Philip Damian Burke v the Attorney-General for the State of South Australia No. SCGRG 95/1420 Judgment No. 6146 Number of Pages 6 Appeal and New Trial Appeal

[1997] SASC 6146

IN THE SUPREME COURT OF SOUTH AUSTRALIA

LANDER, J

Appeal and new trial - appeal - general principles - application by a vexatious litigant, prohibited from instituting further proceedings without leave of the court, for leave to appeal to the District Court against an order of the Residential Tenancies Tribunal - test to be applied as to whether the proposed appeals ought to be allowed to go forward, by leave of this court, is whether the Judge is satisfied that they would be instituted without reasonable ground - consideration of the meaning of 'without reasonable ground' - leave refused on all matters on the basis that any appeal would be instituted without reasonable ground. Residential Tenancies Act 1995s32, 37, 41, 93(4), 110; Supreme Court Act 1935s39, referred to. Attorney-General (SA) v Burke (Perry J, Unreported Judgment No. S6014 delivered 20 February 1997); Devries v Australian National Railways Commission (1993) 177 CLR 472, applied. Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, discussed.

ADELAIDE, 5-6 March 1997 (hearing), 6 March 1997 (decision)

#DATE 6:3:1997

#ADD 20:5:1997

Applicant :

In Person

Respondent:

Counsel: Mrs R D De Palma

Solicitors: Crown Solicitor's Office

Third Party Luigi Lippis:

Counsel: Mr A S Bannister

Solicitors: Bonnins

Order: application for leave to appeal refused.

LANDER J

1. This is an application by Phillip Damian Burke for leave of this court to appeal to the District Court in relation to an eviction order made by the Residential Tenancies Tribunal on 25 February 1997, and in respect of that order he seeks leave to appeal to the District Court 1: against the making of the eviction order and 2: in relation to the exercise by the Residential Tenancies Tribunal of its discretion contrary to his application that the eviction order be suspended for up to 90 days.

2. During the hearing of that application he has also applied to me for leave to appeal from a further order of the Residential Tenancies Tribunal made on 5 March 1997 and in respect of that order against 1: the determination by the Residential Tenancies Tribunal, effectively that it had no jurisdiction to hear his application and 2: a refusal by the tribunal, again to exercise its discretion in his favour pursuant to s.93(4) of the Residential Tenancies Act.

3. Leave is necessary because, on 20 February 1997, upon the application of the Attorney General, Perry J , made an order, pursuant to s.39 of the SupremeCourt Act, prohibiting the applicant from instituting further proceedings without leave of this court. Section 39 of the Supreme Court Act allows the Attorney General, or any other person, to apply to the court to have any person, who has persistently instituted vexatious proceedings, prohibited from instituting further proceedings without leave of the court. As I say, that application was made by the Attorney General and granted by Perry J on that day. The applicant has appealed from that decision, or intends to appeal from that decision, but that is not a matter which is relevant for the purpose of these proceedings.

4. On 26 February 1997 the applicant sought leave from Perry J to institute proceedings, by way of appeal to the District Court, against the order made on 25 February 1997 by the Residential Tenancies Tribunal. That oral application was refused by His Honour. On 28 February 1997 the applicant sought a stay of his Honour's order of 20 February 1997 from Bollen J, but that also was refused.

5. The purpose of s.39 is to prevent a party, who has persistently instituted vexatious proceedings, from bringing proceedings in the court without the court first being satisfied that the contemplated proceedings are not themselves vexatious.

6. Section 39(5) of the Supreme Court Act deems proceedings to be vexatious if they are (a) instituted to harass or annoy, to cause delay, or for any other ulterior purpose, or (b) if instituted without reasonable ground.

7. When this matter came on for hearing on these applications, Ms De Palma appeared for the Attorney General and Mr Bannister appeared for the proposed respondents in the District Court, who are the landlords in the Residential Tenancies Tribunal.

8. Ms De Palma submitted to me, and Mr Bannister did not argue otherwise, that the test to be applied as to whether the proposed appeals ought to be allowed to go forward, by leave of this court, is whether I am satisfied that they had been instituted, or they would be instituted without reasonable ground. I think, with respect, that she is right about that and I propose to determine whether leave ought to be granted upon a consideration as to whether or not the proposed proceedings would be instituted, if allowed to be instituted, without reasonable ground.

9. In his judgment given in this matter, Perry J himself considered what the words 'without reasonable ground' meant. He said this:

"The words 'without reasonable ground' should be given their ordinary meaning. In determining their application in a particular case, it is, however, relevant to have regard to the whole history of the matter. For example, to determine whether they reveal a persistent instituting of proceedings for the purpose of 'reagitating .... questions already determined'.

I am further of the view that in determining whether proceedings have been instituted 'without reasonable ground', it is relevant to have regard to steps taken in the proceedings, which although not within themselves the institution of proceedings, may nonetheless be apt to assist in determining whether the proceedings were instituted without reasonable ground."

10. I agree with and adopt his Honour's construction of s.39(5).

11. An application was made for the eviction of Mr Burke from the premises owned by Mr Bannister's clients. That application came for hearing before the Residential Tenancies Tribunal. It was established, without objection, that on 15 November 1995 a six month residential tenancy agreement was entered into between the landlord and Mr Burke in relation to premises at Avenue Road, Prospect. Pursuant to that agreement the rent payable under the agreement was $115 per week, payable monthly, and a security bond of $460 was paid by the tenant and lodged under the Residential Tenancies Act with the Tribunal. The Tribunal found that a notice of termination in the prescribed form dated 28 January 1997 was served by post on the tenant notifying him of a breach of a residential tenancy agreement; namely, the rent arrears. The notice provided that if the breach was not remedied within 7 days, then the tenancy was to be terminated by force of the notice and in those circumstances the tenant must give up possession of the premises on or before 6 February 1997.

12. The finding of the Tribunal, which is not complained of, was that rent was paid to 8 January 1997 and at the date of the hearing on 25 February 1997 was still only paid to that date. It was not disputed by Mr Burke that rent was paid to 8 January 1997, and was paid to that date on 28 January 1997.

13. Mr Burke's defence in the Tribunal was that he reached a verbal agreement during two conversations with Mr Lippis, the landlord, on or about 24 December 1996, in which Mr Lippis agreed that the payment of four weeks rent due on 8 January 1997 could be deferred by four weeks. It was, therefore, Mr Burke's case in the Tribunal, that as the landlord had agreed to defer payment he was not in breach of the agreement, as varied by the oral agreement of 24 December 1996.

14. On the other hand, the landlord's evidence in the Tribunal was that he agreed to wait only a couple of weeks for the rent and denied having said that payment could be deferred for four weeks.

15. The determination of that issue required an assessment of the credibility of the witnesses, and in due course the presiding member was satisfied that Mr Burke had not made out on the balance of probabilities that there was such an agreement between the parties as he alleged. She accepted the evidence of Mr Lippis, the landlord, that he had allowed some time to pay, but not in the order of four weeks. Particularly she was satisfied that when the notice of termination was served on the tenant Mr Burke, whatever period of grace had been given by Mr Lippis, had passed.

16. She determined that as at 28 January 1997 Mr Burke was in breach of the residential tenancy agreement and that the breach had not been remedied within 7 days as required, and she found that the notice of termination terminated the residential tenancy agreement pursuant to s.80 of the Act. Therefore, at the request of the landlord she made an order for possession of the premises. Upon that occurring Mr Burke sought suspension of the order pursuant to s.93(4) of the Residential Tenancies Act, which allows the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, if satisfied by the tenant that the granting of an order would cause severe hardship, in the discretion of the Tribunal, to suspend the operation of the order of the Tribunal for up to 90 days.

17. After hearing the parties she refused the application for suspension of the operation of the order. The reasons she gave were having regard to Mr Burke's financial position, if she were to suspend the order it would simply increase Mr Burke's indebtedness to the landlord and thus only delay his hardship.

18. As I have said, Mr Burke seeks leave to appeal against, firstly, the order for an eviction and, secondly, the refusal to suspend under s.93(4). As to the first matter, the decision made by the presiding officer was made after an assessment of the credibility of the competing witnesses and it appears to me to be almost impossible for Mr Burke to convince a court on appeal to reverse that finding; see Devries v Australian National Railways Commission
(1993) 177 CLR 472.

19. I have taken into account, in reaching that conclusion, the very wide powers of the District Court under s.41 of the Residential Tenancies Act and, in particular, the power given to the District Court to rehear evidence taken before the Tribunal or to take further evidence. I cannot think that, in the circumstances that were before the Tribunal, there is any prospect that the District Court will be moved to rehear that aspect upon which the presiding member has made very clear findings. In those circumstances an appeal would be instituted, in my opinion, without reasonable ground and I, therefore, refuse leave in relation to an appeal against the order for eviction.

20. Mr Burke seeks leave, secondly, from the order of 25 February 1997, to appeal against the order refusing the suspension of the eviction order. That order was made after hearing both of the parties and, in particular, having regard to Mr Burke's ability to finance any further rental payments. Mr Burke sought the suspension on 25 February 1997 upon the basis that he would be returning to this Court for leave to institute, or to further proceed in the proceedings in this court, which could give rise to the possibility that he would obtain superannuation payments, and could, therefore, be in a position to repay the landlord.

21. I think, with respect, the basis for the application was misconceived. The question for the Tribunal was whether the order would cause severe hardship to the tenant. It is not a question of how hardship could be ameliorated for the landlord and it is not so much a question as to whether or not Mr Burke will be in a position to further pay the landlord. That second matter is a factor for consideration in the exercise of the discretion, but the jurisdiction to make the order under s.93(4) is grounded upon the applicant making out severe hardship.

22. In my opinion Mr Burke did not make out before the Tribunal severe hardship. Even if I was wrong about that, in my opinion, it could not be said that the presiding officer was wrong in the exercise of her discretion to refuse to make an order which would have only protracted by as much as 90 days the inevitability of Mr Burke's eviction from the landlord's premises. Therefore, in my opinion, any appeal from the exercise of the discretion in the circumstances as I found them, to the District Court would, in my opinion, be without reasonable ground. I, therefore, refuse leave in respect of the second aspect of the order of 24 February 1997.

23. I turn to the application of 5 March 1997. Mr Burke returned to the Residential Tenancies Tribunal on that day and made a further application for an order suspending the operation of the order of 25 February 1997 for up to 90 days. It is not clear whether his application was for the suspension of the order for 90 days or some part of it, but probably not so much turns upon that.

24. Mr Burke was not prohibited by the order of Perry J from approaching the Residential Tenancies Tribunal. His Honour's order is not so wide as to prevent Mr Burke making an application to the Residential Tenancies Tribunal, but, if Mr Burke is unsuccessful before that Tribunal, then the order is wide enough to prevent him from appealing from that order, because the order operates to prevent Mr Burke approaching the District Court without first obtaining leave of this court.

25. Mr Burke's application to the Residential Tenancies Tribunal on 5 March 1997 was grounded upon a chain of circumstances that he had now made application for a Newstart Allowance and that he indicated he would be receiving $320 per fortnight. He told the Tribunal that he had been granted that allowance and that payment was to be received on that day. He, therefore, pointed out to the Tribunal that he was now a candidate for an order suspending the operation of the order for eviction made on 25 February 1997.

26. The presiding officer at the hearing of 5 March declined to make an order, upon the basis, as I read her reasons, of a want of jurisdiction. She pointed to s.37 of the Residential Tenancies Act, which provides:

"A party to proceedings before the Tribunal may apply to the Tribunal for an order varying or setting aside an order made in the proceedings."

27. She also pointed to s.32 of the Act which contains the procedural powers of the Tribunal which is in the same terms as s37 except that the operation of that jurisdiction arises in circumstances where there are proper grounds for making the order. She, however, concluded that the sections were not so wide as to allow her to make an order under s.93(4) unless, as I understand her reasons, Mr Burke brought forward evidence, which would qualify in the nature of fresh evidence, within the meaning of the discussion in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684.

28. I am not satisfied that the presiding member's decision is correct. Section 37 is in terms as I have set it out, but Her Honour's reasons overlook s.37(2) which allows that an application to vary or set aside an order must be made within three months of the making of the order unless the Tribunal allows an extension of time.

29. Section 37 does not, in its terms, preclude an application being made after the order for the eviction has been made, and ought not to be read so narrowly. Moreover, s.110 of the Act provides:

"The Tribunal may, on application by a party to a tenancy dispute - ... (e) terminate a residential tenancy or declare that a residential tenancy has, or has not, been validly terminated; or (f) reinstate rights under a residential tenancy agreement that have been forfeited or have otherwise terminated; or ... (l) exercise any other power conferred on the Tribunal under this Act; or (m) do anything else necessary and desirable to resolve a tenancy dispute."

30. It seems to me that the combination of all of those powers would allow the Residential Tenancies Tribunal to entertain an application under s.93(4) of the Act after the eviction order had been made. So also, the combination of those powers would allow the Tribunal to entertain an application under that section even if a previous application had been made, if, upon the second application, the applicant was able to identify circumstances which had changed to some degree from the time when the first application has been made and refused.Therefore, I think the decision of the Tribunal to refuse to exercise the jurisdiction under s.93(4), for the reasons it gave, is arguably wrong. That would mean if Mr Burke wishes to appeal from that decision it could not be said that the appeal would be instituted without reasonable ground. However, the appeal would be instituted only for the purpose of seeking to have the District Court itself make an order under s41 that, firstly, the jurisdiction ought to have been exercised, which I think it may be arguably said it would do, and, secondly, for the purpose of making an order under s.93(4).

31. I have already concluded that the decision of 25 February to refuse the application under s.93(4) was right. It seems to me that Mr Burke's application of 5 March 1997 to the Residential Tenancies Tribunal was not only not stronger than the application that had been refused on 25 February 1997, but was, in material respects, weaker.

32. At the time he made his application on 5 March 1997 he was able to establish to the satisfaction of the Tribunal that his financial position had improved since 25 February 1997. In those circumstances, inevitably he was less able to make out the threshold question under s.93(4), that is, that he was suffering from severe hardship. It would seem to me, therefore, that even if the Tribunal had exercised the power which it may have had under the Act, inevitably, in my opinion, the application would have been refused. So also, even if Mr Burke was to convince a District Court of the error of the failure of the Tribunal to exercise its jurisdiction under the Act, in my opinion inevitably the District Court would refuse to make an order under s.93(4).

33. It follows, therefore, that in my opinion I ought not to give leave because any appeal would be instituted without reasonable ground. I, therefore, refuse leave on each of the four matters advanced by Mr Burke.