Litkowitsch v SA Housing Trust - [2013] SADC 8

District Court of South Australia
(Civil: Appeal Under Residential Tenancies Act 1995)
LITKOWITSCH v SA HOUSING TRUST
[2013] SADC 8
Judgment of His Honour Judge Stretton (ex tempore)
25 January 2013
LANDLORD AND TENANT
The tenant appealed against an order by the Residential Tenancies Tribunal evicting her from her Housing SA premises on the basis that the Tribunal wrongly attributed poor behaviour and conduct in the area to her.
Held: Parties to a Tribunal dispute are entitled to adequate reasons for any decision determining their rights. The Tribunal did not adequately articulate either its factual findings or the evidential basis for them. Accordingly the decision miscarried and the order for eviction must be set aside. At the request of the parties the matter is remitted to the Tribunal for further consideration per Section 42F of the District Court Act.
District Court Act s 42F, referred to.

LITKOWITSCH v SA HOUSING TRUST
[2013] SADC 8

This is an appeal against an order made by the Residential Tenancies Tribunal on 23 January 2013 following a hearing it held on 10 January 2013.
The landlord, the South Australian Housing Trust, applied to the Tribunal to evict Ms Doris Litkowitsch, the tenant pursuant to a residential tenancy agreement between the parties which commenced on 28 November 2003 and is, at least now, a periodic tenancy.
The Tribunal on 23 January 2013, pursuant to s90 of the Residential Tenancies Act (1995), ordered that the tenancy terminate at 11 am on Monday, 28 January 2013 and ordered that the landlord have vacant possession at that time.
The tenant has appealed against that decision by notice dated 25 January 2013 which was listed immediately in this Court given the imminence of the eviction.
She appeals on the ground that in essence the Tribunal got it wrong in concluding that she had been responsible for the significant interference with the reasonable peace, comfort or privacy of other persons, as found by the Tribunal in its “Reasons for Order” dated 23 January 2013.
This Court is only able to interfere with the decision of the Tribunal if it concludes that the Tribunal erred in a relevant way. If the Tribunal took into account an irrelevant matter or failed to consider relevant matters before it, or made an error of law, or an error of material fact, then this Court may intervene, allow the appeal and take a number of courses available under the relevant legislation.
I have perused the materials forwarded to the District Court. There is the original form 8 application by the South Australian Housing Trust, in other words, Housing SA, for eviction based on a summary of allegations of disruptions and other bad behaviour articulated in that form.
I note there is a map of the area, an email by Tony Siepelt deposing alleged bad behaviour by the tenant on 1 January 2013. There is a typed but unsigned ‘Summary of incidents and concerns’ apparently by Andrew Craig, the Regional Manager of Disability Services. It is fairly clear that Mr Craig is responsible for nearby residential premises at which disabled persons live.
That letter documents alleged incidences and troubles said to be the responsibility of the tenant. Some five incidents in May 2012 are documented. There were also some other undated incidents and conduct described there.
There are some brief short form handwritten notes by the Tribunal member which do not assist me. There is no transcript of evidence. There is no transcript of the notes of the Tribunal member to assist this Court.
The Tribunal gave reasons on 23 January 2013. Those reasons listed who was present. The landlord was represented by Mr Wierenga who is also here today and Ms Blake. The tenant was present and there are four witnesses listed for the landlord, Andrew Craig, Gary Owen, Julie Faulkner and Malcolm Owen.
The Tribunal said:
For the reasons given at the hearing of this matter, the Tribunal has decided that the tenant has caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises. As the tenant was advised at the hearing, I propose to give possession to the landlord on Monday, 28 January 2013.
Whilst the Tribunal was not over-impressed with the evidence given by Mr Owen or Ms Faulkner, the evidence given by the police officer, Mr Craig and Ms Blake, from the South Australian Housing Trust, was very convincing and the Tribunal had little trouble arriving at its decision to evict the tenants on the basis of the evidence given to it.
It is also significant that the tenant, at the end of November 2012, was warned that action would be taken against her and that if she had any hope of staying in the premises, she would have to make significant changes to her behaviour but this did not occur as there are other incidences after 1 December 2012 that left the Tribunal with no doubt that it had made the right decision to evict the tenant under all the circumstances of the case.
Unfortunately the Tribunal did not repeat the reasons that it said it had given at the hearing of the matter on 10 January 2013, nor did the Tribunal describe the evidence given by the witnesses and in particular did not describe any of the evidence given by the police officer Mr Craig, and Ms Blake from the South Australian Housing Trust that it found convincing.
Unfortunately the Tribunal also did not go into any detail about the warning that it concluded had been given to the tenant at the end of November 2012. Nor did it document any of the ‘other incidences after 1 December 2012’.
In all of those circumstances it is not possible for this Court to determine whether the Tribunal was in error. The reason for that is the Tribunal has not given sufficient reasons to enable such an analysis to be made.
Both parties to any hearing before an administrative tribunal that has a power to determine rights and liabilities between those people are entitled to adequate reasons for any decision that tribunal might make which finally determines those rights and liabilities. That has not occurred here. For that reason the proceedings before the tribunal have miscarried and this appeal must be allowed.
I raised this provisional conclusion with both parties today to enable them to respond. I also asked them were I to come to such a decision would they prefer that the matter be reheard here or sent back to the Tribunal and if sent back to the Tribunal should it go back before Mr Vincent, the hearing member concerned, or commence afresh before a new Tribunal member. Both parties are happy for it to go back before Mr Vincent for further consideration. That will obviate the need for the evidence already given to be repeated.
The tenant has indicated before this Court that she was not very familiar with Tribunal procedures and matters of evidence. She now is, and she should accordingly have the opportunity to call any further evidence. Upon further consideration the Tribunal should clearly describe the evidence that was given before it and fully articulate the reasons for any orders that it might make. In all the circumstances that hearing should be convened as soon as reasonably practicable.
So I make the following orders:
1.The appeal is allowed and the order of the Tribunal dated 23 January 2013 is rescinded.
2.The matter is remitted to the original decision-maker, Mr R. Vincent, for further consideration in accordance with the following directions pursuant to s42F of the District Court Act:
(a) a further hearing be convened at a time convenient to the Tribunal and parties as soon as reasonably practicable but in any event within 28 days.
(b) at that hearing the parties be at liberty to call any further evidence.