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CITE

Unreported Judgment

Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited[2009] QSC 330McMeekin J
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Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited[2009] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:	Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited [2009] QSC 330
PARTIES:	ALFRED REID (Applicant) v ROCKHAMPTON DISTRICT ABORIGINAL & ISLANDER CO-OPERATIVE SOCIETY LTD (Respondent)
FILE NO/S:	Rockhampton Registry S324 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	24 September 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	7 September 2009
JUDGE:	McMeekin J
ORDER:	The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – where no reasonable explanation for delay Small Claims Tribunal Act 1973 (Qld), s 34 Judicial Review Act 1991 (Qld), s 20, s 26, s 48 Hoffman v The Queensland Local Government Superannuation Board (1993) 1 Qd R 369 Kuku Dujunjun Aboriginal Corporation v Christiansen (1993) 2 Qd R 663
COUNSEL:	Self-represented Self -represented
SOLICITORS:	Self- represented Self - represented

[1] McMeekin J: Mr Alfred Reid has sought judicial review of a decision of a Referee made on 19 May 2009 under the Small Claims Tribunal Act 1973 (Qld) (“the Act”). The Referee’s decision concerned Mr Reid’s tenancy of a house owned by the respondent, the Rockhampton District Aboriginal & Islander Co-operative Society Limited.

[2] Mr Reid is self represented, as is the respondent.

[3] The applicant’s material is quite inadequate. He has not attempted to comply with the applicable rules.

[4] The respondent takes four preliminary objections and asks that the application be summarily dismissed. I informed the parties that I would deal with those preliminary objections and then, if necessary, give further directions about the hearing of the matter.

[5] Before detailing the respondent’s objections I will outline the history of the matter. Given the failure to either name or serve the decision maker and to comply with r 570 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) I do not have the record of proceedings below. I have relied on an affidavits filed by the applicant and the administrator of the respondent and on what I was told from the bar table.

The History

[6] The respondent is the owner of a house situated at 10 James St Mt Morgan (“the residence”). The proceedings before the Referee involved an application by the respondent to recover possession of the residence. The respondent asserts that the applicant had taken over the tenancy of the house from his mother in 2004 but failed to pay rent on a regular basis. In early 2008 the respondent resolved to chase up outstanding rent on its properties. There were proceedings during 2008 which I will detail later.

[7] On 19 May 2009 the Referee granted the orders sought by the respondent. There was no appearance by the applicant. Mr Gooda, the administrator of the respondent deposes in his affidavit that the orders made were that the tenancy be terminated and that a warrant of possession issue in favour of the respondent.

[8] Due to the unavailability of the police in Mt Morgan to execute the warrant it was necessary for the respondent to return to court to get an extension of the warrant. This was granted on 29 June 2009.

[9] In the meantime the applicant had filed an application to re-open the hearing. The applicant’s material indicated that the application was filed on the day of the initial hearing ie 19 May. The affidavit material does not show it but Mr Gooda informed me that the application to re-open the hearing was heard at the same time as the application to renew the warrant and both were determined on 29 June 2009. The application to re-open was dismissed. Again the applicant failed to appear.

[10] The excuse that was before the Referee for the non appearance on 19 May, assuming that the material before me was before the Referee as the applicant asserts, was that the applicant had a back condition and says that he suffered a flat tyre on the way to the court. No explanation was offered to me for the failure to appear on 29 June. Mr Gooda deposes that he saw Mr Reid outside the court room on that day and after the matter had been determined. He deposes that he approached the applicant, asked if Mr Reid wanted to speak to him, was ignored and then left. Mr Reid seems to assert that he saw Mr Gooda outside the court room only on 19 May. Resolution of the apparent conflict does not seem to me to be essential.

[11] No review is sought of the decisions made on 29 June 2009.

[12] The respondent’s attempts to regain possession of the residence commenced on 20 May 2008 when the respondent issued proceedings in the Small Claims Tribunal seeking to recover possession. The matter came on for hearing on 24 June 2008. The applicant did not attend that hearing. The Referee ordered that the tenancy be terminated and a warrant issue. The applicant sought judicial review of that decision. There were a number of appearances before me through 2008. There were several deficiencies in the applicant’s material then necessitating adjournments, including matters that are again deficient here. Eventually on 2 February 2009 the respondent indicated that it would be cheaper for the respondent if I simply returned the matter to the Small Claims Tribunal to have it determined and so by consent the matter was sent back for a re-hearing.

Discussion

[13] 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.

[14] Mr Reid’s complaint is that the order made against him involved a denial of natural justice. He provides no particulars. He does not claim that he did not have notice of the time and date of the hearing – quite to the contrary he says that he simply failed to get to the court on time.

[15] I note that s 34 of the Small Claims Tribunal Act 1973 provides:

34 Tribunal to act on evidence available

(1) Subject to the provisions of this section, where the case of any party to a proceeding before a tribunal is not presented to the tribunal the issue in dispute in the proceeding shall be resolved by the tribunal on such evidence as has been otherwise adduced before it and an order made by the tribunal therein shall be lawful and as effectual as if the party whose case was not presented had been fully heard.

(2) Where an issue in dispute has been resolved in the absence of any party to the proceeding, a Referee, on application in writing made to and received by the registrar—

(a) (within 28 days after resolution of the issue; or

(b) within such extended period (not exceeding a further 28 days) as a Referee may allow in a particular case;

may, if the Referee is satisfied that there was sufficient reason for the party’s absence, order that the claim be reheard.

(2A) A Referee shall not allow an extension of time for making application under subsection (2) unless the Referee is satisfied of the existence of sufficient reason that justifies—

(a) the failure to make application within the period of 28 days; and

(b) any delay in making application for an extension of that period.

(3) When it is ordered that a claim be reheard—

(a) the registrar shall notify all parties to the proceeding that related to the claim of the making of the order and, where practicable, of the time and place appointed for the rehearing;

(b) the order of the tribunal made upon the first hearing shall thereupon cease to have effect unless it is restored pursuant to subsection (4).

(4) If the party on whose application a rehearing is ordered does not appear at the time and place appointed for the rehearing or upon any adjournment of the proceeding therein the tribunal, if it thinks fit and without rehearing or further rehearing the claim, may direct that the order made upon the first hearing of the claim be restored, and that order shall be thereby restored to full force and effect and shall be deemed to have been of effect at all times since the time of its making.

[16] Given Mr Reid’s non attendance on the day of hearing the referee had no option but to proceed on the evidence before the court. There is no suggestion that the evidence then available was not sufficient to sustain the orders made. Given Mr Reid’s failure to attend on 29 June it is hardly surprising that the Referee restored the original orders, if that is what occurred. The Referee plainly had power to do so and no reason not to.

[17] The deficiencies that the respondent relies on for summary dismissal of the application are:

(a) The failure to include the decision maker as a party to the proceedings;

(b) The failure to provide an address for service within 30 kilometres of the registry;

(c) The filing of the application 10 days out of time;

(d) The failure to include in the application any grounds for the assertion that there was a denial of natural justice.

[18] The first two deficiencies were present in the first application for judicial review brought in 2008, were complained of then, and orders were made giving Mr Reid the opportunity of remedying the problems. I mention that as normally some latitude might be shown to a lay person unfamiliar with the procedures. Mr Reid cannot avail himself of that excuse. He is well aware from his experience last year that rules do exist governing these proceedings. He plainly has not bothered to consult the Rules or comply with them. Rather he seems to regard them as inconveniences and mere technical matters to be ignored.

[19] These matters are ones that I would normally attempt to accommodate by allowing time and appropriate amendments. However whether I should do so here depends on the resolution of the more significant concerns that I have and the wider public interest.

[20] Nor is the third deficiency necessarily fatal. As I do not have the Referee’s file, and the parties haven’t told me one way or the other, I do not know whether the decision was recorded in writing and given to the applicant. If this did happen then the applicant had 28 days to file his application: ss 26(1)(a) and 26(2) Judicial Review Act 1991. In those circumstances Section 26(1)(b) of the Judicial Review Act 1991 plainly allows for an extension of time if appropriate.

[21] Alternatively the application for judicial review was required to be made within a reasonable time: s 26(3) Judicial Review Act 1991. It is clear from the applicant’s material that he learnt of the decision on the day it was made. Hence the legislation provides some guide as to a reasonable time – 28 days: see s 26(4) Judicial Review Act 1991.

[22] Normally a delay of 10 days in the filing of such an application would not be of great concern. Here there is no explanation offered for the delay. Mr Reid said that he did not know of the time limit, but his explanation rings somewhat hollow given the knowledge gained in relation to the 2008 proceedings. In Kuku Dujunjun Aboriginal Corporation v Christiansen (1993) 2 Qd R 663 Moynihan J said at p 665:

“It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and include a wider public interest. The same may be said of consequences of prejudice to the respondent and others consequent on the delay in bringing the application.

[23] In Hoffman v The Queensland Local Government Superannuation Board (1993) 1 Qd R 369 Thomas J said at p 372: “…but the absence of explanation for a delay must at least be a persuasive factor against granting an extension.”

[24] If there was nothing more than a 10 day delay, albeit with no reasonable explanation, then I would have extended time to bring the application. That brings me to the real area of concern and the fourth complaint – the lack of any grounds in the application. I cannot see that the application has the slightest merit or indeed any point.

[25] Mr Gooda deposed that when he executed the warrant and re-entered the residence in July 2009 it was evident that the residence had not been occupied for some time. Mr Reid informed me from the bar table that he had not lived in the residence nor paid rent for some years. He contended that the residence was not habitable and spoke of the risk of getting cancer. He told me from the bar table that he had quit the residence because of a promise by the respondent that the premises would be repaired. Mr Gooda denies, also from the bar table, that any such promise was made. There is nothing in writing to confirm the claim.

[26] As best I can determine there are two issues that concern Mr Reid. The first is that he wants the court to order that the respondent repair the residence. Mr Gooda says that the respondent intends to demolish it. The second issue is that Mr Reid does not want to be fixed with any demand for outstanding rent.

[27] As to that second issue it seems irrelevant for present purposes – Mr Reid does not assert that any such demand has yet been made. If a demand is made then he will have his opportunity to put his case.

[28] In my view there are three points that are relevant to the question of whether this matter should go any further so as to permit Mr Reid to agitate the first issue.

[29] First no particulars are provided by Mr Reid to explain why it is that he was denied natural justice on 19 May. On the face of the material there was no such denial – Mr Reid simply failed to show up at the time notified to him. He has done that on three occasions now. A matter that the legislature intends be dealt with expeditiously and in a summary fashion has now dragged on 16 months. At no stage has the respondent been at fault for these delays.

[30] Second, the crucial decision seems not to be the one of 19 May but rather the one of 29 June. No review is sought of that latter decision and no excuse offered for Mr Reid’s non-attendance on that occasion. Reviewing the one without the other seems to have no purpose.

[31] Third, there seems no point to the proceedings. Every landlord has the right to recover possession of rented homes upon compliance with the relevant legislative provisions. There is no need to show grounds: s 291 Residential Tenancies and Rooming Accommodation Act 2008. Section 277(5) of the Residential Tenancies and Rooming Accommodation Act 2008 provides that a tenancy comes to an end if a tribunal makes an order ending the tenancy or the tenant abandons the tenancy. Both provisions seem to be satisfied here. Antecedent to the tribunals’ decision is the requirement to give notice. Presumably Mr Reid was given the requisite notice. He has not contended to the contrary.

[32] Both parties seem to agree that the house is uninhabitable. The respondent has taken a decision to knock it down. It owns the home and has every right to demolish it if it deems it expedient.

[33] What Mr Reid is attempting to do by these proceedings is to claim a right to force the landlord to carry out construction work on the residence that the owner plainly considers uneconomic. I have not heard argument on the point but I doubt that any court would order a home owner to repair a house that is uneconomic to repair. I think that Mr Reid proposes to rely upon the promise that he asserts was made and of which there is no written record. He is effectively seeking specific performance of that alleged contract. In my view none of this has anything to do with the matter before the Small Claims Tribunal.

[34] Thus the court has before it an application to review a decision which it would appear the Referee had no option but to make, no grounds are pleaded or advanced to justify any finding of a denial of natural justice and this court’s intervention, even if the application were allowed the crucial decision of the Referee of 29 June 2009 would stand, the apparent argument that the applicant wishes to mount has no relevance to the proceedings below, and it is far from clear that even if the Referee had the power to entertain the applicant’s arguments it would be just to entertain them.

[35] In my view there is no reasonable basis shown for the application, it is vexatious, and so ought to be dismissed: see s 48 Judicial Review Act 1991.

Orders

The application is dismissed. As the respondent is not represented there will be no order as to costs.

Editorial Notes

Published Case Name:
Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited
Shortened Case Name:
Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited
MNC:
[2009] QSC 330
Court:
QSC
Judge(s):
McMeekin J
Date:
24 Sep 2009

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Hoffman v The Queensland Local Government Superannuation Board	(1993) 1 Qd R 369	2 citations Jump To Cite 1 - (1993) 1 Qd R 369 Cite 2 - (1993) 1 Qd R 369
Kuku Djungan Aboriginal Corporation v Christensen	[1993] 2 Qd R 663; [1992] QSC 417	2 citations Jump To Cite 1 - [1993] 2 Qd R 663 Cite 2 - [1993] 2 Qd R 663

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Jones v State Coroner	(2019) 1 QR 525; [2019] QSC 175	3 citations

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Reid v Rockhampton District Aboriginal & Islander Co-operative Society Limited[2009] QSC 330