O'Neill & O'Neill v Harrowfield

[1998] QSC 17

IN THE SUPREME COURT

OF QUEENSLAND  No. 8054 of 1997

Brisbane

[O'Neill & O'Neill v Harrowfield & Anor]

BETWEEN:    
  RENEE O'NEILL
  First Applicant

AND:
  GEOFFREY FRANCIS O'NEILL
  Second Applicant

AND:
  DIANNE MELINDA HARROWFIELD
  First Respondent

AND:
  THE REFEREE OF THE SMALL CLAIMS TRIBUNAL
  Second Respondent

CATCHWORDS:                 ADMINISTRATIVE LAW - application for judicial review of decision of Small Claims Tribunal - lack of jurisdiction - absence of reasons - denial of natural justice.

Counsel:S.J. Armitage for the applicants.

L.Y. Paramasiram for the second respondent.

Solicitors:Raj Lawyers for the applicants.

O'Mara Patterson and Perrier for the first respondent.

Crown Solicitor for the second respondent.

Hearing Date:  21 October 1997

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 6 March 1998

On 17 March 1997 the Small Claims Tribunal at Southport ordered that Renee O'Neill and Geoffrey Thomas O'Neill pay Dianne Melinda Harrowfield $4,840 and $60 for costs.  The O'Neills (they are father and daughter) seek to have the decision judicially reviewed. 

The grounds of review are:-

·that the Tribunal had no jurisdiction to hear the claimant's application for a claim of $4,840 damages plus relief from a payment of $2,273.85;

·no transcript of proceedings or reasons of decision were kept - the complaint apparently is about the absence of reasons for the decision;

·the applicants were denied natural justice.

The Tribunal appeared to abide the order of the Court.  The first respondent (Harrowfield - the claimant before the Tribunal) appeared to resist the applications.

The circumstances giving rise to the decision complained of are as follows.  On 17 May 1996 a motor vehicle driven by the first applicant and owned by the second applicant collided with Harrowfield's vehicle causing $4,840 worth of damage to that vehicle and pushing it into a third vehicle, the damages to which were $2,273.85.

On 6 February 1997 Harrowfield lodged a claim with the Small Claims Tribunal at Southport naming Renee O'Neill as the first respondent and Nora Baker as the second.  Baker's joinder as a respondent was a mistake and appears to be of no further consequence.

The Tribunal sent a notice of hearing dated 10 February 1997 addressed to Renee O'Neill notifying that there was to be a hearing of Harrowfield's application on 17 March.  By letter of 19 February 1997 Geoffrey Thomas O'Neill wrote to the insurer of the vehicle being driven by Renee O'Neill.  In it he referred to a conversation he had with an officer of the insurer in which the notice of hearing and associated events were discussed and enclosed documentation in relation to the application to the Tribunal.  The letter advised that Renee O'Neill was living in England, could not appear at the hearing and would be represented by Geoffrey Francis O'Neill.  An officer of the insurer deposes that the insurer instructed what the material describes as agents (inferentially solicitors) to assist Geoffrey O'Neill in dealing with the application before the Tribunal. 

On 12 March 1997, Geoffrey Francis O'Neill, as claimant, lodged a claim in the Tribunal against Harrowfield claiming $3,610.46.  This is the damage suffered by the vehicle driven by Renee O'Neill.  The claim was endorsed with a notation that it was to be heard on 17 March 1997 together with Harrowfield's claim which has earlier been referred to, and was inferentially prepared by, or with the assistance of, the agents appointed by the insurer.

The copy order of the Tribunal on 17 March dealing with Harrowfield's claim in evidence shows, as I indicated earlier, that the O'Neills were ordered to pay her $4,840 and $60 costs.  The order makes no reference to Harrowfield's being relieved from an obligation to pay $2,273.85 and she deposes to the effect that this application was not dealt with on that day.  On that day the Tribunal dismissed Geoffrey Francis O'Neill's claim, as is evidenced by a copy of its order which is in evidence.

On 11 June 1997 the Registrar of the Small Claims Tribunal issued an order for examination of Geoffrey Thomas O'Neill as to his means of satisfying the Tribunal's order of 17 March.  By letter of the same date, the solicitors for the applicant, apparently acting on the instructions of the insurer, wrote to the Tribunal seeking the reasons for the decision of 17 March.  A response dated 16 June 1997 advised that no transcript of proceedings or reasons for the decision had been kept.  The solicitors seem to have construed this as "retained" whereas it probably means "made".

Section 14 of the Small Claims Tribunal Act 1973 relevantly provides:-

"Records of tribunals
14.(1)  An official record of evidence given before a small claims tribunal shall not be made in any case but the referee who constitutes the tribunal is entitled to make such notes of evidence as the referee requires.

(1A)  Notes so made shall not form part of the record of the reference to the tribunal.

(2)  The record of a small claims tribunal shall consist of—

(a)the claim referred to it, as completed by the claimant; and

(b)the notation of the nature of the issue in dispute as determined and recorded by the tribunal during the hearing of the claim; and

(c)the order made by the tribunal; and

(d)if, for an order made about a tenancy application, written reasons are given—the reasons."

Generally speaking, failure to state reasons for a decision may constitute error of law; Pettit v. Dunkley[1].  The Small Claims Tribunal Act however is expressed in terms that reasons be given only in respect of an order made about a tenancy application; ss.14(2)(d), 22A.  The Judicial Review Act provides that a person who is entitled to make an application for judicial review may request written reasons in relation to the decision and that the request is to be complied with except in certain circumstances (ss.32 and 33).  Reasons may not be forthcoming for a number of reasons as those sections show.  An unjustified refusal to give reasons after a request may found an order for compliance; s.38.

[1](1971) 1 NSWLR 376

The application however did not proceed on the basis that there was an unfounded refusal to comply with a request for reasons.  The applicants' case rather was conducted on the basis of failure to provide reasons in the general sense constituting error of law.  As I have indicated, ss.14(2)(d) and 22A found a conclusion that the Tribunal's failure to do so was not an error of law.

The claim concerning lack of jurisdiction is advanced on two bases.  The first is that the Tribunal did not have jurisdiction to entertain or to make an order relieving Harrowfield from payment.  Geoffrey Thomas O'Neill swears that such an order was made; that it was, is inconsistent with the copy of the order of the Tribunal in evidence.  That order is consistent with Harrowfield's evidence that consideration of her application for relief from payment was postponed to another day.  It would not be surprising if it were postponed, not least because the person against whom it was sought is not a party to Harrowfield's application.

So far as the order that the O'Neill's pay $4,840, the definition of small claim in s.4 of the Act includes:-

"A claim for payment of money of a value not exceeding the prescribed amount for damages to property caused by, or arising out of the use of a motor vehicle."

The prescribed amount at the relevant time was $5,000; the Tribunal therefore had jurisdiction to make the order it did.

The second ground of complaint of absence of jurisdiction relates to the order being made against Geoffrey Thomas O'Neill as second respondent and is more conveniently considered in the context of the complaint of denial of natural justice to which I now turn. 

The affidavits of Geoffrey Thomas O'Neill and the solicitor responsible for the conduct of the matter are, in the view most favourable to them, disingenuous.  It will be recalled that the insurer of the vehicle driven by Renee O'Neill instructed agents to assist Geoffrey O'Neill in dealing with the application before the Tribunal and that on 12 March 1997 he as claimant lodged an application against Harrowfield claiming $3,610.46 for damages to the vehicle.  The claim carried a notation that it was to be heard on 17 March together with Harrowfield's claim.  Whether this was by prior arrangement is not disclosed by the material.  As is evidenced by a copy of its order on 17 March, the Tribunal dismissed O'Neill's claim. 

Neither O'Neill nor the solicitor discloses anything about the appointment of the agents (that is mentioned in an affidavit filed by an officer of the insurer who is not forthcoming as to what was to be done or done by the agents), the lodgment of O'Neill's claim or its being dealt with before the Tribunal.  This is notwithstanding that the solicitor responsible for conducting the application deposes that "detailed instructions were obtained from Mr O'Neill as to the hearing of the matter and in relation to the action in general" and an affidavit was prepared and sworn by him.

O'Neill nevertheless deposes that he raised his daughter's absence in England and that "the Tribunal did not take steps to grant an adjournment so that all necessary parties could be present at the trial".  In a subsequent affidavit he swears as his complaint that the Tribunal did not advise him that he could request an adjournment, and that had he been so advised, he would have done so.  He does not swear he asked for an adjournment.  He apparently gave and called evidence although this is not adverted to in the applicant's material.  O'Neill states that he (as distinct from his daughter) was not provided with any notice of the first respondent's claim or any notice of the hearing as a party to the proceedings.  He goes on however to depose that during the course of the hearing, Harrowfield's claim was amended to remove Barker and "to insert myself as second respondent".  He does not say that he opposed this.

The position at the Tribunal hearing may (at the risk of some repetition of what has already been said) be summarised as follows.  Geoffrey Francis O'Neill appeared before the Tribunal on 17 March 1997 to represent his daughter in respect of Harrowfield's claim for damages to her vehicle and to pursue his own claim against Harrowfield for damages to his vehicle driven by his daughter.  He had the benefit of the assistance of his insurer's agents, probably solicitors.  What was provided by way of assistance does not appear from the material but the insurers and O'Neill were certainly aware by 19 February that Renee O'Neill would not be at the hearing on 17 March.  He did not ask for an adjournment and does, apart from asserting to the effect that his daughter's presence was necessary, deal with the consequence of her absence.

Section 33 of the Small Claims Tribunal Act provides that evidence before a tribunal may be given orally or in writing and that the Tribunal is not bound by the rules of evidence.  Harrowfield deposes, and it is not denied, that O'Neill gave evidence and called a witness who gave evidence on his daughter's behalf about the circumstances of the accident.  It may be noted that O'Neill's claim had annexed an account inferentially given by Renee O'Neill at the accident extracted from an insurance claim form.  

There is reason to consider the Tribunal was generally speaking, under no obligation to tell him he could apply for an adjournment, cf. Brian Gardener Motors Pty Ltd v. McCornish & Ors[2].  No doubt such a general consideration might yield to circumstances but there is no reason to consider this is such a case.

[2](1992) 26 ACD 688

At the hearing, Harrowfield's claim was amended to remove Barker and add O'Neill as second respondent on the basis that he owned the vehicle driven by his daughter.  It will be recalled that his own claim was endorsed to the effect that it be heard with Harrowfield's and it was.  He does not suggest that he objected to the joinder or how in the circumstances he was disadvantaged.  Yet he and the solicitor profess to be amazed by the joinder.

In summary therefore, it has not been demonstrated that the Tribunal acted in excess of jurisdiction, that the absence of reasons for the decision constitute an error of law, or that there was a denial of natural justice. 

The application for judicial review of the decision of 17 March 1997 should be dismissed and the applicants should pay the first respondent's costs of the application to be taxed.