Rose v South Australian Housing Authority - [2021] SASCA 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ROSE v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2021] SASCA 9
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle and the Honourable Justice Livesey)
12 March 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES
The applicant sought leave to appeal against a decision of a Presidential Member of the South Australian Civil and Administrative Tribunal declining leave to bring an application for internal review pursuant to s 70(1)(a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The applicant complained of an order dated 25 November 2020 by which his tenancy was terminated and he was required to grant possession of the property to his landlord, the South Australian Housing Authority.
Held, refusing leave to appeal:
1. Given the lack of arguable merit and the lack of utility in any appeal, the applicant has not demonstrated that it is in the interests of justice that there be a grant of leave to appeal.
Residential Tenancies Act 1995 (SA) s 90(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(2), s 70(1a), s 93A; Supreme Court Act 1935 (SA) s 50(4)(b); Uniform Civil Rules 2020 (SA) r 212.3(1)(a)(ii), r 212.4(c), 213.1(1)(a), referred to.
Atkins v Hughes [2019] SASCFC 49; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Re AKS [2016] SACAT 19, considered.

ROSE v SOUTH AUSTRALIAN HOUSING AUTHORITY
[2021] SASCA 9

Court of Appeal: Doyle and Livesey JJA
THE COURT:

This is an application for leave to appeal from a decision of a Presidential Member of the South Australian Civil and Administrative Tribunal (the Tribunal).
By reason of s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act), leave to appeal is required. And, by reason of s 71(1) of the SACAT Act and r 212.3(1)(a)(ii) of the Uniform Civil Rules 2020 (SA), the appellate jurisdiction of the Supreme Court is to be exercised by the Court of Appeal given that the appeal is against a decision of a Presidential Member of the Tribunal.
By r 212.4(c), the jurisdiction of the Court of Appeal to hear and determine an appellate proceeding may, if the Chief Justice or President of the Court of Appeal determine, be exercised by two Judges. Yesterday the President determined that this matter will proceed before two Judges.
The applicant’s proposed appeal
The applicant complains about an order made by the President of the Tribunal declining to grant leave to bring an application for internal review pursuant to s 70(1a) of the SACAT Act.[1]
[1] See Re AKS [2016] SACAT 19, [14] (Parker J).
The applicant is aggrieved by an order of the Tribunal dated 25 November 2020 by which his tenancy was terminated and he was required to grant possession by midday on Wednesday, 2 December 2020 to the South Australian Housing Authority (SAHA), his landlord.
The decision to terminate was based upon evidence taken in the presence of the applicant which demonstrated that he had “caused or permitted an interference with the reasonable peace, comfort or privacy” of others residing in the immediate vicinity of the applicant’s premises, with the result that the Tribunal was empowered to terminate the tenancy pursuant to s 90(1) of the Residential Tenancies Act 1995 (SA) without giving the usual 14-day notice period.
The evidence given by the witnesses before the Tribunal was to the effect that the applicant interfered with their reasonable peace, comfort and privacy by, over a number of months, shouting, being abusive, playing loud music early and late, interfering with neighbours’ bins, directing cameras at neighbours’ property and exposing his buttocks to his neighbours’ camera. On occasions police attended. The cross-examination conducted by the applicant through the Tribunal Member was essentially to the effect that the witnesses were “making it all up”.
It is important to recognise that the tenancy was a probationary agreement which commenced on 11 January 2020 and would expire, in any event, on 15 January 2021. In oral submissions today, the applicant questioned whether that was so, but accepted that he did not have his paperwork and could not say what were the precise terms of his tenancy. Mr Blige, for the SAHA, produced the tenancy agreement signed by the applicant and it is clearly a 12-month tenancy expiring on 15 January 2021.
After eviction, the applicant failed to obtain a stay of the Tribunal’s decision and then sought an internal review of that decision.
When determining whether to grant leave to proceed with an internal review, the President undertook an extremely thorough analysis of the Tribunal hearing in November, as well as of her own reasons given on 1 December 2020 for refusing a stay of the order terminating the tenancy.
The principal issue was whether the applicant was denied procedural fairness because he was ejected from the November hearing about two-thirds of the way through it, consequently losing the opportunity to put evidence to the Tribunal. The Tribunal member who was conducting the hearing took the view that the applicant had become disruptive, loud and rude. The President reviewed a recording of the hearing. She agreed with the assessment made by the Tribunal Member. The President explained that s 43(2) of the SACAT Act when read together with s 93A of that Act, contemplated that a party in a hearing may be removed if that party’s disruptive behaviour interfered with the Tribunal’s ability to properly conduct a hearing.
A second matter considered by the President was whether the applicant had evidence which might relevantly bear on the termination decision. She referred to a telephone directions hearing on 16 December 2020, after the applicant was evicted. The applicant had referred to “photos, videos and taped phone calls”, but he did not identify what the relevance of this evidence might be before he ended the telephone call.
A third matter considered by the President was that there was no utility in the application for review because the applicant’s probationary tenancy had expired on 15 January 2021 and there was no basis upon which SAHA could be directed to provide a further tenancy.
Although the President recognised the need to carefully consider the possibility of underlying merit “notwithstanding gross deficiencies” in the manner in which the applicant presented his case,[2] she saw no reason why it was in the interests of justice to allow the application for review to proceed.
[2] Atkins v Hughes [2019] SASCFC 49, [39] (The Court).
The determination of the application for permission
Whether permission or leave to appeal to this Court should be granted is ultimately determined by the interests of justice.[3] Typically, that requires that it be shown that the appeal is reasonably arguable and of sufficient substance to justify consideration by the Court of Appeal.
[3] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10, [3] (Kourakis CJ).
In this Court, the applicant has reiterated the matters put to the President. For example, by his grounds of appeal he says that he could not call evidence and the SAHA’s witnesses “all lied”. In his affidavit dated 18 February 2021, the applicant refers to video evidence without ever identifying the content of that evidence or how it might show that the original decision was wrong. Today the applicant made the same points and emphasised his dissatisfaction with the SAHA generally, saying that he was “set up to fail”.
For reasons similar to those given by the President, we do not consider that the appeal is reasonably arguable. Having regard to the Tribunal’s broad powers to control the conduct of hearings and the receipt of evidence, there is nothing before us to suggest that the applicant was denied procedural fairness in the original hearing. While the applicant was removed from the original hearing in November and in that sense lost the opportunity to adduce his own evidence, the crux of his case, namely that the SAHA’s witnesses were lying, emerged through his questioning. The case put by the SAHA and addressed by the applicant in cross-examination showed that the key question for the Member was whether he accepted the evidence of the SAHA’s witnesses. The Member did accept their evidence and considered that in some detail in his reasons.
However, quite apart from the absence of any merit sufficient to warrant the grant of leave, there is simply no utility in doing so. The probationary tenancy, which was terminated on 25 November 2020, ended on 15 January 2021 in any event. The SAHA does not intend to renew the tenancy, and neither the Tribunal nor this Court could compel it to do so.
The order of the Court is that leave to appeal is refused.