Martin v South Australian Housing Trust

[2015] SADC 40

District Court of South Australia

(Civil: Appeal Under Residential Tenancies Act 1995)

MARTIN v SOUTH AUSTRALIAN HOUSING TRUST

[2015] SADC 40

Judgment of His Honour Judge Tilmouth (ex tempore)

4 March 2015

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION

Appeal against a finding of the Residential Tenancies Tribunal that eviction required on account of tenant causing personal injury to a neighbour, upheld on the merits.

Residential Tenancies Act 1995 (SA) s 87, s 87(2), referred to.
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, applied.

MARTIN v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SADC 40

1. This is an appeal from a decision of the Residential Tenancies Tribunal of 19 February 2015, by which an order was made pursuant to s 87 of the Residential Tenancies Act 1995 (SA) requiring the tenant (appellant) to vacate the premises the subject of a residential tenancy, by Thursday 5 March 2015.

2. The Tribunal member made that decision on the basis of evidence taken, and by finding the tenant had caused serious injury to a person (a neighbour) residing in the immediate vicinity of the premises. The appeal was launched by Mr Martin on the understandable but mistaken belief that s 87(2)(b)(ii) of the Residential Tenancies Act requires proof of the commission of an offence.

3. Mr Martin is presently charged with an aggravated assault causing harm with respect to this incident, due to be mentioned in the Elizabeth Magistrates Court on March 31, an offence which he presently denies and to which he has pleaded not guilty. However s 87(2) is less demanding than that, as it only requires the tenant to cause, whether intentionally or otherwise, personal injury to a person in the vicinity of the premises. This section reads:

   (2)The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit—

   (a)serious damage to the premises; or

   (b)personal injury to—

   (i)the landlord or the landlord's agent; or

   (ii)a person in the vicinity of the premises.

4. Mr Martin admits causing the injury, although he says there are reasons and explanations for it, and in particular, that he was first assaulted and I gather that he was provoked.  However, no matter how relevant those matters may be in the eyes of the criminal law, they are not relevant to findings of this nature in civil or administrative jurisdictions.

5. The reasons for this are explained in a decision of the High Court handed down this morning 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.

   [34] It was an error to construe cl 8(1)(g) in light of the posited principle that “it is not normally to be expected that an administrative body such as the [Authority] will determine whether or not particular conduct constitutes the commission of a relevant offence”.

   [1] [2015] HCA 7, [33]-[34] (footnotes omitted).

6. The appeal was therefore bound to fail.  However I note that the parties have agreed to a working solution, whereby Mr Martin must vacate the subject premises by 3 p.m. on Friday 10 April.

7. There will accordingly bean order dismissing the appeal, but varying the order of the Tribunal to delete the date for vacating the premises of Thursday 5 March 2015, and inserting therefore Friday 10 April at 3 p.m.  There will be no order as to costs.

8. Mr Martin has acknowledged this order is premised upon him continuing to pay rent and to maintain the property in accordance with his lease agreement and to otherwise abide by the lease.