Bilaczenko v Hosking & Mole No. DCCIV-02-591

BILACZENKO -v- HOSKING & MOLE
[2003] SADC 591
Judge Robertson
Administrative and Disciplinary Division
Appeal

This is an Appeal by the appellant (Landlord) against the orders of the Residential Tenancy Tribunal made on 1 November 2002. The Residential Tenancy Tribunal on that date made the following orders:
·First, that orders of the Tribunal made respectively on 20 January 2001, for payment by the Tenants of the sum of $166.20, and on 31 July 2001, for payment by the Tenants of $200.07, be set aside;
·Secondly (after rehearing the issues arising in those earlier orders) that the Tenants have no liability to the Landlords with respect to those claims.
The claims made by the Landlord, the subject of the earlier orders for compensation, were:
·    the sum of $166.20 for water rates;
·   the sum of $50.07 for the replacement of a broken door handle;
·   the sum of $150 for repairs to a broken bathroom window.
In his Notice of Appeal dated 11 November 2002 the Landlord complained that as he had registered the orders in the Adelaide Magistrates Court and the Local Court of the Northern Territory, then the Residential Tenancies Tribunal had no jurisdiction to set those orders aside.
In a document entitled “Outline of Appellant’s Appeal” filed on 10 June 2003, the Landlord sought, what he described as, “pre-trial specific rulings”. The questions he identified as pre-trial rulings are as follows:-
“(1)Is the correct judicial process for the Tenants conveyance of justice in Adelaide respect to prior Tribunal orders registered in the Local Darwin Court and Magistrate’s Court an application for leave to be granted by a Magistrate pursuant to Section 40 (appeals) to the Magistrate’s Court Act and Rules 1992 and the Registered Judgments Act, Section 17 or is the Tenants avenue for conveyance of dissatisfaction of leave not been given to further make application to the Tribunal under Rule 30 and Rule 37 of the Act 1995.
(2)Does the Commonwealth Act No. 172, the Services of Executors to Process Act, 1982 Part 4, entitled “Tribunal” apply to the Residential Tenancies Tribunal as part of the national uniform standard of the Courts and Tribunal Practice Guidelines for service, if so does Section 53 of the Act provide the appearance of the Tenants to be set aside when the address for service is false or misleading. Then what is the legal affect to that ruling should the Landlord appeal to the District Court, could not be served upon the Tenants.
(3)The Residential Tenancies Lease Agreement Contract with the Registrar’s seal of 2^nd October, 2002 taken from the case file is inadmissible as evidence.
(4)Does then Section 115 of the Tenancies Act 1995 Clause B, empower the District Court where it is shown and proved that the Contract was entered for the appearance of impropriety that a maximum $8,000 penalty be imposed.
(5)Does the Residential Tenancies Tribunal have the authority to refuse the Landlord’s Application of 16^th May for request to release the disc of recording of hearing of 25^th October, 2002 and Master Rice’s orders delivered on 13^th May, Item (1) for that request on the Landlord’s behalf.
(6)What is the legal effect and consequences of the Tribunal member making specific ruling to conceal the Tenant Ms Hosking’s residential address for service, contrary to Section 53 of the Services of Executions of Process Act 1982 No. 172 (C.T.H.) where the avenue of the Landlord’s right of appeal lies in the District Court when Ms Hosking has no fixed address for service of the District Court notices.
(7)My further questions to the presiding Judge Bishop and I quote the first line of the Tribunal member’s reasons to overturn delivered on 1^st November, 2002 which states Ms Hosking’s application for review was lodged on the 2^nd October, 2002. The Landlord’s question is what date did the Tenant, Ms Hosking, lodge that application to the Residential Tenancies Tribunal when the Registrar’s Seal shows 30^th September, 2002.
(8)As to the question when did the Tenants finally vacate the rental property, was it 28^th November, 1^st December or when the term of the Lease Agreement ended on 8 December 2000.
(9)The Tribunal’s delivered reasons of 1^st November, 2002, Page 2, second paragraph states Ms Hosking gave sworn evidence that she finally vacated the premises, namely Saturday 1^st December, 2000. On Page 5, under the heading “Water Rates” refers to a Residential Tenancies Agreement Contract provided, which neither parties dispute, and that Contract provides the term of the Lease expired on 8^th December, 2000.”
This document was first presented before another Judge of this Court. It has been difficult to determine the status of the questions set out. At one point during one of the hearings before me, I thought the Landlord was suggesting that these questions were the issues he wished to have determined in the Appeal and that he was abandoning the terms of his Notice of Appeal of 11 November 2002. Furthermore, at the hearing on 22 July 2003, at one point I thought the Landlord was indicating he wished to abandon his appeal as he argued that not only did the Residential Tenancy Tribunal not have jurisdiction to make the determination but this Court, as a result, does not have jurisdiction to determine the Appeal. In the end I reached the conclusion that he still wished to maintain the Appeal. I have to confess that I have had difficulties, from time to time, in understanding what position the Landlord was taking. However, in the end, as I have said, I have concluded that the Landlord wishes to continue to prosecute the Appeal. I therefore propose to deal with the question of jurisdiction raised in his Notice of Appeal.
It is not in dispute that the Landlord registered the orders of the Residential Tenancies Tribunal of 10 January 2001 and 31 July 2001 in the Local Court of the Northern Territory and the Adelaide Magistrates Court. The orders were registered pursuant to Section 36 of the Residential Tenancies Act 1995 (“the Act”) which provides that an order of the Tribunal may be registered in an appropriate court and enforced as an Order of that Court. The Tenants, who have been living in Northern Territory, on learning that the orders were registered in the Local Court made an application to the Local Court to set the orders aside. The application failed. The Court’s refusal to set aside the orders was the catalyst which led the Tenants to bring the application in the Tribunal to set aside the orders of 10 January 2001 and 31 July 2001.
The application to set aside the Tribunal’s orders were brought pursuant to Section 37 of the Act which provides:-
“37(1). A party to proceedings before the Tribunal may apply to the Tribunal for an order varying or setting aside an order made in the proceedings”.
In making the order setting aside the earlier orders, the Tribunal exercised its power under Section 38(1) of the Act which provides :-
“38(1). In proceedings the Tribunal may –
(f) vary or set aside an order if the Tribunal considers there is proper grounds for doing so”.
The Landlord’s submissions were to this effect:
· First, that at the time the application to set aside was lodged by the Tenants, there were no proceedings before the Tribunal so the application lodged and presented by the Tenants were incompetent;
· Secondly, in any event, that once the orders were registered in “an appropriate court” then it was that Court which had jurisdiction with respect to the orders and as a result the Tribunal had no jurisdiction.
In my view at the time that the application to set aside the orders was lodged and prosecuted, there were “proceedings” in the Tribunal, being those in which the orders were made and therefore the Tenants as a party to those proceedings were entitled to make the application pursuant to Section 37. If the Landlord’s submission is correct then no party to proceedings could bring any application pursuant to Section 37(1)(f) once the Tribunal had made an order disposing of the issues in the proceedings. For example, if the Tribunal made orders for payment of outstanding rent on an application of the Landlord, where the Tenants failed to appear through no fault on their part, then, if the Landlord’s submission is correct, the Tribunal would have no power to entertain an application to set aside that order. I do not accept that the Landlord’s contention accords with a proper construction of the Act. Accordingly I reject the submission.
I now turn to the second of the Landlord’s submissions. In my opinion it was never the intention of Parliament that where there is an exercise of the rights or power pursuant to Section 36 of the Act, and an order is registered in an appropriate Court then the Tribunal would no longer have the jurisdiction to exercise the power provided by Section 32(1) (f). Section 36 can be described as “an enabling” or a “procedural power”. There is no power in the Act for a party to enforce a monetary or compensatory order of the Tribunal. Accordingly, Parliament has provided, through Section 36, a mechanism to enable a party to enforce such an order by permitting the order to be registered in an appropriate court.
As I said, it could never have been the intention of Parliament, that the powers of the Tribunal to deal with its orders would be expunged upon registration of the order in a court. This point can be illustrated by the events which have occurred here. If the Landlord’s submission is correct then when the Tenants applied in the Northern Territory Local Court to set aside the registered order it would have been necessary for that Court to reconsider issues considered by the Tribunal and exercise the powers arising from the South Australian Residential Tenancies Act. This cannot be right.
In my view, the Tribunal had jurisdiction and power to consider the application of the Tenants and to make an order setting aside the previous orders of the Tribunal.
Before I leave this topic there are two further submissions by the Landlord which I need to address. It was submitted that if the Tribunal does have power and exercises it, then the incongruous situation arises where the order or orders of the Tribunal have been set aside but the orders still remain in the court or courts where they have been registered. This point was raised in support of the proposition that the Tribunal has no jurisdiction.
It is true that if the Tribunal sets aside an earlier order of the Tribunal which has been registered in an appropriate court, the registered order still remains extant. However, it would be open to the Tenants, if the Landlord attempted to enforce the order or orders, to apply to have them set aside on the basis that the Tribunal had made a setting aside order. Whilst this appears to be a clumsy procedure it does not persuade me that the Landlord’s contention is correct.
The Landlord also submitted that once the order became registered in the Adelaide Magistrates Court, then it became a minor civil action within the meaning of that term in Section 3 (1) and (2) of the Magistrates Court Act 1991 and accordingly the only procedure available to the Tenants was to seek a review in the District Court pursuant to Section 38 of that Act.
Section 3(2) of the Magistrates Courts Act defines “a minor civil action” as:-
“(a) a small claim; or
(b) a claim for relief in relation to a neighbourhood dispute; or
(c)a minor statutory proceeding”.
Each of these terms are also defined in Section 3(1) of the Magistrates Court Act.
In my view the registering of an order under Section 36 of the Act does not cause it to become a minor civil action. Such an order does not come within the meaning of that term as it is extended by the definitions of the terms to which I have made reference. The submission is totally misconceived.
Finally I come to the questions to which the Landlord seeks responses, which I identified earlier in these Reasons. As I mentioned earlier, it is difficult to determine the status (if any) that these questions have with respect to this appeal. There appears to be no order indicating that the grounds of appeal have been amended to include the questions. Even if it is assumed they are to be considered as part of the appeal, none of them appear to raise issues or be relevant to the decision of the Tribunal of 1 November 2002 other than the first item which appears to raise the issue of jurisdiction which I have already considered. As a result of the view I take of these questions I do not propose to give further consideration to them.
Before I conclude there is a further matter I need to address. At the last hearing on 22 July 2003, there was an application before me, brought by the Landlord, seeking that I disqualify myself. During the course of the hearing, I asked the Landlord on more than one occasion, to furnish the grounds upon which he sought my disqualification. I never received a direct response to my enquiries. I am unaware of any basis upon which I would need to disqualify myself. If the basis of the application is bias or apprehended bias then I am not aware of any circumstance which would require me to accede to such an application.
For the reasons I have expressed the appeal is dismissed. Accordingly, I confirm the decision of the Tribunal.

[2003] SADC 106

25 July 2003