Miroslawski v Housing Choices SA - [2024] SASCA 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MIROSLAWSKI v HOUSING CHOICES SA
[2024] SASCA 4
Judgment of the Honourable President Livesey (ex tempore)
31 January 2024
SOCIAL WELFARE – HOUSING SCHEMES – PUBLIC HOUSING
Following review proceedings in the Tribunal, the applicant failed to obtain leave to appeal from a single judge and then from the Court of Appeal concerning an order for vacant possession of residential property, Miroslawski v Housing Choices SA [2023] SASCA 136.
The applicant then applied for a stay pending leave to appeal after the Deputy President of the South Australian Civil and Administrative Tribunal refused to order a further stay.
HELD (the Court) dismissing the application for a stay:
1.Even if it could be said that there was an arguable error made by the Tribunal, the purpose of the application was to enable the applicant to find alternative accommodation and the evidence before the Tribunal and this Court demonstrated that accommodation is available to the applicant.
2.It has not been demonstrated that it is in the interests of justice to grant a stay.
3.Observations made about the contention that the Tribunal did not have power to make orders following the disposition of review proceedings and appeal proceedings in the Supreme Court.
4.Order for costs fixed in the amount of $400, with execution stayed pending the further order of this Court.

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 71, 73; Residential Tenancies Act 1995 (SA) ss 87, 93; Uniform Civil Rules 2020 (SA) r 212.5(1), referred to.
Lesses v Maras (No 2) [2016] SASC 140; Georganas v Georganas [2024] SASCA 1; Flowers v Finlayson (No 2) [2023] SASCA 12; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Elliot v R (2007) 234 CLR 38; McAdam v Robertson (1999) 73 SASR 360; Duke Group Limited (in liq) v Pilmer and Ors (No 5) (2003) 87 SASR 325, considered.

MIROSLAWSKI v HOUSING CHOICES SA
[2024] SASCA 4
Court of Appeal – Civil
LIVESEY P (ex tempore):
Introduction

This is an urgent application for the stay of an order for vacant possession. On 17 January 2024, the Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) refused a stay in circumstances where a judge of the Supreme Court had already stayed the order for vacant possession until 5.00 pm on 19 January 2024.[1]
[1] Miroslawski v Housing Choices SA [2023] SASCA 136, [2] (Livesey P and Doyle JA).
In the course of the hearing before the Deputy President, the respondent gave an undertaking that it would not seek an order for the bailiff to evict the applicant before 1 February 2024. That undertaking was reiterated in this Court.
The Deputy President doubted whether she had jurisdiction to vary the date on which the order for vacant possession would operate. As her Honour explained, proceedings in the Tribunal (including review proceedings) had been finalised and the appeal process in the Supreme Court had also been finalised.[2] The application for leave to appeal to this Court was dismissed on 20 December 2023.[3]
[2] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [30].
[3] Miroslawski v Housing Choices SA [2023] SASCA 136 (Livesey P and Doyle JA).
For the following reasons, the factual foundation for the application has not been established and the application for a stay should be dismissed.
Relevant background
Following service of a notice of termination for breach, the Tribunal made an order for vacant possession on the landlord’s application pursuant to s 93 of the Residential Tenancies Act 1995 (SA) (the RTA Act). The same order could have been made under s 87(1) on the grounds of the tenant’s serious breach of the obligation to keep the premises in good tenantable condition and free from refuse.
As the Deputy President explained, where the Tribunal determines that a residential tenancy has been terminated, it may then exercise a discretion as to whether to order vacant possession under s 93 of the RTA Act. That discretion is exercised after taking into account a range of factors which include the seriousness of the breach and whether it can be remedied. If the breach is capable of being remedied, the Tribunal will consider whether the tenant has had an opportunity to remedy the breach and taken steps to do so and, where the breach remains unremedied, whether there is a prospect that the breach will soon be remedied.
Where the Tribunal determines to make an order for possession, the order will “take effect on a date specified …, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended”, see s 93(3) of the RTA Act. Nonetheless by s 93(4), where the Tribunal is satisfied by the tenant that an order for immediate possession “would cause severe hardship to the tenant”, the Tribunal may “suspend the operation of the order for possession for up to 90 days”, and “extend the operation of the residential tenancy agreement until the landlord obtains vacant possession”.[4]
[4] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [25].
The applications before the Deputy President and before this Court were based on the proposition that the applicant remained without alternative accommodation. The evidence before the Deputy President, however, included an email from the applicant’s social worker which suggested that there was alternative accommodation:[5]
I have discussed the outcome of the application to the retirement village with Mr Miroslawski, and advised his best option at this time is to move into residential care respite. I have been able to source respite with a view to permanent care at the Infin8 Care Hahndorf residential facility. That location is close to Mr Miroslawski’s son Sev. They are also offering 1 month of free respite at the present time, which Mr Miroslawski would be eligible for. I discussed at length with Mr Miroslawski the option of residential care, be it temporary or permanent, and he was agreeable. …
I am awaiting confirmation of an admission date for Infin8 Care, however I have requested admission on Thursday the 18th January…
[5] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [19].
Despite the information that “residential care respite” was available to the applicant, the affidavit sworn by Mr Tavitian suggested that there is no accommodation available.[6]
[6] As occurred previously in these proceedings, the applicant is not legally represented and Mr Tavitian was given leave to assist Mr Miroslawski even though he is not strictly a McKenzie friend, Miroslawski v Housing Choices SA [2023] SASCA 136, [3] (Livesey P and Doyle JA).
Because of the importance of this issue, and notwithstanding that the application for a stay was sought to be pursued ex parte, the Court notified the respondent and asked both parties to contact Mr Miroslawski’s social worker, Ms Featherstone. She advised that the applicant’s son has arranged for the applicant to go into aged care on Thursday morning. Nothing has been said about respite care with Infin8.
With that background in mind, it is necessary to address the present application.
The application in this case
The proposed appeal is against a decision of the Deputy President. By s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act), an appeal lies in the case of a decision of a Presidential Member of the Tribunal to the Court of Appeal. By s 71(2) of the SACAT Act, the appeal is only by leave.
By s 71(5) of the SACAT Act, the Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate. By s 73(2) of the SACAT Act, the Court may make an order staying the operation of the decision until the proceedings are finally decided on such conditions as may be specified. By r 212.5(1) of the Uniform Civil Rules 2020 (SA), where jurisdiction to hear an appeal is vested in the Court of Appeal, a single judge may make interlocutory and ancillary orders.
The applicant must demonstrate proper reason for the favourable exercise of the discretion to grant a stay pending an application for leave to appeal. It is usual to require that an applicant address whether there is a bona fide appeal with at least some prospect of success, and whether the balance of convenience favours the grant of a stay, including whether and to what extent the grant or refusal to grant a stay will cause prejudice.[7]
[7] Lesses v Maras (No 2) [2016] SASC 140, [6]-[8]; Georganas v Georganas [2024] SASCA 1, [5]-[6] (Doyle JA).
The applicant’s Notice of Appeal discloses two grounds of appeal. The first is an allegation of apprehended bias and the second is that the application for a stay was refused “despite the Court of Appeal recommendation”.
The case for apprehended bias was not developed in any meaningful way and it is not necessary to address it. So far as the second ground is concerned, the applicant appears to be referring to an exchange during the unsuccessful application for leave to appeal in which a comment was made by me that if there was a problem with an absence of suitable alternative accommodation then that would be a matter for the Tribunal rather than for the exercise of liberty to apply to the Court of Appeal.[8]
[8] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [15].
Importantly, the factual foundation for this application has not been established. No attempt has been made to demonstrate that the information from the applicant’s social worker is inaccurate. To be clear, that information demonstrates that accommodation is available to the applicant (whether with Infin8 or aged care) and what has not been confirmed is the availability of permanent residential care accommodation or the date when this can be made available.
Though the Deputy President appears to have found that there was accommodation available to the applicant, her Honour doubted whether she had any power to make any further orders. However, even if she had power, the Deputy President would have refused to favourably exercise her discretion because, in effect, the applicant had remained in the property for more than seven months during which time there had been ample opportunity to investigate and secure alternative accommodation. The Deputy President rejected the proposition that the Tribunal should make a conditional order enabling Mr Miroslawski to stay in the property until such time as he found suitable alternative accommodation because it was not appropriate to delegate the Tribunal’s decision-making power to Mr Miroslawski, leaving it for him to determine whether suitable alternative accommodation was available.
The Deputy President concluded that the undertaking from Housing Choices not to seek an order for the bailiff to evict before 1 February 2024 represented a “reasonable practical mechanism to achieve the outcome sought by Mr Miroslawski – some more time to find suitable alternative accommodation”.[9]
[9] Miroslawski v Housing Choices South Australia (SACAT, Deputy President Johns, 17 January 2024), [32].
In presenting his submissions on behalf of Mr Miroslawski, Mr Tavitian did not address the powers of the Tribunal. The question whether the Tribunal has power to revisit or further stay an order made under s 93(4) of the RTA Act in the circumstances of this case is an important one. Though the time period of 90 days might be said to mark the outer limits of the Tribunal’s discretion, there may be other sources of power available to the Tribunal or to this Court, especially if it can be shown that the basis upon which the Tribunal acted was wrong in a material respect.[10] Having said that, it is not appropriate to determine this important question in a case where it has not been the subject of considered argument and where the factual foundation for the stay application has in any event not been established.
[10] Cf Flowers v Finlayson (No 2) [2023] SASCA 12, [7]-[8] (Livesey P, Doyle JA and Nicholson AJA), referring to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302 (Mason CJ); Elliot v R (2007) 234 CLR 38, [32]; McAdam v Robertson (1999) 73 SASR 360, 367 (Doyle CJ, with whom Bleby and Martin JJ agreed); and Duke Group Limited (in liq) v Pilmer and Ors (No 5) (2003) 87 SASR 325, [22]-[47] (Doyle CJ and Duggan J).
In these circumstances, it has not been demonstrated that it is in the interests of justice to grant a stay. Even if it could be said that there was an arguable error, the purpose of the application was to enable the applicant to find alternative accommodation and the evidence before the Tribunal and this Court demonstrates that accommodation is available to the applicant.
Conclusion
The application for a stay must be dismissed.
There will be an order for costs fixed in the amount of $400, with execution of that order stayed pending the further order of this Court.