Rebbeck v Housing SA - [2024] SASCA 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
REBBECK v HOUSING SA
[2024] SASCA 86
Judgment of the Honourable Acting Chief Justice Livesey (ex tempore)
19 July 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
SOCIAL WELFARE - HOUSING SCHEMES - PUBLIC HOUSING
The applicant seeks leave to appeal from a decision by a Deputy President of the South Australian Civil and Administrative Tribunal (the Tribunal) affirming an order for vacant possession of the rental property in which the applicant was residing after a fixed term tenancy agreement had expired, pursuant to s 93 of the Residential Tenancies Act 1995 (SA).
The applicant filed a Notice of Appeal. The Notice of Appeal did not identify what arguable error was made by the Tribunal. The applicant was directed to identify any error and amend his notice. The applicant was unable to do so, nor explain why the application for review before the Deputy President should not have been dismissed.
Held - striking out the Notice of Appeal:
1. Like all litigants before the Court of Appeal, unrepresented litigants must comply with the Rules of the Court. That is particularly important where substantial compliance would ensure that a respondent is given procedural fairness.
2.The conduct of the appellate proceeding must be fair to all parties before the Court. Whilst the Court will endeavour to afford a fair hearing, and give an unrepresented litigant assistance with the legal issues so as to avoid misunderstanding and unfairness, that assistance cannot extend to advising the litigant or compromising the neutrality of the Court.
3. In this case, the Notice of Appeal did not identify any arguable error, nor any reasonably arguable order that might be made on appeal. As a result, the respondent did not know what case it was required to meet. It is not appropriate to expend the limited resources of this Court in a search for arguable appeal grounds and orders.
4. In circumstances where there has been a fundamental failure by the applicant to comply with the Rules of Court, it is appropriate that the Notice of Appeal be struck out pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA).

Residential Tenancies Act 1995 (SA) s 93; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71; South Australian Housing Trust Act 1995 (SA) Part 3A; Uniform Civil Rules 2020 (SA) rr 212.3, 212.5, referred to.
Franklin v South Australian Housing Authority [2024] SASCA 3; Gassy v The King [2023] SASCA 90; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; Myers v South Australian Housing Authority [2022] SASCA 30, considered.

REBBECK v HOUSING SA
[2024] SASCA 86
Court of Appeal – Civil
LIVESEY A/CJ (ex tempore):
Introduction

This is an application for leave to appeal against an order made by the South Australian Civil and Administrative Tribunal (the Tribunal) on 16 May 2024.
The respondent landlord obtained an order for vacant possession on the basis that a fixed term tenancy agreement had expired, pursuant to s 93 of the Residential Tenancies Act 1995 (SA). The Tribunal made an order for vacant possession but suspended it until 14 May 2024. The applicant was required to make modest rental payments during April and May but, regardless, he was required to vacate by 14 May 2024, at the latest.
As it turned out, the applicant was evicted by the Tribunal bailiff on 8 May 2024.
The application is made pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) and r 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA). Though the Tribunal granted the applicant leave to apply for internal review, it affirmed the decision and made directions allowing the applicant access to the property to recover his possessions.
The Tribunal hearing
Deputy President Johns helpfully explained the background to this matter in her reasons dated 16 May 2024 as follows:[1]
Mr Rebbeck has lived at the property… since June 2021 pursuant to a series of fixed term tenancies. The final fixed term tenancy was for a period from 14 December 2022 to 14 December 2023.
On 1 November 2023 SAHA wrote to Mr Rebbeck to inform him that they had decided not to extend his tenancy for three reasons:-
·Neighbourhood disturbances;
·Unacceptable behaviour towards SAHA staff;
·Unapproved alterations to the property.
The notice to vacate was served by post and delivered to the Adelaide Remand Centre.
[1] Rebbeck v South Australian Housing Authority (SACAT, Deputy President Johns, 16 May 2024) [7]‑[9].
The applicant sought a review of the respondent’s decision under Part 3A of the South Australian Housing Trust Act 1995 (SA). The review was unsuccessful. The applicant then applied for a review by the Tribunal and, on 6 March 2024, the Tribunal affirmed the respondent’s decision.
On 2 April 2024 the respondent made an application to the Tribunal seeking an order for vacant possession. On the review of that decision, the applicant made submissions that he had ‘done nothing wrong’, the decision by the respondent was made on the basis of incorrect information, he had made the required payments pursuant to the original order, he was not given notice of the original order and the original order failed to adequately account for his difficult personal circumstances.[2]
[2] Rebbeck v South Australian Housing Authority (SACAT, Deputy President Johns, 16 May 2024) [19].
The Deputy President explained to the applicant that it was ‘beyond the scope of this review to enquire into the reasonableness of [the respondent’s] decision not to extend [the applicant’s] tenancy’ and the applicant had exhausted all of his rights before the Tribunal concerning that decision.[3] The Deputy President confirmed that the scope of the review before her was limited to a review of the original order and to determine whether or not that order was the correct and preferable order.
[3] Rebbeck v South Australia Housing Authority (SACAT, Deputy President Johns, 16 May 2024) [22].
In the course of her review, the Deputy President considered firstly, whether the respondent complied with any applicable requirements under the Residential Tenancies Act 1995 (SA) in relation to the expiry of the tenancy and secondly, whether an order for vacant possession should have been made and, if so, should that order be suspended for hardship (with or without any accompanying conditions). In her reasons delivered on 16 May 2024, the Deputy President recorded that she was satisfied the respondent had complied with the relevant statutory requirements, and that the order for vacant possession should be made. However, she granted the applicant access to the property for the purpose of removing his goods and chattels.
The Notice of Appeal
The applicant is not legally represented. His handwritten Notice of Appeal is difficult to follow. The grounds appear to be as follows:
1.Information provided to SACAT by Housing SA … False/Misleading/Paramount to bullying.
2.Never been behind in rent until wrongly arrested due to New Tenant making false claims and police reports.
3.Housing SA property manager blocking any communication attempts.
The orders sought from the Court of Appeal are:
1.Resume Lease.
2.Order SAPOL to withdraw false charges and bail conditions.
3.Order seeking of possessions and vehicles and allow access without conditions that are basis-less [sic].
When the matter was called over before the Court of Appeal on 12 July 2024, the applicant failed to attend at 9.15 am. The applicant apparently reported to a Sherriff’s Officer after 10.00 am. The matter was adjourned for a week with a direction that the applicant must identify what arguable error he said was made by the Tribunal.
Determination of the application
Despite having been given an opportunity to identify arguable error in the reasons of the Tribunal, the applicant has not been able to do so. That is not a criticism, the applicant is challenged by a number of personal and physical difficulties. Nonetheless he has been unable to articulate any arguable ground of appeal.
In particular, the applicant has been unable to explain why the application for internal review should not have been dismissed. His attempt to have this Court reinstate a lease which expired in accord with its own terms is misconceived.[4] In addition, no orders can properly be made under the guise of leave to appeal from the Tribunal which are directed to South Australian Police, addressing the applicant’s bail conditions.
[4] Franklin v South Australian Housing Authority [2024] SASCA 3, [24]; see also Myers v South Australian Housing Authority [2022] SASCA 30, [14]-[16] (Doyle and Bleby JJA).
Having said that, one of the applicant’s principal concerns was that he had experienced difficulty getting access to his goods and chattels from the backyard of his former rental accommodation. I raised that with counsel for the respondent on 12 July 2024 and, during the adjournment, attempts were made to facilitate access. At the hearing today, the respondent agreed to facilitate the applicant’s access to the property next week to pack his belongings. The respondent agreed to safely store the applicant’s goods and chattels for two months. Finally, steps were taken to facilitate an urgent application for new rental accommodation by giving the applicant the name and number of the relevant officer who would speak to him.
Unrepresented litigants, like any other litigants before the Court of Appeal, must comply with the Rules of Court. That is particularly important where substantial compliance will ensure that a respondent is given procedural fairness. The conduct of the appellate proceeding must be fair to all parties before the Court. Whilst the Court will endeavour to afford a fair hearing, and give an applicant assistance with the legal issues so as to avoid misunderstanding and unfairness, that assistance cannot extend to advising the litigant or compromising the neutrality of the Court.[5]
[5] Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [21]-[24] and [30]-[31] (Livesey P), citing Gassy v The King [2023] SASCA 90, [33]-[37] (Livesey P, David JA and Stein AJA).
In this case, the Notice of Appeal did not identify any arguable error, nor any reasonably arguable order that might be made on appeal. As a result, the respondent did not know what case it was required to meet. It is not appropriate to expend the limited resources of this Court in a search for arguable appeal grounds and orders. Without the demonstration of an arguable error, or clear injustice, an appeal is not an occasion for the appeal court to simply express a second opinion. That concern is underscored in this case where the applicant appears to be seeking orders which are not within the jurisdiction of the Court.
In circumstances where there has been a fundamental failure by the applicant to comply with the Rules of Court, it is appropriate that the Notice of Appeal be struck out pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA).
Conclusion
The Court orders that the Notice of Appeal dated 14 June 2024 be struck out.