MCCONNON v COTTRILL - [2005] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MCCONNON v COTTRILL
Judgment of Judge Lunn a Master of the Supreme Court
9 February 2005
REAL PROPERTY
Summons for possession under s 192 of the Real Property Act 1886 - whether jurisdiction of Supreme Court ousted by s 24(1) of the Residential Tenancies Act 1995 which gives the Tribunal under that Act exclusive jurisdiction to determine a matter which may be the subject of an application under that Act - dispute on affidavits as to whether defendant was under any obligation to pay rent which was necessary if the Act was to apply - held once issue of jurisdiction raised onus on plaintiff to establish necessary facts to show Supreme Court had jurisdiction - oral evidence required to resolve the factual issues on jurisdiction.

MCCONNON v COTTRILL
[2005] SASC 46
Civil

JUDGE LUNN The plaintiff is the registered proprietor of the subject property at Port Willunga. In these proceedings under Part XVII of the Real Property Act 1886 she seeks an order for possession of that property. In her initial affidavit sworn on 2 December 2004 she mere said that the defendant was in possession of the property, he was not paying any rent or the utilities accounts and he had failed to vacate the property after being requested to do so. The affidavit said nothing about how the defendant had come to be in possession of the property.
At the initial hearing of the summons on 19 January 2005 the defendant appeared in person and handed up a notice of acting from a solicitor, who the defendant said was unable to attend on that hearing, and an affidavit of himself. That affidavit alleged, inter alia, that in about June 2004 the defendant had entered into the property at the invitation of the plaintiff and he had paid her $750.00 by way of rent, but he had not paid any further rent because he alleged the plaintiff had refused to give him receipts for rent. The affidavit disclosed that the parties had been in a recent de facto relationship. Other matters were alleged in the affidavit but it is not necessary to go into them for present purposes. I informed the plaintiff’s solicitor that an issue of jurisdiction was raised by the defendant’s affidavit as to whether the claim for possession was solely within the jurisdiction of the Residential Tenancies Tribunal. I adjourned the summons until 1 February 2005 for argument.
On 1 February 2005 Mr Heywood-Smith QC appeared for the plaintiff. There was no attendance by the defendant or his solicitor, although the defendant had been present when the adjourned hearing date was set and I had told him that he and his solicitor were required to attend on the adjourned hearing. The plaintiff’s counsel referred to a second affidavit of the plaintiff, which was sworn in answer to the defendant’s affidavit, which denied, inter alia, that the defendant had ever paid any rent to her. Mr Heywood-Smith QC sought that I should deal with the summons immediately and make the order for possession. I indicated that I should first deal with the question of jurisdiction and should not proceed further unless the plaintiff satisfied me that this Court had jurisdiction on the point and I reserved my decision on the issue of whether s 24(1)(a) of the Residential Tenancies Act 1995 (“the RTA”) precluded me from dealing forthwith with the summons. These reasons are confined to that issue.
S 24(1) of the RTA provides:
“(1) the Tribunal has –
(a) exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act …..”
For the matter to be subject of an application under the RTA the defendant must be in occupation of the property under a “Residential Tenancy Agreement”, which is defined in s 31 of that Act as:
“an agreement ….. to occupy premises for the purpose of residence.”
There seems no doubt that the defendant has been occupying the property for the purpose of his residence. s 5(1) of the RTA provides:
“(1) This Act does not apply to - …..
(d) an agreement conferring a right to occupy premises for the purpose of residence but under which no rent is payable …..”
Thus the primary issue here is whether rent was payable. The defendant says it was, and some was paid, and the plaintiff denies this. This is an issue of fact which cannot be determined on the face of the affidavits.
In the well known passage from Rothmans Ltd v Saudi Airlines [1981] 1QB 368 at 375-6 Mustill J said:
The second situation exists where the objection is not simply that the matter lies outside of the jurisdiction of the Court, as conferred by the Common Law or by Statute, but is one in respect of which jurisdiction has been actively withdrawn from the Court and conferred on another tribunal. ….. Where the Statute is of this kind, it is immaterial whether the parties wish the Court to try the action. It must disclaim jurisdiction, since to continue with the action would be contrary to law.”
In NEC Information Systems Pty Ltd v Lockhart (1991) 22 NSWLR 518 Kirby P said:
“….. It remained for the Court itself to be satisfied as to its jurisdiction. No Court should exercise jurisdiction, at least where it is in contest, without being satisfied that there is jurisdiction to exercise.”
S 21(a) of the RTA clearly ousts the jurisdiction of the Supreme Court to determine “any matter that may be the subject of an application under the’ RTA: cf Hemruth Advertising Pty Ltd v Karafiotis (1988) SASR 532; Ory vBetamore Pty Ltd (1990) 54 SASR 331. If the subject of this action is a matter “that may be the subject of an application under the RTA”, then this Court does not have jurisdiction. If the defendant entered into possession of the property under a Residential Tenancy Agreement, as defined in the RTA, and with an obligation to pay rent, the present application could be the subject of an application under ss 93 and 95 of the RTA, even if he had not continued to pay rent.
There was some debate about what, if any, onus was on the plaintiff to establish this Court’s jurisdiction. I have been unable to find any authority which is directly in point. Reported cases on other statutory exclusions of jurisdiction did not involve resolving disputed factual issues: Tansell v Tansell (1997) 19 SASR 165; Goldsworthy v Goldsworthy (1982) 31 SASR 121. Those cases do not deal with which party bears what onus to establish the facts necessary to determine whether a statutory exclusion of jurisdiction applies or not.
There is a line of cases to the effect that at the interlocutory stages of an action it is only necessary for the plaintiff to put forward some evidence of facts necessary to establish territorial jurisdiction: Rideout v Glaxo Group Ltd [1996] 1 Qd R 200; University of South Australia v G & B Battery Technologies Ltd (1997) 192 LSJS 1. However these cases relate to establishing territorial jurisdiction, and not to statutory exclusions of jurisdictions. They also deal in the context of RR 22.01 and 22.03 as to when the issue of territorial jurisdiction should be decided in the course of an action which culminates in a full trial of the issues. That is not the situation here in proceedings under Part XVII of the Real Property Act which are proceeding primarily to determine summarily whether possession should be ordered. In this action there is no basis on which to defer determination of any issue of jurisdiction, even if that would be appropriate to a statutory exclusion of jurisdiction.
Mr Heywood-Smith QC submitted that I should not have regard to the defendant’s affidavit alleging payment of rent because that affidavit had not been formally read in the course of the hearing. I do not accept that in a summary jurisdiction of this type it is necessary for the Court to disregard affidavits which have not been formally read. The overriding duty of the Court is not to act contrary to Statute and for this purpose I can have regard to any material on the Court file which raises the issue that the Court may not have jurisdiction. It does not mean that I should act on that material, but, if it raises the issue, it at least places an evidentiary onus on the party seeking the relief to satisfy me that I do have jurisdiction.
As the point may need to go to oral evidence before me I do not intend to say more than is necessary about the evidence. I reject the plaintiff’s submission that the terms of the undertaking given by the defendant to the Family Court are so inconsistent with his assertion of payment of rent that I should disregard his affidavit. His allegation of payment of rent seems only to cover a period for which it was paid to roughly the point at which his undertaking to the Family Court suggested he would be vacating the premises. If he went into possession under a Residential Tenancy Agreement by which rent was payable, the Residential Tenancy Tribunal could still deal with an application to have him removed from the property even if he had ceased to pay the rent and was in breach of an undertaking to the Family Court in continuing in occupation. (Whether he is in breach of that undertaking may be an issue).
If the plaintiff is to pursue her present application, it would be necessary for me to determine formally the question of jurisdiction. This will involve resolving the factual issues concerning rent and any other relevant facts on the balance of probabilities. For this purpose I will need to direct cross-examination on the affidavits, although I do not intend to allow it to become a “fishing:” expedition by either party on the wider disputes between them. If I find that this Court does have jurisdiction, then I will consider the wider issues of whether a possession order should be made as sought by the plaintiff.