Renton v Magistrate Baldwin[2009] QSC 103

SUPREME COURT OF QUEENSLAND

1. Mr Allan Renton has sought judicial review of a decision of the first respondent (“the Referee”) under the Small Claims Tribunal Act 1973 (Qld) (“the Act”). The Referee’s decision was in relation to Mr Renton’s dispute with the second respondent, Mr M Van der Beek, over Mr Renton’s tenancy of a dwelling house owned by Mr Van der Beek (“the dwelling”). 

2. No appeal lies from a decision of a Referee under the Act. The right to judicially review a Referee’s decision under the Act is limited by s 19 of the Act to issues of want of jurisdiction and breach of natural justice.

3. The issue before the Referee was whether Mr Renton was entitled to compensation by reason of a defective notice to vacate the dwelling given to him by the second respondent. The Referee declined to award compensation on the ground that the notice given was not defective.

4. Mr Renton’s complaint is that the order made against him involved a breach of the rules of natural justice. His application refers to s 20(2) (a) and (f) of the Judicial Review Act 1991 (Qld).  No complaint is made about the Referee’s jurisdiction to entertain the claim and indeed Mr Renton relies on the Referee having jurisdiction.

5. Section 20 of the Judicial Review Act 1991 (Qld) provides so far as is relevant as follows:

(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.

(2) The application may be made on any 1 or more of the following grounds—

(a) that a breach of the rules of natural justice happened in relation to the making of the decision;

…

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);…

6. Because of the restricted nature of the relief available under the Act s 20(2)(f), or an argument to like effect, is not available to Mr Renton in these proceedings, at least given that jurisdiction is not in issue.

7. By what is termed an affidavit filed 19 February Mr Renton listed some 28 grounds of complaint. It is apparent that Mr Renton, who is self represented, does not appreciate the limited nature of this jurisdiction.^[1] Many of the grounds appear to be directed not to issues of natural justice but rather to complaints about decisions as to the evidence that the Referee preferred, her findings as to factual matters, and the merits of the decision.

8. On 23 February 2009 and at the request of Mr Smith, solicitor for the second respondent, I directed that the applicant detail each action of the Referee that the applicant contended constituted a denial of natural justice. I directed that the second respondent respond to that list of issues. I had hoped, mistakenly as it has transpired, by that means to assist the parties to delineate more clearly the issues to be resolved.

9. Mr Smith has conceded that grounds 3, 6, 14 and 16 of the “affidavit” arguably provide a basis for judicial review. He submits effectively that all other grounds are irrelevant to the hearing. Mr Renton has submitted that grounds 1, 2, 8, 9, 11, 12, 17, 18-19, 21, 22, 23, 24, 25, 26 and 27 are all appropriate. On its face then there is no correspondence between the parties.

10. The purpose of this decision is to rule on which of the grounds are appropriate for judicial review and where there are insufficient particulars I propose to order those particulars to be given to enable the respondent to adequately prepare for the hearing.

11. I will adopt Mr Smith’s concession. That leaves each of the grounds Mr Renton contends for to be examined.

12. I observe that some guidance as to the complaints that Mr Renton can pursue can be obtained from the judgement of Owen J in Ex parte Taylor; re Butler (1924) 41 WN (NSW) 81 at 83 where he quotes from an earlier decision of Ex parte Fealey 18 NSWLR 282:

“For however erroneous the judgment may be in law or whatever injustice that erroneous judgement may inflict, the erroneousness or injustice of the judgment does not make the judgment contrary to natural justice. A decision contrary to natural justice is where the presiding judge or magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or in cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court.”

13. In modern parlance s 19 preserves the right to procedural fairness and all that implies. What precisely is implied will depend upon the nature of the hearing in question. What is clear that arguments going to the merits of the decision are not subject to review.

14. Ground 1 reads: “the Referee refused to accept the notice to leave was defective”. Plainly the ground goes to the merits of the dispute and is not available as a ground for review given the provisions of the Act.

15. In my view grounds 8 and 17 (in part) arguably raise allegations that potentially raise relevant issues. Ground 8 asserts that the Referee “refused to hear” certain evidence. Ground 17 asserts that the Referee “took evidence, or was influenced by, a third party to our proceedings” – I assume that it is intended to mean the Referee took evidence from or was influenced by a person not called by the parties to the hearing before her. Such conduct would involve a breach of the rules of natural justice – if true.^[2] I make no observation of course as to the validity of the complaint.

16. Grounds 2, 9, 11, 12, 17 (in part) 18, 19 and 21 (in part) each effectively relate that the Referee has failed to accept certain evidence that Mr Renton would prefer that she had accepted. Such a complaint is in no sense a complaint of a denial of natural justice.

17. Ground 21 reads: “ I was not given the opportunity to cross examine the owner on his submissions, most of the evidence placed before the magistrate was ignored, most of the Residential Tenancies Act was ignored, the Referee did not hear evidence offered to her, there appears to be preconceived bias by the Referee”.

18. As can be seen the paragraph contains several complaints. As to the first - it would not be a denial of natural justice not to permit cross examination on submissions. Submissions are not evidence and so are not susceptible to cross examination.

19. The second and third complaints relate to the evidence accepted and the Referee’s interpretation of the provisions of the Residential Tenancies Act. They have no relevance to a complaint about a denial of natural justice.

20. The fourth complaint – the failure to hear evidence – may provide an arguable basis for review. However the respondent is in no way enlightened as to the case to be advanced. I will order that the applicant provide further and better particulars of each piece of evidence that the Referee “did not hear”. I stress that there is a distinction between the Referee hearing evidence and declining to accept it and the Referee refusing to hear evidence.

21. As to the fifth complaint, the allegation of bias might have afforded a ground for review but in his response Mr Renton has provided particulars which indicate plainly that there is no proper ground for complaint – his document reads: “Item No 21 - There is a perception of bias because the Referee has refused to accept breaches of the Act”. In other words because the decision went against Mr Renton there is a perception of bias. If that is the only basis for the allegation then it is doomed to failure. It is effectively a complaint going to the merits.

22. It may assist the parties if I point out that the test for apprehended bias is “whether a fair-minded, properly informed member of the public might reasonably apprehend that the decision-maker might not bring an impartial mind to bear on the decision. The test flows from the fundamental requirement that justice must not only be done but be seen to be done…”^[3]

23. Grounds 22, 23, 24, 25, 26 and 27 each are effectively comments on the Referee’s decision and effectively are complaints going to the merits. They cannot ground any review permitted by the Act.

24. Mr Renton has also directed my attention to a document he has filed headed “Submission of Applicant”. I had understood in the course of the hearing that Mr Renton considered that this document contained additional grounds for consideration. Upon examination it is a 14 paragraph document listing references to the transcript of the hearing before the Referee and commenting in various ways. Many of the comments are directed to the merits of the decision. Mr Renton is of course at liberty to draw my attention to the proceedings before the Referee to the extent that it assists his submissions. However I cannot see how mere references to the transcript add to the grounds relied on.

25. I direct that at the hearing of the matter the parties address the contentions raised by grounds 3, 6, 8, 14, 16, 17 (to the extent that it alleges the referee took evidence from and was influenced by a third party), and 21 (to the extent it alleges a refusal to hear evidence) set out in the affidavit of Mr Renton filed 19 February 2009.

26. I further direct that on or before 4 pm on 21 May 2009 the applicant file and serve on the respondent notice of particulars of grounds 17 and 21 namely:

1. the identity of the person from whom the referee took evidence referred to in ground 17;

2. the evidence received by the referee from the third party referred to in ground 17;

3. the evidence that the Referee refused to hear referred to in ground 21.

27. Finally, as agreed at the hearing, I list the matter for either further mention or hearing, if the parties are ready for hearing, on 25 May 2009.

28. Mr Smith indicated that he sought no order as to costs.