Palmer v Brighton Unity Housing Company Limited - [2013] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
PALMER v BRIGHTON UNITY HOUSING COMPANY LIMITED
[2013] SADC 151
Judgment of His Honour Judge Slattery
13 November 2013
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
Appeal from the Residential Tenancies Tribunal – appellant suffering an intellectual disability – the question before the Tribunal was whether the appellant should be required to vacate her premises due to her behaviour.
An Order by Consent of the appellant made on her behalf by her advocates and representatives was sealed by the Tribunal on 8 July 2013 that allowed the appellant 90 days to vacate the rental premises – appellant sought review of the Order by consent - a review hearing resulted in further Orders of the Tribunal sealed on 4 October 2013 to the same effect: that the appellant is the vacate the premises - this appeal stems from the subsequent Orders made on 4 October 2013.
Held: appeal dismissed. There was no basis established by the appellant for the Court to interfere with the Orders of the Tribunal.
Residential Tenancies Act SA (1995) s32(1)(f), s41, s90, Form 7, referred to.
McNickle v White & White (No. 2) [2006] SADC 43 ; Rice & Dawson v Szlegel [2009] SADC 27 , discussed.
Kennaway v Thompson (1981) QB 88 , considered.

PALMER v BRIGHTON UNITY HOUSING COMPANY LIMITED
[2013] SADC 151
JUDGE SLATTERY

The premises, the subject of this application, are rental premises in the form of semi-detached housing at 34 Cungena Avenue, Parkholme SA 5043. The landlord is Unity Housing Company Limited (‘Unity Housing’) and the relevant tenant is Elizabeth Palmer. Ms Palmer’s brother shares this house as a tenant and he acts as Ms Palmer’s financial administrator. Ms Palmer suffers an intellectual disability.
The term of the tenancy is six monthly periodic and the tenancy commenced on 17 October 2007. Unity Housing appears to have taken over the premises on about 21 May 2011. At that time the tenant owed about $5,500 in rental arrears and this was resolved through an application to the Guardianship Board. An order was made resulting in full payment of rent that was received on 8 September 2011.
From about January 2012 there have been a series of complaints about the behaviour of Ms Palmer. The first appears to have been registered on 10 January 2012 when Ms Sharon McInerney, a resident of 33 Cungena Avenue, Parkholme registered a complaint about the behaviour of Elizabeth Palmer. A written letter of complaint was received on 12 January 2012 disclosing that there had been previous complaints dating back to about 23 April 2010. The matter was dealt with by Ann Hammond of Unity Housing. She made contact with Ms Ryan Horton of the Independent Advocacy SA Inc, who acted as the disability advocate for Ms Palmer. Ms Horton took up the issue of the complaint, met with Ms Palmer on or about 18 January 2012 and reported back to Unity Housing. The matter was then confirmed to Ms McInerney on 24 January 2012. The situation was to be kept under observation.
By about 22 March 2012 there were further complaints from neighbours concerning the conduct of Ms Palmer. A further formal complaint was received on 12 April 2012, contact was made again with Ms Horton of Independent Advocacy and there were further meetings between Ms Horton and Ms Palmer following those complaints. However, by 30 May 2012 further complaints were received, all concerning the conduct of Ms Palmer. There appears to have been some resolution as a result of meetings held on 31 May 2012 with Ms Palmer and by 6 June 2012 there had been an apology proffered by Ms Palmer to the neighbours.
However, on 20 August 2012 further formal complaints were lodged about the activity of Ms Palmer on 18 August 2012. These matters were dealt with through August 2012 and matters did not resolve. The unsatisfactory state of affairs continued throughout the latter part of 2012 and into 2013. On 14 May 2013 a formal complaint was received from the neighbours and formal meetings were held between Unity Housing and the advocates for Elizabeth Palmer on 21 May 2013 in an attempt to resolve the dispute or to find some solution to the situation.
On or about 28 May 2013, a suggestion was made for Ms Palmer to transfer her residency to a unit in Hill Street, Cumberland Park that had become available within the stock of housing controlled by Unity Housing. The unit was shown to Ms Palmer; she did not commit to it and ultimately refused the offer. The difficulties between Ms Palmer and the neighbours continued throughout June 2013 and the matter was referred to the Residential Tenancies Tribunal on 12 June 2013. On that date an application was lodged with the Tribunal by the landlord, Unity Housing, seeking an order for the termination of the residential tenancy agreement pursuant to section 90 of the Residential Tenancies Act SA (1995) (‘the Act’). Section 90 of the Act reads as follows:
(1)    The Tribunal may, on application by an interested person, terminate a residential
tenancy and make an order for possession of the premises if it is satisfied that the
tenant has—
(a)used the premises, or caused or permitted the premises to be used, for an
illegal purpose; or
(b)caused or permitted a nuisance; or
(c)caused or permitted an interference with the reasonable peace, comfort or
privacy of another person who resides in the immediate vicinity of the
premises.
(2)    If the Tribunal terminates a tenancy and makes an order for possession under this
section—
(a)the Tribunal must specify the day as from which the order will operate, being
not more than 28 days after the day on which the orders are made; and
(b)the Tribunal may order the landlord—
(i)to take such action as is specified in the order for the purpose of
taking possession of the premises; and
(ii)not to permit the tenant to occupy the premises (whether as a tenant
or otherwise) for a specified period or until further order (and any
agreement entered into in contravention of such an order is void).
(2a)    However—
(a)the Tribunal must not make an order under this section unless the landlord has
been given a reasonable opportunity to be heard in relation to the matter; and
(b)if the landlord objects to the making of an order under this section, the
Tribunal must not make an order unless the Tribunal is satisfied that
exceptional circumstances exist justifying the making of the order in any
event.
(3)    In this section—
interested person means—
(a) the landlord; or
(b) a person who has been adversely affected by the conduct of the tenant on
which the application is based.
There was a meeting at the Tribunal on 9 July 2013 before the Tribunal Member Ms M Alvino. Persons present were representatives of the landlord, Unity Housing (Ann Hammond, Carrole Strong and Karen Rawlings). Evidence was to be called for the landlord from Sharon McInerney, Cara McInerney, Lorraine Nitschke and David Nitschke. Also present was the tenant Ms Elizabeth Palmer with her advocate Alison Randall and the advocate/financial counsellor for the tenant, Robyn Byrne. Ms Ryan Horton was to be called as witness for the tenant as the individual disability advocate.
I have listened to the disc recording of the hearing before Ms Alvino. It is quite apparent that from the time that Ms Alvino embarked upon the hearing, Ms Palmer strongly indicated her displeasure at being required to attend and after forcefully proffering her opinion of the complainants, left the hearing. She did not return. The recording discloses that Ms Alvino did everything she could to get Ms Palmer to return, but she was not successful. I reject any suggestion that the disposition of the matter before the Tribunal occurred in circumstances where Ms Palmer did not have an opportunity to put her side of the case.
Ms Alvino then went on to hear and determine the matter. The issue before her, as described in her reasons was as follows:
The grounds on which the application is made are stated in the application and they are:
‘Ongoing disruptive behaviour that includes abusive language and loud music and other alleged provocative behaviour. Neighbours have been complaining over a period of three years with little resolution and feel they can no longer tolerate the behaviour. The witnesses (two groups) are prepared to attend the hearing and advise they have documented evidence of Ms Palmer’s behaviour.’
Ms Alvino then undertook a hearing of evidence from a number of witnesses concerning the matter. She recorded her findings as follows:
The Tribunal heard evidence from a number of witnesses and is satisfied that the tenant has engaged in a course of behaviour which interferes with the reasonable peace of other people in the immediate vicinity. Following a lengthy discussion between the parties at the hearing it was agreed that the tenancy would terminate and the tenant would vacate the premises on Tuesday 8 October 2013. The Tribunal will therefore make an order to reflect the agreement reached between the parties.
It appears that Ms Alvino undertook a hearing of the matter in the absence of Ms Palmer. It is to be recalled that Ms Alison Randall from TIAS appeared as the advocate for Ms Palmer as a tenant, that Ms Palmer’s advocate/financial counsellor Ms Robyn Byrne also appeared as did the witness for Ms Palmer, Ms Ryan Horton (the individual disability advocate).
There does not appear to be any reason to assume or to suggest other than that a full opportunity was given to Ms Palmer to present her case, either through her own evidence or through the submissions of her advocate and representatives.
Finally, orders were made by Ms Alvino by consent. The formal orders are recorded as follows:
ORDERS BY CONSENT:
Having discussed this matter with both parties, and with their consent, pursuant to s34(5) of the Act,[1] I order that the agreement in respect of the premises at 34 Cungena Avenue, Parkholme SA 5043 terminate and I make an order in favour of the landlord for possession of those premises at 11am on Tuesday 8 October 2013 but if the tenant does not move out this order may only be enforced by the Tribunal Bailiff.
[1] (5) If proceedings are settled under this section, the Tribunal may embody the terms of the settlement in an order.
These orders were made by consent after a hearing before Ms Alvino. Orders were made for the termination of the tenancy. Those orders were made on 8 July 2013 and 90 days were given to Ms Palmer to vacate the premises.
A Form 7 Residential Tenancies Act application to the Residential Tenancies Tribunal was made by Ms Palmer. The application was received by the Tribunal on 17 September 2013. It names Ms Palmer as the applicant and Unity Housing as the respondent. The orders sought are as follows:
1. To set aside the order to vacate the said premises made on 9 July 2013 (the actual order was made on 8 July 2013).
2. To relist the matter for further hearing.
There are various styles of handwriting on the application and I will assume, as it is obvious, that Ms Palmer obtained some assistance with the preparation of the application.
The grounds of application were stated to be as follows:
5. I am the applicant in this matter.
I suffer an intellectual disability.
I was present at the Tribunal hearing on 7/7/13.
I removed myself from the Tribunal and the matter proceeded in my absence.
I was not requested to return to the Tribunal in order to voice be heard on the matters that were raised in the Tribunal by the applicants.
I did not consent to the termination of my rental agreement as stated in the order as I was not present at the time.
I am not aware of the evidence that was presented to the Tribunal in this matter.
There are a number of issues to be addressed arising out of these grounds. Having heard the recording of the conduct of the matter before the Tribunal, it is clear to me that Ms Palmer removed herself from the Tribunal only after uttering a number of unfortunate accusations directed at Unity Housing, its representatives, and those persons who may attend to give evidence on behalf of Unity Housing. The matter proceeded in the absence of Ms Palmer notwithstanding the efforts made to get Ms Palmer to return to the hearing. On balance, it is not possible to accept an assertion that Ms Palmer was not requested to return to the Tribunal in order for her voice to be heard on the matters that were raised before the Tribunal.
At the Tribunal hearing, Ms Palmer was represented by an advocate, an advocate/financial counsellor and a witness (Ms Ryan Horton) who was the individual disability advocate. Those persons were there present to act on behalf of Ms Palmer. The assertion of a lack of consent is made in the circumstances where the parties who were present and representing the interests of Ms Palmer are recorded to have consented to the orders made by Ms Alvino.
The application for review proceeded before Ms Barbara Johns, presiding member of the Tribunal, on 27 September 2013. Reasons for the order of the Tribunal (Ms Johns) were delivered on 4 October 2013. Ms Johns records that at the hearing before her, the tenant was represented by advocates Ms Ryan Horton and Ms Alison Randall.
In her reasons, Ms Johns referred to the content of s32(1)(f) of the Act[2] and confirmed that the provision enabled the Tribunal to vary or set aside a previous order of the Tribunal if it considers there are proper grounds for doing so.[3]
[2] Section 32—Procedural powers of the Tribunal
[3] McNickle v White & White (No. 2) [2006] SADC 43 at [9]; Rice & Dawson v Szlegel [2009] SADC 27 at [18].
Ms Johns then set out the background of the hearing, the matters that arose in relation to the application, the evidence and submissions of the landlord’s representatives and witnesses, the evidence and submissions of the tenant’s advocates and then set out her conclusions and findings. In particular, Ms Johns confirmed that she listened to the recording of the hearing on 8 July 2013 and that she had formed the view that Ms Palmer chose to leave the hearing of her own accord and was not prevented from returning to the hearing room at any time to give her own version of events. Ms Johns formed the view that although Ms Palmer was not personally present at the time to give her consent to the agreed outcome of the hearing on 8 July 2013, she considered that she was adequately represented by her advocates.
After having set these matters out, Ms Johns considered s 90 of the Act and considered whether the evidence established that the tenant’s conduct had caused an interference with the reasonable peace, comfort or privacy of her neighbours and if so, whether the tenant’s tenancy should be terminated. Ms Johns then gave consideration to the question of balancing the competing interests of the neighbours in an urban community and after referring to well known authority on the point,[4] Ms Johns confirmed that, in her opinion, the evidence did establish that the tenant’s conduct had caused an interference with the neighbours’ reasonable peace, comfort or privacy. Ms Johns then set out her reasons. It is apparent that Ms Johns accepted the evidence of the neighbours in respect of the complaints they made about the conduct of Ms Palmer.
[4] Kennaway v Thompson (1981) QB 88 at 94.
After taking all of those matters into consideration, Ms Johns then decided that in her view, it was appropriate for Ms Palmer’s tenancy to be terminated. Ms Johns also made a finding that Ms Palmer’s application did not disclose any proper grounds to vary or set aside the order made on 9 July 2013. It appears that further submissions were made by Ms Palmer’s advocates, Ms Randall and Ms Horton, and Ms Johns then extended the termination date to Friday 25 October 2013.
The formal orders were as follows:
ORDERS:
I set aside the order of the Tribunal made on 9 July 2013 and substitute the following orders instead:
1. The tenant must move out of the premises by midday on Friday 25 October 2013 but if the tenant does not move out this order may only be enforced by the Tribunal Bailiff.
2. If there are any further disruptive incidents before then the landlord may contact the Tribunal in writing and request an urgent hearing to terminate the tenancy and evict the tenant.
This matter first came before me on a Notice of Appeal lodged with this Court on 24 October 2013. The appellant is Ms Elizabeth Palmer and the respondent is Unity Housing. The appeal is against the whole of the judgment and the grounds of appeal are set out on page 3. In the grounds of appeal, Ms Palmer alleges that the neighbours have all lied in seeking an excuse to evict her. She alleges that because the neighbours are homeowners they think they have got a right to evict her, a person with disabilities.
She goes on to allege that there is a long waiting list and she has not been successful in looking for another place to live, she needs more time, but the neighbours want her out of the house straight away. She alleges that she has not done anything to the neighbours, that the neighbours have lied under oath at the Residential Tenancies Tribunal, that they have perjured themselves, that she has never had a chance to have her say, and that they should not be allowed to get away with what they have done and that they have given her hell for six years. She again stipulates that she has never agreed to vacate her property at 34 Cungena Avenue, Parkholme.
The orders that Ms Palmer seeks are a longer period to stay in her place and that she would like to live there permanently. An interlocutory application accompanied the Notice of Appeal. It sought a stay of the order of the Residential Tenancies Tribunal. An order of the Residential Tenancies Tribunal was also enclosed within the papers. It is the reasons for the order of the Tribunal made by Ms Johns on 4 October 2013 but it also contains handwritten annotations which I presume convey the attitude of Ms Palmer to the evidence given by her neighbours.
On 25 October 2013 I made an order for stay of the Tribunal orders until the matter could be heard again on 30 October 2013 at 11 am.
At the hearing, Ms Palmer was represented by her advocate, Ms Ryan Horton and Unity Housing were represented by Ms Atkins, Housing Officer for Elizabeth Palmer, Ms Rawlings, Operations Manager of Accommodation Services for Unity Housing and Ms Strong, Regional Manager of the Southern Region of Unity Housing.
Section 41 of the Residential Tenancies Act reads as follows:
41—Appeals
(1)An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(2)     On an appeal, the District Court may (according to the nature of the case)—
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal's decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
(3)The appeal must be commenced within one month of the decision or order appealed against unless the District Court allows an extension of time.
(4)If the reasons of the Tribunal are not given in writing at the time of making a decision or order and the appellant then requests the Tribunal to state its reasons in writing, the time for commencing the appeal runs from the time when the appellant receives the written statement of the reasons.

The transcript of the hearing of the appeal will disclose that I conducted the appeal process without rehearing evidence taken before the Tribunal or formally taking any further evidence. In the course of the hearing of the appeal I was informed of the structure of Unity Housing and the relationship between Unity Housing and the State Government for the provision of housing for low income, disadvantaged people. I then discussed the question of alternative accommodation for Ms Palmer with the representatives of the respondent. I was informed that a unit had been offered to Ms Palmer at Hill Street, Cumberland Park. That unit was controlled by the respondent, Unity Housing. The offer was made prior to 8 July 2013 and I was informed that that offer had been rejected. The premises are no longer available.
I was also informed of the possibility of alternative accommodation at Balyana. I was informed that this accommodation is motel style emergency accommodation. It was described as ‘24/7 passive care, it’s a share house, it was a share house arrangement’.[5]
[5] T5.37-38.
I was informed by Ms Horton that the Balyana accommodation would only be used for Ms Palmer if she was in a dire circumstance and access might be able to be taken to that accommodation through Disability SA. I was also informed that there had been seven or eight case conferences about Ms Palmer involving Ms Horton, representatives from Unity Housing, representatives from the Housing Trust, representatives from the Inner Southern Homelessness Service which have housing but Ms Palmer has been unsuccessful in qualifying for that housing. I was told that notwithstanding all of these attempts, options for Ms Palmer to find housing that is within her support network area was proving extremely difficult. I then questioned each of the representatives about the alternative accommodation that might be available. It became clear to me in those discussions that a major issue of difficulty was that the final decision as to whether or not Ms Palmer would enter into any alternative accommodation rested with her. Ms Horton made the point on a number of occasions that the focus has been on attempting to recreate the type of living arrangements that Ms Palmer has recently experienced so as not to actually decrease the independent living skills that she possesses and so contributing to her being deemed as a less suitable independent living option.
I indicated to the parties that, in my view, I could see no reason why any order would be made under s 41(2) of the Act. In the view that I had formed based on the evidence that I have seen, there was no reason to vary or quash the Tribunal’s decisions. I made reference to s 41(2)(c) and s 41(2)(d) of the Act. I then heard further submissions from the representatives of the respondent that particular emphasis has to be placed upon the fact that all of the possibilities that have been presented as alternatives to Ms Palmer were not permanent and that Ms Palmer remained on the register of the respondent for a Category 1 house as well as when any particular property becomes available at Unity Housing.
Ms Horton informed me that the difficulty was for Ms Palmer to live in close proximity with a number of other people. She then informed me that Ms Palmer had made a decision to ‘couch surf’ with friends until she was able to find other accommodation. I then questioned Ms Horton about those matters and, in particular, that I saw it as self-defeating that I would make an order confirming the order of the Tribunal but in circumstances where no alternative arrangements have been made for Ms Palmer to have accommodation. Ms Strong, of Unity Housing, then informed me that at the meeting between Ms Palmer, Ms Horton and Inner Southern Homelessness, when the option of a private boarding house was proffered and refused by Ms Palmer, it was at that time that Ms Palmer said that she wanted to go and live with her friend Gerald. Her friend’s full name is Gerald Fitzgerald and he lives on Morphett Road, Morphettville. I was then told that Gerald lives in a house of three bedrooms and lives on his own. I was later informed that Gerald and Ms Palmer are boyfriend and girlfriend and that Gerald was very keen for Ms Palmer to come and live with him. I was later informed by Ms Palmer from the bar table that she already lives with Gerald on several days per week and that she would be prepared to live at his home on a more permanent basis until such time as she was able to gain alternative accommodation. I was also informed that Ms Palmer could be moved to Gerald’s home quite easily because Gerald had a car, was happy to move her things and Ms Palmer did not have any furniture to transport to Gerald’s home. In Ms Palmer’s words ‘He (Gerald) would love me to go and live with him’.
She also said that she would still be looking around and other people would be looking around as well for her to find alternative accommodation.
In those circumstances, it was quite apparent that my confirmation of the order of Ms Johns in the Tribunal would not lead to a circumstance where Ms Palmer was ‘couch surfing with friends’ but in fact would live with her boyfriend, Gerald, at a home some three minutes drive from her current accommodation. This place (Morphett Road, Morphettville) was within the geographical area that Ms Palmer was well familiar with and was satisfactory to Ms Palmer.[6] It is not clear to me why I was not informed of these alternative arrangements that were available to Ms Palmer at the commencement of the hearing nor is it clear to me why I was also not informed that this type of arrangement had already been implemented, in part, by Ms Palmer by virtue of the fact that she lived at the home of Gerald for several days a week. Be that as it may, the important issue is that no order made by me this day confirming the decision of the Tribunal will render Ms Palmer homeless. Ms Palmer will be welcomed into the home of Gerald and she will be able to stay there for so long as she and Gerald maintain their relationship and also during the time that she will be able to make searches for suitable, alternative accommodation. The situation therefore is that all of the relevant agencies will continue to look for accommodation for Ms Palmer whilst she lives with Gerald in the same way that they would have continued to do so if Ms Palmer had lived in a boarding house situation.
[6] It achieves the goal as stated by Ms Horton of: “recreating the type of living arrangements that Ms Palmer has recently experienced”.
I therefore formed the view that there was no necessity to rehear any evidence taken before the Tribunal or to take any further evidence. None was proffered to me today. Ms Horton did not seek to lead Ms Palmer in evidence and the respondent did not seek to lead any further evidence in the matter.
I see no reason to quash the Tribunal’s decision. The view I have formed is that the Tribunal’s decision was correct in all of the circumstances. I therefore confirm the Tribunal’s decision in its terms.
The only other order that I would make either incidental or ancillary to those orders is that I would extend the stay of the order of Ms Johns until midday on 1 November 2013. I make this order to give Ms Palmer sufficient time to move out of the Cungena Avenue premises and to move to the premises of Mr Fitzgerald at Morphett Road, Morphettville.
The formal orders therefore are as follows:
1. I confirm the decision of the Tribunal delivered on 4 October 2013.
2.I vary the orders made by me on 25 October 2013 to extend the stay of the orders of the Tribunal made by Ms Johns on 4 October 2013 to midday on 1 November 2013.
3.I would otherwise dismiss the appeal.
I so order.

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