Phelan v South Australian Housing Trust
[2019] SASC 30
•7 March 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Leave to Appeal to the Full Court)
PHELAN v SOUTH AUSTRALIAN HOUSING TRUST
[2019] SASC 30
Judgment of The Honourable Justice Nicholson
7 March 2019
LANDLORD AND TENANT - TERMINATION OF THE TENANCY - GENERALLY
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Application for permission to appeal to the Full Court of the Supreme Court against orders made in the South Australian Civil and Administrative Tribunal (the Tribunal).
On 19 December 2019, Mr Stevens, an Acting Deputy President of the Tribunal, upheld a decision made by the Tribunal, which ordered the termination of the tenancy agreement between the applicant and the respondent, and evicted the applicant from the premises.
The applicant has appealed to the Full Court of the Supreme Court on various grounds.
Held, dismissing the application:
1. The applicant has not identified any error in the internal review conducted by the Acting Deputy President of the Tribunal.
2. Permission to appeal is refused.
South Australian Civil and Administrative Tribunal Act 2013 (SA) s 16, s 71, s 89A; South Australian Housing Trust Act 1995 (SA); Residential Tenancies Act 1995 (SA) s 5, s 24, s 110, Pt 3, referred to.
Jackson v Lepp Investments Pty Ltd (2016) SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10, discussed.
PHELAN v SOUTH AUSTRALIAN HOUSING TRUST
[2019] SASC 30Permission to appeal to the Full Court
NICHOLSON J.
Introduction
The applicant in this matter seeks permission to appeal to the Full Court of the Supreme Court from a decision of the South Australian Civil and Administrative Tribunal (SACAT). The appeal lies pursuant to section 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). Until recently, the applicant had been a very long term tenant of the South Australian Housing Trust (SAHT or the respondent). However, on 6 December 2018 Tribunal Member Bakas allowed the respondent’s application for orders that the tenancy be terminated and that the applicant vacate the premises by midday on 17 December 2018. The order for termination of the tenancy was made on the basis of the applicant’s failure to maintain the property in good and proper tenantable condition. It was further directed that the order giving vacant possession was to be enforced, if necessary, by the SACAT bailiff. The applicant did not vacate the property as ordered and, on 19 February 2019, the order was enforced by the bailiff.[1]
[1] Appointed pursuant to subsection 89A(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
On 10 December 2018, the applicant applied to SACAT for an internal review of the decision and made an urgent application for a stay of the operation of the orders. On 14 December 2018, the President of SACAT refused an order for a stay and on 19 December 2018 Acting Deputy President Stevens affirmed the decision under review.
The applicant now applies for leave to appeal against the decision of Acting Deputy President Stevens. Whilst an appeal from a decision of a presidential member of the Tribunal lies to the Full Supreme Court,[2] any such appeal requires permission and an application for permission is to be determined in the first instance by a single Judge of the Supreme Court.[3]
[2] An Acting Deputy President is a Presidential Member, see section 3, subsection 16(5)(b) and subsection 71(1)(a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
[3] See generally rule 289 of the Supreme Court Civil Rules 2006 (SA).
The application came before me in my chamber list on 15 February 2019 at which time I made directions necessary to enable the matter to be prepared and listed for an early hearing before me on Wednesday 27 February 2019. However, after the respondent had entered into possession on 19 February 2019, the bailiff began to remove and store property owned by the applicant and understood to be of some value and to remove rubbish and other property understood to be of little or no value, in accordance with the statutory obligations of the bailiff as the bailiff perceived them to be. As a consequence, at the hearing on 15 February 2019, I also ordered that any further conduct by the bailiff in this matter be stayed until further order.
Counsel for the respondent politely queried whether a permission Judge in my circumstances had statutory power to make such an order. I indicated that in the event that there were to be no express statutory power available, but without deciding that question, I proposed to exercise the inherent jurisdiction available to a Supreme Court Judge in circumstances where, in my view, such an order was necessary to preserve the subject matter of the appeal.
Legislative basis for the decisions made for the decision below
Notwithstanding that tenancies with the SAHT are governed by the South Australian Housing Trust Act 1995 (SA), it is provided by subsection 5(2) of the Residential Tenancies Act 1995 (SA) that a number of provisions of that Act will also apply, including provisions dealing with matters such as quiet enjoyment of the premises, security of the premises, conduct by the tenant and termination and vacant possession. Part 3 of the Residential Tenancies Act 1995 confers exclusive jurisdiction upon SACAT to hear and determine tenancy disputes.[4]
[4] Subsection 24(1) of the Residential Tenancies Act 1995 (SA).
The orders made in this case by the Tribunal member at first instance were made pursuant to subsection 110(1) of the Residential Tenancies Act 1995 and, in particular, pursuant to paragraphs (e), (j) and (m) thereof.
(1)The Tribunal may, on application by a party to a tenancy dispute—
(a) restrain an action in breach of this Act, a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(b) require a person to comply with an obligation under this Act, a residential tenancy agreement, a rooming house agreement or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(c) order a person to make a payment (which may include compensation) under this Act, a residential tenancy agreement, a rooming house agreement or a collateral agreement or for breach of this Act, a residential tenancy agreement, a rooming house agreement, or a collateral agreement; or
(d) relieve a party to a residential tenancy agreement, a rooming house agreement or a collateral agreement from the obligation to comply with a provision of the agreement; or
(e) terminate a residential tenancy or rooming house agreement or declare that a residential tenancy or rooming house agreement has, or has not, been validly terminated; or
(f) reinstate rights under a residential tenancy agreement or rooming house agreement that have been forfeited or have otherwise terminated; or
(g) require payment of rent into the Fund until conditions stipulated by the Tribunal have been complied with; or
(h) require that rent paid into the Fund be paid out and applied as directed by the Tribunal; or
(i) require that a bond (including a bond under Part 7) paid into the Fund be paid out and applied as directed by the Tribunal; or
(j) require a tenant or a rooming house resident to give up the possession of premises to the landlord or rooming house proprietor; or
(k) make orders to give effect to rights and liabilities arising from the assignment of a residential tenancy agreement; or
(l) exercise any other power conferred on the Tribunal under this Act; or
(m) do anything else necessary or desirable to resolve a tenancy dispute.
Further general background
The respondent had for some time been attempting to have the applicant clear out excessive quantities of rubbish, materials, disused furniture, boxes and other collections of possessions and the like from both inside the premises and outside the premises in order to bring the premises into a state of good and proper tenantable repair. The respondent has from time to time provided some assistance to the tenant in this respect. It eventually came to a point where the respondent brought an application for termination and vacant possession on 1 February 2018.
The matter came on for hearing on 21 February 2018 before the Tribunal. The Tribunal was provided with photographs taken on 13 February 2018 which demonstrated that the property was in considerable need of attention. Tribunal Member Alvino made orders permitting the applicant to remain in the property on the condition that by designated dates: she arrange to have the backyard slashed; she remove all items stored around the perimeter of the house and in the garage; she allow the respondent to attend to the removal of the eaves which contained asbestos; and she clear and clean the interior of the house and return it to a reasonable, clean and tenantable condition. Member Alvino also ordered that if the timetable for works was not complied with, the respondent could apply to the Tribunal for an urgent hearing to terminate the tenancy and evict the applicant from the premises.
At the respondent’s request, the matter was listed for a further hearing on 10 April 2018. According to the evidence at this hearing, the applicant had complied with the order to have the backyard slashed and to allow an inspection. However, the slashing of the backyard exposed hazards that needed to be removed. Tribunal Member Mares made a finding that the applicant had failed to comply with the order requiring her to remove all items stored around the perimeter of the house and the garage. An amended timetable for further work to be done was ordered and an order made allowing the respondent to return to the Tribunal for an urgent hearing seeking termination of the tenancy if these new orders were not complied with.
At the request of the respondent, a third hearing took place on 19 June 2018 before Tribunal Member Mares. The evidence permitted a finding that the applicant had complied with the orders requiring her to remove hazardous items from the backyard and all items around the perimeter of the house and the garage. However, the outstanding orders to clear out and clean the interior of the house still had not been complied with. Again, orders were made allowing the applicant to remain in the property on condition that she comply with a new timetable requiring her to clean up the interior of the property.
At the request of the respondent, a fourth hearing was convened on 4 October 2018. The matter came before Tribunal Member Bakas who, ultimately, was to make the orders on 6 December 2018 for termination of the tenancy and vacant possession. At the hearing on 4 October 2018, Member Bakas adjourned the respondent’s application to allow for further consideration and so that Member Bakas could personally inspect the property. Member Bakas inspected the property on 25 October 2018 in the presence of the applicant and representatives of the respondent. Member Bakas in due course made further orders at a hearing on 7 November 2018 and in so doing noted the following matters had arisen at the inspection.
(i)There had been little change in the condition of the property since the previous hearing.
(ii)The dining room had been cleaned although the laundry which had previously been empty had been filled up again with the applicant’s belongings.
(iii)Two of the five rooms could not be entered as there was no visible floor space to walk on. The door to a third room could be opened only slightly revealing a room with boxes and other items stacked floor to ceiling.
(iv)The outside of the property had a large amount of furniture, rubbish and unused cars which were filled with the applicant’s belongings. A skip in the backyard that had been placed there three days prior was virtually empty.
At a fifth hearing on 7 November 2018, Member Bakas made an order granting the applicant a further 21 days to clean up the property and adjourned the proceedings. Member Bakas made it clear to the applicant that if it were to be demonstrated by evidence at the next hearing that the applicant had been unable to comply with an undertaking given with respect to cleaning up the premises, it was extremely likely that Member Bakas would make an order terminating the tenancy.
The proceedings came before Member Bakas again for a sixth hearing on 6 December 2018. The respondent provided the Tribunal with photographs of the property that had been taken on 5 December 2018. Member Bakas observed that whilst the applicant had made some progress towards clearing the interior of the property, the clutter in some areas had increased and other rooms had not been cleared or cleaned and the exterior of the property remained as before. The respondent acknowledged that the applicant had worked hard over the previous four weeks but submitted that the property still was not in tenantable condition and still required a considerable amount of work. The applicant made it clear that she did not want to leave the property it having been her family home although she was living there essentially on her own at this stage. The applicant also told the Tribunal that she would only need a further three days to clean the premises. The respondent indicated that it had secured a two bedroom property for the applicant and that they did not want her to be homeless.[5]
[5] As it happens, the respondent has offered four properties to the applicant since she was forced to vacate the premises. Whilst any new tenancy would only be on a short term basis in the first instance, provided the applicant complied with her tenancy obligations any such short term tenancy, ordinarily, would be extended. However, none of these properties has been satisfactory to the applicant.
Member Bakas rejected the applicant’s submission that the work could be done within three days and having considered the evidence before the Tribunal, including her inspection of the property and the tendered photographs illustrating the state of the property as at 5 December 2018, Member Bakas made orders terminating the tenancy and for vacant possession by 17 December 2018.
On 10 December 2018, the applicant lodged an urgent application for an internal review of the decision and for a stay of the operation of the order. The question of the stay came before the President of the Tribunal. On 14 December 2018, Justice Hughes refused the application for a stay. Her Honour said this.
The tenant must establish that she has an arguable case that the original decision was not the correct and preferable one. This is a matter where the decision-maker in the original decision has evidently taken a significant amount of evidence before reaching her decision. There were many hearings during which the tenant had an opportunity to put her case. She has made significant improvements to the condition of the property but the Tribunal was not satisfied that they were enough. The issues raised as grounds of review are all matters that were or could have been thoroughly canvassed. I consider her case to be unarguable based on the material she has put to the Tribunal for the purposes of the stay.
The internal review hearing came before Acting Deputy President Stevens on 19 December 2018. The Acting Deputy President delivered a ruling at the conclusion of the hearing. The Acting Deputy President reviewed the evidence and submissions from both parties that were before him and noted that the order under review had been made by a very experienced member of the Tribunal after the matter had been before the Tribunal on five previous occasions during 2018. He concluded that the order for termination and possession at the time it was made was the correct and preferable one. Nothing had been put to Acting Deputy President Stevens that persuaded him that it was not still the correct and preferable order.
Application for leave to appeal to the Full Court
The test for permission to appeal from a determination by SACAT such as the present was set out in Jackson v Lepp Investments Pty Ltd as follows.[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 over-riding principle is always the interests of justice.[7] 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.[8] A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.[9]
The test was approved by the Full Court in Pix v South Australian Housing Trust.[10] In that case the Chief Justice observed as follows.[11]
The other grounds complain only of the weight given to the specified considerations. The President carefully weighed and considered the competing considerations. This Court cannot substitute its evaluation of the relevant considerations for that of the Tribunal unless, having regard to the Tribunal’s specialist knowledge and experience, this Court finds that the order ultimately made is manifestly unreasonable. An error of that kind is not arguable in this case.
[6] [2016] SASC 62; (2016) 125 SASR 1 at [19] (Parker J).
[7] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
[8] Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at 313-314.
[9] Curnow v Police (2008) 100 SASR 290 at [11].
[10] [2016] SASCFC 57; (2016) 125 SASR 10 at [3] (Kourakis CJ, with whom Bampton and Doyle JJ agreed).
[11] Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at [6].
The applicant has raised the following grounds of appeal.
(i)That the order of Acting Deputy President Stevens was not the correct or preferable decision.
(ii)That the evidence concerning an inspection on 5 December 2018 given by Ms Gaborit at the Tribunal hearing on 6 December 2018 was incorrect in that:
(a) Ms Gaborit had not been denied access to any part of the property;
(b) Ms Gaborit had informed the applicant that her efforts were sufficient and SAHT would not be seeking eviction the next day.
(iii)That the respondent had not considered or supported the applicant’s mental health.
(iv)That the applicant had far less than the nine months to clean up the property.
(v)That the respondent’s contractors undertaking work between May through to December inhibited the applicant from being able to comply with some of the SACAT orders.
The challenges to Ms Gaborit’s evidence in ground (ii) were raised before and addressed by Acting Deputy President Stevens. Ms Gaborit’s evidence was accepted by the Tribunal and there is no basis in the evidence to disturb that acceptance. In any event, in my view the evidentiary challenges to Ms Gaborit’s evidence, even if made out, would not have been material to the decision made by Acting Deputy President Stevens.
Grounds (iv) and (v) were also raised and addressed before President Stevens.
As far as ground (iii) is concerned, the respondent challenged the applicant’s bare assertion and maintained that it had considered and supported her mental health in the ways particularised in Ms Gaborit’s affidavit. According to the evidence, the respondent had worked with the applicant since the commencement of her tenancy and had provided her with numerous referrals for intensive support to assist her with respect to her mental health and had assisted her to improve the condition of the property.
As far as grounds (iv) and (v) are concerned, the respondent adduced evidence to the effect that the work done on the property by the respondent and its contractors occupied relatively little time and that the applicant had been on notice since January 2018 of what she was required to do. The applicant did not provide any evidence in support of grounds (iv) and (v) at the time of the Tribunal hearings nor before this Court.
The applicant’s submissions at the hearing of the application for permission were to the effect that the orders of the Tribunal would cause her hardship and were generally unfair in all the circumstances. The former cannot be doubted but the latter is a matter that has to be assessed having regard to the interests of both sides to the dispute.
On my review of the record of proceedings and the materials before Member Bakas and Acting Deputy President Stevens, there is no support for a finding that either engaged in a process error, that is, failed to take account of relevant considerations or took into account irrelevant considerations or misapplied the relevant principles of law. On my review of the materials available to the Tribunal, in particular, the relevant photographic evidence, the orders made by Member Bakas and affirmed on review by Acting Deputy President Stevens were well open to the Tribunal. According to the observations of the Chief Justice in Pix, I am not entitled to substitute my evaluation of the relevant considerations for those of the Tribunal unless having regard to the Tribunal’s specialist knowledge and experience, I were to find that the order ultimately made is manifestly unreasonable. I am not satisfied that the orders made were manifestly unreasonable.
Returning to the test for permission identified by Justice Parker in Jackson, there is no doubt that the subject matter of this application for permission to appeal is of sufficient substance to justify consideration. The deprivation of the applicant’s tenancy of her long term residence is extremely important to her. However, in my view, the applicant’s appeal is not reasonably arguable. It is not reasonably arguable when all the evidence is taken into account, that either the decision of Member Bakas or the decision of Acting Deputy President Stevens was not the correct and preferable decision at the time it was made. Further, nothing has been put to persuade me that they are still not the correct and preferable decisions.
I dismiss the application for permission to appeal. I will hear the parties on any matters arising.
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