Maddeford v South Australian Housing Trust - [2015] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
MADDEFORD v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SADC 65
Judgment of His Honour Judge Tilmouth
24 April 2015
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - GENERALLY
Decision of the Residential Tenancies Tribunal to evict tenant on account of the use of the leased premises for an illegal purpose rescinded on the basis that the Tribunal failed to consider the discretion to refrain from making an order terminating a residential tenancy under s 90(1) of the Residential Tenancies Act 1995 (SA). Order that the application for termination be dismissed in the circumstances.
Residential Tenancies Act 1995 (SA) s 90(a), s 90(1)(a); Martin v South Australian Housing Trust [2015] SADC 40; Acts Interpretation Act 1915 (SA) s 34; Director of Public Prosecutions v George (2008) SASR 246; District Court Act 1991 (SA) s 42F(b), referred to.
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2014] HCA 7, applied.

MADDEFORD v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SADC 65

This is an appeal from a decision of the Residential Tenancies Tribunal given on 28 February 2015 by which it confirmed an earlier decision of the Tribunal of 30 January 2015, the orders under appeal were made pursuant to s 90(a) of the Residential Tenancies Acts 1995 (SA) the tenant (appellant) vacate the subject premises, by 11.00 am on Monday, 23 March 2015.
This matter first came before the Tribunal on 30 January 2015 on the application of the respondent landlord, for an order terminating the residential tenancy on the ground that Mr Maddeford had used the premises for an illegal purpose, as prescribed by s 90(1)(a) of the Residential Tenancies Act. As there was no appearance by Mr Maddeford, the Tribunal made an order, after receiving material relating to offences allegedly committed by him of selling and possessing cannabis with intent to supply, from the premises on 3 January 2014. There was an order at this first hearing that the subject tenancy be terminated and the tenant vacate the premises by 11.00 am on Friday 13 February 2015. The Tribunal was satisfied due notice of the hearing was given to Mr Maddeford.
Mr Maddeford, lodged an application that same day seeking to vary or set aside that order. Being satisfied proper reasons existed to rehear the application due Mr Maddeford’s non-attendance at the first hearing, the Tribunal constituted of a different member took evidence from him, Mr Wierenga who appeared for the Housing Trust (respondent) and an officer of the South Australian Police (SAPOL). It handed down its reasons on 28 February 2015 and varied the order of the Tribunal on 30 January 2015, only to the extent noted at the beginning of these reasons. The reasons given on this occasion were in substance unchanged, leading to the conclusion at the second hearing ‘that the previous order should stand’.
Section 90(a) of the Residential Tenancies Act provides:
90—Tribunal may terminate tenancy if tenant's conduct unacceptable
(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)     used the premises, or caused or permitted the premises to be used, for an illegal purpose; or
(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.
The Tribunal arrived at the conclusion that Mr Maddeford used the premises, or caused or permitted the premises to be used for an illegal purpose on the basis of evidence placed before it. In the reasons of 28 February the Tribunal concluded:
I note that [the tenant] pleaded guilty to a previous charge related to illegal activities at the premises that involved growing a restricted plant, cannabis, hydroponically. New charges have been laid recently that have not yet been determined. Detective Sergeant Modra pointed out that on the earlier charges to which the tenant pleaded guilty, the Court set a sentence of nine months which was then suspended in respect of a good behaviour bond.
The particulars of the charges were detailed in the earlier reasons of 30 January 2015. Two incidents occurring on or about 13 November 2014 and 5 January 2014 were the catalyst for bringing the application to terminate. However by the time of the second hearing Mr Maddeford had pleaded guilty had been sentenced for the cannabis offences.
The jurisdiction to terminate the residential tenancy was duly invoked on account of the above facts and the discretion to terminate was thereby undoubtedly enlivened. As explained in a recent decision of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd:[1]
[33] More generally, and contrary to the “normal expectation“ stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd and Albarran v Companies Auditors and Liquidators Disciplinary Board accept so much. There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant’s use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.
[1] [2015] HCA 7, [33]-[34] (footnotes omitted).
When the matter came before this court, Mr Maddeford confirmed his plea of guilty to the charges arising on 5 January 2014, stating this was a result of wanting to expeditiously resolve the matter. On 30 January 2015 Magistrate Anderson suspended a nine month term of imprisonment for those and other offences, on condition that he be of good behaviour for 12 months and that he be under the supervision of a Community Corrections Officer so as to ‘assist [him] to become no longer a user of cannabis by the end of the bond’.
The factual basis of the sentence emerges from paragraphs [4] and [5] of her Honour’s reasons: Police v Maddeford:[2]
[4]     The second matter occurred the following day and you have pleaded guilty to selling cannabis and possessing cannabis with intent to supply. On 3 January 2014, you sold a small amount of cannabis to a friend of a friend who attended at your home. It was 2.5 grams. The person paid $25 for it. The police actually saw this person leaving your home. He was stopped. He said that he had just purchased the cannabis from you. They then searched your home. They found a large bag containing 19 grams of cannabis and two smaller bags containing 7.5 grams and .8 grams. This cannabis is the subject of count 2, possession for supply and you are to be sentenced on the basis that you were a cannabis user yourself and that you would supply cannabis to your friends.
[5]     When the police spoke to you about this matter, you initially claimed that the cannabis that they found, which was apparently in a small container, was for personal use. You now accept that not all of it was for personal use.
There can be no doubt therefore that the Tribunal correctly determined the tenant had used the premises for an illegal purpose: Martin v South Australian Housing Trust.[3]
[2]    30 January 2015, AMC-15-527, AMC-14-3748, AMC-13-14047.
[3] [2015] SADC 40, [43] and [55].
Notwithstanding this conclusion, the question remains whether the power to terminate the tenancy agreement was properly exercised. The word ‘may’contained in the introductory words to s 90(1) of the Residential Tenancies Act clearly confers a discretionary power: s 34 Acts Interpretation Act 1915 (SA); Director of Public Prosecutions v George.[4]
[4] (2008) 102 SASR 246, [80], [239].
The sentencing remarks of 30 January 2015 further disclose that:
[23] The purpose of these bonds is to enable you at the end of the bond to no longer take cannabis. I am going to include in the bond a condition that you must attend any programs considered appropriate to ensure that your use of cannabis ends. ... I am giving you a final opportunity to remain in the community, to undergo programs, to stop using cannabis.
The tenor of these well reasoned and compassionate sentencing remarks, are that her Honour no doubt contemplated Mr Maddeford would retain a stable and supportive environment to assist in his rehabilitation during the course of the bond. Her Honour earlier noted his ‘long battle with various drugs’.[5] To terminate the tenancy now, 3 months into the 12 month suspended sentence, would most likely scuttle Mr Maddeford’s chances of successful rehabilitation.
[5] At [73].
During the appeal, the respondent stated that aside from the cannabis charges committed on the subject premises, Mr Maddeford was otherwise abiding by his lease, kept up with payments of rent and has been steadily been paying off a debt to it.
In the above circumstances, the Tribunal erred as a matter of law in failing to consider its discretion to refrain from terminating the subject residential tenancy. The decision of 30 January 2015 is therefore rescinded, so that the court, as a matter of expedition it is required to ‘substitute a decision that the Court consider appropriate’: s 42F(b) District Court Act 1991 (SA). Given the fact of the suspended sentence and the assumptions underpinning it, the appropriate disposition of the application was to refrain from making an order for termination, so as to give effect to the considered decision of the Magistrate to further the course of Mr Maddeford’s rehabilitation, and so as not to put it in jeopardy.
Having arrived at this conclusion, the understanding is that Mr Maddeford fully adheres to the terms of his lease, adhere to his agreements with the respondent, and of course the conditions of the suspended sentence.
In the result, the decision of the Residential Tenancies Tribunal of 30 January 2015 is rescinded. In lieu thereof will be an order that the application of 31 December 2014 by the South Australian Housing Trust to terminate the subject residential tenancy, be dismissed.