Mcnickle v White & White (No. 2) Addendum To Judgment Delivered On 14 February 2006

[2006] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MCNICKLE v WHITE & WHITE (NO. 2) ADDENDUM TO JUDGMENT DELIVERED ON 14 FEBRUARY 2006

Reasons for Decision of His Honour Judge Tilmouth

12 April 2006

LANDLORD AND TENANT

R v Famglietti (2005) SASC 489, applied.
State Transport Authority v Williams DC No 5191 of 1986 12 February 1987, unreported, , not followed.

MCNICKLE v WHITE & WHITE (NO. 2) ADDENDUM TO JUDGMENT DELIVERED ON 14 FEBRUARY 2006
[2006] SADC 43

ADDENDUM

1. Since publishing ex-tempore reasons for judgment in this matter on 14 February 2006[1], an unreported decision of this Court in State Transport Authority v Williams[2] was drawn to my attention. 

   [1] [2006] SADC 18

   [2] DC No 5191 of 1986 12 February 1987, unreported, Judge Lowrie   

2. In the reasons published in the present case, the court made the obiter comments (at paragraph [9]):- 

   …         it should be pointed out that the Tribunal apparently reads its power under s37 of the Act, as requiring an applicant seeking a variation or the setting aside of a previous order of the Tribunal, to satisfy certain criteria, based in part on the decision of the High Court in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672[3].   It is sufficient for the moment, to point out that case is a decision of the High Court, as a court of record, sitting at the apex of the hierarchy of courts in this country, exercising a purely appellate jurisdiction, concerning powers it has to re-open previous decisions of its own.  That jurisdiction does not have very much to do with the powers of a Tribunal charged with hearing matters in an informal way, unconstrained by such principles. The only statutory consideration the Tribunal must consider when entertaining such an application under s37, is that there could be “proper grounds for doing so” as prescribed by s32(1)(f). 

   [3] The correct citation should have been Metwally v University of Wollongong (1985) 59 ALJR 481, but Wentworth was the citation actually contained in the Tribunal’s reasons of 7 February 2006. 

3. In State Transport Authority v Williams (above), the Court considered an appeal from the Residential Tenancies Tribunal which made an order authorising the appellant to give to the respondent notice of termination of the residential tenancy between them.  The respondent subsequently made an application to vary or set aside that order pursuant to section 24(4)(e) of the Act as it then stood, but in any event in terms identical to the present s32(1)(f), which provides:- 

   Procedural powers of the Tribunal

   32. (1) In proceedings the Tribunal may—

   (f)vary or set aside an order if the Tribunal considers there are proper grounds for doing so;

4. Upon hearing the application the Tribunal set aside the authorisation and made a fresh order refusing permission to the landlord to terminate the lease, and it was against the latter order that it appealed to this Court.  However as to 24(4)(e) the court observed (reasons pp 10-11):- 

   Section 24 vests the Tribunal with certain rights and indeed provide the machinery provisions for the operations of its proceedings.  However, I do not believe that this sub-section can be called in to vary this order.  Clearly, the Tribunal has the right to vary its order “where proper grounds exist”.  One can anticipate a situation where evidence has been incorrectly given albeit fraudulently or innocently.

   The language of Section 24(4)(e) is wider than, for example Order 28, Rule 10 of the Supreme Court Rules.  This is commonly referred to as the “slip rule”.  In this jurisdiction it is more akin to the jurisdiction of the High Court that has power to vacate all orders.  However, that is a power which is exercised with great caution.  As the High Court has pointed out, there is no difficulty in a case where there has been some mistake or misprison, but, in other cases will be “irremediable injustice against the public interest in maintaining the finality of litigation.

   The circumstances that will justify a rehearing must be quite exceptional: Metwally v University of Wollongong[4]…. 

   [4]  Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481; (1985) 60 ALR 68;

5. These conflicting decisions place the Residential Tenancies Tribunal in an invidious situation as it is guided by the judgments of this Court in the construction of the Act it must administer and apply to disputes coming before it.  This addendum judgement is therefore given in the hope that it may clarify the matter. 

6. On further consideration, I am afraid that I am unable to agree with these comments in State Transport Authority v Williams, essentially for the same reasons advanced in the earlier ruling.  Furthermore the court did not explain why Metwally v University of Wollongong had any application to the Residential Tenancies Tribunal, an administrative body charged with hearing everyday disputes relating to residential tenancies, in an informal and flexible way, and which lacks the capacity to enforce its own orders (s36).  In that case the High Court in ruling as it did, applied its previous decision in State Rail Authority ofNew South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, relating to the restricted inherent power of that court to vacate previous judgments given by it. That jurisdiction is materially different from the exercise of a statutory power cast in the terms of the Act to vary or set aside previous orders, which is not so confined. 

7. The expression ‘proper grounds’ appears frequently in legislation[5].  Of course that does not mean it will necessarily bear the same meaning in each[6]. The same phrase appears in ss58(3) of the Criminal Law (Sentencing) Act 1988 (SA), which enables a sentencing court to excuse a probationer from compliance with the conditions of a bond if ‘there are proper grounds upon which the failure should be excused’; no similar fetter exists on the application of that section.

   [5] For example the Land Tax Act 1936 (SA) s5 the Fair Work Act 1994 (SA) s152A, Criminal Law (Forensic Procedures) Act 1998 (SA) s 27.

   [6] Banditt v The Queen (2005) 223 ALR 633; (2005) 80 ALJR 421 at [108], WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; (2004) 79 ALJR 94 at [42]

8. Another example of the same approach is to be found in the judgement of the Court of Criminal Appeal in R v Famiglietti [2005] SASC 489[7] which was asked to construe section 38 of the Criminal Law (Sentencing) Act 1988 (SA) giving the power to sentencing judges to suspend a prison sentence if “good reason existed” for doing so, in a way that a suspension of a term of imprisonment would only be justified in rare and exceptional cases. In rejecting that submission Gray J wrote[8]:- 

   [36] It is a well-established principle of statutory construction that it is the words of the statute that ultimately govern and not the many subsequent judicial expositions of that meaning which have sought to express the operation of the provision. [Bohdan Weiss v the Queen (2005) 223 ALR 662; (2005) 80 ALJR 444]. …
   ……………………
   

   [7] See also R v Hill [2005] SASC 380, R v Fowler [2006] SASC 18, R v Richards [2006] SASC 60

   [8] Anderson J was of a like view at [56] 

   [38] The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend.

9. Accordingly there is no reason in principle and no justification in practice, for construing the power of contained in section 32(1)(f), other than in terms of the statutory remit itself, and certainly not by confining “proper grounds” to the “exceptional” situation, for that is a construction specifically rejected in analogous circumstances in R v Famiglietti (above), and would in any case place an unwarranted gloss on the section[9]. 

   [9] Thompson v Gould & Co [1910] AC 409, 420, Tinkham v Perry [1951] 1KB 547, 549

10. Although some of the appeals coming before this court indicate that the Tribunal applies at times a “Metwally” approach[10], there are other case in which it is evident that a less restricted view is taken, and if that is the case, it is correct as it seems to me. Examples of the latter are in Luongo (by Aston Hall Estates) v Hooton [1999] SARTT 13 and Walker (by Weeks & Macklin) v Foreman [1998] SARTT 10, in which it was held that applications for the variation or setting aside a previous order of the Tribunal under 32 (1)(f) of the Act, could be made out, for example, where the applicant was unable for good reason to be present at the earlier hearing, the applicant had evidence relating to the matter not reasonably available at the previous hearing, or where the Tribunal misinformed itself on the evidence presented at the previous hearing[11]. 

    [10] For example Christiansen & Christiansen (by L J Hooker - Berri) -v- Repo [2005] SARTT 9

    [11] For example Matters -v- Holmes [2002] SARTT 33

11. Providing these are seen as indicative, and not as exhaustive of the kinds of circumstances in which the Tribunal might proceed under s32(1)(f), then they show a much more practicable application of the occasions in which it would be proper to flexibly exercise that power as contemplated by the terms of the legislation, bearing in mind also that in the context of residential tenancies, circumstances might change significantly over a relatively short space of time.