Atkins v Hughes - [2019] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ATKINS v HUGHES & ANOR
[2019] SASCFC 49
Reasons for Decision of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)
14 May 2019
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
This is an appeal against a decision of the President of the South Australian Civil and Administrative Tribunal (SACAT) to affirm a decision under review made by a member. The Member had applied s 48 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) to dismiss an application on the basis that it was misconceived or lacking in substance, an abuse of process and being used for an improper purpose.
At the conclusion of the appeal hearing this Court made orders remitting for further hearing in SACAT the claim by the tenant that the landlord had failed to act with reasonable diligence to repair particular defects in the subject premises as allegedly identified in certain specified reports.
Held by the Court, allowing the appeal:
1. The failure to allow the appellant an appropriate opportunity to put his case resulted in a clear denial of procedural fairness (at [33]-[37]).
2. For any court or tribunal dealing with a claim made by an unrepresented party, there is a need to exercise particular care to consider carefully whether the claim may have some possible merit notwithstanding gross deficiencies in the manner in which the case has been presented (at [39]).
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 48, 70, 71; Residential Tenancies Act 1995 (SA) ss 24, 68, 99L, referred to.
Atkins v Hughes [2018] SACAT 25, considered.

ATKINS v HUGHES & ANOR
[2019] SASCFC 49
Full Court: Kourakis CJ, Kelly and Parker JJ

THE COURT: This is an appeal against a decision of the President of the South Australian Civil and Administrative Tribunal (SACAT) to affirm a decision under review made by a member. The Member had applied s 48 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) to dismiss an application on the basis that it was misconceived or lacking in substance, an abuse of process and being used for an improper purpose.
For the reasons that follow, at the conclusion of the appeal hearing this Court made orders remitting for further hearing in SACAT the claim by the tenant that the landlord had failed to act with reasonable diligence to repair particular defects in the subject premises as allegedly identified in certain specified reports.
Background
The appellant and his wife entered a residential tenancy agreement with the respondents on 10 October 2017. The tenancy agreement was due to expire on 4…

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 Atkins v Hughes

Details

AGLC: Atkins v Hughes [2019] SASCFC 49
Case: [2019] SASCFC 49
Decision Date: 14 May 2019

CaseChat Overview and Summary

The appeal concerned a dispute between a tenant, Mr Atkins, and his landlords, Hughes and others, regarding alleged breaches of a residential tenancy agreement and the *Residential Tenancies Act 1995* (SA). Mr Atkins had complained about the condition of the rented premises and sought various remedies, including rent refunds, reimbursement for repairs, and compensation for pain and suffering. The matter was heard in the South Australian Civil and Administrative Tribunal (SACAT) and subsequently appealed to the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether SACAT had erred in dismissing Mr Atkins' application without affording him a sufficient opportunity to present his case, and whether this failure constituted a denial of procedural fairness. The Court also considered the scope of the appeal, particularly in light of the grounds upon which permission to appeal had been granted.

The Court reasoned that while the SACAT Member had dismissed the application based on the available documentary evidence and a preliminary view that the landlords had acted with reasonable diligence, Mr Atkins had not been given an adequate opportunity to make oral submissions on the merits of his claim regarding the landlords' failure to meet their repair obligations under section 68 of the RTA. This was particularly important given the appellant's difficulties in presenting written submissions. The Court found that this failure to allow a reasonable opportunity to make relevant oral submissions resulted in a clear denial of procedural fairness.

Consequently, the Court allowed the appeal, set aside the decision of the President of SACAT, and remitted the matter to SACAT for a rehearing. The rehearing was to be restricted to determining claims arising from the condition of the premises and complaints about its state of repair as detailed in specific building reports. The Court clarified that any claims for personal injury were outside SACAT's jurisdiction and were to be pursued in the appropriate court.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, at the conclusion of the appeal hearing this Court made orders remitting for further hearing in SACAT the claim by the tenant that the landlord had failed to act with reasonable diligence to repair particular defects in the subject premises as allegedly identified in certain specified reports.Background The appellant and his wife entered a residential tenancy agreement with the respondents on 10 October 2017. The tenancy agreement was due to expire on 4 November 2018, but the agreement was terminated by mutual agreement on 13 August 2018. Over the course of the tenancy the appellant made a series of complaints about the alleged condition of the property. The respondents maintain that at all times they met their obligations under s 68 of the Residential Tenancies Act 1995 (SA) (the RTA) to keep the property in a reasonable state of repair and acted with reasonable diligence to have repaired those defects of which their agent had been notified.Proceedings in SACAT The initial claim lodged by the appellant in SACAT on 24 January 2018 alleged that the landlords had breached clauses 8.1 to 8.4 (inclusive) of the tenancy agreement. Clause 8 of the tenancy agreement refers, amongst other matters, to the obligation of the landlord to deliver the premises at the commencement of the term in a reasonable state of cleanliness, and to ensure that the property is in a reasonable state of repair at the beginning of the tenancy and to keep the property in that state having regard to its age, character and prospective life and also to abide by all the legal requirements regarding the buildings and health and safety. Clause 8 largely replicates s 68 of the RTA. In his initial claim, the appellant also sought orders from SACAT requiring that he be refunded all rent until the defects in the property were fixed, be reimbursed for emergency repairs that he had undertaken upon being commissioned to do so by the agent, and compensation for pain and suffering suffered by his whole family due to the allegation that an employee of the agent had corrupted the tenant trust ledger report and other documents. He also demanded an apology from the particular employee.The hearing on 14 February 2018 On 14 February 2018, the Member who made the later decision to dismiss the matter conducted a hearing and made orders concerning the future conduct of the proceedings. The transcript records that a substantial part of the hearing was spent discussing the claim that the appellant had lodged against the landlords in the Magistrates Court. The Member then discussed with the parties whether agreement could be reached to bring the tenancy to an end without the landlord seeking compensation for the early termination. The Member suggested that if that were to occur, the appellant would be entitled to pursue in the appropriate court his claims for personal injury and payment for the repairs that he had undertaken. The appellant was not prepared to enter into such an agreement. The Member then indicated a preliminary view that he should adjourn the matter pending the resolution of the claim in the Magistrates Court. The appellant responded by stating that he would file a notice of discontinuance in the Magistrates Court so as to allow the claim to be resolved in SACAT.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court stresses that any future proceedings in SACAT in relation to the present application by the appellant are to be restricted solely to the matters referred to in the orders set out in the following paragraph. The appellant is not entitled to pursue any other matter on the rehearing of his application in SACAT. Some of the photographs exhibited to the report prepared by the appellant dated 3 December 2017 depict what may possibly be personal injuries. Any claim for personal injury is not within the scope of the matters remitted to SACAT for rehearing and nor is it within the jurisdiction of SACAT. Any such claim may only be pursued in the appropriate court and in that respect the Court notes the advice from the respondents that there are personal injury proceedings on foot in the District Court. The Court also stresses that while it has upheld the appeal, any entitlement to compensation or other remedy is solely a matter for SACAT to decide in light of the evidence and submissions. Conclusion The time for lodgement of the appeal should be extended until 10 July 2018. At the conclusion of the hearing, the Court made orders in the following terms:1The appeal is allowed.2The decision of the President of the South Australian Civil and Administrative Tribunal is set aside.3The matter is remitted to a member of the South Australian Civil and Administrative Tribunal to determine any claim under the Residential Tenancies Act or the Residential Tenancy Agreement arising out of the condition of the rented premises and the complaints about its state of repair that appear in the building report of Paul Atkins dated 3 December 2017, the report of Peter Leader dated 26 December 2017 and the undated report of Jim’s Building Inspections arising out of an inspection conducted on 9 July 2018.

Ratio Decidendi

Legal Principle Established

The appellant lodged an amended notice of appeal on 28 September 2018. Unfortunately, the amended notice did not refer to the specific grounds upon which permission to appeal had been granted by the Judge. However, the first ground in the amended notice did refer to the landlords’ obligation to maintain the premises in a reasonable state of repair. The appellant further alleged that the respondents had failed to correctly execute the tenancy agreement and that the agent had perverted the course of justice by falsifying the tenant trust ledger report and falsified personal phone calls. Because these latter matters were outside the scope of the permission to appeal, they were not considered by the Full Court. Consideration Neither the appellant nor the respondents were represented in the hearing before the Full Court. Both parties filed written submissions. In large part, the respondents’ submissions complained about the failure of the appellant to adhere to the grounds upon which permission to appeal had been granted. Apart from that, the substance of the respondents’ submission was that neither the Member nor the President had erred in deciding that the appellant’s application was misconceived and lacking in substance. Their decisions were each based on voluminous evidence and oral submissions from the parties. Based on the statement by the appellant that he was attempting to make a current affairs program entitled “The land agent from hell”, the respondents also contended that the proceedings had been brought for an improper purpose. The contention by the respondents that the appellant had participated in an oral hearing prior to the dismissal of his application by the Member obviously relates to the initial hearing conducted on 14 February 2018. However, it is clear from the information set out at [6] to [8] above that the focus of that hearing was almost entirely upon the appropriateness of SACAT continuing to hear the matter while a claim relating to the same issues remained on foot in the Magistrates Court. Most importantly, the appellant was not given the opportunity on 14 February 2018 to make submissions about the merits of his contention that the landlords had failed to meet their obligation to effect repairs. After examining the documentary materials, the Member dismissed the appellant’s application as he was satisfied that the landlords, through their agent, had acted reasonably diligently to deal with the various complaints about repair of the property. The documentary material submitted by the applicant was very difficult to understand and deficient in many respects. Much of the material was also irrelevant to the compensation claim. There were also grounds to suspect that some of the claims made by the appellant were grossly exaggerated (e.g. the claim for payment at the rate of $418 or $500 per hour for repairs that he conducted) or were not within the scope of the RTA. Nevertheless, it was necessary for SACAT to give the appellant the opportunity to make submissions in support of his contention in paragraph 8 of his amended claim that the landlords had failed to meet their obligations under s 68 of the RTA and that he was entitled to compensation, including payment for the repair work he performed. The obligation to allow a reasonable opportunity to make relevant oral submissions was particularly important in this case because of the obvious difficulty the appellant had in presenting appropriate and meaningful written submissions. The failure to allow the appellant an appropriate opportunity to put his case resulted in a clear denial of procedural fairness.