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 appellate jurisdiction of the Supreme Court is to be exercised by the Court of Appeal if the appeal is against a decision of a Presidential member of the South Australian Civil and Administrative Tribunal (the Tribunal). By rule 213.1(1)(a), leave to appeal is required against an interlocutory decision.
The applicant’s appeal
The applicant complains about an order made by the President of the Tribunal declining to grant leave for 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).
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.
At first instance, the applicant argued that the respondent had “abandoned” his residence. That case was explicitly rejected. The Tribunal found that the applicant purported to terminate the agreement with the respondent. At first instance, the Tribunal found that the applicant was liable to pay the respondent the sum of $1,329.00, of which $360.00 related to the repayment of a bond. The remainder was enforceable as a debt in the Magistrates Court.
When seeking an internal review before the President, the applicant pressed a new version of events: he had terminated the agreement by a notice of termination and he provided, it would seem for the first time, a sufficiently clear photograph of that notice to enable it to be read. The President noted that the notice was unsigned.
The President refused the applicant permission to put a new version of events which was inconsistent with his earlier version, finding that it would be an abuse of the Tribunal’s process for the applicant to re-run his case based upon a completely different account of events. The applicant had been provided with an adequate opportunity to put his case and these matters were within his own knowledge. In effect, the President declined to allow the applicant to ignore the way in which he had initially chosen to pursue his case in the Tribunal.
Otherwise, the President found that there was nothing in the submissions or evidence that the applicant sought to put before the Tribunal which suggested that it would be wrong to allow the original decision to stand.
Accordingly, she dismissed the application for internal review.
The applicant’s new case
Before this Court, the applicant now pursues an entirely new point. He now says that 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 Act). By that provision “an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday” is expressly excluded from the application of the Act.
The applicant points to evidence from the respondent that he is a citizen of the United States of America and, at the time of the Tribunal proceedings, he was in the tenth month of a 12-month working holiday visa. He has since returned to the United States.
Though the applicant relies upon the decision of Cogman v Rochow, it is doubtful whether that decision assists in determining the question of jurisdiction in the circumstances of this case.[1] Cogman v Rochow concerned a purported residential tenancy agreement pursuant to which the respondent claimed to be in the “accommodation business”. The respondent had leased premises from the applicant “for the purposes of attracting other people to stay at the premises”. Ultimately the Tribunal member decided that the agreement was not entered into for the purposes of conferring upon the respondent any right to occupy the premises for residence. The definition of a “residential tenancy agreement” under s 3 of the Act includes a rooming house agreement:
An agreement (other than rooming house agreement) under which a person grants another person, for valuable consideration, a right (which may, but need not, be an exclusive right) to occupy premises for the purpose of residence.
(footnote omitted)
[1] Cogman v Rochow [2020] SACAT 26, [9]-[10] (Member Kenney).
Accordingly, the question of jurisdiction in this case is this: was the agreement with the respondent “genuinely entered into for the purpose of conferring … a right to occupy premises for a holiday”?
Leave to appeal
The question of jurisdiction was not raised in the Tribunal. Ordinarily, other than in exceptional circumstances, this Court will not entertain new questions raised for the first time on appeal.[2]
[2] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481.
However, the appellant is unrepresented and has raised, albeit belatedly, a matter going to jurisdiction. It has often been said that jurisdiction “cannot be conferred by consent”.[3] As Leeming JA has however explained, a distinction must be drawn between subject matter and personal jurisdiction and only the former may be “the true focus of the adage”.[4] It follows that any concession about jurisdiction does not bind the court,[5] and the court may raise the issue of its own motion.[6] It has also been said that “the first duty of every judicial officer is to satisfy himself that he has jurisdiction”,[7] and that it “is as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy”.[8] Nonetheless, where jurisdiction is not raised, “very slight inquiry may be adequate”.[9]
[3] See, for example, WorkCover v Davey (2011) 110 SASR 173, [41]; Chalmers v The Queen (2011) 37 VR 464, [73].
[4] Leeming, ‘Authority to Decide – The Law of Jurisdiction in Australia’, 2^nd ed, 2020, Federation Press, p 184-188.
[5] Fingleton v The Queen (2005) 227 CLR 166, [196].
[6] Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554, [14]-[15] (Finn J).
[7] Federated Engine Drivers and Fireman’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 415 (Griffiths CJ); Hazeldell v Commonwealth (1924) 34 CLR 442, 446 (Isaacs ACJ, with whom Gavan Duffy J agreed, Starke J contra).
[8] Federated Engine Drivers and Fireman’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 428 (Barton J).
[9] Federated Engine Drivers and Fireman’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 428.
The question of leave raises the issue whether the applicant should now be permitted to raise his new point on jurisdiction.
The question of jurisdiction concerning the “holiday” exception under the Act is not without difficulty and, at least potentially, of some importance to the everyday practice of the Tribunal.
In these circumstances, it is appropriate that the question of leave to appeal be referred for determination by the Court of Appeal for argument as on appeal. To be clear, the parties will have to address the question of leave as well as the question of jurisdiction raised by the appeal.
As the respondent is now in the United States he must be given appropriate notice.
The orders of the Court are:
1. The application for leave to appeal is referred to the Court of Appeal for argument as on appeal.
2.A copy of these reasons will be provided to the parties, together with the date of the next Court of Appeal callover.