South Australian Housing Trust v Mascull No. Scgrg-00-865

SOUTH AUSTRALIAN HOUSING TRUST V MASCULL

[2000] SASC 389

1................ LANDER J....... This is an appeal from a decision of a Magistrate.

On 2 June 2000 the South Australian Housing Trust, which is a body corporate pursuant to the South Australian Housing Trust Act 1995, brought proceedings against the respondent claiming the sum of $5,902.45 being for ‘monies due’ to the South Australian Housing Trust (the Trust) for the period 28 May 1999 to 2 December 1999. That sum comprised two distinct claims; a claim for rent and a claim for damage to property.
The respondent filed a defence raising a number of matters which are not relevant and which need not be addressed. He did not raise a question of jurisdiction but when the matter came before the Magistrate the Magistrate inquired into the question of the Court’s jurisdiction to hear the appellant’s claim.
The learned Magistrate concluded that whether this was a claim for rent or damage to property, the Trust could apply to the Residential Tenancies Tribunal (the Tribunal) for an order for payment of sum. He also concluded that the Tribunal had an exclusive jurisdiction to hear and determine claims for rent or damage to property and that the Magistrates Court lacked jurisdiction to adjudicate upon claims of that kind by the Trust in relation to one of its tenants.
The appellant has appealed against that decision claiming that the Magistrate erred in law in finding that the Tribunal had exclusive jurisdiction to hear Trust claims for rent and damage for property not exceeding in total the sum of $10,000.
The point which is raised for determination is a matter of principle which will affect the business of the appellant.
Prior to the enactment of the Residential Tenancies Act 1995 the appellant commenced all debt recovery proceedings in the Magistrates Court and has continued to do so since the enactment of that Act. I am told that the appellant issues approximately 180 debt recovery proceedings of this kind in the Magistrates Court each year.
The issue is a straightforward one. It must be resolved by having regard to the relevant legislation.
The Trust is a body corporate and continues as a body corporate under the South Australian Housing Trust Act. It holds its property on behalf of the Crown; s 22. It has the power to sue and be sued: s 21(1)(a).
Its functions include assisting people to secure and maintain affordable and appropriate housing by acting as the landlord of public housing in this State and providing private rental assistance; s 5(1)(a). The Trust is the principal property and tenancy manager of public housing in this State; s 5(2). It specifically has the power to lease and let houses; s 7(1).
The Trust has all the powers of a natural person together with the powers specifically conferred on it by or under the South Australian Housing TrustAct or any other Act; s 6. The Trust is subject to the control and direction of the Minister; s 8.
The Residential Tenancies Act 1978 created the Residential Tenancies Tribunal; s 14(1) Residential Tenancies Act 1978.
Section 21(1) of the Residential Tenancies Act 1978 provided that:
“The Tribunal shall have exclusive jurisdiction to hear and determine any matter that may be the subject of an application to it under this Act.”
The Residential Tenancies Act 1978 came into operation on 1 December 1978. The Act provided that the Act did not bind the Crown; s 6 Residential Tenancies Act 1978.
By s 4 of the Residential Tenancies Act Amendment Act 1981, s 6 of the principle Act, the Residential Tenancies Act 1978, was repealed and the following section was substituted:
“6 (1) Subject to subsection (2), this Act binds the Crown.
(2)... This Act does not apply to any residential tenancy agreement entered into by the South Australian Housing Trust constituted under the South Australian Housing Trust Act, 1936 - 1973.”
Prior the enactment of the Residential Tenancies Act 1995 the Residential Tenancies Acts did not apply to the Trust.
The Residential Tenancies Act 1995 came into operation at various dates between 24 August 1995 and 27 June 1996.
It repealed the Residential Tenancies Act 1978 the effect of which, of course, was to also repeal any amendments made to that Act.
Section 5 provides for the application of the Residential Tenancies Act 1995 and in particular s 5(2) provides for the application of that Act to the Trust.
Section 5(2) provides:
“(2).. The following provisions of this Act (and only those provisions) apply to residential tenancy agreements under which the South Australian Housing Trust or the South Australian Aboriginal Housing Authority is the landlord, to residential tenancies arising under those agreements and to related tenancy disputes -
(a)Part 3 (Residential Tenancies Tribunal);
......... (b) Section 66 (Security of premises);
(c)Section 71 (Tenant’s conduct);
(d)Section 90 (Tribunal may terminate tenancy where tenant’s conduct unacceptable);
(e)Section 93 (Order for possession);
(f)Section 99 (Enforcement orders for possession);
(g)Division 3 of Part 8 (Powers of the tribunal);
(h)Division 4 of Part 8 (Representation).”
Part 3 of the Residential Tenancies Act 1995 therefore applies to tenancy disputes arising in circumstances where the Trust is the landlord. That Part contains s 11 to s 47.
Section 11 of the Residential Tenancies Act 1995 provides for the continued existence of the Tribunal which was first created by the Residential Tenancies Act 1978.
Division 3 of Part 3 of the Residential Tenancies Act 1995 provides for the Tribunal’s jurisdiction. In particular s 24 of the Act provides:
“(1) The Tribunal has -
(a)exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act.
(b)subject to the regulations - jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the South Australian Housing Trust;
(c)the other jurisdictions conferred on the Tribunal by statute.
(2)... However, the Tribunal does not have jurisdiction to hear and determine a monetary claim if the amount claimed exceeds $10,000 unless the parties to the proceedings consent in writing to the claim being heard and determined by the Tribunal (and if consent is given, it is irrevocable).
(3)If a monetary claim is above the Tribunal’s jurisdictional limit, the claim and any other claims related to the same tenancy may be brought in a court competent to hear and determine a claim founded on contract for the amount of the claim.
(4)... A court in which proceedings are brought under subsection (3) may exercise the powers of the Tribunal under this Act.
(5)If the plaintiff in proceedings brought in a court under this section recovers less than $10,000, the plaintiff is not entitled to costs unless the court is satisfied that there were reasonable grounds for the plaintiff to believe that the plaintiff was entitled to $10,000 or more.”
The Tribunal is a creature of statute and its jurisdiction will be determined by the statute which created it or any jurisdiction given to it by any other statute.
It is clear from the provisions of s 24(1)(a) that the Tribunal has jurisdiction to hear and determine a matter that may be the subject of an application under the Act and has that jurisdiction to the exclusion of all other Tribunals and Courts. It follows from the provisions of s 24(1)(a) that any matter that may be the subject of an application under this Act must be brought in the Tribunal.
The use of the expression ‘exclusive’ in s 24(1)(a) is a clear expression of the intention of Parliament to give the jurisdiction mentioned in s 24(1)(a) to the Residential Tenancies Tribunal and that Tribunal alone. The use of that expression, in my opinion, clearly ousts the jurisdiction of the Magistrates Court in respect of claims which would fall within s 24(1)(a).
However it is also clear because of the provisions of s 24(1)(b) that s 24(1)(a) does not include any claim or dispute arising from tenancies granted for residential purposes by the Trust. That is because of s 24(1)(b) itself. The very inclusion of s 24(1)(b) giving the Tribunal the specific jurisdiction in that sub-section means that the jurisdiction given the to the Tribunal by s 24(1)(a) does not include matters which come within s 24(1)(b).
In my opinion, the Tribunal’s jurisdiction in relation to any claim or dispute arising from a tenancy granted for residential purposes by the Trust is given to the Tribunal by s 24(1)(b) and not by 24(1)(a).
In my opinion, there can be no doubt that s 24(1)(b) does not give an exclusive jurisdiction to the Tribunal to hear and determine claims arising from tenancies granted for residential purposes by the Trust because s 24(1)(b) does not purport to do so. In that respect it may be contrasted with s 24(1)(a). Section 24(1)(a), in the plainest of terms, gives the Tribunal exclusive jurisdiction to hear and determine a matter that may be the subject of an application under the Act, but as I have said that must be an application under the Act which does not include a claim or dispute arising from a tenancy granted for residential purposes by the Trust.
It is also clear that exclusive jurisdiction is not given to the Tribunal in respect of those matters involving the Trust because the very sub-section is subject to whatever regulations may be passed.
In my opinion, s 24(1)(b) gives to the Tribunal jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the Trust in so far as the Residential Tenancies Act 1995 applies to the Trust.
It follows that the limit of the jurisdiction given to the Tribunal involves matters of the kind mentioned in s 24(1)(b) but only in relation to the provisions of the Act referred to in s 5(2) of the Act.
The Tribunal’s jurisdiction in respect of those matters is not exclusive because the Act does not invest the Tribunal with an exclusive jurisdiction. It follows that any Court or Tribunal which has a statutory jurisdiction to hear and determine matters of the kind referred to in s 24(1)(b) will share that jurisdiction with the Tribunal.
The Magistrate also referred to s 110 of the Residential Tenancies Act 1995 which he said showed that jurisdiction was conferred on the Tribunal in relation to claims for rent and damage to property.
In my opinion, s 110 is not relevant to the question whether the Tribunal has jurisdiction. Section 110 which is contained within Part 8 and does, by reason of s 5(2) of the Residential Tenancies Act 1995, apply to the Trust is not the source of jurisdiction for the Tribunal. It is the source of power for Tribunal once it has jurisdiction. In any event there can be no doubt that the Tribunal does have jurisdiction of the kind I have mentioned. The question in this case is whether the Tribunal has an exclusive jurisdiction or not. There is nothing, in my opinion, in s 110 which would lead to the conclusion that the Tribunal has exclusive jurisdiction in relation to claims of this kind, where s 24(1)(b) does not invest the Tribunal with such exclusive jurisdiction.
Section 8 of the Magistrates Court Act 1991 gives the Magistrates Court jurisdiction to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed, in a case of this kind, $30,000.
Section 8 also gives the Magistrates Court jurisdiction to hear and determine an action to obtain or recover possession of real property where the value of the property does not exceed $60,000.
On the face of it the Magistrates Court has jurisdiction to entertain claims of the kind which were before the Magistrate being claims for rent or for damage to property. Claims of that kind are claims at law for a sum of money. The Magistrates Court’s limit, of course, is to hear claims not exceeding $30,000.
There is nothing in the Magistrates Court Act which suggests it does not have jurisdiction to entertain claims of this kind.
For the reasons I have already given there is nothing in the Residential Tenancies Act 1995 which would give the Tribunal an exclusive jurisdiction in matters under s 24(1)(b).
In my opinion, the learned Magistrate erred in declining to exercise jurisdiction. The appeal should be allowed.
I will hear the appellant as to consequential orders.
The appellant will not be entitled to the costs of this appeal because the appellant appropriately, in my opinion, before the hearing of this appeal agreed to forego any claim for costs against the respondent in the event that the appeal was allowed.

[2000] SASC 389

24 November 2000