Dowker v Paoletti

[2015] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

DOWKER & ANOR v PAOLETTI

[2015] SASC 69

Reasons for Decision of The Honourable Justice Nicholson

6 May 2015

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS

Urgent interlocutory application for stay of execution of order to vacate residential premises pending making and hearing of application for special leave to appeal to the High Court.

Held: Application refused; interim stay for 28 days granted.

Residential Tenancies Act 1995 s93, referred to.
Dowker & Anor v Paoletti [2015] SASCFC 43; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84, (1996) 161 CLR 681; Bond and Caboche v England [1997] SASC 6446, considered.

DOWKER & ANOR v PAOLETTI
[2015] SASC 69

Civil:  Application for stay of execution

NICHOLSON J.        

1. On 5 May 2015, I refused an urgent application for a stay of execution “indefinitely” of an order that the applicants vacate certain residential premises.  However, I granted an interim stay for 28 days to allow time for the applicants to make such applications to the High Court as may be open to them.  These are my reasons for making those orders.

2. In about mid-2014, the respondent landlord gave the applicants notice that the term of their 12 month tenancy agreement was not to be extended and requiring them to vacate the property. The applicants sought relief in the Residential Tenancies Tribunal. The Tribunal made an order under section 93 of the Residential Tenancies Act 1995 granting the respondent vacant possession of the property with effect from 11 July 2014. 

3. On 14 August 2014, on appeal to the Administrative & Disciplinary Division of the District Court, a Judge rescinded the Tribunal’s decision subject to the applicants observing the whole of the terms and conditions of the tenancy agreement.  On 15 October 2014, on application by the respondent, the Judge found that the applicants had failed to comply with the tenancy agreement in breach of his earlier orders.  The Judge discharged his earlier orders and ordered that vacant possession be given by 1 December 2014.  An interim stay of execution of that order was given by a Judge of this Court, to expire on 12 December 2014.

4. On 12 December 2014, I granted a stay of execution of the order that the applicants vacate the premises, pending the resolution of an appeal to the Full Court from the decision of the Judge sitting in the Administrative & Disciplinary Division of the District Court.  The stay was given on conditions designed to achieve an expeditious hearing of the appeal.

5. That appeal was determined adversely to the applicants on 13 April 2015.[1] 

   [1]    Dowker & Anor v Paoletti [2015] SASCFC 43.

6. In dismissing the appeal, the Full Court held that there was a proper basis for the Judge to find that the applicants had failed to comply with the tenancy agreement; that the Judge did not err in discharging the orders that his Honour had made on 14 August 2014; and that the Judge did not err in the exercise of his discretion to order that the appellants vacate the premises by 1 December 2014.  However, the Full Court further ordered that the stay of execution made by me on 12 December 2014 was to be discharged at 5pm on 4 May 2015.  That time passed and, as at the time of hearing this application, there was no stay in place. 

7. By interlocutory application, together with supporting affidavit, apparently prepared on 22 April 2015, but filed in this Court late on 4 May 2015,[2] the applicants sought a further “stay of eviction indefinitely”, on the basis, inter alia, that they wished to appeal to the High Court.  I took this to be an application for a further stay of execution of the order that they vacate the premises, pending an appeal to the High Court from the Full Court’s judgment in this matter.  No application for special leave to appeal to the High Court had then been filed. 

   [2]    The documents were posted to the Court by the applicants.

8. The application came to my chambers on the morning of 5 May 2015 and, given the potential urgency, I arranged for the parties to be contacted and to attend a hearing at 3pm that day, at which time I heard submissions from both parties.  At the hearing, I was informed by the respondent that his “agent” had contacted the “bailiff” and that steps to evict the applicants either were or were likely to be underway.  It was for this reason that I determined to hear the parties’ submissions and to rule on the application forthwith.

9. The grounds for a stay, relied on by the applicants, are two-fold.

   (i)Essentially, a re-agitation of the grounds and arguments put before the Full Court at the failed appeal as to why they should not be obliged to vacate the premises; and

   (ii)A ground based on what is described in the application as “serious life-threatening health conditions” of one of the applicants and on the financial and physical difficulties that will be caused by having to leave the premises and relocate. 

10. The starting point when considering the question of a stay of execution pending the determination by the High Court of an application for special leave to appeal is the judgment of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1)[3] where his Honour observed:  

    When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made... .

    In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion.  In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

    [3] [1986] HCA 84; (1996) 161 CLR 681 at [6]-[7].

11. I am satisfied that the ill health of the first applicant and the financial difficulties under which both applicants operate are considerations of significance to the weighing of the balance of convenience to the parties with respect to a further stay.  I am also satisfied that the failure to grant a stay might render any appeal to the High Court, should special leave be granted and the appeal ultimately allowed, nugatory, at least in part.  Having said that, there is a substantial body of evidence to the effect that the respondent has been significantly vexed by the applicants’ consistent failure to pay rent on time or at all and by their serious failures to comply with the terms of the tenancy over a very lengthy period.  In addition, the respondent has succeeded in the Tribunal, in the District Court and now in the Full Court. 

12. When I granted a stay pending resolution of the Full Court appeal, I observed that, on the information then available, the applicants’ claim to be entitled to remain in the premises until at least June 2015 was not without prospects of success.  However, the material circumstances are now different: there has been an unsuccessful appeal to the Full Court; and the threshold test for a stay pending the hearing of an application for special leave to appeal to the High Court is a substantially more onerous one.

13. I do not need to form a final view on the balance of convenience issues unless I were to be satisfied that the applicants had a substantial prospect of obtaining special leave.[4]  In my view, having read the quite comprehensive judgments of the Judge in the Administrative & Disciplinary Division of the District Court and the judgment of the Full Court on appeal, I am not satisfied that the applicants enjoy “a substantial prospect that special leave to appeal will be granted”.  To the contrary, in my view, the prospects of special leave being granted are extremely low. 

    [4]    Bond and Caboche v England [1997] SASC 6446.

14. In these circumstances, and given it cannot be said that a stay would not cause significant inconvenience to the respondent, I refused the application for a stay, as sought, that is, “indefinitely”.  I was also not prepared to grant a stay pending resolution of any special leave application, yet to be brought, and any appeal that might arise therefrom. 

15. However, I do recognise that the failure to grant a stay of execution does risk rendering any application for special leave and any subsequent appeal, if successful, nugatory, albeit, that any such risk is extremely low in my opinion.  I note also that even though I have refused a stay, the applicants are at liberty to make a fresh application to the High Court.  Further, at the hearing, the applicants indicated that they were in the process of filing an application for special leave.  Apparently, when they attended the High Court registry here in Adelaide they were told that their documents were not in order.  They expect to file their application later this week. 

16. In the circumstances, and over the strenuous opposition of the respondent, I granted an interim stay of the order that the applicants are to vacate the premises, for a period of 28 days from the date of hearing (5 May 2015).  This will provide time for the applicants, if they so elect, to file an application in the High Court for special leave to appeal; to file an application in the High Court for a stay of execution pending the hearing of any application for special leave; and to procure an urgent hearing of any such application for a stay.