Goodwin v O'Driscoll[2006] QSC 287

SUPREME COURT OF QUEENSLAND

1. This is an application filed on 27 August 2004 under the Judicial Review Act 1991 seeking the quashing of orders made on 26 July 2004 by the first respondent in the Small Claims Tribunal at Southport in proceeding no. 2306 of 2003. 

2. The applicant and the second respondent are agreed that the quashing order should be made for reasons I shall mention later. The first respondent was granted leave to withdraw from this proceeding by Holmes J. on 27 September 2004, when her Honour also ordered that orders made on 26 July 2004 be suspended until further order of this court. The only matter in dispute between the applicant and the second respondent is whether the applicant, who is now not represented by counsel or solicitor but who was so represented when the application was filed and afterwards, should have an order for costs against the second respondent. He contends that he should. The second respondent says that there should be no order for costs, but if there is an order for costs made against him, he should have an indemnity certificate under the Appeal Costs Fund Act 1973. 

3. The applicant and the second respondent are neighbours in Parasol Street, Ashmore. The applicant is the registered proprietor of no. 73 and the second respondent the registered proprietor of no. 75. Since about June 2003 they have been in dispute over a fence and a retaining wall on or about the boundary between their properties. In an effort to resolve their differences the applicant filed a claim, no. 2306 of 2003, under the Small Claims Tribunals Act 1973 seeking relief under the Dividing Fences Act 1953.  There was a hearing before the Small Claims Tribunal at Southport on 31 March 2004 and an order was made on that day by a referee.  The name of that referee is not revealed in the evidence before me, but the important point for the purpose of this application is that it is common ground that the referee on 31 March 2004 was not the first respondent.

4. The outcome of the hearing on 31 March 2004 did not resolve the dispute between the applicant and the second respondent. The second respondent then took steps to bring the dispute back before the Tribunal at Southport, and on 26 July 2004 a further hearing of claim no. 2306 of 2003 took place in the Small Claims Tribunal at Southport, but this time before the first respondent, who made the further orders that are the subject of this application for review. The proceedings of a Small Claims Tribunal are conducted without formality and no transcript of the proceedings is available, but it appears to be common ground that both applicant and second respondent sought some resolution of their remaining dispute and the first respondent was persuaded to make the orders he did.

5. The applicant contends, and the second respondent concedes, that the first respondent had no jurisdiction in the matter of claim no. 2306 of 2003. In my view that contention is correct because s. 29(1) of the Small Claims Tribunal Act provides that a tribunal shall, at all times throughout the taking of a proceeding, be constituted by the same referee.  To that general rule there are exceptions provided for in s. 29(2):

If in any case the taking of a proceeding is interrupted before a settlement or order is made therein by the death, incapacity or removal of the referee who constitutes the tribunal and the claimant desires to proceed with the claimant’s claim the proceeding in relation to the claim shall be recommenced before a tribunal constituted by another referee.

There is no suggestion that the referee who heard claim no. 2306 of 2003 on
31 March 2004 had died, was incapable, or had been removed, so those exceptions do not apply to this case.  The first referee had made an order, but when the proceeding came on again before the first respondent a further settlement or order was clearly enough in contemplation.

6. By operation of s. 19 of the Small Claims Tribunals Act and s. 41 of the Judicial Review Act, a Small Claims Tribunal enjoys immunity from judicial supervision save where the court before which relief or a remedy is sought is satisfied that the Tribunal had or has no jurisdiction conferred by the former Act to take the proceeding, or that there has occurred therein a denial of natural justice to any party to the proceeding, and that relief or a remedy of a kind that was available, before the commencement of the latter Act, by way of the prerogative writs of mandamus, prohibition, or certiorari, should be granted by way of prerogative order.  The lack of jurisdiction of the Tribunal constituted by the first respondent in this case entitles the applicant to a prerogative order under s. 41 of the Judicial Review Act quashing the orders made on 26 July 2004.  Whether the relief to which the applicant is entitled would hitherto have been by way of writ of prohibition or of certiorari (see Parisienne Basket Shoes Pty Ltd v. Whyte (1938) 59 C.L.R. 369 per Dixon J., with whom Evatt and McTiernan JJ. agreed, at pp. 391-392) is of no moment. 

7. I turn now to the question of costs. Both applicant and second respondent have given accounts of the course of proceedings before the first respondent. There are discrepancies between their accounts, but those discrepancies are not in my view relevant to the issue as to costs that I must decide. The applicant and the second respondent are agreed that the first respondent at first evinced reluctance to consider the matter of claim no. 2306 further, the applicant and the second respondent then urged him to consider the matter and to make orders, which he ultimately did. Since both applicant and second respondent are partly responsible for the first respondent’s making the orders he did I conclude that each is responsible for the necessity for this application and so neither should be awarded costs. There will be no order as to costs.

8. I should add that the applicant sought to raise questions concerning the merits of the orders made by the first referee and the first respondent but on this application those matters are irrelevant. The outcome of this application turns on the narrow issues I have referred to in arriving at my decision.