR 162, at pp 170-172; In re Wall (1890) 16 VLR, at p 689; In re Gray (1892) 8 WN (N.S.W.) 84, at p 85; R. v. Warden at Cloncurry; Ex parte Sheil (1971) Qd R 406, at pp 409-410; Reg. v. Industrial Commission of South Australia; Ex parte Public Service Association (1977) 17 SASR 396, at pp 416-417.).”[14]

A similar approach is appropriate in identifying whether there has been a refusal to act.

  1. In the present case Mr Randall gave no reasons for his decision of 12 February 2008. There is no direct evidence whether in reaching it he considered the tribunal was deprived of jurisdiction by the pendency of the Supreme Court proceedings, whether he acted out of misplaced deference to the Supreme Court, whether he simply wanted to see what the Supreme Court decided before he made a decision on the merits or whether he took some unknown consideration into account (for example the convenience of one of the parties).  Nonetheless it is open to the court to draw inferences from the available evidence.  The application had originally been set down for hearing on 7 December 2007.  On that day Mrs Ross told Mr Randall of the Supreme Court proceedings which she had commenced.  He then informed the parties that the hearing in the tribunal would not proceed until after the Supreme Court proceeding had been determined.  Subsequently it was relisted at the applicant's request for hearing on 7 February 2008, the day after Atkinson J held that Mrs Ross had no proprietary interest in the land and ordered the removal of her caveat.  Mr Randall was informed of the result of the proceedings before her Honour and was told of her Honour's comment that the adjournment of Mrs Ross' application should not operate to prevent the hearing of the claims in the small claims tribunal on that day.  Despite those submissions Mr Randall refused to hear either of the claims on the ground that Mrs Ross' application in the Supreme Court had been adjourned and the relief sought in it might potentially result in orders being made which would confirm or give rise to an interest in the land in favour of the Rosses.  He made a comment to the effect that if he were to grant the Council the relief it sought before the Supreme Court proceedings were determined, he might potentially be making an order which would cut across and conflict with orders the Supreme Court was being asked to make.
  1. In my judgment it is clear from that history that whatever its form, the referee's decision on 12 February 2008 was in substance a refusal to hear the Council's application while Mrs Ross's Supreme Court proceedings remained on foot. No other reason was suggested for the adjournment of the proceedings. The application had a degree of urgency and had been set down for hearing. The Council's request in context constituted a sufficient demand for listing notwithstanding the pendency of the Supreme Court proceedings, and the referee's ruling a sufficient refusal of such listing for the purposes of a prerogative order in the nature of mandamus.
  1. As will appear, it is necessary to bear in mind the precise demand and refusal which have occurred. The referee has not absolutely refused to hear the matter; far less has he refused to determine it in any particular manner. The precise identification of the issue has consequences in relation to the order which this court might make.[15]

The nature of the refusal

  1. It is also clear that the refusal to hear the Council's application was based on the view that what remained of Mrs Ross's application in the Supreme Court (para 3, quoted above[16]) was capable of leading to an order that the Rosses had or obtained an interest in the land.  One can understand how, if that were so, such an order might impact on the outcome of the application in the tribunal.  It seems clear that it was the possibility of such an impact which led the referee to refuse to hear the application.  Nothing in the evidence suggests that the referee considered that he was deprived of jurisdiction or that he lacked power to hear the matter before the tribunal.
  1. The construction which Mr Randall put on Mrs Ross's proceedings in the Supreme Court was wrong. Once Atkinson J had ordered the removal of the caveat and given summary judgment for the Council on paras 1 and 2 of the application, nothing of substance remained.[17]  (In fairness to Mr Randall it must be said that he was entitled to wonder why, if that were so, the third paragraph had not been struck out or the balance of the application dismissed, and why costs in the Supreme Court had been reserved; although the presence of another party on the record but absent from that hearing might have been the explanation.)  No order on that application could have affected the relief which the Council sought before him.  Mr Randall's misconstruction of the proceedings constituted an error of law.
  1. Is that sufficient to enliven the jurisdiction to grant an order in the nature of mandamus? In Australia, the answer must be no.  In this country,

“[t]he basic rule governing all prerogative writs is that relief can be granted only if the applicant has established a jurisdictional error in the sense of invalidity.  The prerogative writs are about public power.  They are granted only to check action or inaction which decision-makers cannot justify by pleading that the law empowered them to act or omit to act in the way they did.  Certiorari for non-jurisdictional error of law constitutes the only exception to that proposition.”[18]

  1. Despite the trend in England toward the abolition of the distinction between jurisdictional and non-jurisdictional errors of law, Australian judges have (with the notable exception of Kirby J) maintained the distinction.[19]  In a joint judgment, Gummow, Hayne, Heydon and Crennan JJ recently wrote:[20]

“4.The jurisdiction of the Federal Court invoked by Futuris was that conferred by s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act“).  Section 39B relevantly replicates the terms in which jurisdiction is conferred upon this Court by s 75(v) of the Constitution in respect of any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.  The central issue presented by reliance upon s 39B for an order quashing the Second Amended Assessment thus was not merely whether there had been an error of fact or law by the Commissioner, but whether there had been error in the exercise by the Commissioner of powers conferred by the Act which amounted to jurisdictional error.

  1. In Parisienne Basket Shoes Pty Ltd v Whyte Dixon J referred to the maintenance of “the clear distinction ... between want of jurisdiction and the manner of its exercise”.  His Honour in this context also used the phrase “excess of jurisdiction” and, with respect to relief under s 75(v) of the Constitution, the same idea had been conveyed as early as 1914 in The Tramways Case [No 1], by such expressions as “usurp jurisdiction”, “wrongful assumption of jurisdiction” and “proceeding without or in excess of jurisdiction”.  Thereafter, in his submissions in R v Kirby and Ors; Ex parte The Transport Workers' Union of Australia, Dr Coppel QC is reported as using the term “jurisdictional error”.

…

  1. In the process of the making of the Second Amended Assessment errors by the Commissioner of this nature (if indeed there were errors) fell within the scope of s 175 as explained earlier in these reasons.  They could not found a complaint of jurisdictional error attracting the exercise of jurisdiction to issue constitutional writs which is conferred by s 75(v) of the Constitution on this Court and by s 39B of the Judiciary Act upon the Federal Court.  If there were errors they occurred within, not beyond, the exercise of the powers of assessment given by the Act to the Commissioner and would be for consideration in the Pt IVC proceedings.”

Kirby J (not dissenting) applied the same approach while expressing his discontent with it:

“128.[Sections] 175 and 177(1) of the Act will not prevent a judicial determination of invalidity where the making of an assessment involves “jurisdictional error”.  They may prevent such a determination where the error, even if one of law, is a “non-jurisdictional error”.  The former type of “error” takes the decision-maker outside or beyond the available jurisdiction or power.  The latter is an error made within jurisdiction, and accordingly the decision-maker would still be competent to make it.  Protective, privative-type provisions such as ss 175 and 177(1) of the Act are then enlivened and take effect.

  1. I have previously criticised the so-called “jurisdictional error” category despite the support it derives from the current doctrine of this Court.  The classification is conclusory.  It is very difficult to define and to apply.  In recent years it has been substantially discarded by English legal doctrine.  Jurisdictional error is nearly impossible to explain to lay people even though the Constitution (including the central provisions in s 75(v)) belongs to them.  Most non-lawyers would regard it as a lawyer's fancy.”
  1. As Kirby J observed, it is difficult to define and apply the category of jurisdictional error. His Honour cited with apparent approval eight classes of such error identified by Aronson:

“1.A mistaken assertion or denial of the very existence of jurisdiction.

  1. A misapprehension or disregard of the nature or limits of the decision maker's functions or powers.
  1. Acting wholly or partly outside the general area of the decision maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances ...
  1. ... Acting on the mistaken assumption or opinion as to the existence of a certain event, occurrence or fact ... or other requirement, when the Act makes the validity of the decision maker's acts contingent on the actual or objective existence of those things, rather than on the decision maker's subjective opinion.
  1. Disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision maker's act or decision. ...
  1. Misconstruing the decision maker's Act ... in such a way as to misconceive the nature of the function being performed or the extent of the decision maker's powers ...
  1. [Acting in] bad faith.
  1. [A] breach of natural justice.”[21]

I respectfully adopt that approach.

  1. In my judgment the referee's refusal to hear the Council's application cannot be brought under any of these classes. His error lay in a misunderstanding of the nature of the proceedings which remained alive in the Supreme Court. He did not see those proceedings as affecting his own functions or powers[22], but rather as potentially affecting the outcome of the proceedings before him by changing the perceived legal rights of the parties.  In forming that view he erred in law, but it  was not a jurisdictional error.[23]
  1. It follows that the Council was not entitled to relief by way of prerogative order. Paragraph 1 of the order of the Chief Justice[24] must be set aside.

Injunction

  1. Mr Beacham advanced an alternative argument on behalf of the Council. He submitted that if the court lacked jurisdiction to make a prerogative order in the nature of mandamus, it could still have ordered the tribunal to perform its duty by granting a mandatory injunction. By that approach the jurisdictional problems already discussed can be avoided:

“[P]rinciples of jurisdictional error control the constitutional writs but do not attend the remedy of injunction including that provided in s 75(v) (and thus in s 39B of the Judiciary Act).  The same is true of the other equitable remedy, the declaratory order.  Nevertheless, the equitable remedies, which are available at the suit of a party with a sufficient interest, operate to declare invalidity and to restrain the implementation of invalid exercises of power.”[25]

  1. To obtain a prerogative order the Council was required to make an application for review under s 43 of the JRA.  It did so.  Its application did not in terms seek an injunction.  However s 47 of that act provides:

“(2)On an application for review—

(a)any relief mentioned in section 43(1) or (2) may be sought instead of, or in addition to, any other relief mentioned if it relates to the same matter; or

(b)the court may grant the relief it considers the most appropriate available under this section, even if it is not included in the application.”

Injunction is mentioned in s 43(2).  In my judgment that power is ample to permit an injunction to issue.  It probably does no more than confirm what would be the position even in the absence of the subsection.[26]

  1. If the power is available, then, absent some countervailing reason, the court should

“give all remedies available necessary consideration for the resolution of the proceedings and to avoid multiplicity of proceedings, so that this court could and, if necessary, should, grant alternative remedies such as a mandatory injunction requiring the performance of the obligation … - see Willison v Van Ryswyk [1961] WAR 87 per Virtue J at 89; Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555, 564; McLaren v Schuit [1983] 33 SASR 139, 147 - 154; and Ellwood v Darling Downs Investments Pty Ltd [1987] 14 FCR 580; (1987) 75 ALR 47 per Spender J at 56.”[27]

  1. Ordinarily one would wish to have discretionary issues relating to an injunction considered at first instance. However in the present case there is no suggestion that any such consideration stands in the way of such relief. No other remedy will suffice. Unless the matter is affected by s 19 of the SCTA, an injunction should issue at least to compel the tribunal to consider according to law whether to list the Council's application as soon as possible, notwithstanding the pendency of the Supreme Court proceedings.

The construction of s 19 of the SCTA

  1. It is suggested that power conferred by ss 41 and 43 of the JRA cannot be exercised, and by extension an injunction cannot be issued, in the present case because of s 19 of the SCTA:

“19Limitation on orders Supreme Court may make for tribunal proceedings

The Supreme Court may not make a statutory order of review or give a declaratory judgment in relation to a proceeding taken, or to be taken, before a small claims tribunal, or in relation to an order made by a small claims tribunal, unless the court is satisfied that—

(a)the tribunal had or has no jurisdiction under this Act to take the proceeding; or

(b)during the proceeding there has been a denial of natural justice to a party to the proceeding.”

Holmes JA has explained the legislative history of that section.  I add that it seems to have been enacted to overcome the drafting problem exposed by Byrne J in W & T Enterprises (Q) Pty Ltd v K O Taylor, Referee, Small Claims Tribunal.[28]

Prerogative orders

  1. The first question in the present case is what is meant by the expression “statutory order of review” in that section. Two possibilities are suggested. The first is that the expression bears the meaning given to it in the JRA:

“statutory order of review means an order on an application made—

(a)under section 20 in relation to a decision; or

(b)under section 21 in relation to conduct engaged in for the purpose of making a decision; or

(c)under section 22 in relation to a failure to make a decision.”[29]

The second is that it is a generic expression encompassing any order of review available under that Act; in other words, an expression which catches up both statutory orders of review as defined and prerogative orders as defined.  It is not suggested that the expression can be construed to mean only “prerogative order”.

  1. Holmes JA favours the second construction. She does so because
  • the explanatory note to the Bill introducing s 19 in its current form uses the word “update”; and previously the section had referred to a “writ of certiorari, or prohibition, or other prerogative writ”;
  • the SCTA contains no definition of the expression and does not require that it be read together with the Judicial Review Act;
  • the second construction is that which satisfies the ordinary meaning of the expression;
  • the second construction is the only one which gives practical effect to the section.
  1. To my mind that approach is problematic. For example, it is true that the second construction satisfies the ordinary meaning of the expression; but why would one expect the drafter to have used the words in their ordinary meaning when they are apt to describe a particular form of legal relief. The words were introduced because of the JRA.  That much is clear from the explanatory note.  It is much more likely that the words were used in their technical sense than that they were used as part of ordinary language.  If the section purported to forbid an “order in the nature of prohibition”, would the words of that expression be given their ordinary meaning?  Nor am I convinced that the second construction necessarily gives practical effect to the section.  I would accept that a construction which applied s 19 only to proceedings for prerogative orders would give practical effect of the section, but that is not what is proposed.  The second construction applies s 19 to any order of review available under the Act.  What basis exists for applying the section to relief under ss 20-22 if the technical meaning of the expression is rejected?  Why should an administrative decision of a registrar or other tribunal official in relation to (say) the filing of a document in a proceeding before the tribunal gain the protection of s 19?  Such a construction gains no support from the explanatory note.  Yet that is the result of the second construction.
  1. The nub of the problem appears to be that there has probably been a drafting error - ironical in a section apparently introduced to remedy an earlier drafting error! The explanatory note suggests that the objective was to apply s 19 to proceedings for prerogative orders and only to such proceedings.  That objective has not been achieved.  What is now suggested are two possible constructions, neither of which achieves the probable objective of the section and both of which produce consequences unlikely to have been intended.  No construction of s 19 has been suggested which would achieve the probable objective.
  1. In the armoury of the lawyer are numerous devices for the interpretation of statutes. All of them depend upon words. All of them are designed to assist in producing an interpretation which reflects the presumed legislative intention. But one cannot justify their use to produce an interpretation which admittedly fails to achieve that intention simply in order to avoid another interpretation which one cannot suppose to have been that intention. In a democracy the courts must confine themselves to applying the laws as Parliament has drafted them. When the wording, interpreted in accordance with the rules of interpretation, is incapable of giving effect to the presumed legislative intention, as seems to be the position here, there is nothing a court can do about it.[30]  The problem must be left to the Parliament to remedy.  The problem cannot be solved by selecting a strained but wrong meaning on the basis that it is closer to the right meaning than the obvious but wrong one.
  1. The drafter has used the expression “statutory order of review” in reference to the JRA.  We should do the same.  It is not our function to choose between meanings neither of which we believe to reflect the parliamentary intention.
  1. I hold that s 19 of the SCTA has no application in relation to relief by way of prerogative order under ss 41 and 43 of the JRA.

Injunctions

  1. Even if that conclusion be wrong, this section cannot in my judgment apply to relief by way of injunction. I do not think it is possible to construe either “statutory order of review” or “declaratory judgment” to include “injunction”. Mr Beacham raised this question in a careful and very fair submission. He pointed out that to have that effect the section would need to be construed in a way that reads into it the words “or issue an injunction” after the words “declaratory judgment”. He drew our attention to a passage in the decision of the New South Wales Court of Appeal in Bermingham v Corrective Services Commission of New South Wales[31], where it was suggested that in certain circumstances a court may read words into a statutory provision.
  1. Since that case was decided, the approach in it has undergone some re-evaluation. That re-evaluation is consistent with the paramountcy which the High Court has often emphasised must be attributed to a statutory text. I respectfully agree with what was said by Spigelman CJ in R v Young:

“3   The basic issue is what, if anything, should the courts do when it appears that Parliament has failed, apparently by inadvertence, to deal with an eventuality required to be dealt with if the purpose of a statute is to be achieved? …

5   The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation.  The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say.  (See Stock v Frank Jones (Tipton) Ltd [1978] WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 613G, 645C-D; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459.

6   In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words.  This is not, however, to introduce words into the Act. This involves the construction of the words actually used.  Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.

…

8   The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the Court, must remain capable of characterisation as a process of construction of the words actually used.

9   The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1982] UKHL 5; [1980] AC 74 at 105-107…

12   As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute.  The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate.  However, the words which actually appear in the statute must be reasonably open to such a construction.  Construction must be text based.

…

14   Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words “omitted” by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used.  In my opinion, the authorities do not warrant the court supplying words “omitted” by inadvertence per se.

…

15   Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. (McAlister [1990] HCA 15; (1990) 169 CLR 324 at 330; R v Di Maria [1996] SASC 5882; (1996) 67 SASR 466 at 472-474).”[32]

  1. In my judgment, whatever other operation it might have, s 19 presents no obstacle to the issue of an injunction.
  1. There is a clear need for legislative intervention to define more clearly the relationship between the jurisdiction of the small claims tribunal and that of other tribunals and courts. On the one hand it might be thought that the objective of finality[33] for orders of that tribunal will be imperilled if injunctions are freely available.  On the other, the circumstances of the present case show that a much more nuanced approach to defining the relationship is necessary if a proper balance is to be achieved between finality and fairness.  Whatever was the position in 1975 when s 19 was first enacted, it is now clear that with the exception of certiorari for error on the face of the record, prerogative orders cannot be made in the absence of jurisdictional error.  For that reason alone the section is structurally flawed.  There is also a need to identify precisely the objectives which lie behind ss 17 and 19 and the relationship between those sections and other parts of the law.  Is it intended, for example, that lodgement of a claim in the tribunal should ever be able to destroy the justiciability in this court of an issue raised in an action in support of a caveat?  How do these sections interact with s 126(4) of the Land Title Act 1994?  As presently drafted ss 17 and 19 have the potential for abuse.  Their reconsideration is a matter of some urgency.

The operation of s 19 of the SCTA

  1. We are also indebted to Mr Beacham for a thoughtful and careful argument which sought to establish that the decision by the referee refusing to list the Council's application constituted taking a proceeding which he had no jurisdiction to take. In deference to Mr Beacham's work, I shall express my views on it, although having regard to what I have written already, my decision does not turn upon it. Holmes JA has recorded the argument and I need not repeat it.[34]  I regret that I am unable to accept it, for it would produce a fair result.  Essentially, the reasons why I reject it are that I am unable to equate a refusal to exercise jurisdiction conferred by the SCTA with “taking” jurisdiction not vested in the tribunal under that act; and that the tribunal's error did not amount to jurisdictional error.
  1. The tribunal is constituted by a referee sitting alone.[35]  His or her functions are specified by the Act:

“10 Functions of referees

(1)The primary function of a referee constituting a small claims tribunal shall be to attempt to bring the parties to a dispute that involves a claim referred to in section 16 duly referred to the tribunal to a settlement acceptable to all the parties.

(2)Should it appear to the referee in a particular case to be impossible to reach, or inappropriate to try to reach, a settlement acceptable to all parties to a dispute, then the function of a referee constituting a small claims tribunal shall be to make such an order with respect to the issue in dispute as is fair and equitable to all the parties to the proceeding concerning the dispute or, where the referee thinks the case requires it, an order dismissing the claim.”

It is those functions which Mr Randall will not exercise.  His refusal to exercise them is wrong in law.  However it is in substance an error of inaction, not an error involving “taking” a proceeding.  Even if one has regard to form rather than substance, the error in the referee’s decision lies in the timing of the listing of the Council's application, a matter within the tribunal's power under s 37 of the SCTA. 

  1. I have already explained why in my judgment there was no jurisdictional error.[36]  I therefore reject Mr Beacham's submission. 
  1. In addition Mr Beacham submitted that there has been a breach of the rules of natural justice:

“The refusal to re-list the claim amounted to a denial of natural justice as it deprived the applicant of a hearing to which it was entitled and an opportunity to press the court for the relief that it sought, without any logical or relevant basis for doing so.”

  1. I reject that submission also. The referee did not absolutely refuse to relist the Council's claim and did not deprive it of a hearing. He certainly did not propose to determine the matter without giving the Council a hearing. He refused to relist it while Mrs Ross’s Supreme Court application remained pending. He did so because he perceived that the outcome of the Supreme Court proceeding might affect the proceeding in the tribunal. That perception was wrong. However once that perception is assumed, the referee’s refusal cannot be described as being without any logical or relevant basis. Mr Beacham relied upon well-known and to some extent controversial dicta of Deane J[37], but in my judgment those dicta have no application in the present case.  Moreover although they have garnered some support from Kirby J[38] and, Mr Beacham submits from Gleeson CJ[39], I do not think they can be said to represent the present position of the High Court.

Controlling the tribunal's discretion

  1. A question which was argued in this appeal was whether the Chief Justice erred in directing Mr Randall how to determine the claim in the tribunal. The order which his Honour made was in these terms:

“1.Pursuant to section 43(1)(a) of the Judicial Review Act 1991, a prerogative order in the nature of mandamus directing the first respondent to:

(a)hear and determine Small Claim No. 5337/07 according to law;

(b)determine Small Claim No. 5337/07 by making the following orders:

(i)a termination order, pursuant to section 166 of the Residential Tenancies Act 1994, because of a failure to leave;

(ii)a warrant of possession be issued pursuant to section 216 of the Residential Tenancies Act 1994 [sic].

  1. The second respondents pay the applicant's costs of the proceedings to be assessed.
  1. An indemnity certificate be granted to the second respondents in respect of this proceeding under s 15(2) of the Appeal Costs Fund Act 1973.”

Having regard to what I have already written, it is unnecessary that I consider this question in the context of a prerogative order.  However a cognate question arises in relation to the issue of an injunction.  If the tribunal retains a live discretion on a question committed to it, this court would hesitate to direct how it should exercise that discretion, for reasons similar to those applicable to the terms of a prerogative order.

  1. Mr and Mrs Ross could have been in no doubt as to the orders sought by the Council in the present proceedings. They were specified precisely in the application. The Council's evidence not only demonstrated the tribunal’s error of law, it strongly suggested that the only possible outcome of the tribunal proceedings was the making of a termination order under s 208 of the RTA and the issue of a warrant of possession under s 216 of that Act.  It showed that the lease had expired; that notice to leave under s 165 of that Act had been given in accordance with s 93; that the period of notice given (over two months) was more than the minimum which the Ross' were entitled to have under s 197; that they remained in possession of the premises; that application for a termination order had duly been made under s 166 within the time prescribed by that section; and that the Ross’ had attended the tribunal on the date set for hearing the application and informed the tribunal of the proceedings commenced in the Supreme Court.  Ms Peddie, who gave evidence of those facts deposed that all these facts and circumstances were within her own knowledge, and she was not cross-examined on her affidavit.[40]  On that evidence it would be appropriate for a termination order to be made and nothing in the evidence suggests otherwise.  Once a termination order is made, the tribunal is obliged to issue the warrant under s 216.
  1. Mrs Ross read an affidavit in this court on behalf of herself and her husband. It was 22 paragraphs, and with exhibits was 135 pages long. It asserted fraud on the part of the Council and an entitlement to the land on the part of the Rosses, but demonstrated neither. It contained nothing to suggest that the Rosses would be able to resist the relief sought against them in the tribunal. Mrs Ross is not a lawyer, but she is certainly not inarticulate. I have no doubt that had there existed any facts upon which she might have founded an argument in the tribunal she would have deposed to them.
  1. If, therefore, the question before this court were whether the Rosses had any basis in law for resisting the relief sought against them by the Council in the tribunal, the answer would clearly be in the negative. If that were the question, the theoretical possibility that Mrs Ross might adduce further evidence before the tribunal unconstrained by the rules of evidence would not preclude this court from supplying an answer. The terms of the application and the evidence put forward by the Council would make it incumbent upon the Rosses at least to show the existence of evidence demonstrating a possibility that the tribunal might find in Mrs Ross’s favour if they were to resist the order sought.
  1. But that question was not before this court. The referee had not absolutely refused to hear the Council’s application or to consider the particular relief sought by it. He had in substance refused to list the Council's claim for hearing until the determination of the Supreme Court proceedings.[41]  The first question before this court was whether he should be ordered to consider according to law (that is, regardless of the existence of the Supreme Court proceedings) whether to list the tribunal proceedings as soon as possible.  I have held that he should be ordered to do so at least.[42]  The further question which arises is whether the referee's discretion on the question of listing remains alive.  In other words, should he be ordered to consider listing the Council's application, or should he be ordered to list it?
  1. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd, Mason CJ wrote:

“Although the argument was not elaborated, it is to be understood as invoking the principle that mandamus requires the exercise of the relevant statutory discretion rather than its exercise in a particular way (54 Randall v. Northcote Corporation [1910] HCA 25; (1910) 11 CLR 100 at 105).  But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way.  However, if the administrator is required by the statute to act in a particular way and in certain circumstances, or if the exercise of a statutory discretion according to law in fact requires the administrator to decide in a particular way, so that in neither case does the administrator in fact have any discretion to exercise, the mandamus will also issue to command the administrator to act accordingly.”[43]

That passage has been applied in a number of cases,[44] and I respectfully adopt it as a correct statement of the law.

  1. The words of Mason CJ apply in the present case. On the evidence only one decision was lawfully open to the tribunal. That was to list the Council’s application for hearing as soon as possible, regardless of the pendency of the Supreme Court proceedings. We should now order it to do that.
  1. The importance of distinguishing between the decision to refuse to list the application for hearing and a decision on the merits of the application is emphasised by the fact that the function of the tribunal is not limited to deciding the latter question. That function is determined by s 10[45] of the SCTA.  In the first instance it is to bring about a settlement of the dispute if possible.  If that appears impossible or it appears inappropriate to try to do so, the referee must make such an order as is just and equitable in the circumstances.  It may be assumed without considering the point that such an order must be made in accordance with the law.  The fact that the referee must first endeavour to bring about a settlement necessarily means that the functions of the tribunal go further than determining whether Mrs Ross has any legal basis for resisting the Council's application.
  1. On the evidence in the application in this court, it cannot be said that there is no prospect of settlement of the proceedings in the tribunal. The plight of Mr and Mrs Ross has apparently previously engaged the sympathy of the Council.  There is evidence relating to their medical history and charity work which if believed may well explain why that has happened and why it might happen again.  I note that in giving judgment on 6 February, Atkinson J (expressing, I suppose, a moral rather than a legal imperative) said, “[I]t is incumbent upon the Council, of course, to try to find them some alternative accommodation so they do not become homeless.  It is also incumbent upon the Rosses to accept appropriate accommodation”.

Retirement of Mr Randall

  1. After I had written the foregoing reasons, Mr Randall retired from the office of magistrate.[46]  As a result he ceased to be a referee of small claims tribunals.[47]  Can he now properly be ordered to list the Council's application for hearing and determination?
  1. My provisional answer to that question (provisional because we have not heard argument about it) is, no. It is true that s 49 of the Magistrates Act 1991 has the effect that a magistrate who retires is taken to continue to be a magistrate so far as it is necessary to give a decision in a matter that is partly heard or standing for the decision of the magistrate.  “Standing for the decision” seems designed to cover the case where a decision has been reserved after a full hearing.  “Partly heard” seems inapplicable to a situation where the referee has refused to list the matter for hearing.  I am unaware of any other basis upon which an order may now be made against the referee.
  1. That is a most unfortunate outcome for an unfortunate piece of litigation. The unfortunate effect may be exacerbated by the terms of the SCTA.  By s 29(1) of that Act a tribunal must at all times throughout the taking of a proceeding be constituted by the same referee.  The expression “taking of a proceeding” is somewhat obscure and may not be consistently used throughout the Act; but it may refer to everything that occurs from the “initial proceeding” referred to in s 25(1)(b) to the conclusion of the case.  If that is so, the effect of the referee's retirement might be the lapsing of any claims brought in the Tribunal constituted by him which cannot be saved by s 49 of the Magistrates Act 1991.  Doubtless that is something which might also be considered in relation to other claims by the appropriate branch of the administering department.
  1. As presently advised I would refuse to issue the injunction, as a result of the referee's retirement.  The Council should be granted five working days to file and serve further submissions if it desires to press for an order.  In the event that it does so, the Rosses should have five working days to file and serve any submissions in response.

Costs

  1. The same time should be allowed for the parties to file any submissions they wish to make as to costs. In the absence of any such submissions, I would make no order as to costs.

Orders

  1. The orders of the court should be:

BS 561/08 and BS 11167/07

Application for extensions of time within which to appeal from the orders of Atkinson J made in BS 561/08 on 6 February 2008 and in BS 11167/07 on 8 February 2008 dismissed.

 

BS 1533/08

  1. Appeal allowed in part.
  1. Set aside para 1 of the order made herein on 11 March 2008.
  1. Grant the respondent five working days from the date of delivery of these reasons for judgment to file and serve any further submissions concerning a possible injunction.
  1. If the respondent files and serves any such submissions, grant the appellants five working days from the date of service on them of such submissions to file and serve any submissions in response.
  1. Grant all parties five working days from the date of delivery of these reasons for judgment to file and serve any submissions as to costs.
  1. If any party files and serves any such submission, grant the other party five working days from the date of service on them of such submissions to file and serve any submissions in response.
  1. DAUBNEY J: I agree with Holmes JA’s reasons for dismissing the application for extensions of time within which to appeal from the orders made by Atkinson J. 
  1. I agree with Fryberg J that, subject to resolution of the issue identified by Fryberg J as a consequence of the retirement of the learned magistrate in question:

(a)The circumstances of the case would warrant the grant of an injunction to compel the first respondent to list the Council’s application No 5334/07 for hearing and determination as soon as possible;

(b)Such an injunction would not be, for the purposes of s 19 of the Small Claims Tribunal Act 1973 (‘SCTA’), either a ‘statutory order of review’ (however that term might be construed) or a ‘declaratory judgment’.  Given the patent, reasonably-based differences of opinion as to what is meant by the term ‘statutory order or review’ in that section, I would consider it desirable, in the interests of certainty for the parties and the first respondent, to grant relief of a nature which, in my view, is undoubtedly available;

(c)The injunction, ­if issued, should only extend to compelling the first respondent to list the matter, the refusal to list being, as Fryberg J has explained, the actual error committed by the referee.  Regard must be had to the fact that, under s 10 of the SCTA, the referee has the primary function of attempting to bring the parties to settlement, and it is only if it appears to the referee that settlement is impossible to reach, or inappropriate to try to reach, that the referee’s function becomes adjudicative.  An injunction to compel the referee to adjudicate in a particular way would, in the circumstances of this case, be an impermissible bypassing of the referee’s primary function.

  1. In light of my concurrence with the grant of an injunction, it is unnecessary for me to express a concluded view as to the meaning of the term ‘statutory order of review’ in s 19, and I expressly decline to do so.
  1. Holmes JA and Fryberg J have articulated compelling arguments in favour of competing constructions of that term in s 19 – Holmes JA reading the term as not having the limited meaning given to the same term in the Judicial Review Act 1991 (‘JRA’) but taking up the ordinary meaning of the words, i.e. an order of review available under statute, and Fryberg J adopting the approach that the drafter of the legislation used the expression ‘statutory order of review’ in reference to the JRA.
  1. The problem, of course, is that there has been a significant drafting error in the use of this phrase. When one recalls that:

(a)the previous incarnation of s 19 proscribed the issuing of a ‘writ of certiorari, or prohibition, or other prerogative writ’,

(b)the apparent intent of the amendment to s 19 wrought by the Justice and Other Legislation Amendment Act 2007 was to ‘update the language of the section’ to take account of the abolition of the writs of certiorari and prohibition by the JRA [48], and

(c)the prerogative writs of certiorari and prohibition were abolished by s 41(1) of the JRA, and the orders of like nature and effect which are available under the JRA are known as ‘prerogative orders’[49]

one could well be forgiven for suspecting that the drafter mistakenly referred to ‘statutory order of review’ in s 19 when the term ‘prerogative order’ is that which would have given effect to the intent stated in the explanatory note.

  1. But I do not know this for certain. It may be that one of the meanings advanced by Holmes JA and Fryberg J was intended.
  1. Even acknowledging that the contemporary approach to statutory interpretation calls for the consideration of a provision’s context in its widest sense, including, inter alia, the use of ‘such things as the existing state of the law and the mischief which ... one may discern the statute was intended to remedy’[50], it is no part of my judicial function to rewrite, or correct, legislation by a strained process of statutory interpretation.
  1. It is manifestly undesirable that there are two competing, but respectable and authoritative interpretations of this phrase in s 19, particularly given the limiting effect that s 19 has on the rights of citizens to have access to the Court for judicial review of the Tribunal’s decisions. The stark juxtaposition of those competing meanings in their Honours’ reasons highlights the urgent need for this drafting error to be rectified by the Legislature.
  1. In the result, I agree with the orders and directions proposed by Fryberg J.

Footnotes

[1] The references to parts and sections of the Local Government Act are those that applied as at the date of the acquisition of the property; they have since been re-numbered.

[2] Which became s 18 (Proceedings of tribunals final) and s 19.

[3] [1987] 1 Qd R 45 at 51.

[4] At 51.

[5] For example, in s 4, “small claims tribunal” is defined as meaning “a tribunal constituted as prescribed for taking a proceeding in relation to a claim”;  and s 29(1) provides that “a tribunal shall, at all times throughout the taking of a proceeding, be constituted by the same referee”.

[6] Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 at 194.

[7] Section 31(1).

[8] Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81.

[9] Paragraph [15].

[10] Judicial Review Act 1991, ss 41(2), 43.

[11] Ibid, s 3.  The abolition of the writs effected no substantive change to the law: Carlson v Queensland Building Tribunal [1999] 2 Qd R 483 at p 487.

[12] Judicial Review of Administrative Action, 3d ed (2004), p 720.

[13] For example de Smith, S A: Judicial Review of Administrative Action, 4th ed (1980, J.M Evans), p 540.

[14] (1993) 178 CLR 379 at p 394.

[15] See para [81].

[16] Para [44].

[17] It is unnecessary to consider whether the earlier refusal (on 7 December 2007) to hear the matter involved any error of law or jurisdiction.

[18] Aronson, M, Dyer, B and Groves, M: Judicial Review of Administrative Action, 3d ed (2004), p 207.

[19] Wade v Burns (1966) 115 CLR 537 at pp 555, 562; R v Bjelke-Petersen, ex parte Plunkett [1978] Qd R 305 at p 311; Ex parte Hulin; re Gillespie [1965] NSWR 313 at pp 315-6, 318-9; Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at pp 1171-2, 1185-6; Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at p 1198.

[20] Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32.

[21] Ibid at [134], citing Aronson, “Jurisdictional error without the tears”, in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines, (2007) 330 at 335-336.

[22] See Craig v South Australia (1995) 184 CLR 163 at p 177.

[23] Compare Talevski v County Court of Victoria [2001] VSC 171, a reference for which I am indebted to Holmes JA.

[24] Paragraph [81].

[25] Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 at [47].

[26] John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400; Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561.

[27]Re Lloyd; ex parte Atanasio [2008] WASC 93 at [30] per Heenan J.

[28] [2005] QSC 360.

[29] Section 3.

[30] See the last sentence quoted in paragraph [73].

[31] (1989) 15 NSWLR 292 at p 302.

[32] (1999) 46 NSW LR 681 at pp 685-7.

[33]See W & T Enterprises (Q) P/L v K O Taylor, Referee, Small Claims Tribunal [2005] QSC 360.

[34] Paragraph [29].

[35] SCTA, s 11.

[36] Paragraphs [56] - [58].

[37] Australian Broadcasting Tribunal  v Bond (1990) 170 CLR 321 at pp 366-8.

[38] Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at pp 1184-5; Minister for Immigration and Multicultural Affairs v Rajamannikam (2002) 210 CLR 222 at pp 251-2.

[39] Minister for Immigration and Multicultural Affairs v Rajamannikam (2002) 210 CLR 222 at
pp 232-3.

[40] Although this affidavit was filed in application No BS 11167/07 (Mrs Ross's Supreme Court claim against the Council) it was read before the Chief Justice in the present proceedings (BS 1533/08): AR 3.

[41] See para [52].

[42] Paragraph [63].

[43] (1994) 182 CLR 51 at p 81.

[44] An example cited by Mr Beacham is the decision of the Victorian Court of Appeal in KL Dowling & Co v Employee Relations Commission [1998] 1 VR 251.

[45] Quoted in para [77].

[46] That fact is, of course, not in evidence before us.  We first became aware of its imminence when we were invited by the Chief Magistrate to attend the valedictory ceremony on 2 September for him.  In my judgment we can take judicial notice of the fact that he has retired.

[47] SCTA, s 5(1).

[48] See the explanatory note quoted by Holmes JA at [25] above.

[49] Section 3, JRA

[50] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

Close

Editorial Notes

  • Published Case Name:

    Ross v Council of the City of Logan

  • Shortened Case Name:

    Ross v Council of the City of Logan

  • MNC:

    [2008] QCA 280

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Fryberg J, Daubney J

  • Date:

    12 Sep 2008

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2008] QSC 1006 Feb 2008Application for adjournment dismissed; Application to remove caveat allowed; order that caveat be removed by the registrar of titles: Atkinson J
Primary JudgmentSC11167/07 (No Citation)08 Feb 2008Application for summary judgement; summary judgment granted: Atkinson J
Primary Judgment-12 Feb 2008Small Claims Tribunal refused to hear the Council's application for hearing while Supreme Court proceedings remained on foot: Mr Randall
Primary JudgmentSC1533/08 (No Citation)11 Mar 2008Orders made directing the referee to hear the matters and determine them by making a termination order and issuing a warrant of possession in favour of the Council; de Jersey CJ
Appeal Determined (QCA)[2008] QCA 28012 Sep 2008Application for extension of time to appeal from orders of Atkinson J in [2008] QSC 10 dismissed; Appeal of decision of de Jersey CJ allowed in part; orders made requiring submissions as to possible injunctions; Holmes JA and Fryberg and Daubney JJ

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
1 citation
Jump To
Cite 1 - (1990) 170 CLR 321
Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292
2 citations
Jump To
Cite 1 - (1989) 15 NSWLR 292
Cite 2 - (1989) 15 NSWLR 292
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2
1 citation
Jump To
Cite 1 - [1975] UKHL 2
Black-Clawson Ltd. v Papierwerke AG (1975) AC 591
1 citation
Jump To
Cite 1 - (1975) AC 591
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
1 citation
Jump To
Cite 1 - (1995) 185 CLR 410
Byrne v Australian Airlines Ltd [1995] HCA 24
1 citation
Jump To
Cite 1 - [1995] HCA 24
Carlson v Queensland Building Tribunal [1999] 2 Qd R 483
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 483
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
1 citation
Jump To
Cite 1 - (1997) 187 CLR 384
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
3 citations
Jump To
Cite 1 - (1994) 182 CLR 51
Cite 2 - (1994) 182 CLR 51
Cite 3 - (1994) 182 CLR 51
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61
1 citation
Jump To
Cite 1 - [1994] HCA 61
Commissioner of Taxation v Futuris Corporation Ltd (2008) 247 ALR 605
1 citation
Jump To
Cite 1 - (2008) 247 ALR 605
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32
3 citations
Jump To
Cite 1 - [2008] HCA 32
Cite 2 - [2008] HCA 32
Cite 3 - [2008] HCA 32
Compare Talevski v County Court of Victoria [2001] VSC 171
1 citation
Jump To
Cite 1 - [2001] VSC 171
Craig v South Australia (1995) 184 CLR 163
1 citation
Jump To
Cite 1 - (1995) 184 CLR 163
Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
1 citation
Jump To
Cite 1 - (1990) 2 WAR 561
Ellwood v Darling Downs Investments Pty Ltd [1987] 14 FCR 580
1 citation
Jump To
Cite 1 - [1987] 14 FCR 580
Ellwood v Darling Downs Investments Pty Ltd (1987) 75 ALR 47
1 citation
Jump To
Cite 1 - (1987) 75 ALR 47
Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd [1993] HCA 40
1 citation
Jump To
Cite 1 - [1993] HCA 40
Ex parte Hulin; re Gillespie [1965] NSWR 313
1 citation
Jump To
Cite 1 - [1965] NSWR 313
Fish v Solution 6 Holdings Limited (2006) 225 CLR 180
1 citation
Jump To
Cite 1 - (2006) 225 CLR 180
Glennan v Commissioner of Taxation (2003) 77 ALJR 1195
1 citation
Jump To
Cite 1 - (2003) 77 ALJR 1195
In re Wall (1890) 16 VLR 686
1 citation
Jump To
Cite 1 - (1890) 16 VLR 686
John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400
1 citation
Jump To
Cite 1 - [1977] 2 NSWLR 400
Jones v Wrotham Park Settled Estates (1980) AC 74
1 citation
Jump To
Cite 1 - (1980) AC 74
KL Dowling & Co v Employee Relations Commission [1998] 1 VR 251
1 citation
Jump To
Cite 1 - [1998] 1 VR 251
MacAlister v R [1990] HCA 15
1 citation
Jump To
Cite 1 - [1990] HCA 15
McAlister v The Queen (1990) 169 CLR 324
1 citation
Jump To
Cite 1 - (1990) 169 CLR 324
McLaren v Schuit (1983) 33 SASR 139
1 citation
Jump To
Cite 1 - (1983) 33 SASR 139
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
2 citations
Jump To
Cite 1 - (2002) 210 CLR 222
Cite 2 - (2002) 210 CLR 222
R v Bjelke-Petersen; ex parte Plunkett [1978] Qd R 305
1 citation
Jump To
Cite 1 - [1978] Qd R 305
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54
1 citation
Jump To
Cite 1 - (1950) 82 CLR 54
R v Di Maria (1996) 67 SASR 466
1 citation
Jump To
Cite 1 - (1996) 67 SASR 466
R v Di Maria [1996] SASC 5882
1 citation
Jump To
Cite 1 - [1996] SASC 5882
R v Warden at Cloncurry; ex parte Sheil [1971] Qd R 406
1 citation
Jump To
Cite 1 - [1971] Qd R 406
R v Webster; ex parte Trueline Aluminium Pty Ltd [1987] 1 Qd R 45
2 citations
Jump To
Cite 1 - [1987] 1 Qd R 45
Cite 2 - [1987] 1 Qd R 45
R v Young (1999) 46 NSW LR 681
2 citations
Jump To
Cite 1 - (1999) 46 NSW LR 681
Cite 2 - (1999) 46 NSW LR 681
R. v The Brecknock and Abergavenny Canal Company (1835) 111 ER 395
1 citation
Jump To
Cite 1 - (1835) 111 ER 395
R. v The Brecknock and Abergavenny Canal Company (1835) 3 Ad & E 217
1 citation
Jump To
Cite 1 - (1835) 3 Ad & E 217
R. v Wilts and Berks Canal Company (1835) 111 ER 495
1 citation
Jump To
Cite 1 - (1835) 111 ER 495
Randall v Northcote Corporation [1910] HCA 25
1 citation
Jump To
Cite 1 - [1910] HCA 25
Randall v Northcote Corporation (1910) 11 CLR 100
1 citation
Jump To
Cite 1 - (1910) 11 CLR 100
Re Bolton & Anor; Ex parte Bean (1987) 162 CLR 514
1 citation
Jump To
Cite 1 - (1987) 162 CLR 514
Re Bolton; Ex parte Beane [1987] HCA 12
1 citation
Jump To
Cite 1 - [1987] HCA 12
re Gray (1892) 8 WN (N.S.W.) 84
1 citation
Jump To
Cite 1 - (1892) 8 WN (N.S.W.) 84
Re Lloyd; ex parte Atanasio [2008] WASC 93
1 citation
Jump To
Cite 1 - [2008] WASC 93
Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379
2 citations
Jump To
Cite 1 - (1993) 178 CLR 379
Cite 2 - (1993) 178 CLR 379
Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S20/2002 (2003) 77 ALJR 1165
2 citations
Jump To
Cite 1 - (2003) 77 ALJR 1165
Cite 2 - (2003) 77 ALJR 1165
Reg. v Industrial Commission of South Australia; Ex parte Public Service Association (1977) 17 SASR 396
1 citation
Jump To
Cite 1 - (1977) 17 SASR 396
Reg. v The Bristol and Exeter Railway Co. (1843) 4 QBR 162
1 citation
Jump To
Cite 1 - (1843) 4 QBR 162
Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd (1956) VLR 555
1 citation
Jump To
Cite 1 - (1956) VLR 555
Stock v Frank Jones [1978] WLR 231
1 citation
Jump To
Cite 1 - [1978] WLR 231
The King v Wiltshire and Berkshire Canal Company (1835) 3 Ad & E 477
1 citation
Jump To
Cite 1 - (1835) 3 Ad & E 477
W & T Enterprises (Q) Pty Ltd v K O Taylor, Referee, Small Claims Tribunal [2005] QSC 360
3 citations
Jump To
Cite 1 - [2005] QSC 360
Cite 2 - [2005] QSC 360
Cite 3 - [2005] QSC 360
Wade v Burns (1966) 115 CLR 537
1 citation
Jump To
Cite 1 - (1966) 115 CLR 537
Wentworth Securities v Jones [1982] UKHL 5
1 citation
Jump To
Cite 1 - [1982] UKHL 5
Willison v Van Ryswyk [1961] WAR 87
1 citation
Jump To
Cite 1 - [1961] WAR 87

Cases Citing

Case NameFull CitationFrequency
Foster v Shaddock[2017] 1 Qd R 201; [2016] QCA 361 citation
Nichols v Legal Services Commissioner [2017] QSC 175 2 citations
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd[2012] 1 Qd R 525; [2011] QCA 222 citations
R v Armitage(2021) 9 QR 1; [2021] QCA 1851 citation
Witheyman v Simpson[2011] 1 Qd R 170; [2009] QCA 3883 citations
1

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