Hill v South Australian Housing Trust - [2008] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
HILL v SOUTH AUSTRALIAN HOUSING TRUST
[2008] SADC 44
Judgment of His Honour Judge Soulio
22 April 2008
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
RESIDENTIAL TENANCIES ACT - Appeal against findings and orders of Tribunal. Tenancy terminated pursuant to s90 of the Act.
Residential Tenancies Act 1995 ss 41 & 90, referred to.
Grey v Stephens unreported judgment of Duggan, J delivered 26 August 2002; Timms v South Australian Housing Trust (2003) LSJS 42, considered.

HILL v SOUTH AUSTRALIAN HOUSING TRUST
[2008] SADC 44
The Tenancy Agreement

Mr Hill has been a long-term tenant of the South Australian Housing Trust (“the Trust”), most recently at 23 Stevens Street in the city of Adelaide, pursuant to a Residential Tenancy Agreement on periodic terms.
Application to Terminate the Tenancy
On 13 February 2008 the landlord made an application to terminate the tenancy pursuant to Section 90 of the Residential Tenancies Act 1995. (“RTA”)
That section relevantly provides as follows:
90 (1)The Tribunal may, on application by an interested person, terminate a residential tenancy and make an order for possession of the premises if it is satisfied that the tenant has –
(a) use the premises, or caused or permitted the premises to be used, for an illegal purpose; or
(b) caused or permitted a nuisance; or
(c) caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises.
(2)If the Tribunal terminates a tenancy and makes an order for possession under this section –
(a) theTribunal must specify the day as from which the order will operate, being not more than 28 days after the day on which the orders are made; and
(b) the Tribunal may order the landlord –
(i) to take such actions as is specified in the order for the purpose of taking possession of the premises; and
(ii) not to permit the tenant to occupy the premises (whether as a tenant or otherwise) for a specified period or until further order (and any agreement entered into in contravention of such an order is void).
(2a) However –
(a) the Tribunal must not make an order under this section unless the landlord has been given a reasonable opportunity to be heard in relation to the matter; and
(b) if the landlord objects to the making of an order under this section, the Tribunal must not make an order unless the Tribunal is satisfied that exceptional circumstances exist justifying the making of the order in any event.
(3) In this section –interested person means:
(a) the landlord; or
(b) a person who has been adversely affected by the conduct of the tenant on which the application is based.
The Decision
The application was heard on 4 March 2008 and on 7 March 2008 the Tribunal provided reasons detailing the evidence upon which the decision was made and concluded that the tenant had caused interference with the reasonable peace, comfort or privacy of persons residing in the immediate vicinity. The Tribunal member, Mr Carey, rejected assertions by the tenant that he had moderated his behaviour and concluded that the tenancy should be terminated. He ordered that the landlord have possession of the premises on 19 March 2008.
Application for a Stay
The tenant lodged an application for a stay of the Tribunal’s order on 14 March 2008, which was made specially returnable for 17 March 2008. He also filed a notice of appeal on 14 March 2008.
The matter came on in this court on 17 March 2008 at which time a stay was granted until 8 April 2008, the date set for hearing of the appeal. The learned judge hearing the matter on 17 March 2008 directed the tenant to file what I will regard as further grounds of appeal. Such grounds were filed on 4 April 2008.
The Appeal - Nature of the Appeal
The appeal is brought pursuant to s41 of the RTA. The powers of this court on appeal are set out in s41(2) of that Act and are as follows:
(2)     on an appeal, the District Court may (according to the nature of the case) –
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal’s decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
The appeal to this Court is not an appeal to the District Court in its Administrative and Disciplinary Division[1]
[1] Grey v Stephens (unreported judgment of Duggan, J delivered 26 August 2002; Timms v South Australian Housing Trust 2003 (LSJS 42)
Evidence at the Residential Tenancies Tribunal Hearing
On 4 March 2008 the Tribunal heard evidence from the staff of the South Australian Housing Trust, and from witnesses called by the landlord, Mr Gray, Ms Poppyjohn, and Ms Condos. The tenant, Mr Hill, gave evidence. He was assisted in the presentation of his case by an advocate, Mr Nunn, who is legally trained but operates a business consultancy.
Mr McNulty of the South Australian Housing Trust gave evidence that there had been problems over many years relating to the tenant, with complaints of yelling, fighting, abusive language and late night parties. Ms Poppyjohn gave evidence of the fact that she was fearful of being outside her premises when the tenant and his associates were in the street. She said that on most nights there were loud conversations and drunken arguments, which sometimes turned violent. She said that she would have occasion to call police to the premises on about 20 occasions.
The Tribunal received a joint statutory declaration from Mr Gray and Ms Poppyjohn which records in considerable detail behaviour of the tenant, and guests and associates of the tenant, which are said to have constituted an interference with the reasonable peace, comfort or privacy of persons residing in the immediate vicinity. The declaration refers to events between 31 January 2008 and 26 February 2008.
Mr Gray, who is Ms Poppyjohn’s partner, gave corroborative evidence and it was through him that the statutory declaration to which I have referred was tendered.
Ms Condos, who lives diagonally opposite the premises, gave evidence of being constantly disturbed at night with people banging on the doors, people visiting the premises, arguments about money, abusive language, and arguments.
Ms Pyke, a Housing Manager of the Trust, gave evidence that she had spoken to the tenant on 5 occasions relating to disturbances at the premises. She arranged for the tenant to sign a “future conduct agreement”, which she said had been subsequently breached. She gave evidence that the tenant displayed an apparent unwillingness to change his behaviour and was aggressive towards her, and one of his neighbours, presumably Mr Gray, and had said he would “keep calling him a dickhead, because he is one”.
There was evidence before the Tribunal that the tenant had been offered other accommodation, but had refused on the grounds that he regarded the accommodation on offer as unsuitable.
Mr Hill gave evidence that he was “a bit out of line occasionally but that he had modified his behaviour”. The Tribunal received from him a written submission, and testimonials from nearby residents.
Grounds of Appeal
The complaint on appeal can be summarised as follows:
1.There was a denial of natural justice in that the Tribunal member relied on the statutory declaration which was provided only during the course of the hearing and that tenant did not have a proper opportunity to respond.
2.That the Tribunal failed to take into account the letters from other tenants supporting Mr Hill.
3.That the Tribunal failed to take into account that the tenant had pets and furniture and no financial support.
4.That he had generally modified his behaviour for the better and had evicted his previous sub tenants.
5.That he had a medical condition.
Submissions and Evidence upon Appeal
Section 32 of the RTA provides that the proceedings before the Tribunal “must be conducted with the minimum of formality and in the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may inform itself as it thinks appropriate”. As the Tribunal’s determinations affect the legal rights and interests of persons appearing before it, it is nevertheless obliged to comply with the rules of procedural fairness.[2]
[2] Annetts v McCann (1990) 170 CLR 596
The statutory declaration tendered before the Tribunal, was in my view, no more than the transcription of a series of contemporaneous notes citing examples of the type of conduct on the part of the tenant, which was the subject of the complaint. Such evidence could have been led orally in any event. There was no lack of procedural fairness nor lack of natural justice before the Tribunal.
The Tribunal member has made specific reference to the letters from other tenants, described by him as testimonials in the Reasons for Order, and specifically rejected the tenant’s contentions, put both before the Tribunal, and subsequently in submissions on appeal, that the tenant had modified his behaviour for the better.
I do not consider that the Tribunal member was in error in making his finding, and for reasons which I refer to below, I would have come to the same conclusion.
At the appeal Mr Nunn again attended in court to provide assistance to the Appellant but did not appear on his behalf. On the hearing of the appeal, on the application of the tenant, and pursuant to s41(2)(a) of the RTA, I received further material being additional testimonials from other residents in the vicinity, a written submission from Mr Hill, and a copy of a letter dated 25 October 2007 from the landlord advising of approval given to the tenant to transfer to alternative accommodation.
I have also received from Mr Hill a written submission addressed to the Tribunal member and dated 11 March 2008, and a further written submission to me dated 8 April 2008. The letter to the Tribunal member was written after his decision had been delivered.
In the letter to the Tribunal, written in part in relation to the statutory declaration to which I have referred, the tenant said that “at least 65% is absolute story time, the other 35% would be 80% to 90% true”.
Whilst I received three letters speaking well of the tenant, one of the letters he tendered confirmed that he had in the past brought disruption to the street given the nature of the people that he had been associated with. The author recognises that in “most recent times, Ray has made an effort to keep to himself and these friends are far less frequent”.
I received a letter from the tenant’s general practitioner, Dr Healy. He makes the comment that he and the tenant have had their differences at times, but that Mr Hill had made serious efforts to address such issues. He said that Mr Hill admits to major problems with alcohol, cannabis and socially unacceptable behaviour. He said this had been brought home to him in a forcible manner with an assault occasioned upon Mr Hill by some of his so-called friends, which resulted in severe injuries and a lengthy stay in hospital. That was in the context of Mr Hill being in the process of changing his behaviour and accepting the necessity of major changes in his lifestyle.
However, that does not sit with the detailed information contained in the statutory declaration, which was clearly accepted by the Tribunal member, and indicates ongoing problems of the very nature referred to by Dr Healy.
Finally, I received a letter from Ms Joyce Vandesman of the Adelaide Daycare Centre for Homeless Persons Inc confirming that that organisation was arranging for Mr Hill to be provided with a case worker and for a case plan to be prepared which, if successful, would result in the provision of short-term accommodation to Mr Hill in alternative premises.
That material was received without objection, but subject to the submission that it did not raise any new matter and did not alter the position.
Mr Hill said in submissions before me that he was quite prepared to move from the subject premises, but only on condition that he be moved to a suitable premises which had security measures in place. Mr McNulty indicated that the Trust position was that the Trust was not prepared to make any further offer of accommodation to Mr Hill, but might review that position provided he underwent appropriate counselling in relation to behaviour modification. In any event no offer of accommodation would be made in the near future.
However, the Tribunal member had before him Mr Hill’s letter 29 February 2008 which set out the tenant’s position including the assertion that he had addressed problems relating to the previous 6 months regarding late callers, noise, and people moving in and out of the premises. In that letter, he said that he had evicted the tenants that had been living with him and had sought to avoid associating with people who had caused previous problems. He made reference to his ill health.
The statutory declaration and the evidence of Mr Gray and Ms Poppyjohn are clearly to the contrary, and it was that contrary evidence which was accepted by the Tribunal member.
Insofar as the additional evidence I received on the appeal relate to matters bearing on the determination at first instance, I do not regard those matters as demonstrating any incorrect approach on the part of the Tribunal member. The additional evidence and submissions, and I make the comment that there tended to be a mix of the two put forward on behalf of the tenant, do not warrant anything other than a confirmation of the Tribunal’s decision.
Insofar as that material relates to events subsequent to the Tribunal members decision, I do not regard the material as in any way justifying interference with the Tribunal’s decision.
I confirm the decision of the Tribunal.
I make the following ancillary order:
The landlord is to have possession of the premises on the 6^th day of May 2008.