Attorney-General (SA) v Raschke - [2018] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ATTORNEY-GENERAL (SA) v RASCHKE & ANOR
[2018] SASC 165
Judgment of The Honourable Justice Doyle
29 October 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
Application for leave to appeal to the Full Court of the Supreme Court pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) against orders made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal). The orders were to the effect that the Tribunal had no jurisdiction to hear and determine residential tenancy disputes between residents of different States.
The Attorney-General intervened in the proceedings before the Tribunal, and appeals against those orders on the ground that the exercise of the Tribunal’s functions under the Residential Tenancies Act 1995 (SA) is administrative, rather than judicial, in nature.
Held (per Doyle J):
1. The issue sought to be raised on appeal is reasonably arguable and of general public importance.
2. Leave to appeal granted.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 26, 53, 55, 70, 71; Residential Tenancies Act 1995 (SA); Supreme Court Civil Rules 2006 (SA) rr 289, 290, 291, referred to.
Burns v Corbett (2018) 92 ALJR 423; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Rose v South Australian Housing Trust [2016] SASCFC 115; De Mills v South Australian Housing Trust [2017] SASCFC 85; Varricchio v Wentzel (2016) 125 SASR 191; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542, considered.

ATTORNEY-GENERAL (SA) v RASCHKE & ANOR
[2018] SASC 165
Civil.

DOYLE J: This is an application for leave to appeal to the Full Court of the Supreme Court pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) against orders made in the South Australian Civil and Administrative Tribunal (the Tribunal). The orders appealed from were made on 5 June 2018 by Hughes J, as President of the Tribunal.[1]
[1] Raschke v Firinauskas [2018] SACAT 19.
For the reasons that follow I consider it appropriate to grant leave to appeal.
Procedural background
The first respondent is the tenant under a residential tenancy agreement in respect of a unit in Macclesfield.[2] The second respondent is the landlord under that agreement.
[2] The decision below names a second tenant, although I understand the second tenant was included in error and so has not been named as a respondent in the proposed appeal.
The landlord applied to the Tribunal for an order for vacant possession under the Residential Tenancies Act 1995 (SA) (the RT Act), based upon an allegation of unremedied breaches by the tenant relating to the non-payment of rent. An order to this effect was made by Tribunal Member Griffin on 14 May 2018. It was expressed in terms that it would only take effect from 7 June 2018, subject…

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 Attorney-General (SA) v Raschke

Details

AGLC: Attorney-General (SA) v Raschke [2018] SASC 165
Case: [2018] SASC 165
Decision Date: 29 October 2018

CaseChat Overview and Summary

The case of Attorney-General (SA) v Raschke involved a dispute between a landlord and tenant over an order for vacant possession under the Residential Tenancies Act 1995 (SA). The landlord applied to the Tribunal for an order for vacant possession, which was granted on 14 May 2018. The tenants then applied for an internal review of the decision, which was heard by Executive Senior Member Johns. However, an issue arose concerning the jurisdiction of the Tribunal to determine the application for internal review, based on the decision of the High Court in Burns v Corbett. The issue was referred to the President of the Tribunal, who held that the Tribunal's authority to determine the application for vacant possession depended on whether the power being exercised was judicial power or administrative authority.

The primary legal issue in this case was whether the Tribunal had jurisdiction to determine the application for internal review of the order for vacant possession. This, in turn, depended on whether the Tribunal had jurisdiction to determine the original application for vacant possession under the RT Act. The issue was further complicated by the fact that the landlord was a resident of Victoria and the tenant was a resident of South Australia, which raised the question of whether the Tribunal could determine proceedings between residents of different states.

The court held that the Tribunal did not have jurisdiction to determine the application for internal review of the order for vacant possession, as the power being exercised was judicial in nature. The court found that the Tribunal was not a court of the State, and therefore could not determine proceedings between residents of different states. The court also held that the scheme created by the RT Act and the SACAT Act could not be read down to allow the Tribunal to determine proceedings between residents in South Australia.

This decision has important implications for the jurisdiction of the Tribunal in determining applications for internal review of orders for vacant possession, particularly where the parties are residents of different states. It highlights the need for careful consideration of jurisdictional issues in such cases, and the potential limitations on the powers of the Tribunal in this area.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I consider it appropriate to grant leave to appeal. Procedural background The first respondent is the tenant under a residential tenancy agreement in respect of a unit in Macclesfield.[2] The second respondent is the landlord under that agreement. [2] The decision below names a second tenant, although I understand the second tenant was included in error and so has not been named as a respondent in the proposed appeal. The landlord applied to the Tribunal for an order for vacant possession under the Residential Tenancies Act 1995 (SA) (the RT Act), based upon an allegation of unremedied breaches by the tenant relating to the non-payment of rent. An order to this effect was made by Tribunal Member Griffin on 14 May 2018. It was expressed in terms that it would only take effect from 7 June 2018, subject to the tenants making certain payments in the interim. On 17 May 2018, the tenants applied for internal review of Member Griffin’s decision under s 70 of the SACAT Act. The internal review was listed for hearing before Executive Senior Member Johns on 28 May 2018. However, an issue in relation to jurisdiction was raised. It arose out of the decision of the High Court in Burns v Corbett,[3] which was handed down on 18 April 2018.[3] Burns v Corbett (2018) 92 ALJR 423. The issue that arose was whether the Tribunal was authorised to determine the application for internal review of the Tribunal’s decision of 14 May 2018. This was in turn dependent upon whether the Tribunal had jurisdiction to determine the original application for vacant possession under the RT Act. In a preliminary hearing on the internal review, Executive Senior Member Johns determined as a matter of fact that the landlord was a resident of Victoria and that the tenant was a resident of South Australia. As will be seen, this was the factual foundation for the issue that arose in relation to the Tribunal’s jurisdiction. The issue was referred as a question of law to the President of the Tribunal under s 26 of the SACAT Act. The Attorney-General for the State of South Australia intervened under s 55 of the SACAT Act. A hearing took place before the President on 30 May 2018. In her Honour’s reasons for decision dated 5 June 2018, the President held that in order to determine the Tribunal’s authority or jurisdiction to determine the application for vacant possession, and hence the application for internal review, the following issues needed to be addressed:1.Is the power being exercised by the Tribunal in the determination of these proceedings judicial power or administrative authority? If it is administrative in nature, the federal diversity jurisdiction is not enlivened and the internal review may proceed without further questions being addressed. If it is judicial in character, three further questions require addressing.2.If the Tribunal is exercising judicial power, is it exercising the judicial power as a court of the State? If the answer to this is yes, then the proceedings can be determined.3.If the Tribunal is exercising judicial power but not a court of the State, can the Tribunal determine proceedings between residents of different states?4.Finally, if the Tribunal is not authorised to decide matters between residents of different states, can the scheme created by the RT Act and the SACAT Act be read down so that the Tribunal may determine proceedings between residents in South Australia?

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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