Atkins v Adelaide Rentals Pty Ltd - [2021] SASCA 109

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ATKINS v ADELAIDE RENTALS PTY LTD
[2021] SASCA 109
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
6 October 2021
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE
The applicant sought leave to appeal against a decision by a Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) dismissing an application for review of an order of a Senior Member of the Tribunal dated 12 March 2021, dismissing the applicant’s application that the respondent be disciplined under s 43 of the Land Agents Act 1994 (SA), pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
Held, refusing the application for an extension of time and dismissing the appeal:
1.The applicant raises no issue of principle nor any arguable error in the reasons of the Senior Member or the Deputy President.

2.      The application is without merit and vexatious.
3.      There is no utility in granting an extension of time.
4.      The applicant is to pay the respondent’s costs fixed in an amount of $1,500.
Criminal Law Consolidation Act 1935 (SA) s 256; Land Agents Act 1994 (SA) ss 43, 47; Residential Tenancies Act 1995 (SA) s 80; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 39, 43, 56, 70, 71; Uniform Civil Rules 2020 (SA) rr 212.3, 212.4, referred to.
Atkins v District Council of Coober Pedy [2021] SASCA 6; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hatty v Pilkinton (No 2) (1992) 108 ALR 149; Jackamarra v Krakouer (1998) 195 CLR 516; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16; Meissner v The Queen (1995) 184 CLR 132; Re AKS [2016] SACAT 19, applied.

ATKINS v ADELAIDE RENTALS PTY LTD
[2021] SASCA 109
Court of Appeal – Civil: Livesey P and Bleby JA
LIVESEY P AND BLEBY JA:
Introduction

This is an application for leave to appeal against a decision of a Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) dismissing an application for the review of an order made in the Tribunal pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the Act).
By s 71(2) of the Act, leave to appeal is required. And, by s 71(1) of the Act and r 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA), the appellate jurisdiction of the Supreme Court is to be exercised by the Court of Appeal where the appeal…

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.

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Details

Case: [2021] SASCA 109
Decision Date: 6 October 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of South Australia from a decision of the South Australian Civil and Administrative Tribunal (SACAT). The applicant, a former tenant, had initiated proceedings in SACAT against the respondent, a property manager, alleging various disputes arising from the tenancy. These disputes included claims of unpaid rent, alleged falsification of records by the respondent, and the applicant issuing invoices to the respondent for work done at the property. The applicant's initial application seeking disciplinary orders against the respondent under the *Land Agents Act 1994* (SA) was dismissed by a Senior Member, and a subsequent review by a Deputy President also upheld the dismissal.

The legal issues before the Supreme Court included whether the Deputy President erred in her findings regarding the respondent's right to legal representation, whether procedural fairness had been denied to the applicant, and whether the Tribunal had taken reasonably practicable measures to ensure the applicant, who suffered from dyslexia, had a reasonable opportunity to understand the proceedings and participate effectively. The applicant also sought an extension of time to file his appeal.

The Court found that the applicant had not raised any issue of principle or demonstrated any arguable error in the reasons provided by the Senior Member or the Deputy President. The Deputy President had carefully considered the applicant's challenges, including the right to legal representation and the impact of his dyslexia, and had applied relevant provisions of the *Land Agents Act 1994* (SA) and established principles of procedural fairness. The Court concluded that the application for an extension of time was without merit and vexatious, and there was no utility in granting it.

Consequently, the Supreme Court refused the application for an extension of time and dismissed the appeal. The applicant was ordered to pay the respondent's costs fixed at $1,500.

Orders

Orders of the court

Held, refusing the application for an extension of time and dismissing the appeal:

1. The applicant raises no issue of principle nor any arguable error in the reasons of the Senior Member or the Deputy President.

2. The application is without merit and vexatious.

3. There is no utility in granting an extension of time.

4. The applicant is to pay the respondent’s costs fixed in an amount of $1,500.

Background

Background to the litigation

The appeal grounds are supported by a lengthy, discursive affidavit. For example, the applicant illustrated his difficulties with language by deposing to the following:For example, “The Judge is a Wanker” has no connotation of a sexual nature whatsoever or implying the Judges are in the corner masturbating, that is your imagination, period. Wanker, even in the dictionary means in Aussie Language a contemptible person, a very stupid or unpleasant person, A person variously regarded as contemptible, ineffectual, etc.Relevant background This application arises out of a tenancy to which the applicant was the tenant and the respondent the property manager appointed by the landlord. There were various disputes. Though the tenancy was for a fixed 12-month term commencing 1 November 2017, the applicant was permitted to vacate in August 2018 without penalty. Before this, the applicant was served with a notice of breach for claimed unpaid rent, coupled with a notice to vacate. The applicant denied the breach. He still denies any breach. Although records maintained by the respondent suggest rent was not paid as required, the applicant says that the respondent falsified the records to “pervert the course of justice”. This dispute was complicated by the applicant issuing invoices to the respondent for work which the applicant says was done at the property.The Tribunal proceedings The matter commenced as an application by the applicant seeking orders for the discipline of the respondent under the Land Agents Act 1994 (SA). That application was dismissed by the Senior Member following a hearing. As part of the review process, another hearing was conducted by the Deputy President in the Tribunal on 23 June 2021. In the course of her detailed reasons for order, the Deputy President reviewed a number of procedural matters. These included the applicant’s challenge to the right of the respondent to be legally represented. Relying on s 56 of the Act the Deputy President found that, as the applicant was making serious allegations which potentially affected the professional reputation of the respondent, it was appropriate to permit legal representation in the original hearing. The Deputy President rejected the proposition that it was unfair to the applicant to permit legal representation of the respondent. She referred to a number of practical matters undertaken during the course of the original hearing to facilitate the applicant’s appearance and to ensure that he was in a position to provide submissions to the Tribunal. The Deputy President then addressed what the applicant claimed was a denial of procedural fairness. This appeared to be bound up with the applicant’s dyslexia condition which affected his capacity to process information as readily as others. The Deputy President accepted that this might be so, relying upon the report of the applicant’s psychologist dated 23 February 2021. The applicant relied on s 39 of the Act and the Deputy President accepted that the Tribunal was required to take reasonably practicable measures to ensure that parties have a reasonable opportunity to understand the matter being dealt with and to participate and have their submissions received.[2] [2] See s 43 of the Act; Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16, [124] (Parker P).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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