Myers v South Australian Housing Authority - [2022] SASCA 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MYERS v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2022] SASCA 30
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle and the Honourable Justice Bleby)
6 April 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS - TERM OF LEASE OR TENANCY - DURATION - HOLDING OVER AFTER EXPIRATION OF TERM
The applicant seeks leave to appeal against a decision of the Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) ordering the applicant to give vacant possession of a property she had previously been the tenant of to the respondent, the landlord of the property.
The applicant and respondent were parties to a fixed term tenancy agreement for the property. Under that agreement, the applicant was required to give vacant possession of the premises to the respondent upon its expiration in October 2021. The respondent could extend the agreement for a further term at its discretion.
In August 2021, the respondent informed the applicant that it had decided not to renew the agreement upon its expiry. The applicant sought internal review of that decision by the respondent but was unsuccessful.
Upon expiry, the respondent filed an application in the Tribunal for vacant possession of the property. A Member of the Tribunal made the order for possession but suspended it on the ground of hardship. The applicant applied for internal review of that decision and in January 2022 the Deputy President granted leave to apply but ordered vacant possession, suspended on the ground of hardship.
The applicant seeks leave to appeal against the orders of the Deputy President on the basis that she suffers from documented mental health issues and challenges the decision of the respondent not to extend the tenancy.
Held, by the Court:
1.      In circumstances where the applicant seeks leave to appeal against the Tribunal’s decision to order vacant possession, the Court has no power to consider the merits of the respondent’s decision not to extend the tenancy agreement.
2.      The applicant has not identified any arguable error in the Deputy President’s decision.
3.      The application for leave to appeal is refused.
Residential Tenancies Act 1995 (SA) ss 93, 110; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 71; South Australian Housing Trust Act 1995 (SA) ss 7, 32A, 32D, referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Rankine v State of South Australia [2022] SASCA 18; McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146, considered.

MYERS v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2022] SASCA 30
Court of Appeal – Civil: Doyle and Bleby JJA

THE COURT (ex tempore): The applicant, Ms Myers, seeks leave to appeal against a decision of a presidential member of the South Australian Civil and Administrative Tribunal (the Tribunal) ordering the applicant to vacate possession of a property leased to her by the respondent, the South Australian Housing Authority.[1]
[1] South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act), s 71(1)(a).
The applicant and respondent were parties to a fixed term tenancy agreement made under the Residential Tenancies Act 1995 (SA) as tenant and landlord of a property in Semaphore Park, referred to as a probationary tenancy.[2] Commencing on 28 October 2020, the tenancy was for a fixed term of one year which expired on 28 October 2021. The applicant paid rent to the respondent on a weekly basis. Pursuant to clause 8(b) of the conditions of tenancy, which formed part of the agreement, the applicant was required to give vacant possession of the premises to the respondent upon expiration or termination of the tenancy. The initial term could be extended at the discretion of the respondent.
[2] South Australian Housing Trust Act 1995 (SA) (the SAHT Act), s 7(1)(b).
By way of a notice to vacate dated 12 August 2021, the respondent informed the applicant that it had decided not to renew the probationary tenancy agreement upon its expiry. The reasons given for this decision were that there had been neighbourhood disturbances, the property had been left in poor condition, and the respondent had been prevented from accessing the property. Those disturbances related, at least in part, to the unapproved residency of the applicant’s son and his partner, and their alleged drug dealing from the property.
The applicant challenges the reasons given in the notice to vacate. She argues that she was not notified of any disruptive conduct, did not refuse the respondent access to the property for an inspection, and has addressed the issues relating to the condition of the property. Indeed, she informed the Court in the course of her oral submissions that she ultimately arranged for her son to leave the property and explained the difficulty for her as a mother in having to do so.
The notice to vacate informed the applicant that she could apply for a review of the decision by the respondent within 14 days. On 28 October 2021, the applicant applied for a review but, on 4 November 2021, was notified by the respondent that she had been unsuccessful. The applicant was advised that she could bring an application for review of that decision to the Tribunal. While she enquired about making such an application, she ultimately did not do so, apparently on the basis that she had been told that she would be required to pay a filing fee.
On 11 November 2021, the respondent filed an application in the Tribunal seeking an order for vacant possession of the property.[3] On 16 December 2021, the matter was heard by Member Gooch, who ordered that the applicant was to vacate the property but suspended the order for possession on the ground of hardship.[4] The applicant was allowed to remain at the property until 21 January 2022 on the condition that she paid her usual rent.
[3] Residential Tenancies Act, s 93.
[4] Residential Tenancies Act, s 110.
On 19 January 2022, the applicant sought internal review of those orders on the grounds that she disagreed with the reasons stated by the respondent in its notice to vacate and that she suffered from mental health issues stemming from a home invasion and assault she had suffered in 2020. The applicant attached a letter from her counsellor, Ms Alma Marshall, whom she had been seeing in relation to the impact of those crimes. Ms Marshall expressed the view that the applicant required stability and should maintain her tenancy at the property.
The application for internal review of the order to vacate was heard by Deputy President Johns on 24 January 2022. The Deputy President was satisfied that the respondent had met the requirement that it give the applicant 14 days notice of the termination of her tenancy and was therefore entitled to possession of the property. The Deputy President also considered it appropriate to suspend possession on grounds of hardship and varied the orders of Member Gooch to require that the applicant vacate the property by 11 March 2022.
That period has since expired, and the respondent has retaken possession of the property. The applicant says that she has applied for a number of private rental properties and sought help in obtaining housing from various charitable groups but, as at the date of this hearing, has been unsuccessful.
On 16 March 2022, the applicant filed a notice of appeal in this Court against the orders of Deputy President Johns to vacate possession. The grounds of appeal are, in substance, the same as those put before the Tribunal. The applicant submits that she was suffering from documented mental health issues, including memory loss, PTSD, anxiety, and depression, for which she was hospitalised. She argues that the respondent did not take the issues she had raised into account in deciding not to extend her probationary tenancy.
This matter came before the Chief Justice, sitting as a single Judge, who dismissed the applicant’s interlocutory application for a stay of the order of possession on the ground that he did not consider there to be any legal merit in the appeal. The Chief Justice referred the application for leave to appeal to the Court of Appeal as the appropriate forum to hear it.[5]
[5] Noting that the application is for leave to appeal against a decision of a presidential member of SACAT pursuant to r 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA).
The principles to be applied in an application for leave to appeal against a decision of the Tribunal were set out by Parker J in Jackson v Lepp Investments Pty Ltd:[6]
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.
[6] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[20]; applied in Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing); Rankine v State of South Australia [2022] SASCA 18 at [2]-[3]; and McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146 at [12].
For the reasons which follow, we would refuse leave to appeal on the basis that the applicant has not identified any arguable error in the Deputy President’s decision.
It is not appropriate for this Court to address the issues advanced by the applicant by way of challenge to the decision of the respondent not to extend the applicant’s probationary tenancy. The applicant was entitled to appeal the respondent’s decision not to extend her tenancy to the Tribunal, but elected not to do so.[7] The reasons for which the applicant chose not to pursue a review of the respondent’s decision by the Tribunal do not much matter.[8] They are immaterial in the sense that, once the respondent initiated proceedings in the Tribunal under the Residential Tenancies Act for an order of possession, the Tribunal was not entitled to review any decision by the respondent relating to those proceedings.[9]
[7] SAHT Act, s 32D.
[8] The applicant submits that the reason she did not make an application to the Tribunal was because of a filing fee she would have been required to pay. As recognised by the Deputy President, the general practice of the Tribunal is to waive the fee for persons in the applicant’s financial position.
[9] SAHT Act, s 32A(2)(c).
It follows that, in this case, this Court has no power to consider the merits of the respondent’s decision not to extend the applicant’s probationary tenancy. The task for this Court must be confined to a review of the Tribunal’s decision to order that the respondent have possession, and the applicant vacate.
On the evidence before the Tribunal, there is no basis to impugn the decisions of the Member or the Deputy President to the effect that the respondent was entitled to possession of the property. The decision to extend the probationary period was at the discretion of the respondent. The Deputy President was satisfied that the notice to vacate complied with the requirements of the probationary tenancy agreement and, as such, the respondent was entitled to possession of the property under the tenancy agreement.
In relation to the claims advanced as to the applicant’s mental health, it is evident that the Deputy President took both the applicant’s submissions and evidence, in the form of the letter written by Ms Marshall, into account when making her decision. The Deputy President held that:
I will grant leave due to fresh information concerning Ms Myer’s mental health issues. That information was not available to the Tribunal in the original hearing and I consider it relevant and appropriate to take into account.
The Deputy President made an order to suspend possession on the grounds of hardship due to the applicant’s mental health issues. The effect of that order was to grant the applicant additional time to vacate the property and arrange new housing. We are satisfied that the Deputy President acted appropriately in this regard.
The final point to be made is that the application for leave to appeal is out of time. An appeal from a decision of the Tribunal is required to be instituted within one month of the making of that decision.[10] In this matter, the notice of appeal was filed by the applicant on 16 March 2022, well over one month from the decision of the Deputy President on 24 January 2022. However, because this Court is not disposed to grant leave to appeal, it is unnecessary to determine whether an extension of time would be warranted.
[10] SACAT Act, s 71(3).
The Court orders that the application for leave to appeal is refused.