Remely v. O'Shea - [2007] QSC 225

SUPREME COURT OF QUEENSLAND

CITATION: Remely v O’Shea & Another [2007] QSC 225

PARTIES:  OTTO REMELY
(Applicant)
v
LEANNE O’SHEA
  (First Respondent)
AND
GEOFF AND LARAINE VANDERBERG
(Second Respondent)

FILE NO: S1/2006 (Bundaberg)
DIVISION: Trial Division

DELIVERED ON: 28 August 2007

DELIVERED AT:          Rockhampton
HEARING DATES:       28 May 2007 (Bundaberg)
JUDGE:  Dutney J

ORDERS: 1) Application dismissed

2) Applicant to pay the Respondent’s costs assessed on the standard basis.

CATCHWORDS: JUDICIAL REVIEW – SMALL CLAIMS TRIBUNAL ACT – Jurisdictional error – Breach of natural justice – Where Applicant a tenant at second Respondent’s caravan park – Where second Respondent served Applicant with notice to leave pursuant to Residential Tenancies Act 1994 (Qld) – Where Applicant sought initial relief from Small Claims Tribunal –Where Applicant seeks judicial review of Referee’s decision pursuant to Small Claims Tribunal Act 1973 (Qld).

CASES: Ex parte Taylor; re Butler (1924) 41 WN (NSW) 81, considered.

LEGISLATION: Judicial Review Act 1991 (Qld) ss.7, 48.

Residential Tenancies Act 1994 (Qld) ss. 53, 165.
Small Claims Tribunal Act 1973 (Qld), ss. 19, 32.

SOLICITORS: Mr Remely self-represented

Mr R G Marsh for the first respondent
Mr J Grose for the second respondents

Mr Otto Remely has sought judicial review of a decision of the first respondent (“the Referee”) under the Small Claims Tribunal Act 1973 (QLD) (“the Act”). The referee’s decision was in relation to Mr Remely’s disputes with the second respondents, Mr & Mrs Vandenberg, over Mr Remely’s tenancy at the Vandenberg’s caravan park (“the caravan park”). Mr Remely had filed two applications in the Small Claims Tribunal (“the tribunal”). The first application was to set aside a notice to leave the caravan park. The second was in relation to a number of charges Mr Remely alleges were illegally levied by the second respondents and in relation to his bond.

Mr Remely had ceased to reside at the caravan park more than 12 months time prior to the hearing of this matter.

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.

No party has contended that judicial review is not available for the matters raised by Mr Remely and I intend to proceed on the basis that the decision is reviewable on the grounds raised.

Mr Remely has raised six matters as grounds for review. First, he submitted that he was denied natural justice because the male second respondent did not attend the hearing and was thus unavailable for cross-examination. He was also denied natural justice in not receiving copies of three affidavits relied on by the second respondents during the hearing. Secondly, Mr Remely submits that the Referee permitted an agent to appear for Mr Vandenberg without any reason for the agent having been identified. Thirdly, Mr Remely submitted that electricity charges were levied unlawfully by the second respondents. Fourth, Mr Remely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Remely v. O'Shea

Details

AGLC: Remely v O'Shea [2007] QSC 225
Case: [2007] QSC 225
Decision Date: 28 August 2007

CaseChat Overview and Summary

Otto Remely sought judicial review of a decision made by the Small Claims Tribunal in relation to his disputes with Leanne O’Shea and Geoff and Laraine Vandenberg. The disputes concerned Mr Remely’s tenancy at the Vandenberg’s caravan park. Mr Remely had filed two applications in the Small Claims Tribunal. The first application was to set aside a notice to leave the caravan park. The second was in relation to a number of charges Mr Remely alleged were illegally levied by the Vandenbergs and in relation to his bond. Mr Remely raised six grounds for review. First, he submitted that he was denied natural justice because the male second respondent did not attend the hearing and was thus unavailable for cross-examination. He was also denied natural justice in not receiving copies of three affidavits relied on by the second respondents during the hearing. Secondly, Mr Remely submitted that the referee permitted an agent to appear for Mr Vandenberg without any reason for the agent having been identified. Thirdly, Mr Remely submitted that electricity charges were levied unlawfully by the second respondents. Fourth, Mr Remely submitted that an alleged rent increase by the second respondents was unlawful. Fifthly, Mr Remely submitted that the termination of his tenancy was contrary to law. Finally, Mr Remely submitted that the second respondents’ failure to lodge his bond money with the Residential Tenancies Authority was unlawful.

The court dismissed the application and held that Mr Remely had failed to demonstrate that the referee had made a reviewable error. The court held that the referee had not denied Mr Remely natural justice by reason of Mr Vandenberg’s failure to appear. The court held that it was not necessary for Mr Remely to be provided with copies of the affidavits and that there had been no breach of natural justice. The court held that the referee had no basis for allowing the second respondents’ son to be appointed as an agent, however Mr Remely was not a person aggrieved within the statutory definition and his application must fail on this ground. The court held that Mr Remely had been refunded the amount of any overcharge and was thus not a person aggrieved by that decision. The court held that the referee’s failure to deal with the bond issue further could not be criticised. The court held that the fee charged by the managers to have the mowing carried out did not constitute rent. The court held that the application in relation to the termination of the tenancy was frivolous and should be struck out under s 48 of the Judicial Review Act. In the result, Mr Remely’s application must fail for the reasons outlined. The court dismissed the application and ordered the applicant to pay the respondents’ costs assessed on the standard basis.

Orders