Ford v Qld Housing Commission - [1999] QSC 229

IN THE SUPREME COURT
OF QUEENSLAND

No S 1636 of 1999

Brisbane
Before the Hon Justice Atkinson
[Ford v Qld Housing Commission]
BETWEEN:

PAUL GRAHAM FORD
Applicant
AND:

THE QUEENSLAND HOUSING COMMISSION
First Respondent
AND:

W J RANDALL, SM
Second Respondent
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 24 September 1999
CATCHWORDS: ADMINISTRATIVE LAW - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - Application for statutory order of review of decision of Small Claims Tribunal - whether denial of natural justice as to applicants’ right to be heard by the Tribunal - whether applicant was denied the opportunity to seek legal advice.

Bayram v Chris Benton (1994) 117 FLR 414, applied
O’Neill v Harrowfield (unreported, Supreme Court of Queensland, Moynihan J, 6 March 1998), referred to
Re Application for writs against Burton; Ex parte Burns (unreported, Full Court of Supreme Court of Western Australia, 6 February 1998), considered
R v Home Sec., Ex parte Tarrant [1985] QB 251, considered
Judicial Review Act 1991 s 41
Residential Tenancies Act 1994 ss 155(1), 170, 204(1)(b), 212, 216(1)
Small Claims Tribunal Act 1973 ss 5(1), 16(1)(d), 18(1), 19, 22A, 23

Counsel:HJ Cremin for the applicant
SA McLeod for the first respondent
J Kooreman for the second respondent

Solicitors: Gary Cummings solicitor for the applicant
Crown Solicitor for the first and second respondents

Hearing Date: 6 September 1999

IN THE SUPREME COURT
OF QUEENSLAND

No S 1636 of 1999

Brisbane
[Ford v Qld Housing Commission]
BETWEEN:

PAUL GRAHAM FORD
Applicant
AND:

THE QUEENSLAND HOUSING COMMISSION
First Respondent
AND:

W J RANDALL, SM
Second Respondent
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 24 September 1999

On 9 February 1999, an application by the Queensland Housing Commission (the “Housing Commission”) against Paul Ford was heard before the Small Claims Tribunal (the “Tribunal”). The Tribunal ordered:
“ . . . that the application for termination be adjourned to be relisted for immediate order without further reference to tenant should tenant fail to vacate by 9-3-99.”
The effect of the order was that Mr Ford was obliged to vacate the premises which he rented from the Housing Commission within one month. If he failed to vacate, then the matter would be immediately relisted so that an order could be made for immediate termination of the tenancy and presumably the issue of a warrant of possession under s 216(1) of the Residential Tenancies Act 1994 (Qld) without further reference to him. The form of the order in this case is consistent with the power given by s 23 of the Small Claims Tribunal Act 1973 (Qld) that upon making any order, a Tribunal may adjourn the proceeding and may give leave to the person in whose favour the order operates to renew the reference of the claim in the proceeding if the order is not complied with. It was in effect a final order.
The Tribunal in this instance was constituted by a Stipendiary Magistrate under s 5(1) of the Small Claims Tribunal Act 1973, who is known in this capacity as a referee. The Tribunal has jurisdiction to determine an application made under the Residential Tenancies Act 1994[1]. In this case an application was made on 2 January 1999 by the Housing Commission as lessor for an order terminating its residential tenancy agreement with Mr Ford which commenced on 29 January 1993[2]. The Tribunal may make a termination order on the basis of objectionable behaviour[3].
[1]Small Claims Tribunal Act 1973 s 16(1)(d).
[2]Residential Tenancies Act 1994 ss 155(1) and 204(1)(b).
[3]Residential Tenancies Act 1994 s 170.
Section 170(1)(a)(i) of the Residential Tenancies Act 1994 provides that the lessor may apply to the Tribunal because the tenant has harassed, intimidated or verbally abused the lessor or lessor’s agent[4]. Section 212 sets out the Tribunal’s role once such an application has been made. It provides:
[4]Lessor’s agent is defined in the Small Claims Tribunal Act 1973 sch 3.
“212.(1) If an application is made to a tribunal for a termination order because of objectionable behaviour, the tribunal may make the order if it is satisfied -
(a) the applicant has established the ground of the application; and
(b) the behaviour justifies terminating the agreement.
(2) In deciding if the behaviour justifies terminating the agreement, the tribunal may have regard to -
(a)whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences; and
(b)for behaviour in the form of harassment, intimidation or verbal abuse - its seriousness.
(3) Subsection (2) does not limit the issues to which the tribunal may have regard.”
The allegations against Mr Ford were that even before he became a Housing Commission tenant there were complaints that he annoyed women in the waiting area and female staff by making unwelcome personal advances to them. He swore at a departmental officer during an interview and a client in the waiting room of the Housing Commission’s city office complained to staff that Mr Ford kept trying to touch her children.
It was alleged that Mr Ford continued with his unwelcome harassment of female staff and clients of the department, even after being served with two Notices to Remedy Breach, one in March 1996 and another on 9 September 1998, warning him about his behaviour. He was told that the next infringement would result in his being asked to leave. Three months after the second notice was served on Mr Ford, he again made unwanted personal comments to a female officer in the department during a telephone conversation to register a maintenance request. Mr Ford was served with a Notice to Leave on 4 January 1999 after repeated warnings about the inappropriateness of his behaviour and two formal warnings. On 18 January 1999, Mr Ford again phoned the maintenance number and began making personal comments about the female officer who answered the phone. Knowing his history, she terminated the call. It was open to the referee to find that any or all of these allegations regarding staff constituted objectionable behaviour against the lessor or the lessor’s agents.
At the hearing before the Tribunal the referee told Mr Ford of the nature of the allegations against him and that it was alleged that he was in breach of his tenancy agreement on the grounds of objectionable behaviour. The referee asked Mr Ford what his position was on the matter. Mr Ford then said that his behaviour with female officers of the Housing Commission was a joke and he was “having a bit of fun.” He had no apparent difficulty understanding the proceedings due to any language difficulty. Where the evidence of Mr Ford differs from that of Mr Heathwood an officer of the Housing Commission as to what occurred in the Tribunal, I prefer the sworn evidence of Mr Heathwood who was not required for cross-examination. Mr Ford, who did give evidence, did not appear to be careful about the truthfulness of his evidence.
The referee enquired of Mr Ford as to how long he would need to vacate the premises without police intervention. Mr Ford asked for several months but the referee ordered that he vacate the premises within one month in the terms set out earlier in this judgment.
It is in respect of this decision that Mr Ford has brought an application for statutory order for review against the Housing Commission as first respondent and the referee as second respondent. The application was amended on 6 August 1999 to provide the following grounds of the application:
“1.Upon hearing the application by the First Respondent the Second Respondent in breach of the rules of natural justice failed to allow the applicant to be heard in relation to the making of the decision and breached the procedures required by law to be observed in relation to the making of the decision that “to be relisted for immediate order without further reference to tenant . . . ”
2.The proper order of the Second Respondent was “It is ordered that the application for termination be adjourned” and the remainder of the order was made in breach of the rules of natural justice and procedures required by law.
3.The applicant is of Italian descent and does not speak or understand English sufficiently to comprehend the proceedings before which he appeared.
4.The Second Respondent failed to address his mind to the question of the ability of the applicant to understand the proceedings before him.
5.The Second Respondent should have adjourned the matter until the applicant obtained representation so as to ensure justice was seen to be done.”
An order of the Tribunal is final and binding on all the parties[5] and there is no appeal from such an order. No order for statutory review can be granted except where the court is satisfied that the Tribunal had or has “no jurisdiction” conferred by the Small Claims Tribunal Act 1973 “to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding”[6].
[5]Small Claims Tribunal Act 1973 s 18(1).
[6]Small Claims Tribunal Act 1973 s 19; Judicial Review Act 1991 s 41.
At the hearing of the application the second respondent’s solicitor appeared to abide the order of the court.
The Tribunal is obliged to give written reasons for its order about a tenancy agreement where it considers it appropriate to give such reasons because of the importance of the issue about which the order is made or the significant benefits that can be derived from the reasons for precedent purposes[7]. No reasons were given or required to be given in this case[8].
[7]Small Claims Tribunal Act 1973 s 22A.
[8]O’Neill v Harrowfield (unreported, Supreme Court of Queensland, Moynihan J, 6 March 1998).
On the hearing of the application in this Court it was argued for the first time that Mr Heathwood, the Housing Commission’s agent who served the Notice to Remedy Breach and the Notice to Leave on the Applicant, should not have been the person prosecuting the applicant as he was so “connected to the result as to be seen not to be unbiased in his duty.” The only relevant question as to bias is whether or not there was bias on the part of the decision maker, ie the referee of the Tribunal. No such bias was alleged nor could it have been.
In oral argument, it was submitted that Mr Heathwood who appeared before the Tribunal was not an authorised person under chapter 6 of the Residential Tenancies Act 1994 which gives the Residential Tenancies Authority power to appoint an authorised person with certain powers to assist the Residential Tenancies Authority to enforce provisions of the Residential Tenancies Act 1994. None of these are relevant to the role of the Housing Commission’s officer exercising his role in giving Notices to Remedy Breach or a Notice to Leave or to apply for a termination order before the Tribunal. It is not relevant whether or not he was an “authorised person”.
The applicant also argued the referee should have adjourned the matter so that the applicant could obtain legal representation. It was not alleged that the applicant had sought any such adjournment nor that he was refused legal representation by the referee. The case cited in support of that proposition was R v Home Sec., Ex parte Tarrant,[9] a decision of the Queen’s Bench Division in England on a judicial review of a decision of a prison board of visitors. The ground of the application was that the applicants were each refused legal representation in their appearance before the board of visitors. The Court decided that the board had a discretion to allow a prisoner to be legally represented which it had refused to exercise.
[9][1985] QB 251.
This case, whose principles appear unexceptionable, although it has not been referred to in Australia, is not authority for the proposition that a Small Claims Tribunal is obliged to adjourn until a respondent has obtained legal representation, where he has not sought to be legally represented. Such a proposition would work against the quick, informal and efficient means of solving disputes entrusted to the sole jurisdiction of the Tribunal. It is usually the case that parties are not legally represented in small claims proceedings[10].
[10]Bayram v. Chris Benton (1994) 117 FLR 414 of 416.
The applicant complained to this court that he did not understand the English language sufficiently to understand the procedures in the Tribunal. It does not appear that he made any such complaint to the Tribunal. However, when he gave evidence in this Court, he refused an interpreter and appeared to have no problem reading, speaking or understanding the English language. His answers in cross-examination showed that he knew that a final order had been made against him. He was assertive in expressing his rights before me and I have no doubt that he told the referee his version and that he had no language difficulty in understanding the allegations against him which, as I found, were explained to him by the referee.
There can be no doubt that the referee was required to accord the applicant natural justice and that a failure to do so would be a ground of review. The applicant had the right to know the case against him and the opportunity to answer that case. As Malcolm CJ held in Re Application for Writs Against Burton; Ex parte Burns[11] at 18-19:
“The requirements of natural justice are such that a respondent in proceedings before the Tribunal should be made properly aware of the nature of the case he or she is called upon the meet and the issues of fact to be investigated at the hearing. In arriving at its decision the tribunal may not take into account any fact which has not been brought to the attention to the parties, who are entitled to the opportunity of controverting any such facts and making submissions regarding their relevance: R v Small Claims Tribunal; Ex parte Cameron [1976] VR 47 at 432-433 per Anderson J; Re Wood; Ex parte Malaysian Airlines System (unreported, Full Court of the Supreme Court of Western Australia, Library No. 6911, 4 November 1987) at 12-13 per Kennedy J, (with whom Wallace and Smith JJ agreed); and Brian Gardner Motors Pty Ltd v McComish (unreported, Full Court of the Supreme Court of Western Australia, Library No. 920108, 5 March 1992) at 14-15 per White J (with whom Seaman and Walsh JJ agreed). The requirement that a respondent be given notice of the case against him or her does not need to be satisfied by way of pleadings or, where there is a hearing, by way of an opening of the case. The necessary notice of the case may be given by the application itself, by the written material submitted in support of the application or orally at the hearing.
What is required by natural justice is that the nature of the claimant’s case and the facts relied upon in support of it are disclosed by some means at a time when the respondent has a reasonable opportunity of contesting the case, challenging the evidence against him or her and producing evidence in answer; Re Wood; Ex parte Malaysian Airlines System, above, at 13-14 per Kennedy J. ”
[11]Unreported, Full Court of Supreme Court of Western Australia, 6 February 1998.
I respectfully agree with the decision of Kearney J in Bayram v. Chris Benton[12] where his Honour described the content of natural justice in small claim proceedings. His Honour said[13]:
“A Local Court exercising jurisdiction under the Small Claims Act has a duty to ensure that each party is given a reasonable opportunity, in the particular circumstances, to present his or her case to the Court. In my opinion neither that Act nor the common law imposes on the Court the “impossible task of ensuring that a party takes the best advantage of the opportunity which he [or she] is entitled”, as Deane J put it in Sullivan v. Department of Transport (1978) 20 ALR 323 at 343, even though the procedure in small claims proceedings is largely and necessarily inquisitorial, particularly when the parties are not legally represented. Nevertheless, when, as here, the proceedings are conducted in a largely inquisitorial manner, the court must bring to the parties’ attention the critical issue upon which its decision is likely to turn, so that they may have an opportunity to address it. This ensures that a party affected by the decision is given the opportunity to deal with relevant matters adverse to his interests which the court proposes to take into account: see generally Kioa v. West (1985) 159 CLR 550 at 587-588 per Mason J, at 628-629 per Brennan J and at 634 per Deane J.”
[12](1994) 117 FLR 414.
[13](supra) at 419-420.
In this case Mr Ford was given by the tribunal a reasonable opportunity to present his case and the Tribunal brought to his attention the issues that were adverse to him on which its decision was likely to turn and he was given the opportunity to address those issues. There was in my opinion no denial of natural justice.
Conclusion
In summary therefore it has not been demonstrated that the Tribunal acted in excess of jurisdiction or that there was a denial of natural justice. The application for judicial review should be dismissed and the applicant should pay the first respondent’s costs of the application to be assessed.