Calabro v Beaudoin

[2021] SASCA 63

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

CALABRO v BEAUDOIN

[2021] SASCA 63

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)

23 June 2021

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - JURISDICTION

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION

Application for leave to appeal against a review decision of the South Australian Civil and Administrative Tribunal.

The appellant operated a rooming house in Felixstow. He and the respondent were parties to a rooming house agreement for the period between 21 October 2019 and 20 April 2020. This agreement followed the expiration of an earlier six-month rooming house agreement. The respondent is a citizen of the United States and was in Australia on a 12-month Work and Holiday visa. He has since returned to the United States.

The matter first came before the Tribunal on 10 March 2020, following a dispute leading to the termination of the agreement on 8 December 2019. The respondent asserted that the appellant had abandoned the premises, giving rise to the termination of the rooming house agreement. The appellant contended that he was unlawfully evicted from his room. The Tribunal Member found that the agreement had not been validly terminated. He rejected the appellant’s claims and awarded compensation to the respondent.

The appellant subsequently applied for an internal review of the decision, relying on fresh evidence. Justice Hughes refused permission to proceed on the basis that the appellant’s fresh evidence was inconsistent with his sworn evidence in the first instance.

The appeal against the review decision relies on two arguments directed at challenging the jurisdiction of the Tribunal to have heard and determined the matter at all. The first is that the Tribunal lacked jurisdiction to hear the dispute between the parties by reason of s 5(1)(c) of the Residential Tenancies Act 1995 (SA) (‘Residential Tenancies Act’), which provides that ‘an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday’ is excluded from the application of the Act. The second argument is that the Tribunal lacked jurisdiction to hear the matter due to the principles expressed by the High Court in Burns v Corbett (2018) 265 CLR 304.

Held (by the Court), dismissing the application for leave to appeal:

1. The matters identified by the appellant before this Court would not, on any view, overcome the presumption raised by s 5(1b) of the Residential Tenancies Act against the 'holiday exclusion' in s 5(1)(c) on account of the duration of the rooming house agreement, even if they were established.

2.  The interests of justice do not warrant Mr Calabro having an opportunity to mount a case asserting facts that differ entirely from the factual premise on which both claims were prosecuted and determined at first instance.

3. The respondent was not a resident of another State…