Harrison v South Australian Housing Trust - [2014] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HARRISON v SOUTH AUSTRALIAN HOUSING TRUST
[2014] SASC 94
Judgment of The Honourable Justice Peek
23 July 2014
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
LANDLORD AND TENANT - RENT - BREACH OF COVENANT TO PAY - CONSEQUENCES
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - RECOVERY OF POSSESSION
Appeal against order dismissing an appeal for want of prosecution.
The appellant rented premises from the respondent under a tenancy which commenced on 22 July 2006. She initially paid the rent regularly but more recently failed to pay outstanding amounts for rent and maintenance charges. The respondent commenced proceedings in the Residential Tenancies Tribunal (the Tribunal). The Tribunal gave the appellant multiple “second chances” by making orders on various occasions for the tenancy to continue if scheduled payments were made but breaches of such orders continued to occur. Eventually, the respondent was granted a final order by the Tribunal for vacant possession on 26 November 2013 when the appellant (not for the first time) failed to appear at a scheduled hearing. The appellant appealed against that order and that appeal was dismissed by the District Court on 7 March 2014 after her third failure to attend a scheduled Court hearing without prior explanation.
The appellant appealed against that order to this Court. She submitted that she did not know of the 7 March 2014 hearing or that she was required to attend but agreed that she had not made enquiries about her obligations to do so. She also submitted that she had difficulties making payments and admitted that she had in fact stopped paying rent. Counsel for the respondent submitted that the Housing Trust would suffer prejudice if the matter were allowed to continue in that until it is resolved the premises must remain unoccupied thus depriving a more worthy tenant of accommodation and the Housing Trust of rental income. It was also stressed that waiting lists exist for the limited public housing that is available which is funded by modest rent which the appellant has not been able to sustain despite being given numerous opportunities to do so; accordingly, in all of the circumstances, the time has come for the matter to be concluded and for there to be finality of litigation.
Held per Peek J (dismissing the appeal):
1. Although the appellant did wish to prosecute the matter, she has provided no satisfactory explanation as to her failures to: attend Court; to make her difficulties known to the Court or the respondent; and to make enquiries of the Court or of the respondent as to her obligations to attend Court.
2. The respondent would suffer prejudice in the respects submitted if the appeal were allowed and the matter remitted for further hearing before the District Court.
3. In all of the circumstances of the case, the Judge did not err in dismissing the appeal against the decision of the Tribunal.
4. The appeal is dismissed.
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; Beverage Bottlers (SA) Ltd (in liq) & Anor v Abode Enterprises Pty Ltd [2009] SASC 272; BQ & HM Doe Pty Ltd v National Australian Bank [1999] SASC 124; Ulowski v Miller [1968] SASR 277, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"want of prosecution"

HARRISON v SOUTH AUSTRALIAN HOUSING TRUST
[2014] SASC 94
Magistrates Appeal

PEEK J. Appeal against order dismissing an appeal for want of prosecution.
The appellant, Ms Harrison, rented a three bedroom house in Parafield Gardens from the respondent, the South Australian Housing Trust, under a tenancy which commenced on 22 July 2006. Although she initially paid the rent regularly, more recently she failed to pay outstanding amounts for rent and maintenance charges and on 2 May 2013 the respondent commenced proceedings in the Residential Tenancies Tribunal (the Tribunal). The Tribunal gave the appellant multiple “second chances” by making orders on various occasions for the tenancy to continue if scheduled payments were made but breaches of such orders continued to occur. Eventually, the respondent was granted a final order by the Tribunal for vacant possession on 26 November 2013 when the appellant (not for the first time[1]) failed to appear at a scheduled hearing. The appellant appealed against that order and that appeal was dismissed by the District Court on 7 March 2014. The appellant now appeals to this Court against that order. The appellant has been unrepresented on all occasions.
[1] The appellant had also failed to appear on 16 May 2013 and 4 October 2013.
The appeal against the order of the Tribunal to the District Court
The appeal to the District Court came on before the District Court Judge (the Judge) on 29 November 2013. The appellant appeared unrepresented and asserted that she had not attended before the Tribunal on 26 November 2013 when it made its final order in her absence because her home detention officer would not allow her to. The Judge was sceptical as to that assertion (as am I) but he adjourned the matter to 19 December 2013 to provide the appellant with yet another opportunity to comply with the Tribunal’s orders as to the making of payments (including maintenance costs).
On 19 December 2013 the appellant again failed to attend at Court and the Judge further adjourned the matter to 28 February 2014.
On 28 February 2014 the appellant again failed to attend and the matter was further adjourned to 7 March 2014. On 7 March 2014, the appellant again failed to attend and the Judge dismissed her appeal.
The appeal against the order of the District Court to the Supreme Court
Given the history of non-attendance by the appellant, arrangements were made for the appellant to select a date and time for the hearing of the appeal to this Court convenient to her. Despite this, she arrived significantly late for the scheduled hearing, and only as I was about to dismiss her appeal.
To succeed on appeal in the circumstances of this case, the appellant is required to satisfy the Court that she had made adequate efforts to attend the District Court hearings, or at least to notify the District Court of any difficulties she had in doing so, and that the order made in her absence should, in all of the circumstances, be set aside.[2] For the reasons that follow, I find that she has failed to so satisfy the Court.
[2] See Ulowski v Miller [1968] SASR 277; Beverage Bottlers (SA) Ltd (in liq) & Anor v Abode Enterprises Pty Ltd [2009] SASC 272; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; BQ & HM Doe Pty Ltd v National Australian Bank [1999] SASC 124.
The appellant’s non-attendances at hearings before the District Court
Counsel for the respondent tendered by consent an affidavit sworn on 8 July 2014 by Mr Wierenga, a Housing Trust officer, which detailed his appearances before the Judge and the Tribunal, and exhibited its orders together with police reports of the appellant’s custody and bail status as at March 2014.
The appellant did not file any affidavit material and I permitted her to give evidence on oath before me. Her evidence was that she had failed to attend before the District Court on 19 December 2013 because her Home Detention officer, who she had contacted on the day prior, refused to allow her to attend. I have serious difficulties accepting that evidence. The assertion appears unlikely and I note that when outlining her case before taking the oath and commencing to give evidence, her explanation from the bar table had been that she was meeting with a barrister in relation to other matters. It is unnecessary to resolve this matter; it is sufficient to say that whatever her reason for non-attendance was, it was not that she had simply forgotten. That being so, the appellant was required to contact the Court and explain the position; however, she agreed that she took no steps whatsoever to contact either the Court or the respondent to explain her absence or to try to reschedule.
As to the appellant’s failure to attend before the District Court on 28 February 2014, her evidence was that she was in custody for matters before the Magistrates Court at that time. She gave evidence that she had known of the hearing on 28 February 2014 but did not make any effort to alert the Court or the respondent that she would miss it. The appellant gave evidence that she was released from custody later on that same day, 28 February 2014, and returned to the subject premises where she continued to live until being taken into custody again at least two to three weeks later for breaching the conditions of her home detention. Importantly, she agreed that during that period (which spanned the 7 March 2014), she took no steps whatsoever to find out when she was next due in Court, and was therefore not aware of the hearing on 7 March 2014.
Thus the appellant’s evidence was that she failed to attend on 7 March 2014 because she had no notice of that hearing date and that she first became aware of the 7 March 2014 hearing well after that date and only after she had been released from custody (presumably late in March or into April). She stated that upon returning to the premises, she observed that the windows were boarded up, and found a “Trespassers Prosecuted” notice which indicated that her appeal had been dismissed on 7 March 2014.
I mention that, contrary to the appellant’s above evidence, the police reports exhibited in Mr Wierenga’s affidavit indicate that she was not in custody at any time during March 2014 and that, consistent with that material, separate records indicate she was on bail since her release on 28 February 2014.
However, once again, it is unnecessary to resolve that inconsistency because, on either version, the appellant was not in custody on 7 March 2014 and completely failed to make adequate efforts in the days before and after that date to communicate with either the Court or the respondent as to the progress of her appeal to the District Court.
It is also clear, as the appellant admitted in evidence, that she has not made any payments for rent since she was evicted from the premises on 19 March 2013.
The parties’ contentions
The appellant submitted that she was not aware that she was required to attend on 7 March 2014 and had not received any such notification from either the Court or the respondent. More broadly, she submitted that it was difficult for her to make the scheduled payments and that if her appeal was dismissed she would not have permanent accommodation and would need to continue living with her family to whom she paid board, or find accommodation elsewhere. She stated that if the appeal were to be allowed, she would go to work in the country to satisfy the debt.
Counsel for the respondent submitted that the Housing Trust would suffer prejudice if the matter were allowed to continue. Until this matter is finally resolved the premises must remain unoccupied thus depriving a more worthy tenant of accommodation and depriving the respondent of that rental income. It was emphasised that there are waiting lists for the limited public housing that is available, and that public housing is funded by modest rent which the appellant has not paid in recent times despite being given numerous “second chances”; the time has come for the matter to be concluded and for there to be finality of litigation.
Conclusion
In all of the circumstances, I am not satisfied that the Judge erred in dismissing the appeal. I accept that the appellant did wish to prosecute the matter, but, as recounted above, she has provided no satisfactory explanation as to her failures to: attend Court; to make her difficulties known to the Court or the respondent; and to make enquiries of the Court or of the respondent as to her obligations to attend Court. I accept the submissions of the respondent and reject those of the appellant.
Orders
The appeal is dismissed.