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 is against a decision of a Presidential Member of the Tribunal. In considering whether to grant leave, the Court is required to consider whether there is a reasonably arguable ground and whether the subject matter of the appeal is of sufficient substance to justify consideration.[1] The overriding question is whether to grant leave would be in the interests of justice.
[1] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J); Khoo v Bartholomaeus [2020] SASCFC 122, [10] (Kelly J, Livesey and Bleby JJ agreeing).
By r 212.4(c), the jurisdiction of the Court of Appeal to hear and determine an appellate proceeding may, if the Chief Justice or President of the Court of Appeal determine, be exercised by two Judges.
An adjournment
When this matter was initially called over in the Court of Appeal on 3 September the applicant agreed to the hearing of the application on 15 September 2021, a date he requested. However after receiving the respondent’s submissions, the applicant sought an adjournment the day before the hearing of the application because he had not completed his written submissions. Although written submissions were not required, given the extensive nature of the material in the appeal notice and the applicant’s lengthy affidavit, the Court determined to grant the adjournment for the 21 days requested.
The applicant’s written submissions were received on 5 October 2021. We have considered them. They introduce what might be described as ‘new topics’. For example, the applicant explains that on 2 December 2017 at the house in question, he was severely electrocuted. Initially he believed that he sustained only severe whiplash. Over several months, he says, the rest of his brain damage appeared. He says that he has, as a result, a number of disabilities including profound attention deficit disorder, hyperactivity disorder, autism spectrum disorder, severe hypomania, severe depression and a technology-induced violent rage attack disorder.
In addition, the applicant has addressed certain features of the hearings before the Senior Member and the Deputy President. For example, in relation to the Senior Member the applicant says “I will try to put it in acceptable legal language; Mr Lazarevich 20-page decision delivered is tremendously scandalous, 90% irrelevant, coursing [sic] seriously promoting pure prejudice against the plaintive [sic]. Mr Lazarevich was clearly biased, however that is too soft a word. His actions were clearly illegal”.
The application for leave to appeal
The applicant’s notice of appeal is an unusual document, replete with commentary and assertions. In essence, the applicant claims that there was an abuse of discretion by the Senior Member, and perhaps also by the Deputy President, a failure to accept evidence concerning what is claimed are forged documents, errors of law and that ineffectual assistance was given to the applicant during the hearings. There are other complaints and a detailed summary which commences with the proposition: “Atkins is not a Solicitor, period”.
The applicant complains that this matter was treated as a civil matter when in fact it is a criminal matter, and the applicant asks that a “guilty verdict” be imposed against the respondent. One alternative which is claimed is that the respondent should now plead guilty “with only the minimum fine imposed and that be the end of the matter”.
The applicant seeks an extension of time, pointing to his “learning disabilities that makes [him] take much longer than a Solicitor to prepare an appeal”.
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).
After reviewing the practical arrangements made for the conduct of the original hearing, the Deputy President found that the applicant had been given a fair opportunity to participate in the Tribunal process.
Insofar as the applicant contended that he had been given no reasonable opportunity to question the witnesses called by the respondent to address the contention that the respondent had fraudulently manipulated the electronic records relating to his tenancy, the Deputy President was not satisfied there was any unfairness. She pointed to the informality associated with the conduct of Tribunal processes and the somewhat greater participation of the Tribunal member in questioning than might be encountered in a court. She noted that the Senior Member and the parties had all asked various questions. The applicant did not suggest to the Senior Member during the hearing that he had been denied any opportunity to ask relevant questions. Indeed, on the hearing of the review, the applicant was given an opportunity to identify the questions he would have asked had he had an opportunity to do so. The applicant did not take up this invitation during the hearing. The Deputy President was not satisfied that the applicant had been denied procedural fairness in connection with the calling and questioning of witnesses.
The applicant made an allegation of ostensible bias against the Senior Member. This was based on the Senior Member’s comment in his reasons that the applicant was a “disgruntled former tenant”. The applicant’s complaint is not directed to the conduct of the hearing. On the contrary, it was only because the Senior Member decided against the applicant that there was said to be bias. After considering the test laid down by the High Court in Ebner v Official Trustee in Bankruptcy, [3] the Deputy President rejected the allegation of bias.
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The applicant sought to lead further evidence, being copies of inspection sheets which, the applicant said, contained signatures evidencing “fraudulent or dishonest conduct”. After referring to s 70 and Re AKS,[4] the Deputy President rejected that application.
[4] Re AKS [2016] SACAT 19, [25]-[26] (Parker P) citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.
The Deputy President noted that although complaints against land agents are ordinarily presented and pressed by the Commissioner of Consumer and Business Services, the Senior Member recognised the right of the applicant to do so. However, insofar as the applicant sought an order that the property manager be sent to gaol, the Deputy President found that this was beyond jurisdiction because the Tribunal is not a criminal court.[5]
[5] See s 47 of the Land Agents Act 1994 (SA).
The Deputy President also disallowed a request to summons witnesses to be called before the Tribunal and for documents to be produced because, amongst other reasons, she was not satisfied that it was appropriate to launch a wide-ranging investigation.
Insofar as the applicant sought to press for disciplinary action pursuant to s 43 of the Land Agents Act 1994 (SA), the Deputy President conducted a painstaking review of the allegations made and the way in which these have been addressed by the Senior Member. She concluded that there was no evidence of any intention to falsify records and no evidence of unlawful, improper, negligent or unfair conduct. Accordingly, the Deputy President agreed with the Senior Member’s disposition of the application.
The Deputy President also considered whether it was lawful for the respondent to issue a notice of breach of tenancy, commencing with s 80 of the Residential Tenancies Act 1995 (SA). The Deputy President found that the respondent was entitled to issue a notice of breach and that the covering email, whilst misleading, was neither unlawful, improper, negligent nor unfair. That is, the email was misleading as it referred to a phone call when the applicant’s hearing disability had been noted and the file marked to the effect that phone calls should not be made. Insofar as the applicant otherwise challenged the event log, the Deputy President agreed with the conclusion of the Senior Member that there was no evidence to demonstrate falsification “in any way”.
Finally, insofar as the applicant argued that the respondent had otherwise acted unlawfully, relying upon s 256 of the Criminal Law Consolidation Act 1953 (SA), the Deputy President rejected that contention, noting that the Senior Member had relied upon Hatty v Pilkinton (No 2)[6] and Meissner v The Queen.[7]
[6] Hatty v Pilkinton (No 2) (1992) 108 ALR 149.
[7] Meissner v The Queen (1995) 184 CLR 132.
The Deputy President concluded that the original order made by the Senior Member was the correct or preferable decision and, in those circumstances, though the Deputy President granted leave to pursue the review, the complaint was ultimately dismissed. The Deputy President affirmed the decision under review.
The respondent’s submissions
The respondent maintains that the applicant’s complaint is misconceived and conducted in a manner which was at times scandalous. It is contended that leave to appeal should be refused because the grounds of appeal do not demonstrate prospects of success: there was no evidence which came close to justifying the disciplinary allegations.
The respondent submits that it should not be further vexed in circumstances where the allegations made by the applicant have been found to be baseless. Indeed, the respondent respectfully submits that the proceedings are vexatious and ought to be dismissed with costs.
Disposition of the application for leave to appeal
In our view, the applicant was shown very considerable courtesy and consideration during the course of two lengthy and detailed hearings before the Tribunal. He raises no issue of principle nor any arguable error in the reasons of the Senior Member or of the Deputy President.
The application for leave to appeal is without merit and vexatious.
There is no utility in granting an extension of time.[8] The application for leave to appeal is dismissed. There will be an order for costs in favour of the respondent in the sum of $1,500.[9]
[8] Jackamarra v Krakouer (1998) 195 CLR 516, 518-521 (Brennan CJ and McHugh J).
[9] Atkins v District Council of Coober Pedy [2021] SASCA 6, [14] (Kelly P, Livesey and Bleby JJA).