De Mills v South Australian Housing Trust

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
DE MILLS v SOUTH AUSTRALIAN HOUSING TRUST
[2017] SASCFC 85
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Lovell)
20 July 2017
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application to the Full Court for permission to appeal against a decision of the South Australian Civil and Administrative Tribunal dismissing an application for internal review. Application heard in private.
It is not suggested that there had been an error by the Tribunal. The complaint is as to the practical result of the decision.
Held (The Court): The application for permission to appeal is dismissed. The application is not reasonably arguable and the subject matter is not of sufficient substance to justify consideration.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, applied.

DE MILLS v SOUTH AUSTRALIAN HOUSING TRUST
[2017] SASCFC 85
Full Court: Vanstone, Nicholson and Lovell JJ
THE COURT.

Ms Bella De Mills applies to the Full Court for permission to appeal against the decision of Parker J, sitting in the internal review jurisdiction of the South Australian Civil and Administrative Tribunal, dismissing an application for internal review.
On 26 May 2017, Tribunal Member Mr S Georgiadis made orders as follows regarding Ms De Mills:
1. The tenant may remain in the property on condition the tenant pays the landlord:
(1). $300 by 5.00pm on Friday 2 June 2017. If this payment is not made the tenant must move out of the premises by midday on Monday 5 June 2017;
(2). $300 by 5.00pm on Friday 16 June 2017. If this payment is not made the appellant must move out of the premises by midday on Monday 19 June 2017;
If the tenant does not make either of the above payments and does not move out of the premises by the time stated, the landlord may lodge with the Tribunal a statutory declaration to the effect and an up-to-date rent record. If the Tribunal is satisfied that payment was not made, the Tribunal bailiff will be instructed to evict the tenant and anyone remaining on the premises.
2. After the above payments are made then the tenant must pay to the landlord $300 by 5.00pm on Friday 30 June 2017 and then pay the same amount on Friday of every fortnight until the rent is two weeks in advance.
3. If the tenant misses any of the payments required by order 2 before Friday 28 July 2017 the landlord may make a written request to the Tribunal, including an up-to-date rent record, for an urgent hearing to terminate the tenancy and evict the tenant.
4. The landlord must notify the tenant when the final payment due under this order has been made.
On 2 June 2017 the tenant contravened order number 1. She failed to pay $300. She paid only $200 and she did not vacate the property by midday on 5 June 2017. Then, on 7 June 2017, the tenant was evicted by the Tribunal bailiff in accordance with the same order. On that day the tenant submitted an application for internal review of the decision of 26 May 2017.
On 9 June 2017, pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA), Parker J heard an application for internal review: Bella De Mills v South Australian Housing Trust (2017/SIR000197). His Honour gave comprehensive reasons for dismissing the application. The tenant then applied for permission to appeal against that decision. On 15 June 2017, Bampton J dismissed that application.
Ms De Mills now seeks permission from the Full Court to appeal against Parker J’s decision. The ground of appeal is as follows: “I need to appeal. I got no family or support. I have MS. All I got is my house and furniture.” Three members of the Court have considered the application in private.
The application does not raise any new issues. The applicant does not contend that there has been an error. The applicant’s only complaint is as to the practical result of the decision, that she will become homeless.
The ordinary approach of this Court to an application of this kind is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration: Jackson v Lepp Investments Pty Ltd [2016] SASC 62. This application answers neither criterion.
Therefore the application for permission to appeal is dismissed.

The appeal concerned a dispute between De Mills and the South Australian Housing Trust. The South Australian Court of Appeal was required to determine whether an appeal lay from a decision of a Master of the Supreme Court to the Full Court of the Supreme Court.

The central legal issue was the interpretation of section 49(1) of the Supreme Court Act 1935 (SA), which governs appeals from decisions of a Master. Specifically, the Court had to consider whether the Master's decision in this instance constituted a "judgment or order" within the meaning of that section, and if so, whether an appeal lay as of right or only by leave of the Court.

The Court reasoned that section 49(1) of the Supreme Court Act 1935 (SA) provides that an appeal lies to the Full Court from any judgment or order of a Master, but only by leave of the Court. The Court held that the Master's decision in this matter was an order made in the course of proceedings, and therefore an appeal from it required leave. The Court further considered the criteria for granting leave, noting that it is not granted as of course and requires a demonstration that the appeal has a real prospect of success or that there are other compelling reasons for granting leave.

The Court dismissed the application for leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established