Miroslawski v Housing Choices SA

[2023] SASCA 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

MIROSLAWSKI v HOUSING CHOICES SA

[2023] SASCA 136

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

20 December 2023

HEALTH LAW - HEALTH REGULATION RELATING TO BUILDINGS AND HOUSING - UNSANITARY AND UNCLEAN PREMISES

The applicant applied for leave to appeal a decision by a single judge, refusing leave to appeal a decision by a single member of the South Australian Civil and Administrative Tribunal, affirming an order for possession concerning residential property.

The applicant breached the obligation to keep the premises “in good tenantable condition, free from vermin and free from refuse”, and was unlikely to be able to put the premises into proper order within 12 months.  The order for vacant possession has been stayed until 19 January 2024.

HELD (the Court) refusing leave to appeal:

1.      No arguable error or proper basis for granting leave to appeal has been disclosed.

2.The decisions below and the evidence before this Court demonstrated the potential availability of alternative accommodation.

Uniform Civil Rules 2020 (SA) r 25.6(4), referred to.
McKenzie v McKenzie [1971] P 33 (CA); M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, considered.

MIROSLAWSKI v HOUSING CHOICES SA
[2023] SASCA 136

Court of Appeal – Civil:  Livesey P and Doyle JA

THE COURT (ex tempore):

1. This is an application for leave to appeal against a decision by a judge.  The judge refused leave to appeal against a decision by a Senior Member of the South Australian Civil and Administrative Tribunal to affirm an order for possession of residential property in favour of the respondent.

2. The decision of the Senior Member was given on 7 July 2023 and the decision of the judge was given on 17 November 2023.  The judge stayed the order for vacant possession until 5.00 pm on 19 January 2024. 

3. The applicant was given leave to be assisted by Mr Tavitian, even though Mr Tavitian is not strictly a McKenzie friend.[1]  Mr Tavitian made a number of arguments for the applicant in support of the application for leave pursuant to r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).  The question of leave must be determined on the basis that there has already been a refusal to grant leave to appeal.[2]

   [1]     McKenzie v McKenzie [1971] P 33 (CA); Uniform Civil Rules 2020 (SA), r 25.6(4).

   [2]     M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJ).

4. The submissions generally overlook that both the Senior Member and the judge on appeal addressed in some detail the nature of the applicant’s breach of the obligation to keep the premises “in good tenantable condition, free from vermin and free from refuse”, together with the unlikelihood that the premises could be put into proper order within 12 months and remain in proper order.  It was appropriate for Senior Member and the judge to take into account that this is not the applicant’s first breach of his residential tenancy obligations, even though in 2020 he had previously managed to clean the premises to an extent.  They also referred to the potential availability of alternative accommodation.[3]

   [3]     Order of Senior Member Lazarevich in Miroslawski v Housing Choices SA (South Australian Civil and Administrative Tribunal, 2023/SIR000126, 4 July 2023), [28]-[30]; Miroslawski v Housing Choices SA [2023] SASC 162, [18]-[20] (Kimber J). In this Court the respondent addressed the availability of alternative accommodation in the Affidavit of Ms Fiona Poyner sworn on 18 December 2023.

5. In so far as further time was sought, the applicant has failed to demonstrate any utility in an adjournment.

6. Despite the many arguments raised, no arguable error or proper basis for granting leave to appeal has been disclosed. 

7. The application for leave to appeal must be dismissed.