Franklin v South Australian Housing Authority
[2024] SASCA 3
•31 January 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FRANKLIN v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2024] SASCA 3
Judgment of the Honourable President Livesey (ex tempore)
31 January 2024
SOCIAL WELFARE – HOUSING SCHEMES – PUBLIC HOUSING
The applicant applied for a stay pending leave to appeal an order made for vacant possession of residential property made by the Deputy President of the South Australian Civil and Administrative Tribunal.
The applicant had failed to comply to a clean-up plan ordered by the Tribunal. The fixed period tenancy term expired on 10 January 2024 and the landlord had resumed possession.
HELD (the Court) dismissing the application for a stay:
1.Even if the applicant were to succeed in obtaining leave to appeal, and then succeed on his appeal, that would not have the effect of extending the tenancy period nor of requiring the respondent to favourably exercise its discretion to grant a new tenancy, including a probationary tenancy.
2.As there is no utility in an appeal, there is no utility in ordering a stay pending the application for leave to appeal.
3.Observations made about the imposition of conditions as part of final orders made on a review by the Tribunal.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 8, 70, 71, 73; Residential Tenancies Act 1995 (SA) s 110; Uniform Civil Rules 2020 (SA) r 212.5(1), referred to.
DT v Chief Executive of the Department for Child Protection [2022] SASCA 59; Georganas v Georganas [2024] SASCA 1; Lesses v Maras (No 2) [2016] SASC 140; Myers v South Australian Housing Authority [2022] SASCA 30, considered.
FRANKLIN v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2024] SASCA 3
Court of Appeal – Civil
LIVESEY P (ex tempore):
Introduction
This is an urgent application for a stay pending the hearing of an application for leave to appeal an order made by the South Australian Civil and Administrative Tribunal (the Tribunal) on 12 October 2023 giving vacant possession of a residential tenancy by midday on Wednesday, 10 January 2024.
Correspondence from the bailiff of the Tribunal demonstrates that the property has been re-entered and the locks have been changed. The applicant had two days to remove his belongings. The correspondence bears a “Date of Possession” of 25 January 2024.
As I will explain, as the applicant has already left the property and his tenancy came to an end on Wednesday, 10 January 2024 in any event, there is no utility in an appeal and the application for a stay must be dismissed.
The applicant’s case
The applicant’s affidavit is brief. He says that the application is urgent because he is homeless and in severe financial stress. It is his intention to “reverse the decision” (application dated 29 January 2024).
The applicant is not legally represented and his grounds of appeal are as follows:
1.My partner … and friend … will assert that the property was in reasonable condition prior to the vacate date, and [the applicant] should have been entitled to a probationary tenancy.
2.Mr Williams refused any further help, aggravating the situation.
The proposed appeal is against a decision made by the Deputy President. By s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act), an appeal lies in the case of a decision of a Presidential member of the Tribunal to the Court of Appeal. By s 71(2) of the SACAT Act, the appeal is only by leave.
By s 71(5) of the SACAT Act, the Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate. By s 73(2) of the SACAT Act, the Court may make an order staying the operation of a decision until the proceedings are finally resolved. By r 212.5(1) of the Uniform Civil Rules 2020 (SA), where jurisdiction to hear an appeal is vested in the Court of Appeal, a single judge may make interlocutory and ancillary orders.[1]
[1] DT v Chief Executive of the Department for Child Protection [2022] SASCA 59, [3]-[4] (Livesey P and Bleby JA).
It is necessary for the applicant to demonstrate proper reason for the favourable exercise of the discretion to grant a stay pending an application for leave to appeal. However, even assuming that there is a bona fide appeal with some prospect of success, it is also necessary for the applicant to address why the balance of convenience favours the grant of a stay, including any prejudice likely to be suffered by any party depending on whether a stay is or is not granted.[2] If there is no utility in an appeal, it will usually be difficult indeed to demonstrate that a stay should be granted.
[2] Lesses v Maras (No 2) [2016] SASC 140, [6]-[8]; Georganas v Georganas [2024] SASCA 1, [5]-[6] (Doyle JA).
The reasons of the Deputy President disclose that the respondent landlord has for well over a year been concerned that the applicant has been hoarding a large amount of material in the tenanted property. The Deputy President found that the applicant breached the term of his residential tenancy that required that he keep the property in good tenantable condition and free from refuse.
In support of the application for leave to appeal, the applicant referred to photographic evidence that apparently depicted that the property was in “the best condition it had ever been … when inspected in January … 2024”. This statement was intended to contradict the evidence from the respondent, and on which the Deputy President relied, that demonstrated that the applicant had failed to clear his property as had been agreed as part of the clean-up plan earlier in 2023. Today, the applicant tendered two further affidavits which were to the effect that the property was in a good condition at the time of the inspection in January 2024.
The applicant also referred to inadequate support from the respondent and his ongoing difficulties with mental health. This statement was no doubt intended to explain why the clean-up did not progress as effectively it should.
As may be obvious, there is a degree of inconsistency in these statements which it is not now necessary to resolve. On the strength of the applicant’s untested affidavit evidence, I am prepared to assume that there is a tenable case for the proposition that in January 2024 the condition of the property was better than it had been and not as bad as the Deputy President found.
Whether there is an arguable appeal point
Although a point not raised by the applicant, I had wondered whether there was an issue about the circumstances in which the subject eviction order was made. As the Deputy President recited, the matter originally came before the Tribunal in late 2022 when the respondent sought vacant possession. An order to that effect was made on 27 October 2022.
The applicant then sought a review of that order under s 70 of the SACAT Act and, following hearings in December 2022 and January 2023, the Tribunal made a final order on 3 February 2023 setting aside the original order. The Deputy President took the view that the applicant’s circumstances had changed, and it was likely that he would be able to return the property to a reasonable condition within a reasonable time. The applicant’s tenancy was reinstated. It was then the intention of the respondent to offer the applicant a probationary tenancy of 12 months at the expiration of his fixed term tenancy.
The Deputy President required that the applicant lodge a clean-up plan.
Subsequently, the respondent “requested another hearing”[3] because the applicant had not adhered to the clean-up plan and photographs taken at the inspections undertaken in the period since 3 February 2023 were provided. The Deputy President took the view that the “only possible order”[4] she could make was an order for vacant possession. Because of the difficult personal circumstances of the applicant, the operation of that order was suspended for 90 days. The Deputy President noted:[5]
In making these orders, I note the comments of [counsel for the Housing Authority] in the hearing, that if Mr Franklin returns the property to a reasonable condition prior to the vacate date, then SAHA will consider offering him a probationary tenancy.
[3] Franklin v South Australian Housing Authority (SACAT, Deputy President Johns, 12 October 2023), [7].
[4] Franklin v South Australian Housing Authority (SACAT, Deputy President Johns, 12 October 2023), [24].
[5] Franklin v South Australian Housing Authority (SACAT, Deputy President Johns, 12 October 2023), [25].
Apart from the applicant’s untested evidence, there is no evidence which establishes whether the applicant did or did not return the property “to a reasonable condition prior to the vacate date”.[6]
[6] Franklin v South Australian Housing Authority (SACAT, Deputy President Johns, 12 October 2023), [25].
The possible point of difficulty appeared to be that following the review in late 2022 and early 2023, the original eviction order was set aside and, pursuant to a final order made on 3 February 2023, the applicant’s tenancy was reinstated. On the face of it, the review proceeding was then at an end because the “correct or preferably decision” had been reached, see s 70(5) of the SACAT Act.
Although the Tribunal is vested with broad powers in connection with the conduct of a review under s 70(6), as well as powers to make “any ancillary or consequential order” under s 70(7), it does not appear to be vested with power to reinstate a review which has been finally determined. That is to say, having conducted the review and having made a final decision, it may be arguable that it is not open to the Tribunal to reopen a concluded review.
Whilst s 110 of the Residential Tenancies Act 1995 (SA) appears to give very broad powers to the Tribunal, including to “do anything else necessary or desirable to resolve a tenancy dispute” (s 110(1)(m)), it does not appear that the Deputy President acted pursuant to this provision.
Though it is necessary that the Tribunal act with “as little formality and technicality as possible”, see s 8(1)(f) of the SACAT Act, where the Deputy President has made a final order that suggests that it was an order which finally disposed of the review proceeding.
However, a close review of the reasons given and the orders made by the Deputy President on 3 February 2023 demonstrates that the review was kept open pending compliance with the clean-up plan. That was an appropriate and commendable course to take in a case such as this. If that kind of order had not been made, it would probably have been necessary for a new application to be commenced by the respondent before vacant possession could be considered and ordered by the Tribunal.[7]
[7] Nonetheless, in the absence of considered argument on the point, and given that it is a point arising in connection with an application for a stay, it is not necessary to reach any concluded view.
The balance of convenience
The principal difficulty with the application in this case concerns the balance of convenience. As earlier mentioned, the landlord has already resumed possession and the applicant’s fixed term tenancy period expired on 10 January 2024.
Even if the applicant were to succeed in obtaining leave to appeal, and then succeed on his appeal, that would not have the effect of retrospectively extending the tenancy period, nor of requiring the respondent to favourably exercise its discretion to grant a new tenancy, including a probationary tenancy for a new period.[8] Steps such as these are well beyond the scope of the powers conferred on the Court by s 71(4) of the SACAT Act. Similarly, s 110(1)(f) of the RTA would not appear to assist a tenant after the tenancy period has expired.
[8] It has not been suggested that there is any conduct by the respondent which has created any enforceable expectation that a new tenancy, including a probationary tenancy, would be granted to the applicant. Cf, Myers v South Australian Housing Authority [2022] SASCA 30, [14]-[16] (Doyle and Bleby JJA).
Whether s 110(1)(m) of the RTA could be relied on in a case where the tenant has relied to his detriment on a clear representation from the landlord that a new tenancy would be granted need not be determined as the facts of this case do not go far enough.
Accordingly, even if the application for leave to appeal was thought to have merit, there is ultimately no utility in an appeal. Accordingly, there is no utility in ordering a stay pending the application for leave to appeal.
Conclusion
The application must be dismissed.
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