Pastro v Evans No. Dcaat-97-1016 Judgment No. D3622 Summary

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Allan (ex tempore)

Hearing

23/05/97.

Catchwords

Appeal against refusal to extend time for issuing application - whether Tribunal erred - appeal dismissed.

Materials Considered

• Residential Tenancies Act 1995s37, referred to.

Representation

Plaintiff EMILIO PASTRO:
In Person

Defendant STEPHEN ARTHUR EVANS:
In Person

DCAAT-97-1016

Judgment No. D3622

23 May 1997

On Appeal from Residential Tenancies Tribunal

In The Matter of RESIDENTIAL TENANCIES ACT 1995

(District Court Administrative Appeals Tribunal)

PASTRO v EVANS

Civil

Judge Allan

This is an appeal against an order of the Residential Tenancies Tribunal made on 19 February 1997 whereby an application by the appellant for an extension of time in which to apply to the tribunal for an order varying an order of the tribunal was refused.

The tribunal in refusing to extend the time so sought said that if the extension of time had been granted it would have dismissed the application to vary in any event.

The original order of the tribunal was made on 6 March 1996. On 5 may 1996 the appellant wrote to the Attorney-General expressing dissatisfaction with the order. On 27 June 1996 the Attorney-General wrote to the appellant advising him of his rights of appeal.

On 8 July 1996 the appellant wrote to the Attorney-General requesting that the tribunal be reconvened. On 9 August 1996 the appellant was advised of his rights of appeal and of the provisions of s.37 of the Act by the Attorney-General.

On 16 September 1996 the appellant wrote to say that he wished to apply to vary or set aside the order.On 31 October 1996 the appellant was advised to contact the registrar of the tribunal and the coordinator of tenancy advice.

The application to vary the order of the tribunal made on 6 March 1996 was lodged on 5 December 1996.That is, nine months after the order was made and six months out of time.

s.37 of the Residential Tenancies Act says:

"That a party may apply to the tribunal for an order varying an order of the tribunal."

It also says:

"That such an application must be made within three months of the making of the order sought to be varied unless the tribunal allows an extension of time."

On 19 February 1997 the tribunal refused to extend the time and published its reasons for doing so.I have read those reasons.I am not satisfied that they disclose any error of fact.I am not satisfied that they disclose any error of law and I am not satisfied that the exercise of the discretion was plainly wrong.

The order of the tribunal made on 6 March 1996, that is the order which you sought to vary, decided your rights as between you and Mr Evans.The courts have said many times that the power to re-open or to enable a re-hearing must be exercised with great caution.Generally speaking such power will not be exercised unless the applicant can show that by accident, without fault on his part, he has not been heard.

The fact is that you were not present when the tribunal heard the application originally but you had been notified in writing of the time and place for the hearing, well before the hearing.The tribunal proceeded to hear the application in your absence.

The tribunal's decision not to extend the time for the application to vary the order should be seen against that background.

In all the circumstances I am not satisfied that the tribunal erred. Furthermore, on the material before me, which is the same material which was before the tribunal, I would have exercised the discretion in the same way.

For these reasons the appeal is dismissed and the order of the tribunal is confirmed.

In the case of Pastro v Evans, the plaintiff, Emilio Pastro, appealed against a decision of the Residential Tenancies Tribunal. The tribunal had refused to extend the time for Pastro to apply for an order varying an earlier order made by the tribunal on 6 March 1996. The application to vary the order was made nine months after the original order was made and six months outside the prescribed time limit. Pastro had sought an extension of time to apply to the tribunal, but the tribunal refused this request, stating that even if the extension had been granted, it would have dismissed the application to vary the order in any event.

The central legal issue before the court was whether the tribunal had erred in its decision to refuse the extension of time for Pastro to apply for a variation of the tribunal's order. Specifically, the court needed to determine if the tribunal had made an error of fact, an error of law, or if the exercise of the tribunal's discretion was plainly wrong. The court considered the relevant provisions of the Residential Tenancies Act 1995, particularly section 37, which governs applications to vary orders made by the tribunal.

The court found that the tribunal's reasons for refusing the extension of time did not disclose any error of fact, error of law, or an exercise of discretion that was plainly wrong. The tribunal had exercised its discretion with caution, in line with the principle that the power to reopen or enable a rehearing should be exercised sparingly. The court noted that Pastro had been notified in writing of the time and place for the original hearing but had not attended. The tribunal had proceeded to hear the application in Pastro's absence. Given these circumstances, the court was not satisfied that the tribunal had erred in its decision. The court further noted that it would have exercised the discretion in the same way as the tribunal had, based on the same material before it.

As a result of this reasoning, the appeal was dismissed, and the tribunal's order was confirmed. Pastro's application to vary the tribunal's original order was deemed to be out of time, and the tribunal's refusal to extend the time for this application was upheld.

Pastro v Evans No. Dcaat-97-1016 Judgment No. D3622

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