Keefe v Lam - [2013] SADC 53

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
KEEFE v LAM & ANOR
[2013] SADC 53
Reasons for Decision of His Honour Judge Chivell (ex tempore)
24 April 2013
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
Tenant claimed the sum of $153.48 against the landlords for cleaning costs and flea treatment. Originally constituted Residential Tenancies Tribunal ordered that the landlords pay $30. The tenant applied under s 37 of the Residential Tenancies Act for reconsideration by the Tribunal. Second Tribunal found no grounds upon which to set aside the original determination. Tenant appealed that decision.
Discussion of the Tribunal’s powers under s 32 of the Residential Tenancies Act to vary or set aside its orders – Tribunal took too restrictive a view of its powers.
Appeal allowed – matter remitted to Residential Tenancies Tribunal for rehearing.
Residential Tenancies Act 1995 s 32, s 37; District Court Act 1991 s 42E, referred to.
McNickle v White [2006] SADC 43; Rice & Dawson v Szlegel [2009] SADC 27, considered.

KEEFE v LAM & ANOR
[2013] SADC 53

HIS HONOUR: A brief history of the matter, as I read the file, is as follows. On 8 November 2012 Ms Keefe, to whom I will refer as the tenant, claimed $153.48 against Mr and Mrs Lam, the landlords. That consisted of $120.48 for cleaning costs and $33 for flea treatment. The Residential Tenancies Tribunal, on that occasion, assessed the tenant’s claim at a total of $30 and made an order accordingly. At the tenant’s request, the Tribunal member prepared full reasons for his decision and they were published on 23 November 2012.
Basically, the reasons given were that the premises were, in the opinion of the Tribunal member, in reasonable condition, but there was an allowance given of $10 to finish cleaning up the garden and $20 for flea treatment, reaching a total of $30.
The tenant then applied for a ‘reconsideration’, as it has become known in the Tribunal.
An application for reconsideration is made pursuant to s 37 of the Residential Tenancies Act, and such an application can be made within three months of the original decision. The Tribunal has, as I read the legislation, an unfettered discretion to reconsider all of the issues, and indeed, any further issues.
During the application pursuant to s 37, the Tribunal member found that the original Tribunal member had not been in error in refusing to allow Ms Keefe to further cross-examine the landlords’ representative; that the rules of procedural fairness were followed in the original hearing; that Ms Keefe had adequate time to read the documents produced by the landlords and did respond to the contents of those documents; that the evidence which Ms Keefe was attempting to proffer to the Tribunal on 14 January was reasonably available to the tenant at the original hearing, and so she should not be allowed to present that evidence at the reconsideration hearing. So the Tribunal member found that there were no grounds to set aside the original determination.
The power to vary or set aside a determination by the Tribunal is, as I said, unfettered. There is a duty on the Tribunal to act expeditiously, that is, within 14 days of an application being made. The procedural powers of the Tribunal in relation to any application before it are contained in s 32 of the Act. Relevantly, s 32(1)(f) provides that the Tribunal may ‘vary or set aside an order if the Tribunal considers there are proper grounds for doing so’. There is no limit on what might be considered a proper ground under the Act. Any such consideration is a matter for the Tribunal and is at large. There are no criteria set down in the Act.
Section 32(2) directs the Tribunal proceed with the minimum of formality. It is not bound by evidentiary rules, but may inform itself as it thinks appropriate.
The powers of this Court on appeal are contained in the Residential Tenancies Act, but are also subject to s 42E of the District Court Act. That section provides that this Court may, if I think fit, allow further evidence or material to be presented to it. But it seems to me, as I said earlier, that does not amount to a power to completely retry the issue which was before the Tribunal. Section 42E also provides that I must pay due regard to the decision made by the Tribunal, and to the reasons given by the Tribunal, and that I should not depart from it unless there are cogent reasons for doing so. So those constraints are inconsistent with me completely retrying the matter.
I cannot think that the powers of the Tribunal on s 37 applications are less wide than the powers of this Court on appeal. Parliament has expressed no limitation on the powers of the Tribunal to reconsider the matter. So it seems to me that the Tribunal member in the reconsideration hearing unduly fettered her powers to rehear and reconsider the original determination.
The policy of the legislation clearly is to provide an informal and inexpensive and expeditious way to resolve disputes.
An application before the Tribunal for reconsideration is not an appeal. It is not for the applicant to demonstrate error in the original decision. It is an application to have the entire matter reconsidered.
Section 32(1)(c) of the legislation gives the Tribunal power to decline to hear an application if it considers the application to be frivolous. In my view, unless an application can be described as frivolous - and I do not regard this one as such - then the Tribunal should, on an application under s 37, proceed to rehear the application on its merits.
There were certain decisions referred to by the Tribunal which are decisions of this Court, and I will briefly touch upon them.
The first decision was McNickle v White [2006] SADC 43, in which Judge Tilmouth considered the powers of the Tribunal under s 37 of the Act. In that case, his Honour attempted to assist the Tribunal by giving examples of situations which might constitute proper ground to reconsider. His Honour suggested, for example, where the applicant was unable for good reason to be present at the earlier hearing, where the applicant had evidence relating to the matter which was not reasonably available at the previous hearing, or where the Tribunal misinformed itself on the evidence presented at the previous hearing. His Honour was not seeking, it seems to me, to set down strict rules as to the powers of the Tribunal on reconsideration. He was merely giving examples of what might constitute proper grounds.
After the decision in McNickle v White, it would seem the Tribunal adopted the three examples given by Judge Tilmouth as being strict criteria under the Act, and would only exercise its discretion to reconsider the matter in the three sets of circumstances he discussed. This misinterprets what his Honour Judge Tilmouth said.
In a later decision, Rice & Dawson v Szlegel [2009] SADC 27, Judge Beazley said that the powers of the Tribunal under s 37 can be exercised in what he called a wide variety of circumstances. In that case, the tenant had agreed to repay rent at a certain rate per month but later found that she was unable to meet those payments, so she sought a reconsideration of that requirement. Judge Beazley found that that constituted a proper ground to reconsider the earlier order.
Judge Beazley in Rice & Dawson made it very clear that there is no limit on the range of circumstances which might constitute proper grounds to reconsider. Before such time as the Tribunal can reach a decision as to whether grounds exist to reconsider, it needs to hear or rehear the evidence. That did not happen here.
As I said to the parties during discussion in this case, it seems to me that this Court is not the appropriate venue to have this matter retried. The costs to the parties and the ability of the Tribunal to act expeditiously and inexpensively make it a much more appropriate venue to retry such issues.
For those reasons, I think it is appropriate to allow the appeal and remit the matter to the Tribunal on the basis that the Tribunal took an unduly restrictive approach to its powers to reconsider. When the matter is reheard in the Tribunal, the Tribunal should do so in accordance with what I have said today.
I do not remit the matter to the Tribunal lightly. I know that that will constitute extra expense and inconvenience for all concerned. I have done my best to try to resolve the issue today, but I have not been successful in that. It seems to me that in the present circumstances, that will not occur. The only really viable alternative is to remit the matter to the Tribunal for rehearing, and I so order.
[To the parties] I know that all sounded rather legalistic, but I hope my intention is clear; I think the Tribunal is the appropriate place for those matters to be ventilated if we cannot sort the matter out. So I order it be remitted to the Tribunal. You will be notified of the date in due course.