Muir v Parker

[2010] QSC 54

SUPREME COURT OF QUEENSLAND

CITATION:	Muir v Parker & Ors [2010] QSC 54
PARTIES:	JACK MUIR and KAY MUIR (applicants) v JOHN PARKER (first respondent) GLENN McGOWAN and KATHY McGOWAN (second respondents)
FILE NO:	BS9546 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application for review
DELIVERED ON:	16 February 2010 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2010
JUDGES:	Mullins J
ORDER:	1. The second respondents’ application to strike out the application for review is dismissed with no order as to costs. 2. The application filed on 7 October 2009 is dismissed. 3. The applicants pay the second respondents’ costs of the application filed on 7 October 2009.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – OPPORTUNITY TO PRESENT CASE – where first respondent was the referee under the Small Claims Tribunal Act 1973 (Qld) for tenancy claim by second respondents as landlords against applicants as tenants – where first respondent allowed second respondents to tender two letters as evidence without ensuring that applicants were given copies of these letters – where first respondent did not permit the male applicant to read from his prepared notes – whether first respondent denied applicants the opportunity to present their case
COUNSEL:	Appearance in person for the applicants L Byrnes for the first respondent N V Stubbins for the second respondents
SOLICITORS:	Crown Solicitor for first respondent Ryan Lawyers for second respondents

HER HONOUR: Although not strictly in form, this in substance is an application for review under section 43 of the Judicial Review Act 1991 of the decision of the Referee, Magistrate Parker (the first respondent) who made orders on 5 August 2009 in respect of an application brought by Mr and Mrs McGowan as landlords (the second respondents) against Mr and Mrs Muir as tenants (the applicants) that was primarily to recover outstanding rent.

The rental issue had arisen over the length of notice of intention to leave that was given by Mr and Mrs Muir.

The tenants had given notices of intention to leave dated 12 and 14 May 2009 with a date to vacate of 21 May 2009.  The issue was whether the nine days or seven days notice was sufficient and the landlords claimed they were entitled to 14 days notice.

Mr and Mrs McGowan were successful before the first respondent who ordered Mr and Mrs Muir to pay Mr and Mrs McGowan the sum of $402 and ordered the RTA to release the bond of $402 to Mr and Mrs McGowan.

The ground of review in this Court is denial of natural justice.  The applicant's evidence of what occurred before the first respondent is set out in Exhibit A to Mr Muir's affidavit filed on 7 October 2009.  This was supplemented by Mr Muir's oral evidence and the evidence given by him under cross-examination today.
I also had Mr McGowan's affidavit filed on 11 November 2009 that dealt in part with what occurred at the hearing before the first respondent and the cross-examination today of Mr McGowan that was undertaken by Mr Muir.

There had been other disputes between Mr and Mrs McGowan and Mr and Mrs Muir arising out of the tenancy, but the issue that was before the first respondent on 5 August 2009 at the instigation of Mr and Mrs McGowan focused on the period of notice required under the Residential Tenancies Act 1994 and the grounds relied on by Mr and Mrs Muir for seeking to vacate the premises.

It was apparent during the cross-examination of Mr Muir that, even on Mr Muir's version of events, he was given an opportunity by the first respondent to put his case as to why he should not pay the rent that was claimed by Mr and Mrs McGowan, but that he did not make effective use of that opportunity. 

It appears that the hearing before the first respondent may have lasted for some 40 minutes or so.  The two notices of intention to leave were before the first respondent.  On the face of the notices themselves relevant legal and factual issues are raised. 

Mr McGowan summarised his claim before the first respondent, but the document that was the basis of his summary is Exhibit B to his affidavit.  It is not clear from Mr McGowan's evidence as to what he said in full to the first respondent, but it is clear enough from the evidence of Mr Muir in conjunction with the evidence of Mr McGowan that the points that Mr McGowan had in his written summary were made orally. 

These were legal points as well as factual points. The legal points were that the notice of intention to leave had not been preceded by a notice to remedy breach from Mr and Mrs Muir.  The factual points were that the claims by Mr and Mrs Muir that the subject premises were unfit for habitation were groundless. 

There had been an earlier hearing in May 2009 involving the same parties before another Referee.  One of the complaints made by Mr Muir is that before the first respondent Mr McGowan went into that history of the earlier proceeding. 

Mr Muir, however, acknowledges that the first respondent understood that the matters that were before the first referee were not before him, and that the first respondent did not dwell on that history.

Mr McGowan tendered to the Magistrate two documents, one from a real estate agent that dealt with her opinion as to the habitability of the subject premises.  The second, which was Exhibit 2 on the hearing today, was a typewritten statement signed by Mr McGowan that set out the contents of a telephone discussion he had with the electrician from Betta Electrical Service.  
Mr Muir complains that he was not given copies of those letters at the hearing.  The first respondent invited Mr McGowan to tender the letters and they were handed to the first respondent who read them and Mr Muir has subsequently located them on the Court file.

Mr Muir alleges that he was not made aware of the contents of either of them.  I accept that Mr Muir was not provided with copies of those letters at the hearing, but I infer from the evidence that I have heard that Mr McGowan, in tendering those letters, made known the general contents of them in the course of the proceeding.

There were a number of aspects of the proceeding before the first respondent that Mr Muir conceded in evidence today that he did not have a clear recollection about.  On his own view he was given an opportunity to present his case and Mr Muir acknowledged that he was asked by the first respondent as to why he was not prepared to pay the claim of Mr and Mrs McGowan.

The first respondent did not permit Mr Muir to read from his prepared notes.  Mr Muir has exhibited his prepared notes as Exhibit B to his affidavit filed on 7 October 2009.

After having a look at the prepared notes, it occurred to me that the first respondent's reluctance to allow Mr Muir to read those notes is explained by the fact that the first point in the notes is based on a procedural point that failed to address the real issues that were before the first respondent.  This procedural point was that Mr and Mrs McGowan had failed to respond to the notice of intention to leave dated 14 May 2009 with a dispute resolution request. 

It is not necessary for me to dwell on why there is no merit in that point, but it is clear that by the time in the course of the proceeding Mr Muir came to read out from his prepared notes the first respondent was interested in the substance of the issues and not academic procedural points.

Although the first respondent refused Mr Muir's request for an adjournment when it came to the time in the hearing for
Mr Muir to put his case, Mr McGowan gives evidence that the first respondent waited for approximately five minutes to allow Mr Muir time to gather his thoughts.  Although Mr Muir cannot recall that that hiatus occurred, I accept Mr McGowan's recollection of that period of time that the first respondent did give to Mr Muir.

When Mr Muir then started reading from Exhibit B in front of the first respondent he started on page 3 and again made the point about dispute resolution requests that I have indicated is procedural and has no merit. 

Mr Muir describes the first respondent as bullying him.  I consider that that is an unfair description of the first respondent who is endeavouring to get to the nub of a tenancy dispute that was before him that was clearly to do with the adequacy of the period of notice that was given by Mr and
Mrs Muir to vacate the premises which itself was related to the grounds that Mr and Mrs Muir sought to rely on to vacate the premises.  Firmness on the part of the first respondent to keep Mr Muir focused on the issues should not be described as bullying. 

As I explained to Mr Muir during the course of the hearing today, I infer that after the first respondent gained an understanding of the claim being pursued in front of him by Mr and Mrs McGowan, he was focused on what he needed to hear from Mr Muir on the issues.  Mr Muir does not appear to have provided the response that was on point, but it is clear from all the material that is before me that Mr Muir was given the opportunity to do so.

The applicants have therefore failed to satisfy me that they were denied natural justice on the hearing before the first respondent.  It follows that the order which I make is that the application filed on 7 October 2009 is dismissed.  I will now her submissions on the appropriate costs order.

...

HER HONOUR:  When it comes to the costs order, the applicants have been unsuccessful with their application.  It follows that they should pay the second respondent's costs of the application filed on 7 October 2009. 

I foreshadowed at the outset that I was considering excluding the costs of the appearances on 11 and 24 November 2009.  On each of those occasions costs were reserved.

The appearance on 11 November 2009 was listed as a directions hearing and, although Mr Muir has made his displeasure clear that Mr and Mrs McGowan weren't in a position to proceed with the substantial hearing on that occasion, that was the situation as indicated by the amended application served by Mr Muir that 11 November 2009 would be a directions hearing.  In those circumstances there is no reason why the costs order that I have made shouldn't include those costs.

I had greater difficulty with the appearance on 24 November 2009.  That was the day that the substantial application was listed for hearing as well as the second respondent's misconceived application to strike out the substantive application.  Mr Muir had an accident and was unable to travel and therefore sought an adjournment.  He appeared by telephone on that occasion.

The Senior Judge Administrator, before whom the matter was listed on 24 November 2009, adjourned both applications to the 16th of February 2010 and made this order in relation to costs, that for each application the costs thrown away by the adjournments were reserved.

I raised with Mr Stubbins of counsel that it was misfortune on the applicant's part that resulted in the matter not being able to proceed on that date.  Mr Stubbins was unmoved by my suggestion that both parties should just bear their own costs in relation to that wasted hearing date.

Because the costs were reserved on 24 November 2009, and the misfortune of Mr Muir was not dealt with on that date by specifically making no order as to costs, I consider that it is a little difficult for me now that the applicants have been unsuccessful with their application to use Mr Muir's misfortune to deprive the second respondents of the costs that were thrown away by the wasted appearance on 24 November 2009.  That means that I will leave the costs order in the terms that the applicants pay the second respondents' costs of the application filed on 7 October 2009.

I have already made a costs order that there be no order as to costs in relation to the second respondents' application to strike out, so that must be borne in mind by the parties when it comes to assessing the costs.

-----