Howard v South Australian Housing Trust - [2005] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HOWARD v SOUTH AUSTRALIAN HOUSING TRUST
Reasons for Decision of His Honour Judge Boylan
30 August 2005
ADMINISTRATIVE LAW
Appeal from decision of the Residential Tenancies Tribunal. Dangers inherent in evidence before Tribunal. Appeal allowed.
Residential Tenancies Act 1995 Section 41, Section 90, referred to.

HOWARD v SOUTH AUSTRALIAN HOUSING TRUST
[2005] SADC 131

This is an appeal from an order of the Residential Tenancies Tribunal made on the 19^th of July 2005 in respect of premises at 2 Hereford Street, Strathalbyn. The landlord is the South Australian Housing Trust. The tenant, the appellant in this matter, is Mr Thomas Howard. The Tribunal ordered that the Housing Trust have possession of the premises from Friday the 29^th of July 2005. Mr Howard has appealed against that order pursuant to Section 41 of the Residential Tenancies Act. Although it does not seem that any suspension of the order was ordered by the court, no action has been taken to enforce the order pending the outcome of this appeal.
The Housing Trust applied for the order pursuant to Section 90 of the Act. That Section reads, where relevant, 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)     …
(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)   …
(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 Housing Trust made the application to the Tribunal on the basis that Mr Howard had caused or permitted nuisance and interfered with the reasonable peace and comfort of another person who resides in the immediate vicinity of the premises.
A number of people gave evidence before the Tribunal. The staff of the Housing Trust told the Tribunal that Mr Howard and his wife moved into the premises in October 2004 and that, since that time, there have been numerous complaints from residents about disturbances and abusive language. They gave evidence that there had been ten complaints made to the Trust about disturbances at the premises and that some of those disturbances involved abusive language toward neighbours. One of the staff members said that a neighbour had reported to him, that during one confrontation, Mr Howard had threatened to kill the neighbour for calling the police. Another staff member, Ms Gaborit, said that the last complaint received from a neighbour was on the 4^th of July and that that complaint involved abuse being shouted at neighbours every time they opened the door.
Ms Mere lives next door to the premises. She told the Tribunal that she was in constant fear due to the disturbances which she found “frightening and unpleasant”. She gave evidence of various incidents including a prolonged disturbance which began about 3 o’clock in the afternoon and continued until
1 o’clock the following morning. She said that she had called the police in relation to the disturbances on three or four occasions. She gave examples of what she asserted were occasions of abusive language directed by Mrs Howard to both her and her daughter. Ms Mere told the Tribunal that she was “devastated” by the ongoing confrontation with Mr and Mrs Howard and that she was receiving counselling in respect of it.
The Tribunal also heard evidence from Mrs Maidment-Longbottom who is a manager of client services for children with intellectual disabilities. In the course of her employment in that capacity, she had been told by Ms Mere’s children of disturbances, noises and threats from Mr Howard’s premises.
Mr Howard gave evidence. In his evidence, he said that he and his wife were friendly with one Mrs Boxall, who had previously been Ms Mere’s landlady. The effect of his evidence was that there was ill feeling between Mrs Boxall and Ms Mere. The Tribunal noted in its reasons that Ms Mere specifically denied that there were any ill feelings between her and Mrs Boxall.
Sharna Howard, Mr Howard’s daughter, gave evidence that on one occasions she had created a disturbance at the premises when she argued with her parents about the sale of a horse.
In addition to hearing evidence from a number of witnesses, the Tribunal received a number of written statements from people who wrote in support of Mr Howard’s case. Those letters were before me on the hearing of the appeal.
The Tribunal also recorded in its reasons that Mr Cawood, had given evidence that he had received a complaint from one neighbour who did not wish his or her name or address to be disclosed. That complaint was that Mr Howard had approached the neighbour seeking a reference but, when the conversation turned acrimonious, Mr Howard had threatened to burn the neighbour out. Mr Howard denied making the statement.
Having considered the evidence, the Tribunal was satisfied that the Housing Trust had made out its claim pursuant to Section 90 and made the order the subject of the appeal.
Mr Howard lodged his own notice of appeal. Although it confuses the particulars of the Tribunal’s order with the grounds of appeal, it seems plain that Mr Howard’s chief ground of appeal is that he was not given a fair hearing and that the Tribunal took insufficient or no notice of the evidence of his daughter or of the letters he tendered to it.
On the appeal, Mr Howard called two witnesses and gave evidence himself. His first witness was Ms Julie Fennell. In addition to giving evidence on the appeal, Ms Fennell had supplied a letter to the Tribunal in support of Mr Howard’s opposition to the Housing Trust’s application for possession. Ms Fennell lives on the opposite side of Hereford Street from Mr Howard and Ms Mere and a couple of houses down from Mr Howard. She has been living them for some time. She was there before the Howards moved in. She gave evidence that she had never had any cause at all to complain about Mr or Mrs Howard. She said that she was aware of only two disturbances in the time that the Howards had been there. The disturbances were what she described as “mid-evening”. She also gave evidence that there had been one occasion when she and her partner were arguing and that argument was continued on the street. She said that the argument was “rather loud” and that she was very embarrassed about it.
Mrs Boxall, Ms Mere’s former landlady also gave evidence. Mrs Boxall was apparently present at least for part of the argument between Mr and Mrs Howard and their daughter about the sale of the horse.
Mrs Boxall gave evidence that she and Ms Mere are not on speaking terms. That evidence appears to contradict the evidence of Ms Mere before the Tribunal when Ms Mere denied that there were any feelings between her and her previous landlady, Mrs Boxall.
I shall not canvass Mr Howard’s evidence.
There are a number of features of the material upon which the Tribunal based its decision which give me some cause for concern.
The Tribunal appears to have relied on the evidence of Ms Maidment-Longbottom. While the Tribunal is not bound by the rules of evidence, her evidence is doubly dangerous. It is hearsay. Further, the evidence given by Mrs Mere was what was said to her by one or some of Ms Mere’s children. Unfortunately, Ms Mere apparently has one or more children with an intellectual disability. In those circumstances, I feel that it is dangerous for the Tribunal to have relied upon Ms Maidment-Longbottom’s evidence. Further, the Tribunal relied upon the fact that there had been ten complaints to the Housing Trust received from neighbours at the premises. Mr McNulty was most helpful in frankly admitting that the Housing Trust does not know the identities of the people who made those complaints. He conceded that they could all have come from Ms Mere. Mr McNulty also told me that the occupant of Ms Mere’s premises before she moved in did not ever make any complaint about disturbances at Mr and Mrs Howard’s premises.
It seems to me that the Tribunal effectively relied only on the evidence of Ms Mere. There is a discrepancy between her evidence and Mrs Boxall’s on an important issue, namely, the relationship between them. Mr Howard asserts that it is his and his wife’s friendship with Mrs Boxall which causes Ms Mere to complain.
In all the circumstances, I am of the view that the Tribunal may well have placed too much reliance upon the evidence of Ms Mere and Ms Maidment-Longbottom.
I allow the appeal and quash the order of the Tribunal.