Pix v South Australian Housing Trust

[2016] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

PIX v SOUTH AUSTRALIAN HOUSING TRUST

[2016] SASCFC 57

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)

17 May 2016

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 7 October 2015 Justice Parker, the 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 his premises.

The applicant appealed to the Full Court of the Supreme Court, on grounds including that the President failed to take into account, gave too much or insufficient weight, to various factors.

Held per Kourakis CJ (Bampton and Doyle JJ agreeing), dismissing the application:

1. The applicant has not identified any error in the internal review conducted by the President of the Tribunal.

2. Permission to appeal is refused.

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70, s 71, referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, discussed.

PIX v SOUTH AUSTRALIAN HOUSING TRUST
[2016] SASCFC 57

Full Court: Kourakis CJ, Bampton and Doyle JJ

1. KOURAKIS CJ:    This is an application for permission to appeal to the Full Court of the Supreme Court pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) against orders made in the South Australian Civil and Administrative Tribunal (the Tribunal).

2. The applicant applied to the Tribunal under s 70 of the SACAT Act for internal review of a decision made on 17 September 2015 by the Tribunal, which terminated the tenancy agreement between the applicant and the respondent, and evicted him from his premises. That application for internal review came before Parker J as President of the Tribunal. On 7 October 2015, the President upheld the Tribunal’s decision and dismissed the appeal. As this appeal is against a decision of the Tribunal constituted by the President, the appeal lies to the Full Court of the Supreme Court.[1] Pursuant to s 71(2) of the SACAT Act, the applicant requires permission to appeal.

   [1]    South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(1)(a)(i).

3. In Jackson v Lepp Investments Pty Ltd,[2] Parker J set out the principles governing an application for permission to appeal from the Tribunal to this Court:

   The over-riding principle is always the interests of justice.[3]  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.[4]  A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.[5]

   Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. For this proposition I rely on the decision of this Court in Legal Practitioners Conduct Board v Colton.[6]

   [2] [2016] SASC 62 at [19].

   [3]    Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].

   [4]    Mick Lucas Pty Ltd v Licensing Commission (1987) 45 SASR 312 at 313-314.

   [5]    Curnow v Police (2008) 100 SASR 290 at [11].

   [6] (2012) 113 SASR 467 at [35].

4. The applicant contends that the President:

   (a)gave too much weight to allegations that the applicant engaged in disruptive behaviour;

   (b)failed to take into account the contribution of another resident to the alleged disruptive behaviour;

   (c)gave insufficient weight to:

   ·       the duration of the applicant’s tenancy of the property;

   ·       the applicant’s timely payment of rent until about 6 February 2015;

   ·       the applicant’s resumption of payment of rent in about December 2015; and

   ·       the difficulty likely to be face by the applicant in obtaining alternative accommodation if the eviction decision is to be upheld.

5. The President expressly referred to the consideration in (b) above.  That ground has no merit.

6. 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.

7. The applicant has not demonstrated any arguable error of principle, denial of procedural fairness, other vitiating error, or manifest injustice.  The application must therefore be dismissed.

8. BAMPTON J:      I agree with the Chief Justice that the application should be dismissed.

9. DOYLE J:             I agree with the reasons of the Chief Justice, and that the application should be dismissed.