Khoo v Bartholomaeus - [2020] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
KHOO & ANOR v BARTHOLOMAEUS
[2020] SASCFC 122
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
16 December 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for permission to appeal against orders made by Deputy President Johns in the South Australian Civil and Administrative Tribunal in relation to claims arising at the end of a tenancy.
Held per Kelly J (Livesey and Bleby JJ agreeing):
1. Permission to appeal is refused.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71(1), 71(3), referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10, discussed.

KHOO & ANOR v BARTHOLOMAEUS
[2020] SASCFC 122
Full Court: Kelly, Livesey and Bleby JJ

KELLY J: The applicants, Connie and Fred Khoo, apply for permission to appeal to the Full Court of the Supreme Court of South Australia pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’) against orders made by a Deputy President in the South Australian Civil and Administrative Tribunal (‘the Tribunal’) on 7 September 2020.
As the Notice of Appeal was not filed until 12 November 2020, the applicants require a dispensation with the requirement that the appeal be instituted within one month of the decision pursuant to s 71(3) of the SACAT Act.
The applicants had applied to the Tribunal under s 70 of the SACAT Act for an internal review of an order made in the Tribunal on 7 July 2020. The order was made in respect of two applications; one by the applicants as landlords seeking compensation for claims arising at the end of the tenancy, and one by the respondent as the tenant seeking to be released from her obligations under the tenancy.
The application for internal review came before Deputy President Johns on 3 September 2020. The Deputy President permitted the applicants to apply for internal review and, after hearing submissions, varied the order made in the Tribunal on 15 July 2020 by varying the amounts ordered to be paid to the applicants and to the respondent.
In essence, the applicants argue on appeal that the internal review Tribunal was tenant biased, failed to take into sufficient consideration evidence provided by the applicants and also made factual errors in making its order.
The original order made in the Tribunal directed that from the bond of $2,520.00, an amount of $1,401.54 was to be paid to the applicants in satisfaction of all of their claims, and an amount of $1,376.54 was to be paid to the respondent. Upon internal review, the Deputy President noted that there was an arithmetical error in the original order, as the two amounts awarded did not together make up the amount of the bond.
After hearing from the parties, the Deputy President gave detailed reasons and varied the amounts to be paid to the applicants and to the respondent. The applicants were to be paid a sum of $2,152.96 and the respondent was to be paid a sum of $367.04.
Before discussing the appeal grounds any further, it is appropriate to restate the principles to be applied when determining whether permission to appeal from an order made by the Tribunal to this Court should be granted.
I am grateful for the guidance given in two decisions of this Court; Jackson v Lepp Investments Pty Ltd[1] and Pix v South Australian Housing Trust.[2]
[1] (2016) 125 SASR 1 per Parker J.
[2] (2016) 125 SASR 10 per Kourakis CJ (Bampton and Doyle JJ agreeing).
The Court in Pix approved the statement of principles enunciated by Parker J in Jackson as follows:[3]
[19]In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first-instance decision-maker to give adequate reasons will require the grant of permission.
[20]Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. For this proposition. I rely on the decision of this Court in Legal Practitioners Conduct Board v Colton.
[21]Rule 286 of the Supreme Court Civil Rules provides that, if permission is granted, the appeal is to be by way of a rehearing. An appeal by way of rehearing is effectively a trial over again on the evidence used in the Court or Tribunal below, together with such additional evidence as may be received on the appeal. The Court must independently review the evidence and carefully scrutinise the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion.
[Citations omitted]
[3] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[21].
Here, the applicants complain that a number of errors were made by the Deputy President who conducted the internal review. Specifically:
1.That the Deputy President incorrectly stated the amount of credit in the respondent’s history ledger to be $100.00 when in fact it was only $10.00;
2.That the Deputy President incorrectly characterised the applicants’ claim for reimbursement of water charges in the sum of $137.56 as a fresh claim and was wrong to accept the respondent’s statement at the hearing that she had paid the water charges;
3.Disputed the Deputy President’s allowance for claims made for oven cleaning, grout cleaning, silicone and grout repair work to the shower, carpet cleaning, replacement of a damaged blind and the failure to make any allowance at all for a pest control attendance to remove a wasps’ nest said to be unnecessary; and
4.That the Deputy President made an inadequate allowance for compensation by way of rent loss and should have awarded the full amount claimed.
While some of the complaints made by the applicants, if correct, may reveal an arithmetical error made, for instance, an allowance of $100.00 for tenant credit when it was only $10.00, most of the complaints made by the applicants were simply reagitating arguments which had already been put before the Tribunal at the internal review hearing.
The Deputy President dealt with each and every one of the claims made by the applicants and explained in clear and cogent terms why she was either making an additional allowance or a lesser allowance than originally awarded, or why she failed to make any change at all to the original order.
It seems to me, when viewed in light of the overall dispute between the parties, that any error, if established, is so minor that it cannot be characterised as of sufficient substance to justify yet a third consideration on appeal. In my view, there is a very real public interest in promoting finality of orders made in this jurisdiction, particularly when the right of review has already been exercised.
Bearing in mind the observations of Parker J in Jackson, and in particular the fact that the discretion on this review was exercised by a senior member of an expert tribunal which of necessity must deal with over 10,000 tenancy disputes each year, I would decline to interfere by granting permission to appeal. In addition, even if an arithmetical error might be demonstrated, that error would not affect the amount of the order by more than $90.00.
For these reasons, I would refuse permission to appeal.
LIVESEY J: I agree.
BLEBY J: I agree that permission should be refused, notwithstanding the possible arithmetical error.