Ramage v Freeman
[2012] QCATA 56
•4 April 2012
| CITATION: | Ramage v Freeman and Anor [2012] QCATA 56 |
| PARTIES: | Thera Marie Ramage (Applicant/Appellant) |
| v | |
| Trudy Michelle Freeman Anthony Thomas Freeman (Respondents) |
| APPLICATION NUMBER: | APL066-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 4 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for an injunction or interim order refused. 2. Application for leave to appeal refused. 3. Confirm the order made by a Magistrate at Toowoomba on 29 February 2012 save and except that the Warrant of Possession referred to therein shall take effect on Friday 13 April 2012 and remain in effect for 14 days, to expire at 6pm on 27 April 2012. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY – PROCEDURAL FAIRNESS – EXERCISE OF DISCRETION – APPLICATION FOR INJUNCTION OR INTERIM ORDER – where the Landlords issued the Tenant with a Notice to Leave – where the Tenant did not comply with the Notice to Leave – where the Landlords sought a termination order – where the Tenant sought an adjournment – where the application for adjournment was refused – where the Magistrate ordered a termination of the tenancy agreement and issued a Warrant of Possession – where the Tenant sought leave to appeal that decision – where the tenant sought a stay of that decision – where a stay was granted – where the Landlords sought reasons for the stay – where the Tenant filed an additional application for interim order or injunction to stop the Landlords entering and inspecting the premises – whether the Tenant was denied procedural fairness – whether the decision was plainly unjust or unreasonable and involved a clear misapplication of the discretion – whether there are grounds for an order restraining the Landlords from exercising their right to inspect the premises Queensland Civil and Administrative Tribunal Act2009, ss 32, 142, 145 Kioa v West (1985) 159 CLR 550 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Difficulties have arisen in this matter because, it appears, of a breakdown in communications within the Toowoomba Courthouse. This has caused considerable inconvenience to Mr and Mrs Freeman, who are blameless in the matter, but it has been necessary to closely examine what occurred around the time their application to evict Ms Ramage, their tenant, came on for hearing before a Magistrate sitting as a QCAT member at Toowoomba on 29 February 2012.
The background to the matter is that Mr and Mrs Freeman own a property at Greenmount which they agreed to let to Ms Ramage on 7 January 2011 under what the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) calls, in Schedule 2, a ‘periodic agreement’. On 15 December 2011 they gave Ms Ramage a Notice to Leave in Form 12 under the RTRAA requiring her to quit by midnight on 4 February 2012 – ie, considerably longer than the 30 days required under s 372 of that Act.
The matter was subsequently mediated by the Residential Tenancy Authority and on 30 January 2012 both parties agreed, in writing, that the Notice to Leave would be extended to provide for a new vacation date on 15 February 2012.
Despite that further agreement, Ms Ramage did not leave and on 13 February 2012 Mr and Mrs Freeman began proceedings in QCAT’s Minor Civil Disputes jurisdiction seeking a termination order arising from that failure, under s 293 of the RTRAA. The matter was set down for hearing at 2.15pm on 29 February 2012 before a Magistrate, sitting as a QCAT member.
The problem which subsequently arose in the matter occurred after Ms Ramage sent an email to Toowoomba Courthouse on 22 February 2012 advising that she could not attend the hearing on 29 February, and seeking an adjournment. The excuse she gave was that she was actively seeking another property to rent. In reply the courthouse sent an email to her on the morning of 23 February 2012 advising her that her application for an adjournment would be considered on 29 February so that it could be heard in the presence of Mr and Mrs Freeman; that Ms Ramage’s personal appearance was not required and she could appear by telephone; and, that the Court would contact her on 29 February from 2.15pm onwards and she would then be given the phone number for the appropriate court room and required to call in on the telephone number provided.
The hearing proceeded before the learned Magistrate on 29 February. Mr and Mrs Freeman appeared, but Ms Ramage did not. In her absence the learned Magistrate ordered that the tenancy agreement be terminated as from midnight that day on the grounds of Ms Ramage’s failure to leave, and direct that Warrant of Possession issue, to commence on 6 March and remain in effect until 6pm on 20 March 2012.
The learned Magistrate’s note of the hearing on 29 February records that Ms Ramage had not telephoned the courthouse, and that her application for an adjournment had been refused. Other notes on the file show that a member of the courthouse staff brought the earlier emails to the attention of the learned Magistrate on 1 March. His note about that is, with respect, terse but he recorded that Mr and Mrs Freeman had objected to the adjournment and, it appears, that he did not think the incorrect information given to Ms Ramage warranted any change in the order he had made.
Ms Ramage has sought leave to appeal that decision. Leave is required under the QCAT Act: s 142(3)(a)(i). By direction, both parties have filed written submissions. Ms Ramage’s lengthy submissions are directed primarily to her difficulty in finding alternate rental accommodation but she says: ‘I feel by me not receiving the phone call with the required courtroom number denied the opportunity for me to be heard on the 29 February, which removed my right of natural justice’.
Ms Ramage also sought a stay of the operation of the learned Magistrate’s decision, which this Appeal Tribunal has power to grant under s 145(2). On 13 March 2012 it was ordered that the execution of the Warrant of Possession be stayed until the determination of the application for leave to appeal (and the appeal, if leave is granted or further order).
Subsequently Ms Ramage has also filed, on 23 March, an urgent application for the determination of an application of a residential tenancy dispute but apparently seeking, confusingly, a termination order based, it appears, on the objectionable behaviour of the landlords. In any event, she has also filed an application for an interim order or injunction ‘…to stop Trudy and Anthony Freeman and their representatives from entering the property at 26 Bridie Road Greenmount…whilst I am resigning as a tenant at this property and stop all retaliatory Form 9 entry forms’.
Mr and Mrs Freeman have, in addition, sought reasons for the stay ordered on 13 March. It is appropriate to deal with that request first.
A stay order may be granted if an applicant can show that she has a good, arguable case on appeal; that she will be disadvantaged if the stay is not granted; that the competing disadvantage to the successful party does not outweigh the disadvantage that would be suffered by the applicant if the stay is not granted; and, success in the appeal would be rendered meaningless if the stay was not granted in the interim.
Here, the material initially suggested that Ms Ramage had been denied natural justice – the opportunity to present her case for an adjournment – in circumstances in which she was blameless: namely, when she had been told by the court that she would be telephoned, but that did not occur. In the urgent circumstances of the application for a stay the material indicated that she may have, at least, an arguable case on appeal; and, that she might wrongly be evicted under the Warrant of Possession if a stay was not granted while the parties were offered the opportunity to make more detailed submissions, and the circumstances in which Ms Ramage’s application for an adjournment were refused could be properly considered.
It is regrettable, and a matter of concern, that Ms Ramage was given misleading information by the court. The learned Magistrate’s decision to refuse her an adjournment was made in the shadow, as it were, of that error. The question still remains, however, whether or not Ms Ramage has been denied procedural fairness to a degree which warrants a grant of leave to appeal – and, if so, whether her appeal should succeed.
Procedural fairness (or ‘natural justice’) has been described as a flexible obligation to adopt fair procedures which are appropriate, and adapted to the circumstances of the particular case; and, in earlier cases, it has been said that the statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[1]
[1] Kioa v West (1985) 159 CLR 550 at 584-5 per Mason J (as His Honour then was).
Ms Ramage’s application for leave to appeal also has to be considered in light of this Tribunal’s statutory obligation to act in a way which reflects the objects of the QCAT Act – in particular, to deal with matters in ways which are fair and just but, also, economical, informal and quick.
Here, the statutory framework also includes the RTRAA and the surrounding facts and circumstances – in particular, firstly, proceedings originally brought by a landlord for termination of a tenancy in respect of which the landlord had previously given a Notice to Leave of almost two months duration.
The second relevant fact is the tenant’s written agreement, also signed by the landlord on 30 January 2012, to extend the termination date by another 11 days, to 15 February 2012 – followed, of course, by the tenant’s non-compliance with the original Notice to Leave, and continued non compliance with her own consensual agreement to do so or before 15 February.
The next material factor is the terms of the email in which Ms Ramage sought, on 22 February, an adjournment of the hearing on 29 February because she wished to view other properties she might rent on the Sunshine Coast ‘next week’ and could not return to the court hearing ‘on the same day’. She did not say why she was compelled to see those properties on the very day of the hearing. It is inescapable that the email might, not unfairly, be construed as an attempt to delay the court hearing so as to gain more time to vacate the Freeman’s property.
Ms Ramage’s email was not before the learned Magistrate when he determined to proceed with the matter on 29 February. It is apparent from his notes that when he subsequently viewed it, he concluded that he would not have granted an adjournment, in any event. Had he considered the application for an adjournment on 29 February he would have been required to exercise his discretion as to whether or not Ms Ramage had established a reasonable basis for him to adjourn the hearing, rather than proceed with it.
It follows that the only issue of procedural fairness or natural justice that arises does so because Ms Ramage did not have the opportunity to make oral submissions to him in support of her application for an adjournment. The question that then, reasonably, arises is whether or not anything she might have said to the learned Magistrate by way of oral submissions could have resulted in a different exercise of his discretion – that is, might have lead to him to grant the adjournment she sought.
In light of the facts and circumstances set out above it would have been highly surprising if he had done so. Mr and Mrs Freeman would certainly have opposed it, and had forceful arguments in their favour. They had, as it were, followed the letter of the law and, also, generously agreed to allow Ms Ramage an additional 11 days to quit the premises. It is highly improbable that any submissions Ms Ramage might have made could have persuaded the learned Magistrate to a different view.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Where what is being appealed against is the way a Member exercised a discretion, the Appeal Tribunal will not interfere unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which effected the decision or was influenced by irrelevant matters.
Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision was plainly unjust or unreasonable and involved a clear misapplication of the discretion.[2]
[2] Lovell v Lovell (1950) 81 CLR 513.
It is regrettable that Ms Ramage received a communication about the order of events on 29 February which was not adhered to. The examination of the surrounding facts and circumstances, set out above, shows however that Ms Ramage had no reasonable basis for an adjournment and none would or should have been granted to her. Once this is understood, the procedural unfairness of which she complains had, in truth, no practical or legal effect. In other words, the Magistrate should not, and would not, have granted her the adjournment she wanted.
It is also necessary to observe that Mr and Mrs Freeman are blameless in all of this. They appeared for the hearing. They had followed the letter of the law in the procedures they had brought to end the tenancy, and in QCAT. That circumstance indicates that, even if leave to appeal was granted to Ms Ramage, her appeal should not succeed. Nothing in her material suggests she had any legal basis to resist Mr and Mrs Freeman’s application for a termination order, or a Warrant of Possession.
Finally, Ms Ramage’s application for an interim order or injunction must be refused. Her lengthy submissions show the Freemans have properly given her a notice that they wish to enter and inspect the property. Ms Ramage also alleges ‘many strange happenings’ but does not produce any proof that the Freemans, or their agents, are to blame. It is also, again, clear from Ms Ramage’s lengthy submissions that her failure to leave has been caused by her inability to locate alterative premises on which she can locate her family and livestock. That is unfortunate, but it is no ground for an order restraining the landlords from exercising their legal rights to inspect.
For these reasons the application for leave to appeal should fail; and, the order of the learned Magistrate should be reinstated but, in light of the intervening Easter break, the Warrant for Possession should not come into effect until 13 April and remain in effect for 14 days thereafter.
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