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 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.
The Member made findings and issued directions following the hearing on 14 February 2018. He found that because the appellant had concurrent proceedings on foot in the Magistrates Court there was a risk of conflicting findings and conflicting determinations. The Member noted that the Magistrates Court could, in certain circumstances, exercise the powers of SACAT to hear and determine a tenancy dispute.[1] He also noted that the Magistrates Court has jurisdiction to hear claims beyond the jurisdiction of SACAT. The Member suggested that it appeared that the Magistrates Court could hear and determine all of the claims made by the appellant.
[1] SACAT and the Magistrates Court do not have concurrent jurisdiction in tenancy disputes. Subject to what follows, s 24(1)(a) of the RTA confers exclusive jurisdiction on SACAT to hear and determine tenancy disputes. However, the conferral of exclusive jurisdiction under s 24 is subject to a monetary cap of $40,000 unless the parties give written consent. If a monetary claim exceeds $40,000 that claim, and any other claims related to the same tenancy, may be brought in an appropriate court. In that event, the court may exercise the powers of SACAT. The grounds upon which costs may be awarded by a court in such a case are restricted. Additionally, under Part 3A of the SACAT Act, the Magistrates Court may also exercise the powers of SACAT in respect of tenancy disputes where a party resides interstate, i.e. diversity jurisdiction. In practice, a senior member of SACAT hears such claims as an auxiliary magistrate.
The Member adjourned the matter pending the resolution of the proceedings in the Magistrates Court and gave directions to ensure that SACAT was kept informed of the outcome of the proceedings in that Court. The Member also directed that SACAT “may make further directions or orders in this application, including orders determining the tenant’s application, either on the application of one of the parties, or on its own initiative, and either with or without a further hearing.” The Member rejected an application by the agent for an order restraining the appellant from sending abusive communications to it on the basis that SACAT lacked jurisdiction to make such an order.
The amended claim
At some point the appellant discontinued the proceedings in the Magistrates Court and advised SACAT of that fact.
On 26 February 2018 the appellant filed an amended claim in SACAT. The amended claim was accompanied by a document described as a “file of pleadings” of more than 140 pages in length.
The amended claim comprised 18 pages and also included multiple annexures in addition to the “file of pleadings”. While much of the amended claim is expressed in extravagant language and includes a mixture of evidence and submission, the core of the document appears at Part 8 under the heading “The revised complaint at hand for SACAT”.
The appellant sought relief in Part 8 of the amended claim to the following effect:
8.1    Claim for reimbursement of work done by him to the value of $8,751.53.
8.2Full reimbursement of the rent paid to that time, being four months, due to the house being uninhabitable. The amount claimed was $7,360. In the alternative, the appellant sought a four month rent free extension of the tenancy agreement.
8.3Compensation for disruption and inconvenience, including time spent preparing for his action in the Magistrates Court and in SACAT.
8.4Loss of income while they waited in the house for repair contractors to attend. The amount claimed was $4,800 directly and $20,000 per month indirectly from sales lost on eBay.
8.5    This clause comprises the alternative referred to at 8.2 above.
8.6“Relief of the terms and conditions of the parts of the lease contract that were not executed and all it implies. No liability.”
8.7    Repair of defects that are required to be fixed under the RTA.
8.8“As to the plaintive [sic], acting on his own to grant the request of the defendant, the same effect of an intervention order, an email address and represented of RWAG [the agents for the landlord] for ongoing matters till the end of the lease.”
8.9The appellant sought a written apology from the employee of the agent arising from an allegation that she had corruptly recorded information in the agent’s trust ledger report so as to aid the eviction of the appellant.
8.10 The plaintiff “does not accept the annulment of the lease agreement.”
8.11 The annexure to the lease agreement prepared by the agent is misleading          and illegal.
8.12 The appellant apparently suggests that the records kept by the relevant      employee of the agent are a “book of lies”.
8.13 “The credibility of the tenant.”
The appellant limited his claim to the SACAT monetary limit of $40,000 in tenancy disputes, but also referred to the proposed lodgement of a further claim in the Magistrates Court for compensation exceeding $40,000.
The dismissal of the claim
The matter came before the Member again on 29 March 2018. The Member referred briefly to the history of the matter and noted the contents of multiple email messages sent by the appellant to the agent. Much of this correspondence concerned a dispute about the insistence by the appellant that he would not allow the agent to conduct an inspection without it being filmed by a television station. The appellant also asserted that he had installed an extensive audio and visual recording system in the house and grounds and would record the inspection. Some of the language used by the appellant in the correspondence was inflammatory and inappropriate. The Member also referred to a letter addressed to the appellant from the solicitor acting for the agent complaining about his alleged conduct towards the agent and its employees. The letter referred to a police attendance upon the appellant in relation to that matter.
In light of that correspondence, the Member observed that any relationship of trust or cooperation between the parties had disintegrated. The Member also referred to the fact that the appellant may have breached the tenancy agreement by refusing access to the landlord or agent. However, the Member concluded that, as there had been no application made for an order terminating the agreement, SACAT could not deal with that issue.
The Member referred to the claims made by the appellant in paragraph 8 in his amended claim. He concluded that the application was “misconceived or lacking in substance” under s 48 of the SACAT Act. The Member also found that the evidence indicated that the landlord, through its agent, had acted reasonably diligently in response to the various complaints made by the appellant for maintenance of the property.
The Member further found, in light of the correspondence sent by the appellant to the agent, that the application by the tenant was “being used for an improper purpose” or “is otherwise an abuse of process” within the meaning of s 48. The Member concluded that even if the appellant had a substantive claim, the manner in which he had dealt with the agent in the course of these proceedings amounted to the use of the proceedings for an improper purpose and/or an abuse of process. For these reasons, the Member recorded that “the Tribunal, on its own initiative, dismisses the application.” It is of fundamental importance that this order was made on the papers without the parties being required to attend. The only attendance of the parties prior to this order occurred on 14 February 2018.
The internal review
On 31 March 2018, the appellant sought internal review under s 70 of the SACAT Act of the dismissal of his claim. The application for internal review extended to 13 pages. It included a great deal of material that was expressed in extravagant terms or that was irrelevant to the decision under review. Nevertheless, the document did make clear that the appellant challenged the decision on the basis that he had not been given a hearing. The appellant also listed the various repairs and maintenance that he alleged had not been undertaken in a timely way. He supported those contentions with a chronology. For example, he contended that dangerous live exposed electrical wires in the garage were not fixed for 17 weeks and various other matters were not dealt with for periods ranging from four weeks to eight weeks. The appellant sought “one claim for mechanical compensation” in the sum of $40,000 in respect of these various claims. [2]
[2] It is not known what the appellant meant by “mechanical compensation”.
The appellant concluded his written submissions with the statement that “we do expect to be paid for a fair day’s work, pay the $8,751.53 plus interest contracts owed”. He was also seeking compensation for loss of income and for the failure to provide him with full use of the property. He stated that he no longer wished to remain in the property, was not seeking to renew the tenancy, did not seek compensation for failure to renew the tenancy and no longer requested the repair of any defects in the property.
The appellant also stated in his written submission that he suffered from acute post‑traumatic stress disorder and “chronic anxiety stress panic attack disorder”. The Court also notes that the appellant has stated several times that he suffers from dyslexia. The obvious difficulties that he has with written communication appear to be consistent with that condition. Furthermore, the appellant has difficulties with hearing despite use of hearing aids.
On 19 April 2018, the President of SACAT issued directions concerning the conduct of the internal review. Her Honour directed that the internal review was to be set down for a hearing of 90 minutes. The appellant was to put submissions before SACAT only relating to the dismissal of the original application on the grounds that it was frivolous, vexatious or improper. Her Honour further directed that the respondents were entitled to make submissions on the correctness of the original application made by the appellant. Her Honour concluded with the direction that, if the appellant failed to comply with these directions, the internal review may be dismissed without further notice or hearing.
The appellant and two representatives of the agent appeared before the President at a hearing on 7 May 2018 to make submissions. The appellant also gave evidence.
The agent submitted on behalf of the landlord that the Member had correctly dismissed the application as it related to a personal vendetta that the appellant had against the agent rather than issues arising out of the tenancy agreement. The submission was supported by reference to abusive email messages sent by the appellant to the agent, which also included threats of litigation. In essence, the agent submitted that SACAT had no option but to dismiss the application at first instance on the grounds stated by the Member.
The appellant gave evidence relevant to the finding that the proceedings were an abuse of process and conducted for an improper purpose. He conceded that he had used some inappropriate language in correspondence, but claimed that this was in response to threats of eviction and an assertion by the agent that action would be taken that would make it impossible for him ever to rent in Adelaide again.[3] The President noted that although the appellant’s grievance was largely directed at the agent, any legal right lay against the landlords.
[3] It is appropriate to note that Part 5A of the RTA regulates the use of residential tenancy databases and imposes criminal liability in some circumstances. SACAT is empowered by s 99L of the RTA to issue remedial orders, e.g. an order to correct or to withdraw an entry.
The President established that the appellant sought an order setting aside the dismissal of his application and that his claim for compensation be heard by SACAT. Her Honour observed that the substantive claim made by the appellant was contained in paragraph 8 of his amended claim. The majority of the issues referred to in paragraph 8 were either matters that SACAT did not have power to deal with or were meaningless.
Most importantly, the President observed that the Member had found that the appellant’s claim that the landlord had failed to meet its obligation to repair the premises was within the jurisdiction of the Tribunal and had been identified with sufficient clarity to permit it to be considered. However, the Member had nevertheless concluded in light of the voluminous documentary evidence that the landlord had acted with reasonable diligence to effect repairs. Her Honour found that the appellant’s amended claim and the documentary material, combined with what the Member had heard on 14 February 2018, left it open to the Member to determine the application for compensation without further oral submissions.
Her Honour also found that the balance of the amended claim did not disclose matters that were comprehensible as claims properly brought under the RTA. As SACAT had given the appellant the opportunity to be heard in person, it was open to the Member to conclude that a further hearing would not clarify the issues. The President concluded that the Member had correctly dismissed the claim on the grounds that it was misconceived or lacking in substance. Her Honour also found that the evidence did not support the Member’s conclusion that the appellant had instituted the proceedings for an improper purpose or that it was otherwise an abuse of process. The President affirmed the decision under review.[4]
[4] Atkins v Hughes [2018] SACAT 25.
The application for permission to appeal

On 10 July 2018, the appellant purported to appeal against the decision made by the President on 24 May 2018. Two matters require comment. First, the appeal was lodged outside the period of one month permitted under s 71(3) of the SACAT Act. The appellant sought that the delay be excused as it was caused by the various health issues referred to at [20] above. Secondly, s 71(2) provides that an appeal is with permission of the Court.
The appeal was treated as an application for permission to appeal and came before a single Judge of this Court on 4 September 2018. The Judge observed that most of the 18 grounds of appeal advanced by the appellant were misconceived. However, his Honour identified three arguable grounds of appeal against the decision of the President. In essence, the three grounds were as follows:
1That the claim and the amended claim were sufficiently intelligible insofar as they complained that the premises were not in a fit state of repair, that it could not be said on the face of the pleadings that the claims were frivolous, vexatious, misconceived or lacking in substance.
2Alternatively, it was reasonably arguable that if in fact the pleading was defective by not sufficiently identifying why the premises were not in a fit state of repair, that did not mean that the proceeding was frivolous, vexatious, misconceived or lacking in substance. It merely meant that the case had not been properly pleaded and the appellant should have been given the opportunity to lodge a substitute pleading that properly pleaded his complaints about the state of repair.
3It was reasonably arguable that it was inappropriate for the Member to attempt to determine the merits of whether the premises were in a fit state of repair without conducting a hearing when making such a determination on the s 48 application.
The Judge also observed that there was arguably confusion in the reasons of the Member between the adequacy of the pleading and the merits of the matter. It was also arguable that the same confusion applied to the decision of the President in so far as her Honour had affirmed the decision of the Member.
The Judge granted permission to appeal on the three grounds stated above, on the basis that the appellant had suffered sufficient prejudice from the dismissal of the proceeding to justify the grant of permission and had reasonably arguable grounds. There was also a point of general importance as to the circumstances in which SACAT could dismiss a proceeding under s 48 without proceeding to a hearing. His Honour directed that the appellant amend his notice of appeal to only refer to the identified three grounds. His Honour also refused permission to the appellant to seek the order referred to in paragraph 2.4 of his notice of appeal. The order sought in paragraph 2.4 was “that the original case be segregated and whereas diverted to Magistrates Criminal Court.”
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.
While the appellant was given the opportunity to make oral submissions before the President at the hearing on 7 May 2018, and had previously lodged written submissions, the directions given by the President on 19 April 2018 restricted the issues to be considered to the dismissal of the original application under s 48 of the SACAT Act. Although the President found that the Member had erred to some extent, her Honour did not address the failure by the Member to deal appropriately with the appellant’s various claims relating to repairs and nor did she deal with the denial of procedural fairness. On that basis, this Court upheld the appeal, set aside the President’s decision and remitted the matter to SACAT for further hearing.
The circumstances of this case highlight the need for any court or tribunal dealing with a claim made by an unrepresented party 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. Unfortunately, in this case the attention of SACAT to that question appears to have been distracted by the great volume of irrelevant and unmeritorious material submitted by the appellant and his pursuit of many claims that were clearly not within the ambit of the RTA and outside the jurisdiction of SACAT.
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.