Reihana v Davern[2015] QCA 42

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant filed a notice of appeal seeking orders quashing a Supreme Court decision and declaring it unreasonable and “harshly judged” and a further declaration against the first respondent, an adjudicator in the Queensland Civil and Administrative Tribunal (QCAT),[1] to the effect that a failure to deal with a ground in an application before him had caused the appellant detriment.  The notice of appeal contained the following grounds:

“GROUNDS - Various Jurisdictional Errors:

a.Improper exercise of power and unreasonableness

b.Failure to take account of relevant considerations

c.Taking account of irrelevant considerations

d.Findings made where no evidence to support”

However, it became clear during the appellant’s argument that the real issue was whether the primary judge was correct in dismissing his application for a statutory order of review under Pt 3 of the Judicial Review Act 1991 on the ground that it failed to identify any jurisdictional error by the first respondent.

The finding of no jurisdictional error

[2] The review application was made in respect of the first respondent’s decision to adjourn for conciliation an application in a minor civil dispute relating to the appellant’s tenancy in a caravan park operated by the second respondent.  The appellant, who was unrepresented at all stages of the proceeding – in QCAT, before the primary judge and here – characterised the first respondent’s decision as a failure to make any “ruling, stay or substantive decision” on a ground in his application which concerned a Notice to Leave.  The primary judge concluded that if the first respondent had made an error, it was a failure to rule on one aspect of the relief claimed, not because he misapprehended his jurisdiction, but through oversight; that was not jurisdictional error.

[3] Section 156 of the Queensland Civil and Administrative Tribunal Act 2009 excludes the application of Pt 3 of the Judicial Review Act to a decision or conduct of QCAT other than to the extent it is affected by jurisdictional error.  Accordingly, since the primary judge found no jurisdictional error on the first respondent’s part, the application had inevitably to fail.  His Honour noted that in any event it was brought out of time, some eight months after the QCAT hearing.  In addition, he observed that the appellant had other avenues within QCAT to seek review of any error by the first respondent, although in the circumstances it was unlikely that he would have been successful.

[4] The appellant took issue with the primary judge’s comments as to the application’s having been brought out of time and in the absence of any application to seek QCAT review.  He sought, unsuccessfully, to adduce new evidence as to those matters.  In any event, the primary judge’s observations were accurate, but they are beside the point; he dismissed the application, not for those reasons, but because in his view it failed at the hurdle of jurisdictional error.  The appellant here asserts that his Honour should have found jurisdictional error on the part of the first respondent because the latter had failed to perform his “core duty” and had failed to accord him procedural fairness, “commandeering” his application and not allowing him to speak.  (The second argument, however, does not seem to have been advanced below.)

[5] It may be accepted that QCAT has a statutory obligation to observe the rules of natural justice.[2]  A failure by it to do so is capable of amounting to jurisdictional error;[3] as would be a refusal to exercise its statutory jurisdiction.  Whether either of those actually occurred here turns on determination of precisely what the issues were before the first respondent, which in turn requires a close examination of: what was sought in the appellant’s application to QCAT; the result of an interlocutory application for interim relief; and what was canvassed at the hearing before the first respondent.

Background

[6] The appellant owned two caravans at a caravan park conducted by the second respondent in the Beenleigh Showgrounds.  They were located on land which the Logan City Council acquired from the second respondent for road construction.  The second respondent retained a licence to conduct business on the property, including letting sites, until the beginning of December 2012.  It wrote to its tenants in September 2012, warning that occupants of sites in the road reserve would have to relocate elsewhere in the showgrounds.  The appellant moved one caravan (later referred to in submissions as the “second caravan”) to an area on the showgrounds near a set of stables, which according to the second respondent was not a suitable location.  The other caravan, (the “first caravan”), which had an annexe, remained in the area where the road was to be constructed.  On 19 December 2012, both the Council and the second respondent served the appellant with Notices to Leave under the Residential Tenancies and Rooming Accommodation Act 2008.  The second respondent’s Notice to Leave was, as it subsequently recognised, defective because it required vacation of the premises by 2 January 2013, two weeks short of the requisite statutory period.

The application in QCAT

[7] Before turning to the content of the appellant’s application to QCAT, it is useful to mention particular provisions of the Residential Tenancies and Rooming Accommodation Act, some of which were alluded to in the application.  Section 416 of the Act precludes a tenant or lessor from making any application to QCAT before he or she has made a dispute resolution request and a conciliation process has taken place; but that section expressly does not apply to urgent applications.  Section 415 identifies a wide range of applications as urgent applications.  They include those made after a contravention of s 291 of the Act, which prohibits a lessor, inter alia, from giving a Notice to Leave because the tenant proposes to apply to a tribunal for an order under the Act or as a form of retaliatory action against the tenant.  Section 292 permits a tenant to apply for an order setting aside a Notice which he or she believes was given in contravention of s 291.  Another form of application which may come within the purview of s 415 is one made under s 227 of the Act, which permits the setting aside of a Notice to Relocate given under s 223 of the Act; such an application is urgent if the notice is given because of an emergency or for health and safety reasons.[4]

[8] On 4 January 2013, the appellant filed in QCAT an “Application for minor civil dispute – residential tenancy dispute” against the second respondent; it was given the number T27/13.  In response to a question on the application form asking whether the application was urgent or non-urgent, he indicated that it was an “urgent application (very)”.  The form asked what orders were sought, with the relevant section of the Residential Tenancies and Rooming Accommodation Act to be identified.  The appellant identified, among other provisions of the Act, s 227.  He sought: findings that the second respondent had breached s 223 and ss 291(2) and (3); the costs and expenses of relocation; compensation for the loss of value in the “structure” (the annexe) and loss of amenity; a finding of liability in the lessor to dismantle and re-erect the annexe, with costs; and a finding that compensation was payable by the lessor for “various”.  He claimed amounts for loss of amenity, relocation costs, the loss of value in his annexe and overcharged rent totalling $27,700.  No mention was made of s 292, nor any order sought under that provision.  Section 227 of the Act, as already noted, can found an urgent application, but the second respondent had not given any Notice to Relocate under s 223.  On its face, then, the application is at best unclear as to the basis on which it was said to be an urgent application; if it were under s 227, that provision was inapplicable; if it were under s 292, that was not specified.

[9] The form of the application stipulates that if the applicant seeks orders other than compensation or a rental bond, he or she must complete a list of Notices and attach any relevant Notices.  The appellant did not provide any list, but he did attach the Notice to Leave which the second respondent had issued on 19 December 2012.  (By the time the application was filed, the second respondent had, on 3 January 2013, issued a further Notice to Leave, but it was not mentioned in the application, nor any copy of it annexed.)  The application form also required the applicant to set out reasons for seeking orders.  The appellant set out four reasons, which referred to the second respondent’s supposed liability for his relocation and asserted that case law relating to the Manufactured Home (Residential Parks) Act 2003 was relevant.  No mention was made of any issue concerning the Notice to Leave.  The application in terms, then, did not present the first respondent with an application for an order that the Notice to Leave be set aside.

The application for interim orders

[10] Two weeks after filing that application, the appellant filed another in the same proceeding, seeking interim orders; at the Tribunal’s instigation, the Logan City Council was joined as a party.  The appellant sought an order preventing the Council from performing any work around the site under its control until his application in T27/13 had been determined, saying in his submissions that he needed to stay on the site until it was decided whether the second respondent was liable to meet the costs of his disassembling his annexe, moving it and re-establishing his caravan.  He sought a further order prohibiting the second respondent from persecuting him or preventing him from moving the caravan to his “nominated site” by the stables.  The second respondent provided submissions on the interim application in which it denied that there was any nominated site near the stables for the appellant’s use.  Describing the appellant’s primary application as one for compensation for the costs of relocating his first caravan and annexe, it asserted that as it was no longer the lawful owner of the property on which that caravan was located it should not be a party.  Both the orders which the appellant sought were refused in an interlocutory QCAT hearing on 11 February 2013.

The hearing before the first respondent

[11] On 25 February 2013, the application in T27/13 came on for hearing.  There was some argument about whether that was a directions hearing or a substantive hearing; the second respondent filed an affidavit at first instance swearing to the former, which was not contradicted except by the appellant’s assertion from the bar table here.  What is more important is what was canvassed at that hearing, and how.

[12] At the hearing, the second respondent handed submissions to the first respondent, in which it reiterated its position that as it was no longer the owner of the property on which the caravan and annexe were located, it should not be a party.  It admitted that its Notice to Leave issued on 19 December 2012 was not for the requisite notice period, but went on to observe that the appellant’s application in any event did not refer to that Notice, but instead sought compensation for his relocation.

[13] There were a number of exchanges between the appellant and the first respondent concerning his position, which not only demonstrate that the appellant was not prevented from putting his case but are significant in determining what “core function” the first respondent was performing.  The incomplete transcript begins with a question by the appellant as to whether a preliminary finding could be made as to who was “legally liable”.  According to an affidavit filed below on the second respondent’s behalf, that followed the first respondent’s indication that he could not make an order concerning compensation before a conciliation conference took place.  It is clear from the transcript that what ensued was discussion about compensation for relocation; the appellant went on to assert that he would not have brought his caravan and annexe if he had known the land was to be sold, and the second respondent ought to be liable for compensation and relocation costs.  He explained that his caravan and annexe remained in the construction area; he wanted to move it to the stables site still owned by the second respondent, but he was told that his annexe could not be re-erected there.

[14] The solicitor acting for the second respondent pointed out that the Notice to Leave of 3 January 2013 had been issued in respect of the caravan already on the stables site.  The following exchange ensued:

“MR REIHANA: And one of my applications is that that notice to leave was retaliatory and a breach of section 291 because after I ---.

ADJUDICATOR DAVERN: That could well be accepted to [sic].

MR REIHANA: Well, after I kicked this all off.

ADJUDICATOR DAVERN: There are well established precedents that if, well particularly if a tenant’s been trying to assert his rights and a notice to leave without grounds is served afterwards it's immediately knocked out on the presumption that it’s retaliatory or at least countering his attempts to assert his rights.”

[15] The appellant relied on that exchange as amounting to an acknowledgement by the first respondent that there was an application before him under s 292 of the Act.  But it was the second respondent’s solicitor, not the appellant, who raised the 3 January Notice, and then only as an obstacle to removal of the first caravan to the stables site.  The first respondent plainly did not consider he was being asked to deal with that matter, as opposed to offering gratuitous comment, perhaps ill-advisedly, on another of the appellant’s applications which was not before him.  That was made clear when he went on to suggest a discussion between the representative for the Council and the appellant, saying:

“…if some suitable outcome can be achieved between these gentlemen, that might appropriately deal with this current application for compensation, but I respect the fact that you might have an ongoing issue of a different sort that I can’t resolve today.

MS LAYLEE: No, it’s - because it relates to a different side [site] unfortunately.

ADJUDICATOR DAVERN: It does indeed.”

[16] The first respondent continued to recommend that the appellant speak to the Council representative:

“…Just for this isolated issue, not where you’re relocated to because I can’t deal with that today, then maybe that’ll solve this particular claim of yours.  So far as [indistinct] you might have other claims in time, which I must address separately.”

The appellant evidently accepted that proposition, answering “Well, yes”.  The first respondent observed that he could sense there would be “other issues to deal with in time”, and noted that

“…the only one that’s really appearing in your application today relates to your older established position, not the new location.”

The appellant did not demur.

[17] The application was adjourned while the parties negotiated.  Again only a truncated form of the transcript of what took place on the matter’s resumption has been provided.  It commences with the first respondent asking the solicitor for the second respondent when her Notice to Leave expires and receiving the following response:

“MS LAYLEE: The 4th of March, but bearing in mind that that is in relation to a caravan that's not currently the subject of this dispute, although - - -

ADJUDICATOR DAVERN: It's interconnected.

MS LAYLEE: Same owner.”

The solicitor for the second respondent went on to say that her client would file an application if that Notice were not complied with.  The appellant mentioned that he was planning a New Zealand trip; the second respondent’s solicitor queried his return date, because any application would be filed within 14 days of the Notice’s expiry on 4 March.  The appellant responded that he did not consider his relocation to have anything to do with his claim for costs and compensation.  Both the first respondent and the solicitor for the second respondent agreed that they were separate issues and the first respondent observed that it was part of the background, not something that he could now contemplate.  The appellant at no stage suggested that the 3 January 2013 Notice was the subject of his application in T27/13 or ought to be dealt with at that hearing.

[18] Negotiations during the adjournment had resulted in a short term agreement between the appellant and the legal representatives of the second respondent and the Logan City Council.  The appellant confirmed that for $500 and assistance in dismantling his annexe he would move his property from the road construction site, so as to enable some road building to occur.  The first respondent said that he would make the only order he could, apart from adding the State Government as a respondent, and that was to list the application for compensation hearing after conciliation had been attempted.  The appellant asked,

“Are you making a determination about the relocation aspect?”

The first respondent answered that he could not, because it involved compensation.  The appellant responded,

“But I’m not talking about – I’m talking about the movement of my van to the originally allocated spot where the rest of my gear is”.

The first respondent said that he did not have authority; he could not

“make any added order that [the appellant] be required to have access to a different location.”

The second respondent’s QCAT application

[19] Subsequently, the second respondent brought its own application in QCAT on the basis of the 3 January 2013 Notice to Leave.  The appellant did not appear at the hearing or make submissions, and an order was made terminating his tenancy agreement with the second respondent.  His stated reason for seeking an order of statutory review was that the first respondent’s failure to accord him procedural fairness and failure to deal with the part of his application concerning retaliatory action had allowed the second respondents subsequently to make a successful application for his eviction on the basis of the 3 January 2013 Notice.

Conclusions

[20] The primary judge concluded that if there were error by the first respondent, it was not jurisdictional error but the result of oversight in failing to deal with one part of the claim for relief.  While accepting that oversight of the kind would not amount to jurisdictional error, I do not think, having examined in some detail the application, the interim orders and the hearing transcript, that there was any such oversight.  Nor was there any failure to accord the appellant procedural fairness.

[21] I have reached those views for a number of reasons.  The appellant’s application in T27/13 raised only (by way of notices) the Notice to Leave issued on 19 December 2012.  It did not seek any order in relation to it.  In any case, by the time of the hearing it could reasonably be assumed that any urgent matter arising out of that application had been dealt with on the application for interim relief.  And significantly, the appellant’s concern at the interim relief stage (and later), so far as the second respondent was concerned, was not with any Notice to Leave but the latter’s refusal to allow him to move the first caravan to the stables site.

[22] The forms of relief sought by the application in T27/13 were: compensation, in respect of which the first respondent correctly adjourned the hearing to allow the conciliation process; a finding that the second respondent was in breach of s 223 of the Act, which the appellant did not suggest here, or in the QCAT hearing, that the first respondent  should have made, and which would have been unavailable in the absence of any Notice to Relocate; and a finding of breach under s 291, with only the 19 December Notice to Leave identified as relevant.  Even if one were to construe the application for a finding of contravention of s 291 as amounting to an application to set aside that Notice as retaliatory, it would have been entirely pointless, because the Notice by then was conceded to have been defective.  The Notice of 3 January 2013, which was the only live one issued by the second respondent, was not the subject of the application or the hearing.  There was a current Notice to Leave as between the Council and the appellant in respect of the site where he had the first caravan, but he had reached an agreement to move it in the course of the hearing.

[23] The appellant’s claim that the hearing was commandeered by the first respondent does not seem well-founded, so far as one can judge from the incomplete transcript provided.  The proceeding was informal, with the first respondent, the appellant and the solicitors for the parties (the Council and the second respondent) speaking spontaneously, rather than in any order.  The first respondent certainly talked a good deal.  But what emerges strongly is that the appellant was not prevented in any way from putting his position.  He raised his demands for compensation, which could not be dealt with before conciliation.  He also articulated his remaining concern vis-à-vis the second respondent: whether he would be permitted to move his first caravan down to the stables site.  That was the issue which he pressed the first respondent to deal with, but his desire to have his relocation approved was not something the latter could accommodate.  The first respondent said that he could not make an order requiring the second respondent to give the appellant access to a different location; that was plainly correct.

[24] Whether the hearing was properly characterised as substantive or for directions, the first respondent did not fail to perform any function required of him, nor to hear the appellant to the extent appropriate, given the limited matters he could address.  The primary judge’s conclusion that no jurisdictional error was identified, so that the application must fail, was plainly correct.  This appeal should be dismissed, with the appellant to pay the second respondent’s costs.

[25] GOTTERSON JA:  I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.

[26] JACKSON J:  I agree with the reasons and orders given by Holmes JA.