Cathery v South Australian Housing Trust - [2013] SADC 167

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
CATHERY v SOUTH AUSTRALIAN HOUSING TRUST
[2013] SADC 167
Judgment of His Honour Judge Slattery (ex tempore)
21 November 2013
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
Residential Tenancies Tribunal - landlord sought to repossess property on the grounds that the tenant had breached his residential agreement because the tenant was not maintaining the premises in an orderly manner.
A number of hearings took place both before the Residential Tenancies Tribunal and at the premises - inspection of the premises was delayed by the actions of the tenant.
Orders were subsequently made by the Residential Tenancies Tribunal for the tenant to bring the premises into a good tenantable condition - final hearing of the Tribunal found that the tenant had performed some work on the premises but not to the extent to bring the premises back into a tenantable condition. The tenant was Ordered to vacate the premises by 31 October 2013 – this did not occur and the landlord subsequently changed the locks and took repossession of the premises.
The tenant now seeks an extension of time to appeal to Orders of the Tribunal.
Held: application dismissed. No identifiable ground of appeal - the appellant tenant’s application in respect of an appeal was without any merit and had no prospects of success.
Residential Tenancies Act 1995 s32, s41, s43, s69, s97, Form 7.; Lunn, Civil Procedure South Australia Paragraph 6R 295.5.1 , referred to.
Moody v Moody (1949) SASR 331; Burke v Garsden (SASC, Debelle J, No. s3865, 12 March 1993 unreported); Levi v Unisure Pty Ltd (1999) SASC 432 ; Jackamarra v Krakower (1998) 153 ALR 276 ; Money Tree Management Services Pty Ltd v DCT (No. 3) [2000] SASC 286; Grey v City of Marion [2006] SASC 3; Gallo v Dawson (No. 2) (1992) 109 ALR 319, considered.

CATHERY v SOUTH AUSTRALIAN HOUSING TRUST
[2013] SADC 167
JUDGE SLATTERY

By an application to the Residential Tenancies Tribunal under Form 7 Residential Tenancies Act 1995 (the Act) the South Australian Housing Trust (the Trust), the landlord, brought an application against the applicant in these proceedings, Steven Victor Cathery, in respect of premises at Oakden, South Australia 5086, owned by the Trust and rented by the tenant Mr Cathery (Mr Cathery) under a residential tenancy agreement.
The orders sought in that application were for possession of the property and the grounds were that Mr Cathery had breached the order of the Tribunal made on 7 March 2013, whereby Mr Cathery was ordered to have the property cleaned up to the satisfaction of the Trust by 28 March 2013 and allow access for inspection on 28 March 2013 at 10 a.m.
The premises is a brick veneer house with a corrugated iron roof and comprises two bedrooms, a dining room, a kitchen, a bathroom and laundry with a front and rear yard. Photos disclose that it is in extremely dilapidated state, both inside and outside.
The application alleged that access was not given to the Trust at the appointed times and thus the Trust was seeking an order for possession. It was also alleged that Mr Cathery was in continual non-compliance with Tribunal orders and the Trust sought a re-hearing of the matter, including a view of the premises.
Following the lodgement of that application, there appears to have been a number of hearings before the Residential Tenancies Tribunal and there was a view of the premises on Thursday, 2 May 2013 at 9 a.m.
That view followed a hearing before the Tribunal on 26 April 2013 at the premises. Written reasons concerning that hearing were delivered by the Tribunal member, Ms J. Dunstone. After reciting the history of the matter and after reciting the relevant provisions of the Act concerning entry and inspection of property (s.43), and the tenant’s responsibility for cleanliness and damage (s.69), Ms Dunstone recorded an order that was intended to give notice to Mr Cathery of a hearing on 2 May 2013 and the powers of the Tribunal in conducting hearings and inspections.
Ms Dunstone indicated that the determination of the current application by the Trust would be made by her on the basis of the evidence provided to her on 2 May 2013, together with her own observations of the premises.
On 2 May 2013 the hearing took place at the premises. Written reasons were produced by Ms Dunstone. Para.3 of those reasons identifies that Mr Cathery was not prepared to allow the Tribunal to enter the premises for the purposes of inspection. This was after Mr Cathery had acknowledged to the Tribunal that he was aware that there was to be a further hearing relating to the condition of the premises on 2 May 2013 but he said he was not ready for an inspection to take place. He also stated that he had not arranged an advocate or a support person to be present. There was then discussion in relation to exchanges between Ms Dunstone and representatives of the Trust and discussions with Mr Cathery.
The balance of the reasons for the orders of Ms Dunstone, particularly on p.2, describe the state of the premises as they were observed by Ms Dunstone. There is a record of some suggestions made by Ms Dunstone to the tenant concerning the state of the premises and the need to restore the premises to a reasonable condition and then to maintain those premises in that reasonable condition.
It is clearly implicit in those reasons that the Tribunal member Ms Dunstone was of the view the premises were not in a reasonable condition. Ms Dunstone made an order pursuant to s.32 of the Act adjourning the landlord’s application to 29 May 2013 at 9.30 p.m. with the hearing to take place at the premises.
On 29 May 2013, and according to the reasons published by Ms Dunstone on that day, there was a further meeting of the Tribunal at the premises and that the tenant indicated to the Tribunal that he was seeking an adjournment of the landlord’s application.
There is then a record of Mr Cathery reporting to Ms Dunstone on the efforts that he had made to clean up the premises; about a further appointment to see a Dr Jennings, a psychiatrist in June 2013; and then an explanation by Ms Dunstone, the Tribunal member, to Mr Cathery, the tenant, of what was expected of him. In particular Ms Dunstone recorded the following:
“During the hearing on 29 May 2013 I explained to the tenant and the Housing Trust representatives of what orders I intended to make and that it was my expectation that, if the tenant did not comply with the order, the trust would bring the matter back to the tribunal. I further indicated that the order would only make a general reference to inside the premises as the tenant had not enabled the tribunal to see inside the premises, but the order will make specific reference to the front of the premises as that had been seen, as had the computer in the passage near the front door. I again outlined to the tenant that underlying all orders was the question of the tenant meeting his obligations to the landlord under the residential tenancies agreement and the Act, together with the obligations to the tribunal.”
Ms Dunstone then made a series of orders. Those orders required the tenant to take action by 1.30 p.m. on Wednesday, 12 June 2013. There are eight separate matters that were required. There was also an order that the tenant must give access to the representative of the South Australian Housing Trust for inspection at 2 p.m. on Wednesday, 12 June 2013 and for photographs to be taken.
The fourth order reads as follows:-
“4. If the tenant fails to comply with order No.2 and/or 3 or any aspect of order 2 and/or 3, the landlord may apply to the tribunal for an urgent hearing to terminate the tenancy without service of a notice of termination.”
Photographs of the outside of the premises were taken on 2 August 2013 and I have reviewed those in the file. On 15 August 2013 further orders were made by the Tribunal signed by Ms Dunstone for the tenant to give access to the representatives of the Trust for the purposes of the inspection on 27 August 2013 and for photographs.
Ms Dunstone then adjourned the landlord’s application for vacant possession to 27 August 2013. On 27 August 2013 there was a further hearing of the Tribunal at the premises. Mr Cathery attended the hearing with the assistance of a representative of TIAS, Ms Sharon-Marie Buttner. The landlord Trust was represented by Mr Wierenga and by Ms Allen. The hearing was conducted by way of a view inside and outside the premises.
In reasons published on 29 August 2013 Ms Dunstone identified that in that inspection she was able to identify some work had been done in response to the orders that she had made, but she was not satisfied that the premises were clean and in good tenantable condition as required by clause 6(c) of the tenancy agreement. She referred in particular to the state of cleanliness of the kitchen and bathroom.
Ms Dunstone referred to the content of para.2 of the orders of 29 May 2013 and indicated that those orders had not been complied with by Mr Cathery. Ms Dunstone then identified that she had informed the parties that she intended to order vacant possession but to suspend that order pursuant to sub-s93(4) of the Act for a period of 60 days to give further time to the tenant to sort and dispose of items for himself and with the assistance of tenancy support (Ms Buttner). She also recorded that she informed the tenant that if at the vacant possession date, there were items left in the premises, then the Trust would dispose of them and seek costs of the disposal pursuant to s.97 of the Act.
Ms Dunstone informed the parties of her intention that there would be a further view of the premises prior to the vacant possession date but the order for vacant possession was not subject to or conditional on this view taking place. Ms Dunstone apparently intended to put the parties on notice in order to facilitate the removal of the possessions of the tenant. The formal orders made by Ms Dunstone on that day were as follows:
“ORDERS:
1. Pursuant to s.93(4) the tenant must move out of the premises by 11 a.m. on Thursday, 31 October 2013 but if the tenant does not move out this order may only be enforced by the tribunal.
2. In the event there is a written request to the Registrar for an order for access by the Trust to the premises prior to the date for vacant possession or for the purpose of a further view of the premises by the tribunal, such written request cannot be made before Monday, 14 October 2013.”
I have been informed today that Mr Cathery did not vacate the premises prior to or as at 31 October 2013. This fact is not in contest before me today and I will proceed on that basis. Following the failure or refusal of Mr Cathery to vacate the premises the Trust, as landlord, has changed the locks and retaken possession of the premises. Mr Wierenga informs me today that Mr Cathery’s possessions remain at the premises and it will be necessary for the process contemplated under para.2 of the order of Miss Dunstone of 29 August 2013 to be implemented by the Trust. No submission was made to me today on that issue and I need not address it further.
This matter comes to this Court under an appeal pursuant to s.41 of the Residential Tenancies Act. Section 41 of the Act reads as follows:-
“Section 41—Appeals
(1)An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(2)On an appeal, the District Court may (according to the nature of the case)—
(a)re-hear evidence taken before the Tribunal, or take further evidence;
(b)confirm, vary or quash the Tribunal's decision;
(c)make any order that should have been made in the first instance;
(d)make incidental and ancillary orders.
(3)The appeal must be commenced within one month of the decision or order appealed against unless the District Court allows an extension of time.
(4)If the reasons of the Tribunal are not given in writing at the time of making a decision or order and the appellant then requests the Tribunal to state its reasons in writing, the time for commencing the appeal runs from the time when the appellant receives the written statement of the reasons.”
The notice of appeal identifies that the whole of the decision is the subject of the appeal. The appellant states in the notice of appeal that he wishes to “take action against the process of various unresolved incidents that have forestalled or are unreasonable” as he sees the position. He says he wants to “restore access to premises he has been evicted from and stop his belongings being removed or touched”. He says he has consistently tried in every situation and at every opportunity to raise “preceding” agreements with the Trust about its conduct and breaches of his human rights such as his right of privacy. He says that by no means has he been permitted to “register his grievances which mitigates his ongoing negotiations with the Trust and the Residential Tenancies Tribunal as they disregard his calls of regrets”. He also says that “he has been misadvised of time frames and he says that he needs to set his appeal within the correct jurisdiction as his last appeal was able to be a grievance with a private agreement”. He wants an injunction and he needs to ensure his home and belongings are again secured against the existing orders.
In an interlocutory application Mr Cathery seeks an extension of time to hear this appeal and requests a stay of the decision of the Tribunal. He requests an urgent hearing. He requests time to seek legal advice to deal with further action.
In this hearing today I have taken into account everything that has been said to me by Mr Cathery as a tenant. Nothing that has been said to me by Mr Cathery would lead me to exercise my discretion in his favour to stay the decision of the Tribunal or to prevent the Trust, under the terms of the Act and under the orders that have been made by the Tribunal, from continuing to exercise its rights in relation to the premises.
Under sub-s41(3) of the Act, the appeal of Mr Cathery must be commenced within one month of the decision. Mr Cathery has sought an extension of time. I have had regard to the relevant authorities concerning extensions of time in respect of appeals.
In my view, the authorities indicate that I have a general discretion in relation to the question of extension of time for the lodgement of an appeal. The exercise of that general discretion is informed by a number of matters but, overall, it remains a general discretion to extend the time for the commencement of an appeal.[1]
[1] Moody v Moody (1949) SASR 331.
I have already countenanced the question of prejudice. It is clear that the respondent, the Trust, is unable to point to any particular prejudice that would be suffered by me granting an extension of time for the commencement of an appeal. I am unaware of any previous history in relation to delays by Mr Cathery and I will therefore put that matter to one side. I will proceed on the basis that the only prejudice that will be suffered will be that suffered by Mr Cathery.
In the text Lunn, Civil Procedure South Australia, the learned author at paragraph 6R 295.5.1 has summarised the relevant principles. The learned author says as follows:-
“The relevant principles have been summarised as being: there is no automatic right to an extension; an extension will only be granted upon proof that strict compliance with the time limits will work an injustice; in determining any injustice the Court will look to the length and reasons for the delay and any prejudice to the respondent; delay attributable to solicitors will not work as severely as that by the applicant; and whether the applicant has an arguable case.”[2]
[2] Burke v Garsden (SASC, Debelle J, No. s3865, 12 March 1993 unreported; Levi v Unisure Pty Ltd (1999) SASC 432 per Lander J).
In my view, the last consideration is the relevant consideration in the circumstances of the case before me. It is necessary for me to canvass the question of the merits of the appeal.
I have set out above the issues that Mr Cathery would seek to raise in an appeal. They tend to be amorphous issues such as rights to privacy and other human rights generally. They are not matters that go to the question of a failure to properly exercise a discretion, a failure to take into account a matter that ought to have been taken into account, the taking into account of a matter that should not have been taken into account or that the decision was not sustainable on any basis. I am required to make an assessment of merits on the evidence that is before me. I am not bound by the reasoning of Ms Dunstone.[3]
[3] Jackamarra v Krakower (1998) 153 ALR 276 (High Court).
In my opinion, it is well established that a Court will not approve an extension of time in circumstances where there are no identifiable merits of an appeal and that it may be classed as hopeless.[4]
[4] Money Tree Management Services Pty Ltd v DCT (No. 3) [2000] SASC 286 (Debelle J).
Although it is not necessary for me to go into much detail on the question of the merits,[5] it is sufficient for me to say that on the materials before me, the issues raised by Mr Cathery fall into the category of “hopeless”, the alleged grounds are merely an agglomeration of notions, ideas and catchphrases and they are largely incoherent. In the view that I have formed, I can confidently say that the appeal could not possibly succeed on the materials that I have before me.[6]
[5] Grey v City of Marion [2006] SASC 3.
[6] Gallo v Dawson (No. 2) (1992) 109 ALR 319.
In my opinion, there are no questions of privacy involved. The right of Mr Cathery to live in the premises owned by the Trust arises under the agreement between them which is enforced under its terms and as permitted under statute. Although I recognise the special and particular position of the Trust and the special and particular issues arising in the circumstances relating to Mr Cathery, I am of the view that none of those matters, separately or together, would form any basis that would lead to the favourable exercise of the discretion in favour of Mr Cathery. The same comments apply to questions concerning the allegations by Mr Cathery that constitute the grounds of appeal. There is no basis to make the allegations, they are without merit and they are unfounded in law and in fact. In my view, nothing would be gained by canvassing those allegations in any form of appeal proceedings. I am of the opinion that as those allegations are without any merit it is axiomatic that the appeal could not possibly succeed.
I reiterate that the Court will not lightly refuse an order for an extension of time for an appeal in circumstances where no prejudice is suffered by the opposing party. I can see no identifiable prejudice suffered by the Trust except loss of rent but in these circumstances that is not a significant matter.
In the context of the relevant authorities one of the major considerations is the question of the prospects of success of the appeal. I am satisfied that I have given consideration to that matter in the background of all of the relevant factual circumstances of this matter.
In my opinion those factual circumstances of the matter that are to be considered by any appellant tribunal indicate only one result, namely the failure of this appeal. Nothing that has been put to me by Mr Cathery would in any way indicate any merit in any ground of appeal proposed by him and nothing that has been put to me by Mr Cathery indicates that there is any merit in any of the issues that he wishes to raise at this juncture. I have reached a clear conclusion that there is no prospect of success of this appeal.

In those circumstances I am also not prepared to exercise my discretion to grant an extension of time to hear the appeal. In my opinion the appeal as it is currently constituted, (on the facts of this matter), has no prospects of success. In my opinion no proper or any appeal grounds have been disclosed. In those circumstances my formal Orders are, on the interlocutory application for extension of time to appeal (pursuant to subs-s41(3) of the Residential Tenancies Act) that the application is dismissed. For the sake of completeness, and because the documents before me may tend to suggest that Mr Cathery is operating on some understanding that an appeal is actually on foot under s41 of the Act (notwithstanding sub-s41(3) of the Act) I Order that any such appeal is dismissed.
I so Order.