COWLED v BRITTEN-JONES - [2010] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
COWLED v BRITTEN-JONES
[2010] SADC 21
Judgment of His Honour Judge Tilmouth
15 February 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Action of domestic tribunal to refuse an adjournment of a hearing made other than during the course of a proceeding, held to be in breach of the principles of natural justice.
District Court Act 1991 (SA) Part 6, Sub-division 2; Residential Tenancies Act 1995 (SA) s 32; Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; McGibbon v Linkenbagh (1996) 41 ALD 219; (1996) 62 IR 426; Twist v Randwick Municipal Council (1976) 136 CLR 106; Kioa v West (1985) 159 CLR 550; R v Small Claims Tribunal & Homewood; Ex parte Cameron [1976] VR 427; Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47; Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010 HCA 1, referred to.
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, applied.

LANDLORD AND TENANT
Residential tenancy - orders of Residential Tenancies Tribunal of compensation for malfunctioning air conditioning and for poorly maintained rear yard, upheld.
Residential Tenancies Act 1995 (SA) s 110(1)(c); District Court Act 1991 (SA) s 41, s 42E(2)(a), s 42G(2), referred to.

COWLED v BRITTEN-JONES
[2010] SADC 21
Core facts

The appellant and respondent were respectively landlord and tenant under a Residential Tenancies Agreement, executed on 18 March 2008 with respect to a residential property located in Everard Street, Glen Osmond. They come before the court by way of the landlord’s appeal against a decision of the Residential Tenancies Tribunal, requiring him to pay compensation for renting the home with inadequate air conditioning and an unkempt backyard.
The initial tenancy was for a period of six months commencing on 24 April 2008, concluding on 24 October 2008. However it was extended by mutual agreement for a further period of six months, ending on 23 April 2009. The agreement terminated on that day. In each instance, the same amount of $3,693.45 for rent was payable each month, that is $850 per week. A security bond of $3,400 was lodged by the tenant with the Residential Tenancies Tribunal on 11 April 2008, and since refunded. The managing agents engaged by the landlord were Toop & Toop of Norwood.
Background facts
By summer 2008, the relationship between the parties became strained due to problems with the air conditioning in particular, and to a lesser extent by the condition of the backyard. On 2 March 2009, the tenant lodged an Application with the Tribunal, seeking orders with respect to these two grievances. In addition she sought various orders in the nature of compensation and recompense.
The air conditioning issue
After taking occupation the tenant found no problem with the air conditioning until November.[1] Unfortunately difficulties developed for reasons unknown, but which meant that the system only operated between 16°C and 19°C, so that inside conditions were either too cold if kept running, and too hot if turned off.[2] This also resulted in higher electricity bills, as the unit was constantly cooling to a temperature less than otherwise required.
[1] T19.19, 8 February 2010
[2] T19.36 – 20.19 8 February 2010
By an email of 20 November 2008 to the letting agents Toop & Toop, she first complained the air conditioning was not properly functioning. She wrote:
… please note that the air conditioning is not working properly. The cooling part works but we can not get the heating part to work. Please could this problem be fixed too.’
Then when a quarterly inspection was held on 15 December, she complained again, although not precisely as to the cooling problem. Another email of 25 January 2009 to Toops, regretted not having a reply to the first, and then proceeded to maintain the ‘air conditioner is still only able to be used intermittently on cooling as the thermostat is faulty’ and that conditions became unbearable once the temperature exceeded 26°C. She emphasised a heatwave was expected in the coming days. In fact she was forced to move out for around fourteen days at one time because the heat proved overwhelming.
Toops replied on 30 January, indicating their Mr Meehan, the employee primarily responsible for managing the property, was to ask ‘the owner about the air conditioner’. Mr Meehan filed an affidavit in this appeal and was called for cross examination at the request of the tenant. He says that he contacted the owner, who happens to live in an adjoining property, in late November. The landlord told Meehan he would arrange for the unit to be serviced. The landlord claims this was done, but there is no confirmatory evidence. Even if it had been serviced, that fact is inconsequential, as on all accounts the problem was not rectified and in any case only the outside unit was examined.[3]
[3] T6.6 Tribunal Transcript
Meehan again contacted the owner following the continued complaint made during the December inspection, but which he did not investigate. No action was taken then. Nor, it appears, was anything done after 25 January, until Mr Meehan inspected the air conditioning on 5 March 2009. He explained in his oral evidence that on this latter occasion he ‘couldn’t get it to unlock from 19 degrees … it was only cooling’.[4] He accepted the tenant had a genuine problem and that she was apparently unaware of a manual or handbook for the air conditioner that he later found in a kitchen cupboard. Even if she had known, it seems likely this would not have assisted. Mr Meehan also conceded the instructions on the flap of the control panel, did not help him to resolve the problem.
[4] T7.8, 8 February 2010
Mr Meehan contacted the landlord immediately after he could not find a remedy on 5 March and was given the contact details of the installer, First Choice Air conditioning. As the unit remained under warranty, they in turn contacted the original supplier, ActronAir. A technician from the latter contacted the tenant, ascertained after speaking with her that the thermostat had been accidently locked and talked her successfully through resetting the control. It has worked satisfactorily ever since.
As it turned out, the problem was quite highly technical and idiosyncratic. It is unclear what gave rise to the fault; it could have been user error, or as suggested by the technician, such problems can arise when power outages or surges occur. But what is clear is that the specific problem remained unaddressed for some 12 or so weeks, and that once so addressed was easily and speedily fixed. Just why the landlord who lives next door and used an identical unit, did not personally look into the continuing problem, remains a mystery.
The rear yard issue
With respect to the second issue of contention relating to the rear yard, the tenant maintains that when she first inspected the property, she was promised the rear common area would be landscaped with plants and lawn, although this never happened. That assertion was rejected by the Tribunal. There is no appeal or cross-appeal as to this.
This maintenance issue was first raised during a quarterly inspection for August, when the tenant asked for the lawn to be mowed, and the olive trees trimmed. Then in another email of 26 September 2008 she wrote ‘the back garden is in dire need of clearing, mowing and weeding…’. And in the email of 20 November 2008 she complained ‘the owner continued to ignore my requests for the metre high grass and weeds to be cut down in the back yard, I had to employ some one to do the job myself’. She repeated the complaint during the December quarterly inspection, ‘back yard is appalling … needs to be made safe and neat …’. Toop & Toop’s reply of 30 January, once again indicated their Mr Meehan was to ask the owner about the gardening. Photographs before the Tribunal and the court taken in winter and in summer months, show dense and tall grass or weeds respectively. The tenant proved that on two occasions she had the area slashed at a combined cost of $110, in October and January, so it was obviously of ongoing concern to her. The Tribunal order recompensed her for those expenses, and no complaint is made as to that aspect of its order.
In her application to the Tribunal, the tenant described the area as “an overgrown paddock”. The application went on to refer to the email of 26 September 2008. She complained that the area was never able to be used as it was overgrown, dry, rocky and inaccessible and unsafe, as well as an eyesore. The landlord was able to prove the paved areas were weeded and cleared in early August and grass cut and the backyard tidied around 20 October 2008, but that is all. Photographs taken by the landlord in December 2009 on the other hand show the subject area in a reasonably tidy and cut state. On all this evidence the only conclusion that can be drawn is that the landlord was inattentive and episodic as to maintenance of the common area.
Proceedings before the Residential Tenancies Tribunal
The matter came before the Residential Tenancies Tribunal on 18 March 2009, when the tenant appeared, supported by her witness Mr Uren. Two employees from Toop & Toop Norwood attended, one Mr Meehan, as agents for the landlord. Notice of the hearing was sent by the Tribunal on 4 March 2009, fixed for 1.30 pm on the 18^th. This did not come to the landlord’s notice until Friday, the proceeding week. Ms Davies who was property manager at Toop and Toop, faxed the Tribunal on the 12^th seeking an adjournment of the hearing, as the owner would be interstate on the 18^th and notifying that he wished to attend to give evidence. She enclosed a copy of his itinerary, which confirmed that the landlord would have been interstate on business between 18-22 March 2009. The court was advised that this had been prearranged for sometime. The ticket, dated 12 February 2009, corroborates this fact.
The Tribunal responded by letter of 13 March under the hand of an Acting Deputy Registrar, advising that “at this late stage, this matter cannot be rescheduled”, and stating that as Ms Davies was an agent representing the landlord “there is no need for the landlord to attend”. The letter also asserted ‘(T)he Tribunal has considered your request and determined that not having the manager available to attend is not considered as sufficient grounds to grant your request’.
The Tribunal did however receive a three page submission from the landlord, tendered at the hearing, in which he explained in some detail, his side of the problems. In it he mentioned that the air conditioning system was identical in both adjoining properties. It also heard from the tenant, Mr Uren and the two Toop representatives Ms Davies and Mr Meehan. At the beginning they reiterated that the landlord sought an adjournment, ‘but it wasn’t allowed’ and later informed the Tribunal he “… apologises for not being here today because he’s in Melbourne …”.[5]
[5] T5.9 Tribunal Transcript
Findings of the Tribunal
The presiding Member published reasons on 9 April 2009. He made an order pursuant to section 110(1)(c) of the Residential Tenancies Act 1995 (SA) requiring the landlord to pay the tenant $1,660, to be applied as rent credit within 14 days of that date, or in the event of termination in the meantime, as compensation. The landlord now appeals against this order on grounds detailed in his Notice of Appeal dated 8 May 2009, on the basis that the Tribunal failed to give reasonable notice of the hearing, in refusing to adjourn to a date when he could attend, by declining to accept further evidence submitted by him, by accepting the evidence of the tenant that the air conditioning system had failed to operate and on a like basis with respect to the maintenance of the rear yard. There are also complaints as to the sums awarded, as allocated to the two heads of complaint.
The Tribunal Member referred to the agents evidence that the air conditioning was zoned throughout the premises and that a maintenance contractor had attended in March 2009, when it was ascertained the system was working satisfactorily. They suggested the problem was due to “user error”. The Member also considered a letter of 17 March 2009 from the landlord, in which he pointed out the problem with the air conditioning system was that the tenant had not bothered to read the manual or instruction booklet or “even the instructions printed on the digital control”. He complains the tenant simply did not make an effort to try to understand how the system worked.
In spite of this material the Tribunal found:
… this assertion is contradicted by the tenant’s evidence, which I accept, that she sought assistance from the agent but it was not forthcoming for approximately four months”.[6]
[6] Reasons P2.5
The Tribunal also noted the agent’s evidence that they promptly referred the tenant’s complaints to the landlord, but found that:
as the landlord was interstate a prudent agent would have attended at the premises shortly after 20 November 2008 to inspect the system if for no other reason than to be able to provide the landlord with a first-hand account of the problem.[7]
[7] Reasons P2.9
He further found the tenant did not have a manual and considered that even though she could have asked for one, or alternatively obtained a copy on the internet, it nevertheless “remained the landlord’s obligation to ensure the air conditioner was operative during the three months that Adelaide experienced a well documented heat-wave”.[8] Accordingly the Member concluded:
the landlord was in breach of s 68 of the Act by failing to ensure that the system was in a reasonable state of repair after being advised by the tenant that the system was defective. If someone had attended the premises to inspect the air conditioner when the tenant first complained to the agent it is possible the subsequent problems could have been largely avoided.[9]
Based on these primary findings, the Tribunal made an order for damages in the nature of compensation, or to be applied as a rent credit of $1,000.
[8] Historical Bureau of Meteorology records reveal that in the period between 27 January and 7 February 2009, Adelaide experienced eight days of above 40 degree C temperatures.
[9] Reasons P3.2 ensure Tribunal’s emphasis
When it came to the question of the rear garden, it is first noted the tenancy agreement specifically provided in clause 8 of the general annexure that “landlord agrees to shared usage of rear garden where the landlord will be responsible for ongoing maintenance”. Having referred to photographs of the area tendered by the tenant and her evidence that it was not maintained during the tenancy and in that condition was unusable, and having found she complained of the situation in the emails of 26 September 2008 and again on 20 November 2008, drew the conclusion that “the landlord had failed to maintain the rear garden and this failure has caused some inconvenience and cost to the tenant.”[10] The Tribunal fixed an amount of $660 by way of compensation, including the sum of $110 expended by the tenant to mow the areas in October 2008 and January 2009.
[10] Reasons P4.5
The appeal to the District Court
Section 41 of the Act provides for an appeal to the District Court, from a decision or order of the Tribunal and furnishes the power to re-hear evidence taken at the Tribunal and ultimately to “confirm, vary or quash the Tribunal’s decision”.[11] Appeals from the Tribunal also come within the ambit of administrative appeals under part 6 sub-division 2 of the District Court Act 1991 (SA), by which the court is not bound by the rules of evidence and may inform itself as it thinks fit,[12] and by which it is directed to:
… give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.[13]
[11] Section 41(2)
[12] Section 42E(2)(a)
[13] Section 42E(3). The nature and scope of the appeal is discussed in Registrar of the Veterinary Surgeons Board (SA) v Mooney [2009] SADC 62
Procedural unfairness?
As mentioned earlier, the landlord complains the hearing ought to have been adjourned, in order to furnish him the opportunity to present his own case and the failure to receive further evidence after the hearing. These defects, if defects they were, are cured entirely because the court received all the additional material the landlord wished to produce, and because of the perceived unfairness, the court determined to consider the appeal afresh on the merits.
However something should be said on the subject of the refusal to adjourn. The other question of the refusal to receive further material post hearing is put to one side, because the matters raised by the landlord in his letter of 29 March 2009 which the Tribunal declined to receive, have been fully taken into account on this appeal. It should be noted however that the Tribunal also refused to consider additional material submitted by the tenant.
The Residential Tenancies Tribunal is a creature of the Act, an independent quasi judicial tribunal constituted by ‘members’ appointed by the Governor: s 12. Exclusive statutory jurisdiction is conferred to hear and determine disputes in relation to all tenancies granted for residential purposes, confined only by the limit on power to make monetary awards of no more than $10,000: s 24. It is required to conduct hearings in public: s 22 has the power to gather evidence: s 31, and is obliged to exercise its jurisdiction ‘with the minimum of formality’: s 32(3). Moreover it is clothed with wide powers to grant injunctions and to make interlocutory orders: ss 35, 111 and 112, together with very wide powers to adjust or vary the rights and obligations of parties to tenancy disputes: s 110. This included the power invoked by the Tribunal in this instrument formulated by s 110(1)(c) “to order a person to make a payment (which may include compensation) …”. As it is not invested with the power of enforcement: s 36, this is strongly suggestive that the Tribunal is not constituted as a court: Brandy v Human Rights & Equal Opportunity Commission,[14] but this does not alter the fact that it is a quasi judicial body required to accord the principles of fairness or natural justice, within the confines of its statutory powers and functions.
[14] (1995) 183 CLR 245
The procedures of the Tribunal are those prescribed by s 32. This section also confines its powers of adjournment:
32—Procedural powers of the Tribunal
(1)In proceedings the Tribunal may—
(a)hear an application in the way the Tribunal considers most appropriate;
(b)decline to entertain an application, or adjourn a hearing, until the fulfilment of conditions fixed by the Tribunal with a view to promoting the settlement of matters in dispute between the parties;
……
(d) proceed to hear and determine an application in the absence of a party;
……
(g)adjourn a hearing to a time or place or to a time and place to be fixed;….
A close textual examination of these powers is revealing. It is apparent that the proceedings contemplated by the Parliament are in the nature of an informal hearing involving the disputing parties. Of more moment for the present purpose, is that the power of adjournment is one conferred for exercise only during the course of “proceedings”. Accordingly the Tribunal had no power to refuse the application for an adjournment, other than during a proceeding before the Tribunal, so constituted. In this particular case it appears as if the Acting Deputy Registrar consulted a member, who determined not to grant the request to adjourn, effectively as an administrative decision. It was not a decision in any case made in any sense during the course of a proceeding.

It is a cardinal principle of justice that the parties involved must be given a fair opportunity to be heard: R v Small Claims Tribunal & Homewood; Ex parte Cameron.[15] This requires a decision to adjourn to be determined on the merits. That may well involve weighing questions of hardship, prejudice, inconvenience, delay, costs or expense consequences, the subject matter of the dispute, the apparent urgency or otherwise of the application, the need for expedition, and no doubt many other considerations besides: Aon Risk Services Australia Ltd v Australian National University.[16] Of course when adjudicating an application to adjourn, the Tribunal is entitled to weigh in the balance, issues of expedition and delay, as the Deputy Registrar said in the letter of 13 March, but these are far from the sole criteria upon which to assess the merits of such an application. Having said that, it must not be thought that adjournments should be granted as a matter of course, but nor should they necessarily be so refused.
[15] [1976] VR 427 at 432
[16] (2009) 239 CLR 175
Not only can the refusal to adjourn constitute a denial of procedural fairness when it deprives a party of the opportunity of adequately presenting a case: McGibbon v Linkenbagh,[17] it is a clear aspect of the principles of natural justice which apply to proceedings this kind: Twist v Randwick Municipal Council,[18] Kioa v West.[19]
[17] (1996) 41 ALD 219; (1996) 62 IR 426 and the authorities referred to therein
[18] (1976) 136 CLR 106 at 110
[19] (1985) 159 CLR 550 at 612-613
In this particular case the landlord’s application had some considerable merit on the face of it. It deserved to be considered on its merits at the hearing. He had relatively short notice of the application, one fixed for hearing well after he set the travel plans in train. There was no suggested prejudice to the tenant and the subject matter was hardly pressing or urgent. But fundamentally, that question is never one for determination behind closed doors, without hearing the parties as to the implications and consequences.
It is not to the point that the two people from Toop & Toop representing the landlord, did not again expressly seek a postponement. As lay persons they would be naturally deferential to the Tribunal and its letter to them was written in emphatic and final terms. The subsequent action of the landlord in seeking to bring further matters to the attention of the Tribunal, serves to confirm that he wanted to appear himself, if he could have. In any case it is clear the Tribunal had predetermined to refuse an adjournment.
The failure to raise and then determine the adjournment application on its merits was therefore an error of law. That is because it entailed procedural unfairness. Gaudron and Gummow state the operative principle in Minister for Immigration and Multicultural Affairs v Bhardwaj:[20]
[40] Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
Indeed the failure to accord procedural fairness during a hearing, is in itself a form of jurisdictional error: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs).[21]
This may well be an example of an overconcern for the Tribunal’s administrative task, straining it’s legislative limits.[22]
[20] (2002) 209 CLR 597, footnotes omitted
[21] [2010] HCA 1 at [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89[5], 91 101 [17] [42], 143 [170]; [2000] HCA 57
[22] See Kirk above at[64] and [122]
Appellate courts are slow to interfere with a regularly exercised discretion to refuse an adjournment, but they will do so if the refusal results in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party: Sali v SPC Ltd.[23] It is for this reason that this court resolved to hear the appeal by way of merits review, thus overcoming any potential unfairness that might have been occasioned before the Tribunal. The alternative was to remit the matter, which is not a course in the interests of either party or in the interests of expedition.
Resolution of tenancy issues
[23] (1993) 67 ALJR 841; [1993] HCA 47
Air conditioning
At the hearing of the appeal Mr Meehan gave evidence. It is apparent that he conducted an inspection on 5 March 2009, when he was unable to make the air conditioning work, which to use his words “was stuck on 19 degrees”. This in fact was the problem all along, although it did not initially surface until the on-set of hot weather sometime around 20 November 2008 when the tenant first raised the issue.
The situation was critical, particularly in the warmer months, because with the air conditioning running fixed at 19°C, although cooling things down was quite unpleasant and it also led to unnecessarily large electricity bills. Trying to resolve the problem by compromise, such as opening doors and windows proved ineffective and in fact only brought its own consequences, such as causing the house to become unpleasantly warm and bringing in mosquitoes.[24]
[24] T5.4 Tribunal Transcript
The simple fact of the matter is that no-one on the landlord’s side, attended over the period between late November 2008 and early March 2009, either to ascertain what the critical problem was, or to demonstrate to the tenant how the air conditioning system worked so she could operate it effectively. Mr Meehan tried and was unable to do that himself, even when using the instructions on the control panel itself. It wasn’t until after she vacated that the instruction manual was found. Even if the air conditioner was serviced between late November and early December, this did not solve the problem. This was eventually resolved by contacting the original supplier who managed then to promptly diagnose the fault.
Hence the period essentially in dispute, falls between about late November 2008 and about 5 or 6 March 2009. At one point toward the end of January 2009, there was an unusually long heatwave with temperatures in Adelaide well over 40°C, causing the tenant to move out for about 14 days, because the conditions became both unbearable and unresolved. It is not evident what caused this problem, however for some reason the electronic control box was re-set by a power fault, human error or something of that kind. Even so there remains no doubt that it did happen and there is no doubt either that it was not remedied until March. The fact that the previous and subsequent tenants had no difficulty in the operating the air conditioner is neither here not there, as neither encountered this particular problem. This was practically a new home, first let in October 2005 for which a not insubstantial rent was paid. The house would not have commanded a rent at $800 per week without properly functioning air conditioning. The findings of the Tribunal were not only open on this material, they were really the only conclusion available on the facts. Looking at the matter afresh, the court reaches the same conclusion itself. Indeed the evidence of Mr Meehan in this court only serves to reinforce that conclusion.
Backyard
When it comes to the issue of the back yard, photographs tendered before the Tribunal show high grass in both the summer and winter months. This was unsightly and rendered the area practically unusable. It was easy to understand why the tenant was reluctant to allow children to play in the area, especially during the summer months. Photographs taken by the landlord in December 2009, show the area was reasonably easy to maintain, but he was only able to prove two occasions when this might have been attended to by him.
Looking at the materials that were before the court and the Tribunal afresh, unfettered by the Tribunal’s decision, the same conclusions in respect of the failure to regularly keep the rear common area reasonably maintained, are made. The court is in any case unable to identify any error, and for that matter any “cogent reason” to interfere with the primary findings of the Tribunal in respect of either issue.
The awards of compensation
In the result the tenant was left in a modern house, paying a relatively high rent, without air conditioning, effectively for a period of three months or so, at a time when adequate air conditioning was particularly critical. The Tribunal made a lump sum assessment of $1,000 by way of compensation for this period, which is about $70 per week, for a house practically unliveable for the better part of that time. This is on any view and according to any principle of assessment, a modest and if not meagre award indeed, bearing in mind that it represents less than 10% of weekly rent as against a much larger loss of amenity.
Turning to the backyard area, this was for the most part unsightly and inconvenient. It could not be used for any practical purpose. The tenant was forced to confine outdoor functions and activities to an elevated terrace or deck, a situation not always ideal. This situation pertained over a period of the two leases of six months each, and for which the tenant herself paid $110, so the award was effectively just short of $500. This is a little under $10 per week, so that it too can only be seen as a very modest compensation for what was more than just a passing or intermittent situation. It was a visual eyesore and rendered a portion of the demised area unusable. No reason has been shown to think that this award is inappropriate or otherwise excessive either, for it is not. The respective accounts suggest at least $55 of expenditure was required to bring the situation under control, so $500 effectively represents the cost of doing so about every five weeks or thereabouts. This is hardly unreasonable.
Orders
In the result therefore the appeal is dismissed. There will be no order as to costs.[25]
[25] Section 42G(2) District Court Act