Karpany v Aboriginal Housing Authority No. Dcadd-03-231

KARPANY V ABORIGINAL HOUSING AUTHORITY
[2003] SADC 123
Judge Trenorden
Civil

The appellant has appealed against the order of the Residential Tenancies Tribunal (the Tribunal) made on 2 May 2003. By that order, the respondent was entitled to possession of the premises at 89 Illyarrie Avenue, Surrey Downs on Friday 9 May 2003 subject to the condition that if the appellant failed to give up possession the order could be enforced by the Tribunal bailiff.
The appellant seeks an order that “the order of the Residential Tenancies Tribunal made on 2 May 2003 be stayed, set aside or varied”.
The appellant was neither present nor represented at the Tribunal hearing on 2 May 2003. He did not receive notice of the order of the Tribunal until after 10am on Friday 9 May 2003. On Monday 12 May 2003 the Tribunal’s order was enforced by the Tribunal bailiff, when the latter changed the locks on the premises.
The appellant’s possessions remain at the premises and on 14 May 2003 it was agreed between the parties that the appellant’s possessions would not be removed from the premises until such time as the appeal had been resolved.
Background
One of the grounds of appeal was that the appellant did not receive notice of the Tribunal hearing on 2 May 2003 and therefore did not have an opportunity to be heard before the Tribunal made its order on that date. The facts leading up to the hearing by the Residential Tenancies Tribunal appear to be as follows:
·The appellant together with Danelle Woods visited the offices of the respondent and spoke with Stephen Charles Callaghan there, on 14 March 2003. At that stage the appellant had accumulated arrears of rent and maintenance fees of over $5,000.
·On 19 March 2003, Callaghan recommended eviction of the appellant from the premises, providing the following debt background details:
“Mr Karpany has been continually in arrears. Many arrangements have been made but not kept. Mr Karpany did not attend the Debt Tribunal on 13/12/02. He has failed to keep the Debt Tribunal Arrangement. The Debt Tribunal now recommends eviction.”
The amount of the current debt was shown as $5,264.75 as at 17/03/03 with the last payment of rent being shown as $100 on 7/03/03.
·The general manager of the respondent endorsed eviction on a date that appears, at first glance, to be 28 March 2003, but may be 20/3/03.
·A “notice to remedy breach of agreement and notice of termination” was sent to the appellant at the premises signed by the supervising recovery officer “for and on behalf of the Aboriginal Housing Authority” and dated 24 March 2003.
·Between 20 March and about 25 March 2003, the appellant, in company with Danelle Woods and his mother Christine Abdulla visited the offices of the respondent and spoke with William Wade Allan (Allan) to discuss tenancy arrangements with respect to the premises and the respondent’s house in which Danelle Woods was a tenant.
·At this meeting Allan informed the appellant that the appellant’s tenancy had been referred for recovery of the outstanding debt.
·On or shortly after 25 March 2003, the appellant received the notice to remedy breach of agreement and notice of termination from the recovery unit of the South Australian Housing Trust, on behalf of the respondent.
·On or before 8 April 2003, the appellant spoke to Allan by telephone.
·On or about 11 April 2003, the landlord’s agent applied to the Tribunal seeking an order for possession of the premises.
·A notice of the hearing of the application by the Tribunal on 2 May 2003 was posted, addressed to the appellant, at the premises on or about 15 April 2003.
·The appellant did not attend the hearing in the Tribunal on 2 May 2003 and an order for possession was made on that date.
Non-Receipt of Notice of Hearing Issued by Tribunal
The appellant complains that he has been denied natural justice because he has not been given an opportunity to put his case including a prospective claim for compensation, prior to an order being made which had the effect of denying him the right to continue to occupy the premises. Certainly, natural justice requires that a person who may be affected by a decision be given an opportunity to respond to the case against him or her: MIMA v Bhardwaj (2002)187ALR 117 at 126.
The Tribunal was required by statute to give the appellant notice in writing of the time and place at which it would hear the application made on the respondent’s behalf: s.25(2)(a) and s.50(2), Residential Tenancies Act 1995. S.47(1)(b) of the Residential Tenancies Act enables the Governor to make regulations providing, for the service of any process, notice or document relevant to Tribunal proceedings, and s.47(2) empowers the Presiding Member of the Tribunal to make rules, inter alia, “to assist in the effective and efficient operation of the Tribunal, insofar as those matters are not dealt with by the regulations”. Rule No. 2 of the Residential Tenancies Tribunal provides that the giving of notice (such as that required by s.25(2)(a)), as follows:
“1.3.1Subject to the Act, the Regulations and any order of the Tribunal, a notice or document required or authorised to be given to a person under the Act may be:
(a)given to the person, or an agent of the person, personally; or
(b)sent by post addressed to the person, or an agent of the person, at the last known place of residence, employment or business of the person or agent; or
(c)left in a letterbox or other place where it is likely to come to the attention of the person, at the last known place of residence, employment or business.”
Rules are statutory instruments, and must be laid before Parliament: Subordinate Legislation Act 1978. Thus, Parliament contemplated that notice of Tribunal proceedings might be given, by means other than personal service.
The Tribunal found that notice had been given by post, to the appellant, in accordance with Rule No. 2. The appellant claims that he did not receive the notice. Of course, that claim is different from a claim that the notice was not given, delivered or served.
The respondent relies on s.33(1) of the Acts Interpretation Act 1915. That provision is as follows:
“33. (1) Where any Act passed after the passing of this Act authorises or requires any document to be served by post (whether the expression “serve”, “give”, “deliver” or “send”, or any other expression is used), then, unless the contrary intention appears, the Act will be taken to provide –
(a)that the service is effected by properly addressing, prepaying and posting a letter or packet containing the document; and
(b)that, unless the contrary is proved, service will be taken to have been effected at the time at which the letter or packet would be delivered in the ordinary course of the post.”
The argument in this case is that as the appellant did not receive the letter, service was not effected.
There is no contrary intention in the Residential Tenancies Act, or at least that part of the Act that applies to residential tenancies and residential tenancy disputes where the respondent is the landlord, with respect to the giving of notice by the Tribunal. The provisions of Rule No. 2 with respect to the mode by which a notice may be given by the Tribunal, are in the alternative; notice may be given personally, or by post or by being left in an appropriate letterbox or place.
According to the Tribunal records, the letter was properly addressed to the appellant at the premises. As far as the Tribunal and the respondent were aware, the premises were the last known place of residence of the appellant.
By s.33 of the Acts Interpretation Act, service must be taken to have been effected (or notice given) on a date shortly after the posting of the notice, unless the contrary is proved. In effect, Parliament recognised that it is not necessary, in every case, for service (or notice) to be effected (or given) personally.
It was argued on behalf of the appellant that “judgments are regularly set aside on the basis of lack of notification of hearings” (Appellant’s Outline of Argument). Re Ananis; Ex Parte Total Australia Ltd (1985) 63ALR 493 and Taylor v Taylor (1979) 25 ALR 418 were cited in support of the proposition. In re Ananis, notification of the hearing date had been sent by certified mail and Ananis, in addition to his evidence that he did not receive the notification, was able to show that the letter had never been received at the relevant post office and consequently, not received by him. Notice had not been given. In contrast, here we have no evidence other than that of the appellant himself asserting that he did not receive any letter from the Tribunal.
However, the argument appears to revolve around the fundamental nature of the principle of natural justice that a party likely to be affected by the outcome of proceedings is entitled to be present and to be heard in support of his case. According to Aickin J in Taylor v Taylor (above) at p435, this principle involves the consequence that, “where through no fault of his own, a party is deprived of that entitlement, prima facie any order of a court made against him may be set aside by that court”. Other members of the High Court were of the same opinion. The High Court saw “no basis for confining the application of that principle to cases where there has been a failure to serve the process or give other appropriate notice” (Aickin J at p435).
However, neither in Taylor (above) nor re Ananis (above) was the impact of a provision such as s.33(1) of the Acts Interpretation Act, in the context of non-personal service of a notice being permitted under the relevant legislation, considered.
In Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, the appellants had given sworn evidence that they did not receive the relevant notices. The High Court noted that it was not contended that this amounted to proof that the appellants had not been served with the notices and added (at page 95):
“Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that (the relevant provision) clearly contemplates ... service other than personal service.”
Their Honours then considered the relevant provision of the relevant Acts Interpretation Act (Queensland) which was in almost identical terms to s.33(1) of the South Australian Acts Interpretation Act here considered. However, their Honours noted that in the absence of the notices having been returned undelivered or any other “circumstance which suggested that they did not reach their destination” by the Acts Interpretation Act, service was deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post.
Following Fancourt (above), in the absence of evidence that the notice was not properly addressed to the appellant, and prepaid and posted by the Tribunal, I have to conclude that the Tribunal was not in error in finding that service of the notice had been effected upon the appellant. This is also consistent with the approach adopted by the Supreme Court in Battiste v Mulvaney (1997) Judgment No. S6419.
At the time of the decision of the Tribunal, it appeared that service of the notice had been properly effected.
In the absence of evidence to show that the letter containing the notice was returned undelivered or delivered elsewhere, or delivered to the appellant at the premises on a date well after 15 April 2003, I am entitled to conclude, as was the Tribunal, that service of the notice was effected on or about 17 April 2003. The appellant has given evidence that his mail often went missing. He did not always collect his mail daily. The appellant’s evidence of non-receipt of a letter from the Tribunal advising of the hearing date does not amount to proof of non-delivery, but only goes to prove that he did not receive the letter.
Although s.33(1) of the Acts Interpretation Act applies to service required to be effected under another Act of Parliament, by s.14A of the Acts Interpretation Act, it also applies to statutory instruments, which includes a Rule made under the Residential Tenancies Act: see s.4(1) “statutory declaration” of the Acts Interpretation Act.
Even if non-delivery had been proved the decision of the Tribunal could only be set aside if the appellant is able to show that he had a case: Battiste v Mulvaney (above). The appellant does not presently have any case to put. According to his Notice of Appeal he is “unsure if he owes to the Respondent the arrears and other amounts it has been alleged that he owes” (paragraph 2.11) and he “does not know if the Notice of Termination/Notice to Remedy Breach of Agreement … dated 24 March 2003 is a valid notice” (paragraph 2.12). In other material before the Court the appellant has indicated that he believes the respondent should compensate him for some of his property which was stolen from rental premises occupied by him at 16 Milbank Avenue, Gilles Plains. No claim for compensation has been lodged in the Tribunal.
The appellant submits that he has lost an opportunity, with the Tribunal’s decision to put forward new arrangements, whereby he might repay the outstanding arrears of rent, while remaining in possession of the premises.
I find that there is nothing in the submissions of the appellant which indicate that he has lost the opportunity of putting forward a meritorious case. With respect to his suggestion that he has a claim for compensation against the respondent, such claim could have been made at any time. It was not required to be made on the hearing of an application for an order for possession and termination of the tenancy agreement.
It follows that there is no good reason for this Court to set aside the decision of the Residential Tenancies Tribunal.
Legitimate Expectation
On some date alleged by the appellant within 14 days of 24 March 2003, that being the date of the Notice to Remedy Breach of Agreement and Notice of Termination which had been received by the appellant, he had a telephone conversation with Allan of the respondent authority. I find, on the balance of probabilities, that in the telephone conversation, Allan advised the appellant as follows:
·that the respondent authority was no longer dealing with the matter;
·that the appellant would have to contact the Central Recovery section of the South Australian Housing Trust to discuss the debt;
·that, in response to the appellant’s advice that he could not pay the debt within the time allowed, the matter would go to the Tribunal for a hearing;
·that the appellant would be invited to attend the hearing and might be able to work out a new arrangement with the respondent for the payment of the debt; and
·that there was nothing more to be done by the appellant until he was notified by the Tribunal of the hearing date.
The appellant submitted that Allan’s assurances, particularly the statement in paragraph 7 of his affidavit, “I also said to Maurice (the appellant) that otherwise there was nothing more to do until he was notified by the RTT of the hearing date”, gave rise to a legitimate expectation that the appellant would receive notification of the Tribunal hearing and that he would receive an opportunity to present his case to the Tribunal that his tenancy should be maintained.
Counsel for the appellant relied on the authority of the judgment of the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu (1983) 2 WLR 735. The principle of legitimate expectation was perhaps neatly summarised in the following passage from that judgment at page 742:
“… when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.”
At page 741, their Honours, in speaking of legitimate expectations, said:
“The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.”
This concept of legitimate expectation arising out of a promise, or undertaking, or usual practice by or on behalf of the public authority which is the decision maker was reiterated by Brennan J. in Kioa v Minister for Immigration and Ethic Affairs (1985) 62 ALR 321 at 378, as follows:
“If the particular circumstances of the case show that the repository of a power has made an express promise to a person or has adopted an administrative practice which that person can reasonably expect to continue and has thereby induced the person to expect that the power will be exercised in his favour or that it will not be exercised against him without a hearing, it may be unfair to exercise the power against the person without giving him a hearing. But the unfairness consists in a departure from the course which the repository of the power expressly or impliedly promised to follow without giving the person whose interests are affected an opportunity to be heard. The unfairness is not the disappointment of the expectation which the promise induced.”
Here, Allan spoke to the appellant on behalf of the respondent authority. The respondent authority is a public authority, who, through its agent Allan, informed the appellant that the matter would go to the Tribunal and that he would be invited to attend and put his case at a hearing arranged by the Tribunal. That information conveyed by Allan to the appellant can be characterised as information as to the course the matter would take. Allan was not promising the appellant anything. He was conveying no more than that which is conveyed by the Residential Tenancies Act, namely that the appellant would be given notice of the hearing.
Allan had no power to invite the appellant to attend a hearing convened by the Tribunal. That was not his role; it was the role of the Tribunal. He gave no assurances to the appellant – he was not in a position to speak on behalf of the Tribunal. Indeed he had said that the matter was out of the respondent’s hands.
To state that the respondent authority, via Allan, made a promise which induced the appellant to expect that he would receive a personal invitation to attend a Tribunal hearing is to misunderstand the concept of legitimate expectation as the courts have developed same.
It is in error to suggest that Allan or the respondent or the SA Housing Trust had a duty to inform the Tribunal of the “specific assurances” that Allan had made to the appellant, as it was put to me on the appellant’s behalf. No assurances were given. There was no duty. The appellant was in no different situation from any other person who had not paid rent due and was the subject of a notice from the landlord indicating that the tenancy would be terminated if the breach of the tenancy agreement was not immediately rectified.
The argument that the appellant had a legitimate expectation that he would be personally notified of the Tribunal hearing, fails.
Timms v SAHT Distinguished
It was submitted by the appellant that the Court should follow the decision of His Honour Judge Lunn in Timms v SAHT (2000) LSJS 42; the matter being an appeal against the decision of the Residential Tenancies Tribunal, where His Honour quashed the order of the Tribunal because sufficient service of the Notice of the Hearing had not been given to the appellant. However, the circumstances in that matter were quite different from those which prevailed here. In Timms (above) the appellant was a person who would be affected by the order of the Tribunal, being in possession of the subject premises, but was not party to a written tenancy agreement with the respondent. Notice had been sent by the Tribunal addressed to “Sub-tenants if any of Lisa Timms”, Lisa Timms having been a former tenant of the respondent. The appellant contended that he was not a sub-tenant of Lisa Timms but that there was a tenancy directly between himself and the respondent Trust.

In Timms, Lunn DCJ held that the statutory requirement under s.25(2)(b) of the Residential Tenancies Act whereby notice had to be given to the appellant by the Tribunal, had not been complied with. His Honour continued:
“No mode of non-personal service which may have been available under the Rules can operate against the appellant where the chances of him receiving it were diminished by his proper name not being shown on it.” (paragraph 24).
The circumstances in this matter are quite different. Notice was addressed to the appellant, by his name, at the subject premises. The judgment of this Court in Timms can be distinguished, as a result.
Conclusion
There is no basis upon which this Court could order that the decision of the Tribunal and the orders made by it, should be set aside. The appeal is dismissed.

[2003] SADC 123

9 October 2003