Smith v South Australian Housing Trust

[2007] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Under Residential Tenancies Act 1995)

SMITH v SOUTH AUSTRALIAN HOUSING TRUST

[2007] SADC 139

Judgment of His Honour Judge Rice

21 December 2007

LANDLORD AND TENANT - TERMINATION OF THE TENANCY

Appeal against an order of the Residential Tenancies Tribunal whereby it ordered the appellant to give up vacant possession - reliance placed on s 90 Residential Tenancies Act 1995 - respondent relied upon the evidence of a police officer who was utilising s 21 of the Summary Offences Act 1953 - issues on appeal related to the method and degree of proof required and the adequacy of the evidence to support the findings.

Held: no place for technical evidentiary arguments - evidence adequate to support findings.

Residential Tenancies Act 1995 ss 41, 32 and 90; Summary Offences Act s 21; District Court Act 1991 s 42E, referred to.
Lemon & Lemon v Woolgarlo Leisure Resorts Pty Ltd [1997] NSWRT 26; R v The War Pensions Entitlement Appeal Tribunal and Another; Ex Parte Bott (1933) 50 CLR 228; Briginshaw v Briginshaw and Another (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, considered.

SMITH v SOUTH AUSTRALIAN HOUSING TRUST
[2007] SADC 139

Introduction

1. This is an appeal pursuant to s 41 of the Residential Tenancies Act 1995 (“the Act”) against a decision of the Residential Tenancies Tribunal made on 3 October, 2007. By this decision, the Tribunal ordered the appellant to give up vacant possession of premises at 10/11 Royal Place, Adelaide (“the premises”) to the respondent by 11.00 a.m. on Monday, 22 October, 2007. This was later extended to 29 October, 2007. On Wednesday, 31 October, 2007 I stayed that order until 14 November, 2007, on which date I heard the appeal. Upon completion of the appeal, I further stayed the order of the Tribunal requiring the appellant to vacate the premises until such time as I published my decision on the appeal. I now publish that decision.

   The evidence and the Tribunal’s decision

2. This matter was heard on 18 and 26 September, 2007 before Ms J. Welch, a Member of the Tribunal.  Both the appellant and respondent were represented.  In addition, the appellant herself gave evidence, as did her support persons Ms Morris and Ms Treffrey.  Evidence was also given by Senior Constable Mills, a police officer.

3. Before the Tribunal, the respondent sought the termination of the appellant’s tenancy pursuant to s 90 of the Act. Broadly, the respondent contended that the appellant had caused or permitted the premises to be used for an illegal purpose, contrary to s 90(1)(a) of the Act, or, in the alternative, had caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises, contrary to s 90(1)(c) of the Act. The respondent argued that the appellant was responsible for disruptions and disturbances to neighbours as a result of her selling drugs, or allowing drugs to be sold, from the premises. It was further argued that, whether the appellant was in fact selling illegal drugs from the premises, her behaviour and lifestyle had contributed towards the premises developing a reputation as a place at which drugs could be purchased. The influx of people into the premises seeking to purchase drugs was identified in and of itself as an interference with the reasonable peace, comfort or privacy of persons living in the immediate vicinity of the premises.

4. Senior Constable Mills gave evidence that the premises were monitored by the police, and that notices had been issued pursuant to s 21 of the Summary Offences Act 1953. The appellant herself had been provided with such a notice. Section 21 prescribes the offence of permitting premises to be frequented by thieves, prostitutes and persons of notoriously bad character. Senior Constable Mills described speaking with and searching people seeking to enter the premises and upon their departure. He gave evidence that a number of people had been found in the possession of drugs in the vicinity of the premises, and/or had made various admissions in relation to purchasing drugs from the premises.

5. On at least one occasion, he advised a prospective visitor to the premises that he would be searched upon his immediate departure from the premises.  Upon being told of this, the visitor declined to visit the premises.  Further evidence was given of other persons being searched and found to be in possession of drugs immediately after leaving the premises.

6. Finally, upon the execution of search warrants, some visitors to the premises were found to be in possession of amphetamine and cannabis while still inside the premises.

7. It was uncontested before the Tribunal that there were frequently people at the premises attempting to purchase drugs. Additionally, it was uncontested that people would become aggressive if informed that drugs could not be obtained from the premises. All evidence spoke of abuse, kicking and banging on doors and shouting outside the premises. It was also uncontested that, since being served with a s 21 notice, the appellant had been making efforts to turn people away from the premises, although to little effect. The Tribunal’s view of this was that, notwithstanding the appellant’s stated desire to change her lifestyle, the continuation of her tenancy at the premises had become untenable.

   The Appeal

8. The appellant’s grounds of appeal can be broadly stated as follows:

   (a)The Tribunal erred in according such weight as it did to evidence in relation to the appellant using the premises for illegal purposes;

   (b)The Tribunal erred in finding that the conduct complained of was either the appellant’s conduct or conduct for which the appellant was responsible.

9. Pursuant to s 32 of the Act, the Tribunal is not bound by the rules of evidence. By the operation of s 42E of the District Court Act 1991, this Court is similarly not bound when reviewing decisions of the Tribunal.  Importantly, this Court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason (s 42E(3)).

10. There is no scope for a technical evidentiary argument in this jurisdiction.  Of course, any decision of the Tribunal or this Court on appeal from the Tribunal, must be logically defensible, but need not be legally defensible in the sense of strictly complying with the rules of evidence.  Considerations of reliability and relevance must still apply, but the decision maker should be guided by considerations of the overall justice of the case, rather than the occasionally rigid rules of evidence.

11. Mr Files, who appeared on behalf of the appellant, argued that there was no direct evidence pointing to the conclusion that the appellant was involved in the sale of drugs from the premises. Against this, however, was evidence put before the Tribunal that certain people had been questioned by police in relation to attending at the premises to purchase drugs from the appellant. The appellant herself admitted before the Tribunal that she engaged in the use of illegal drugs in the premises. Further, there had been significant discussion before the Tribunal relating to s 21 of the Summary Offences Act. It was agreed between all parties that the appellant had been served with a notice pursuant to s 21. I should note at this point that the reasons provided by the Tribunal do not identify with any specificity the illegal purpose for which the appellant has used the premises. However, the clear inference was that she had consumed illegal drugs on the premises and that someone was selling drugs from there, either her or someone else to her knowledge.

12. There is some support to the appellant’s submission that the rules of evidence are still relevant in determining the weight to be accorded evidence, even where those rules do not apply.  I was referred to the decision in Lemon & Lemon v Woolgarlo Leisure Resorts Pty Ltd[1], which in turn referred to the judgment of Evatt J in R v The War Pensions Entitlement Appeal Tribunal and Another; Ex Parte Bott[2].  I am not certain that the point goes so far as counsel for the appellant may contend.  Evatt J’s remarks go little further than indicating that a case must be decided according to its substantial justice, and this will often entail allowing both parties to be heard before a tribunal.

    [1] [1997] NSWRT 26

    [2] (1933) 50 CLR 228

13. No submissions were put to me in relation to s 21 of the Summary Offences Act on the appeal.  Without going into detail on this point, I consider that it was open to the Tribunal to find, on Senior Constable Mills’ evidence, that the appellant had put the premises to an unlawful use by allowing them to be frequented by persons of notoriously bad character.  In arriving at this conclusion, I am mindful of the evidence given by both the appellant and her support persons that she had endeavoured to prevent such persons frequenting her premises.  These endeavours appear, however, to have been largely unsuccessful.

14. I find that it was open to the Tribunal to find that the appellant had allowed the premises to be used for an illegal purpose, or had permitted or caused the premises to be used in such a way as to interfere with the reasonable comfort, privacy and peace of persons living in the immediate vicinity.  Ample evidence was given by Senior Constable Mills and, although much of it would likely be inadmissible in proceedings to which the rules of evidence apply, it was evidence upon which the Tribunal could reasonably base the findings at which it arrived.

15. In relation to the appellant’s grounds of appeal, I make the following findings:

    (a)The appellant was, on her own admission, involved in illegal activities at the premises, in that she possessed and used cannabis at the premises.

    (b)The appellant was subject to a notice issued by police that she had been allowing the premises to be frequented by persons of notoriously bad character.

    (c)People came to the premises for the express purpose of purchasing drugs.

    (d)The appellant was aware that people came to the premises for this purpose.

    (e)It was open to the Tribunal to conclude that the appellant’s illegal activities caused people to visit the premises, and that these visits interfered with the reasonable comfort, privacy and peace of people living in the vicinity of the premises.

16. I am not satisfied that the Tribunal’s finding is in any way anathema to the presumption of innocence, as was submitted by the appellant.  I agree with the submissions made on behalf of the respondent that this presumption has no present application, being better characterised as an expression of the requirement that, in a criminal prosecution, every element of an alleged offence must be proven beyond reasonable doubt.  Insofar as the decision in Briginshaw v Briginshaw and Another[3] has been raised, I gratefully follow the remarks of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[4].  The relevant standard of proof remains the balance of probabilities.  There was sufficient evidence before the Tribunal for it to arrive at the decision it did.

    [3] (1938) 60 CLR 336

    [4] (1992) 110 ALR 449

17. It is perhaps apposite for me to comment briefly on the disparity between the manner in which the appellant’s case was presented to the Tribunal and the manner in which the appeal before this Court was conducted.  In so commenting, I acknowledge that it is a matter for each party to legal proceedings to decide how best its case should be presented.

18. Before the Tribunal, the appellant acknowledged that she was involved in the use of illegal drugs, and that she was looking to turn her life around.  Before this Court, the appellant sought to challenge many of the Tribunal’s findings in relation to her involvement in illegal activities, essentially arguing that there was no evidence upon which the Tribunal could reasonably have reached this conclusion.  As I have already indicated, I do not accept this view.

    Conclusion

19. The appellant has not demonstrated any error in the Tribunal’s reasoning of the type that would allow the appeal to succeed.  The Tribunal heard evidence from a number of persons, and clearly accepted the evidence given by Senior Constable Mills as to the relationship between the appellant’s activities and interference with the reasonable peace, comfort and privacy of other persons living in the vicinity of the premises.  The Tribunal is not bound to arrive at its decisions according to the rules of evidence, and the approach it took was open to it on the evidence.

20. I see no reason to depart from the Tribunal’s findings.  Having read the evidence before the Tribunal, I agree with the findings and conclusions.  Accordingly, the appeal is dismissed.

21. I will hear the parties as to the date of operation of the order for possession.