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 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?
After an analysis of each of these issues, her Honour concluded that the determination of the landlord’s application for vacant possession required an exercise of federal judicial power that the Tribunal did not have the authority to undertake; that the Tribunal thus did not have jurisdiction to make the order for vacant possession of 14 May 2018, such that the order made was void and of no effect; and that the Tribunal therefore also did not have power to undertake the application for internal review. Her Honour made consequential orders dismissing the application for internal review, and, to the extent required, setting aside the order for vacant possession.
In arriving at the above outcome, her Honour’s reasoning included conclusions to the effect that:
1.the power exercised by the Tribunal in determining residential tenancy disputes is judicial rather than administrative in nature;[4]
2.SACAT is a tribunal and not a court;[5]
3.hearing and determining a residential tenancy dispute between residents of different States would enliven the federal diversity jurisdiction that only a court invested with federal jurisdiction was capable of exercising, pursuant to ss 75(iv) and 77(iii) of the Constitution;[6] and
4.consequently, the Tribunal has no jurisdiction to hear and determine residential tenancy disputes between residents of different States.[7]
[4]    Raschke v Firinauskas [2018] SACAT 19 at [34].
[5]    Raschke v Firinauskas [2018] SACAT 19 at [89].
[6]    Raschke v Firinauskas [2018] SACAT 19 at [92].
[7]    Raschke v Firinauskas [2018] SACAT 19 at [102].
The President’s reasoning ultimately involved an application of Burns v Corbett,[8] in which the High Court held that a State law that purports to confer judicial power in a State tribunal to determine disputes between residents of different States is inconsistent with Chapter III of the Constitution, and is to the extent of that inconsistency invalid. The President’s reasoning involved a rejection of the Attorney-General’s submissions below to the effect that in determining questions under the RT Act, the Tribunal exercises administrative rather than judicial power, such that the jurisdictional limitation identified in Burns v Corbett does not arise, and the Tribunal is empowered to determine applications that involve residents of different States.
[8] Burns v Corbett (2018) 92 ALJR 423.
The proposed appeal
On 5 July 2018, the Attorney-General filed a notice of appeal against the President’s orders of 5 June 2018. The proposed ground of appeal is articulated in the following terms:
The ground of appeal is that the learned President erred in characterising the exercise of the Tribunal’s functions under the Residential Tenancies Act 1995 (SA) (“RTA”) as involving the exercise of judicial power, leading to the erroneous conclusion that the Tribunal (not being a court of the State) did not have jurisdiction to determine a tenancy dispute under the RTA involving residents of different States. In particular:
1.The learned President erred by failing to conclude that the Tribunal’s powers under the RTA involve the regulation of the future conduct of the parties to a dispute by setting their rights and liabilities for the future through the exercise of administrative discretions.
2.The learned President erred in concluding that the orders of the Tribunal under the RTA were binding, authoritative and enforceable.
3.The learned President erred in concluding that the practices and procedures of the Tribunal under the RTA were consistent with the exercise of judicial power.
4.The learned President erred in failing to give effect, or adequate effect, to the “chameleon” principle enunciated in R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 which provides that a power not being exclusively judicial will take its character as administrative or judicial depending upon the nature of the body upon which it is conferred.
Leave to appeal
Under s 71(1)(a)(i) of the SACAT Act, an appeal from a decision of the Tribunal constituted of a presidential member of the Tribunal lies to the Full Court of the Supreme Court. Under s 71(2) the appeal lies only by leave of the Supreme Court.
Having intervened under s 55 of the SACAT Act, the Attorney-General became a party to the proceedings before the Tribunal by reason of s 53(1)(e) of that Act. The Attorney-General is thus entitled to bring the proposed appeal, but subject to obtaining leave to appeal.
The procedure governing an application for leave to appeal to the Full Court is set out in r 289 of the Supreme Court Civil Rules 2006 (SA), which provides as follows:
289—Appeals to the Full Court – Manner of seeking permission to appeal
(1)     When permission to appeal is required and the appeal will, if permission is granted, be heard by the Full Court, the appellant may seek permission to appeal—
(a)     by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary permission;
(b)     if the appeal is against a judgment of a single Judge or Master of the Court, by making, within 14 calendar days of the judgment, application to that Judge or Master for permission to appeal; or
(c)     if the appeal is against a judgment of the South Australian Civil and Administrative Tribunal or the South Australian Employment Tribunal and an appeal lies with leave of the Court to the Full Court by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary leave;
(2) An application for leave to appeal under subrule (1)(c) is to be heard and determined in the first instance by a single Judge;
(3)If an application under subrule (1)(b) is refused, the appellant may renew the application to the Full Court by commencing, within 5 business days of the refusal, an appeal in the ordinary way under rule 290 and by including in the notice of appeal a request for the necessary permission.
(4)If an application under subrule (2) is refused, the appellant may renew the application to the Full Court by interlocutory application filed within 5 business days of the refusal. The appellant must, within 2 business days after filing the interlocutory application, serve a copy on all parties to the appeal.
In conformity with r 289(1)(c) the Attorney-General filed a notice of appeal in the ordinary way, and included in the notice of appeal a request for leave to appeal. Under r 289(2), the application for leave to appeal is to be heard and determined in the first instance by a single Judge of this Court.
While the Attorney-General’s notice of appeal was filed within time, the application for leave to appeal was only recently allocated to me. I assume this timing was a result of the Attorney-General having only filed a summary of argument and application book on 2 October 2018.
The summary of argument seeks an extension of the time within which to file the summary of argument and application book. The premise of this request is an understanding that these documents were required to be filed under r 290(1)(c) within 14 days of the filing of the notice of appeal. However, as the Attorney-General’s application for leave to appeal falls to be considered by a single Judge in the first instance, I do not think that rule applies. That rule is expressed to apply in the case of an application for permission to appeal to the Full Court that is to be considered by the Full Court. It is r 291 that governs the procedure for an application for permission to appeal to the Full Court that is to be considered by a single Judge. In particular r 291(2) provides that in the case of an application under r 289(1)(c) to a Judge for leave to appeal to the Full Court against a judgment of SACAT, it is to be made in accordance with that rule, with the application to be supported by an affidavit setting out the grounds of the application. It would appear that the notice of appeal and accompanying affidavit is all that is required. Accordingly, the Attorney-General was not in default of any requirement to provide a summary of argument and application, and so no extension of the time within which to do so is required.
In any event, even if an extension of time were required, I would grant it, given that the appeal and affidavit were filed within time, and adequately set out the nature of the matter and the proposed appeal. I am not aware of any prejudice that has been suffered by reason of the delay in the progress of this application.
Turning to the merits of the application for permission to appeal, the principles governing the application are the same as those that ordinarily govern an application for permission to appeal in the civil jurisdiction of this Court; namely, that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify appellate consideration.[9]
[9] See, in the context of appeals from decisions of the Tribunal, Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[20], as applied by the Full Court in Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3], Rose v South Australian Housing Trust [2016] SASCFC 115 at [3] and De Mills v South Australian Housing Trust [2017] SASCFC 85 at [7].
However, in applying these principles, because the Tribunal is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings.[10] And, as I have previously observed,[11] it follows from the above that this Court will not routinely grant leave to appeal from decisions of the Tribunal. The Court should not readily grant leave to appeal in cases where to do so will tend to undermine the legislative intention of the SACAT Act that tenancy disputes be dealt with by a specialist tribunal which is better equipped to deal with such disputes in a timely and cost efficient way. Granting leave to appeal too readily would tend to undermine this objective, and serve only to add a further layer of expense and delay.
[10] Ibid.
[11] Varricchio v Wentzel (2016) 125 SASR 191 at [37].
In this case the Attorney-General contends that permission to appeal should be granted because the proposed appeal raises a reasonably arguable question of law concerning the impact of the decision of the High Court in Burns v Corbett upon the capacity of State tribunals to determine residential tenancy applications brought between residents of different States; and because the issue is one of general importance warranting the attention of the Full Court.
While the principles governing determination of whether a body such as the Tribunal is exercising judicial or administrative power are relatively settled, their application in a particular context is not a straightforward matter. The President’s reasons include a detailed and careful analysis of the relevant principles and considerations; I have not been able to discern any obvious error or omission in those reasons. The President did not expressly mention the “chameleon” principle emphasised in the Attorney-General’s grounds of appeal, but has nevertheless reasoned in a manner consistent with that principle. On the other hand, as her Honour’s reasons demonstrate, the issue is a finely balanced one. Differing conclusions have been reached in respect of related issues arising in respect of the various broadly equivalent tribunals around the other jurisdictions of Australia. In the circumstances I am satisfied that the issue sought to be raised on appeal is reasonably arguable.
In addition to the appeal raising a reasonably arguable issue of law, I accept the Attorney-General’s submission that the issue is one of general importance warranting the attention of the Full Court. In the course of her Honour’s reasons, the President made reference to the issue under consideration potentially affecting about a dozen of the Tribunal’s matters per week. The affidavit filed in support of the application for leave to appeal on behalf of the Attorney-General explains that on 5 July 2018, the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 (SA) (the Bill) passed both Houses of the South Australian Parliament. Once it commences operation, the Bill will vest jurisdiction in the Magistrates Court of South Australia to hear and determine matters involving the exercise of federal diversity jurisdiction. According to that affidavit, if the President’s judgment is correct, this jurisdiction will include residential tenancy applications brought between residents of different States. The Attorney-General’s position is that the application of the Bill to residential tenancies has the potential to increase the cost, duration and complexity of residential tenancy disputes and will increase the workload of the Magistrates Court. In the circumstances I am satisfied that the appeal will raise not only an issue of principle or law, but also one which is of some public importance.
I should mention that the original parties to these proceedings, the landlord and tenant, appear to have reached a resolution of the issues between them following the decision of the President. Accordingly, neither has any interest in the proposed appeal. While this consideration gave me to cause to reflect before granting leave to appeal, I consider that the Attorney-General’s interest, and the general public importance, in the issue sought to be raised is sufficient to justify a grant of leave. While in one sense the other parties’ lack of interest in the issue sought to be raised suggests this may not be the best vehicle for determination of the issue, I bear in mind that this matter was specifically selected and treated below as a suitable vehicle for the present issue to be resolved. Further, the fact remains that the Attorney-General was a party below, and the decision below went against the Attorney-General, giving her a right of appeal. In my view, this is sufficient to establish that there remains a lis or matter to be determined, despite the lack of interest on the part of the respondents. There is some support for this view in the High Court’s decision to grant special leave to appeal in Attorney-General (Cth) v Alinta Ltd.[12]
[12] Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at [63]-[68] (Hayne J, with whom Gleeson CJ agreed at [1]), [103]-[104] (Heydon J), [148]-[149] (Crennan and Kiefel JJ) and [26]-[33] (Kirby J dissenting).

The Attorney-General has indicated that if leave to appeal is granted, she will meet the reasonable costs of a contradictor to ensure that the issues raised by the appeal are properly ventilated before the Full Court. I was informed that steps have already been taken to retain suitable counsel to appear as amicus curiae on the appeal. In my view, this is appropriate given the other parties’ lack of interest in the proceedings. It reflects the approach taken by the High Court in Attorney-General (Cth) v Alinta Ltd.
In summary, the issue sought to be raised on appeal is reasonably arguable and of sufficient importance and substance to warrant a grant of leave to appeal. Accordingly, I make the following orders:
1.Leave to appeal granted.
2.The grant of leave is conditional upon the Attorney-General arranging and funding appropriate counsel to appear as amicus curiae and contradictor on the appeal.
3.I grant liberty to apply to my chambers for an order appointing amicus curiae once identified and arranged, and in respect of any issues that might arise out of the service of, and responses to, the notice of these proceedings served on the various Attorneys-General for the Commonwealth and other States under s 78B of the Judiciary Act 1903 (Cth).