Miller v SA Housing Trust - [2011] SADC 52

District Court of South Australia
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
MILLER v SA HOUSING TRUST
[2011] SADC 52
Judgment of His Honour Judge Tilmouth (ex tempore)
31 March 2011
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
Order of the Residential Tenancies Tribunal to give up possession set aside for failure to make primary findings of fact.
Residential Tenancies Act 1995 (SA) s90, referred to.

MILLER v SA HOUSING TRUST
[2011] SADC 52

There is before the court today an appeal against a decision of the Residential Tenancies Tribunal given on 2 March 2011, by which it made an order evicting the respondent Ms Miller, from the subject premises at Davoren Park.
The Tribunal considered the application by the landlord, the South Australian Housing Trust, on 2 February 2011 and heard a number of witnesses from both sides. From the point of view of the Housing Trust, the application was prompted by what it claimed was a persistent series of abuses entailing nine complaints from various neighbours between April 2010. The most recent being on 28 January 2011 which apparently involved a physical altercation. I am not sure, but Ms Miller did not seem to dispute it.
Before the Tribunal on the other hand on Ms Miller’s side, there were no allegations as is often the case, of poor housekeeping. On the contrary on all accounts she kept the property immaculately. From her side, she was saying whatever incidents there were over this period of time, they were in effect generated by neighbours who were unruly, maybe dealing in drugs, and that there were visitors to her property and other people who did burnouts in the street. She also made a claim that one of the Trust’s witnesses had attempted to run her down.
Before returning to the decision of the Tribunal there is also before the court today some material presented through the Aboriginal Legal Rights Movement and more importantly through a Ms Moore-Pierce from Anglicare, which I treat in effect as an application to call fresh evidence. It suggests that the complaints of racial discrimination which Ms Miller tried to raise before the Tribunal had been well documented in the past. The suggestion is that had the Tribunal known about that and treated it as supporting evidence for Ms Miller’s complaints, it might have treated her evidence more seriously.
There is also a claim that one of the critical witnesses did not disclose the fact that she was a landlord, of a house in the street. Had that been disclosed, it is possible the Tribunal might have looked at that witness’s evidence more carefully, on the basis that there might have been an additional reason for her evidence to be coloured by the interest in owning a property in the vicinity. However, I prefer not to rest the decision on the basis of fresh evidence, so I return to the decision of the Tribunal.
After noting Ms Miller’s claims and then referring to the evidence given by the Housing Trust, the Tribunal made this observation:
It was obvious from Ms Miller’s attitude and behaviour at the Tribunal that she was a woman who was very angry which made, of course, the evidence given against her very believable.
I confess to having great difficulty with that line of reasoning.
If even half of what Ms Miller claims to be true, it is hardly surprising that she would present as an angry person, because she would have a well founded basis for that anger. But in any event whether she appeared before the Tribunal as angry or not, such anger might have been responsive to the pressures of the appearance before the Tribunal and in meeting unjust allegations - and I imply no criticism of the Tribunal in that respect. This line of reasoning rather begs the underlying question of what gave rise to her anger and what gave rise to the problems in the street in the first place. Simply recording that she was an angry person and thereby rendering the evidence from the other side more believable, is simply not logical. It is an improper line of reasoning to adopt.
Furthermore, the Tribunal did not resolve which witnesses it preferred, as to what facts it found and it made no findings about any particular incident. For an example there were many allegations that it was third parties who were causing trouble in the area. The Tribunal does not appear to have dealt with them at all.
What the Tribunal then did in its concluding paragraphs was this:
During the course of the hearing Ms Miller made various comments and denied a lot of this had happened but also appeared to accept the fact that she was facing an eviction order.
And later on:
The Tribunal has carefully considered all the evidence given and it is overwhelmingly satisfied that Ms Miller is in breach of s 90 of the Residential Tenancies Act in that she has caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of those premises.
That of course was a reference to the jurisdiction conferred by s 90(1)(c) of the Residential Tenancies Act 1995. I will return to that section in a moment.
The plain fact of the matter however is that the Tribunal has not laid out what witnesses it accepted and what it did not, or the reasons therefore. Nor does it make any findings of primary fact before proceeding to deal with the jurisdiction conferred to terminate a tenancy under s 90.
The other difficulty I have with the Tribunal’s reasoning comes from the passage just quoted. The operative section requires a finding that the tenant has: ‘caused or permitted an interference with the reasonable peace, comfort or privacy of any other person.’ The Tribunal has simply completely failed to identify what particular acts or act it is, by whom they were committed and how it was that they were either caused or permitted by the tenant.
What the section requires at a bare minimum is not that interference with the reasonable peace, comfort or privacy of people who reside in the area is impinged. It requires an affirmative finding based on positive facts that the tenant actually caused or permitted those acts to occur, that is, in effect that she was complicit in that kind of interference.
In my opinion therefore the Tribunal has fallen into a number of errors which I have endeavoured to identify above. For that reason the order for eviction must be set aside. I remit the matter to the Tribunal to consider the matter afresh.
It is not customary to make any orders for costs in this jurisdiction so there will be no order as to costs.