Rose v South Australian Housing Trust

[2016] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

ROSE v SOUTH AUSTRALIAN HOUSING TRUST

[2016] SASCFC 115

Judgment of The Full Court

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

30 September 2016

LANDLORD AND TENANT - TERMINATION OF THE TENANCY

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 July 2016, a Member of the Tribunal ordered that the tenancy agreement between the applicant and the respondent be terminated. The applicant applied for internal review of that decision. On 24 August 2016, Justice Parker, the President of the Tribunal, upheld the Tribunal Member’s decision and dismissed the appeal.

The applicant has applied for permission to appeal to the Full Court of the Supreme Court, on grounds that the relevant witnesses did not tell the complete truth at the hearing; that the President did not give the applicant the ability to fully explain the whole matter; and that the applicant was unable to present all the relevant evidence on the date of hearing.

Held per the Court, dismissing the application:

1.       There is nothing in the material presented in support of the application for permission to appeal to suggest a reasonably arguable ground of appeal in relation to a matter of substance to justify consideration by this Court.

2.       The interests of justice do not warrant a grant of permission to appeal.

3.       Permission to appeal is refused.

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71; Residential Tenancies Act 1995 (SA) s 90, referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10, considered.

ROSE v SOUTH AUSTRALIAN HOUSING TRUST
[2016] SASCFC 115

Full Court:      Kourakis CJ, Nicholson and Doyle JJ

THE COURT:

1. This is an application for permission to appeal to the Full Court of the Supreme Court under 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. On 19 July 2016, a Member of the Tribunal ordered that the tenancy agreement between the applicant and the respondent be terminated with effect from 22 August 2016. The applicant then applied under s 70 of the SACAT Act to the Tribunal for internal review of that decision. On 24 August 2016, the President of the Tribunal upheld the Member’s decision and dismissed the appeal. As this appeal is from a decision of the Tribunal constituted by the President, the appeal lies to the Full Court of the Supreme Court. Permission to appeal is required.

3. The principles governing an application for permission to appeal from the Tribunal to this Court were summarised by Parker J in the following terms in Jackson v Lepp Investments Pty Ltd[1] (as applied by the Full Court in Pix v South Australian Housing Trust[2]):

   The over-riding principle is always the interest of justice.  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.  A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.

   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.

   [1]    Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]. (Citations omitted).

   [2]    Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3].

4. The applicant’s proposed grounds of appeal are as follows:

   1.   All of the relevant witnesses did not tell the complete truth at the hearing.

   2.   The President did not give the applicant the ability to fully explain the whole matter.

   3.   The applicant was unable to present all the relevant evidence on the date of hearing.

5. The basis for the order made on 19 July 2016 evicting the applicant from his rental property was a finding by the Member that the applicant’s behaviour had caused an interference with the reasonable peace, comfort and privacy of his neighbours such that it was appropriate to terminate his tenancy under s 90 of the Residential Tenancies Act 1995 (SA). In the internal review of this decision, the applicant made various complaints as to the conclusions of the Member and the fairness of the hearing he was afforded. The President rejected those complaints.

6. Both the Member hearing the initial application, and the President on the review hearing, gave relatively detailed reasons for the conclusions they reached.  This Court has also had the benefit of the transcript of the hearing before the President.

7. The applicant’s proposed grounds of appeal are expressed in very general terms.  While the applicant filed a short affidavit in support of his application it did not expand upon or particularise his proposed grounds of appeal.  On a hearing to address the applicant’s application for a stay pending resolution of this application for permission to appeal, the apparent deficiency in the applicant’s application was pointed out to him.  He was given a further opportunity to file material identifying in more detail, or with more precision, the particular complaints he wished to make on appeal.  In an affidavit subsequently filed by the applicant, he made some attempt to particularise his complaints of unfairness in the hearings below.

8. The primary contention of the applicant appears to be that two of the persons who made complaints about his behaviour in fact incited him to behave in the way he did.  He contends that he has video evidence that supports his version of events that he was prevented from relying upon.  Having read the reasons for the decisions below, and the transcript of the hearing before the President, it is plain that this issue was addressed by the Tribunal and that the applicant was given an appropriate opportunity to present the evidence he wished to rely upon.  It is apparent that any curtailment in his opportunity to cross-examine was a product of his own conduct in the initial hearing, and that he was given an appropriate opportunity to adduce the video evidence to which he refers. 

9. There is nothing else in the material presented in support of this application to suggest a reasonably arguable ground of appeal in relation to a matter of sufficient substance to justify consideration by this Court.

10. Despite the significant consequences of the orders below for the applicant, the interests of justice do not warrant a grant of permission to appeal.  The application must therefore be dismissed.

11. A Judge of this Court previously granted a stay of the orders made by the President of the Tribunal until 19 October 2016.  In light of the dismissal of the applicant’s application for permission to appeal, the orders will now take effect from that date.