CALABRO v BEAUDOIN - [2021] SASCA 5

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CALABRO v BEAUDOIN
[2021] SASCA 5
Judgment of the Honourable Justice Livesey
4 March 2021

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
The applicant is the proprietor of a rooming house who entered into an agreement with the respondent, permitting the respondent to reside in the rooming house for a period variously described as between six and 12 months. The dispute between the parties centres on the circumstances in which the respondent’s residence came to an end.
The applicant complains about an order made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal) declining to grant leave to the applicant to bring an application for internal review pursuant to s 70(1a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
Before this Court, the applicant pursued an entirely new point: he contends that because the respondent was in Australia on holiday the Tribunal lacked jurisdiction to hear the matter because of the operation of s 5(1)(c) of the Residential Tenancies Act 1995 (SA). The question of jurisdiction that arises is whether the agreement with the respondent was “genuinely entered into for the purposes of conferring … a right to occupy premises for a holiday”.
Held per Livesey JA, referring the question of leave for argument as on appeal:
1. Other than in exceptional circumstances, the Court of Appeal will not ordinarily entertain new questions raised for the first time on appeal.
2. In circumstances where the question of jurisdiction has potentially significant implications for everyday practice of the South Australian Civil and Administrative Tribunal, the question of leave to appeal should be referred for determination by the Court of Appeal for argument as on appeal.
Residential Tenancies Act 1995 (SA) s 5(1)(c), s 3; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(1a); Supreme Court Act 1935 (SA) s 50(4)(b); Uniform Civil Rules 2020 (SA) r 212.3(1)(a)(ii), r 213.1(1)(a), referred to.
Chalmers v The Queen (2011) 37 VR 464; Cogman v Rochow [2020] SACAT 26; Federated Engine Drivers and Fireman’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; Fingleton v The Queen (2005) 227 CLR 166; Hazeldell v Commonwealth (1924) 34 CLR 442; Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; WorkCover v Davey (2011) 110 SASR 173, considered.

CALABRO v BEAUDOIN
[2021] SASCA 5
LIVESEY JA:

Introduction

This is an application for permission or leave to appeal pursuant to s 50(4)(b) of the Supreme Court Act 1935 (SA), ostensibly on the basis that it concerns a decision by a Presidential member of the South Australian Civil and Administrative Tribunal which was interlocutory in nature.
By rule 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA), the…

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 CALABRO v BEAUDOIN

Details

AGLC: CALABRO v BEAUDOIN [2021] SASCA 5
Case: [2021] SASCA 5
Decision Date: 4 March 2021

CaseChat Overview and Summary

The South Australian Court of Appeal considered an application for leave to appeal in *Calabro v Beaudoin*. The dispute concerned the jurisdiction of the South Australian Civil and Administrative Tribunal (SACAT).

The primary legal issue before the Court of Appeal was whether it should entertain new questions of jurisdiction raised for the first time on appeal, and if so, how such matters should be dealt with.

The Court, per Livesey JA, held that, as a general rule, new questions raised for the first time on appeal would not be entertained by the Court of Appeal, except in exceptional circumstances. However, given the potentially significant implications of the jurisdictional question for the everyday practice of SACAT, the Court determined that the question of leave to appeal should be referred for argument as on appeal. This approach allows for a more thorough examination of the jurisdictional issue.

Orders

Orders of the court

Held per Livesey JA, referring the question of leave for argument as on appeal:

1. Other than in exceptional circumstances, the Court of Appeal will not ordinarily entertain new questions raised for the first time on appeal.

2. In circumstances where the question of jurisdiction has potentially significant implications for everyday practice of the South Australian Civil and Administrative Tribunal, the question of leave to appeal should be referred for determination by the Court of Appeal for argument as on appeal.

Background

Background to the litigation

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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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