Spiers v SA Housing Trust
[2010] SADC 70
•21 May 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
SPIERS v SA HOUSING TRUST
[2010] SADC 70
Judgment of His Honour Judge Boylan
21 May 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
Application by SA Housing Trust to the Residential Tenancies Tribunal to terminate Appellant's tenancy because Appellant had used premises for "an illegal purpose", contrary to a condition of the agreement and s90(1)(a) of the Act.
GROUNDS OF APPEAL:
1. That SA Housing Trust did not produce any evidence of the operative conditions of the Appellant's tenancy agreement at the Residential Tenancies Tribunal hearing; and
2. That the appellant was denied a fair hearing because the Appellant could not properly put her case without incriminating herself in subsequent criminal hearings arising from the breach.
HELD: Appeal dismissed; decision by Residential Tenancies Tribunal upheld.
1. Decision by Presiding Member was based solely on s90(1)(a) of the Act;
2. The privilege against self-incrimination is available before the Tribunal and therefore claiming the privilege constitutes a reasonable excuse for failing to give evidence.
Residential Tenancies Act ss 31, 90 and 93, referred to.
Pyneboard Pty Ltd v Trade Practices Commission and Ors (1983) 152 CKR 328; Mitcham v O'Toole (1977) 137 CLR 150, considered.
SPIERS v SA HOUSING TRUST
[2010] SADC 70
For many years the appellant, Jane Spiers, has rented from the South Australian Housing Trust at 5/3 Hardy’s Road at Underdale. On 17 March 2010, the Residential Tenancies Tribunal ordered that she move out of the premises because she had used, or caused the premises to be used, for an illegal purpose, namely, the manufacture or potential manufacture of illegal drugs. Ms Spiers now appeals against that order.
There are two grounds of appeal. To understand them, I must say a little about the history of the tenancy and of the proceedings.
Ms Spiers first rented the premises in February 1999. On 20 February 1999, she signed a document entitled “Conditions of Tenancy”. Clause 1 of that document stipulated that the tenancy was for a period of six months but went on to recite that the tenancy could be extended, either by another period of not more than six months, or by being converted into a standard trust tenancy. Ms Spiers has rented the premises ever since but no tenancy agreement other than that signed in February 1999 was before the Tribunal.
Police Officers searched Ms Spiers’ premises twice during 2009, in February and in November. On each occasion they found chemicals and equipment used to manufacture methylamphetamine in what is usually called a clandestine drug laboratory. As a result of each of those searches, Ms Spiers has been charged with offences against the Controlled Substances Act, 1984.
When the Trust became aware of the results of the police search in November 2009, it wrote to Ms Spiers by letter dated 30 December 2009 giving her notice that pursuant to the Conditions of Tenancy signed in February 1999 it had decided to terminate the tenancy on the basis that she had failed to comply with a condition of the tenancy because she had committed or permitted a breach of law on the premises.
Ms Spiers was required to vacate the premises by 15 January 2010. Ms Spiers did not vacate them.
By Form 8 Notice dated 29 January 2010, the Trust applied to the Residential Tenancies Tribunal for termination of the tenancy. The Form 8 Notice cites s93 of the Act and describes the failure to comply with a condition of the tenancy as follows:
Housing SA has been advised that a clandestine drug laboratory has been found on the premises for a second time. This is an inappropriate use of the premises and also creates health and safety fears for the neighbours due to the impact of harsh chemicals located on the property.
The Tribunal then issued to Ms Spiers a notice headed “Notice of Hearing – s90”. That notice fixed a date and time for the hearing and advised Ms Spiers, that at the hearing, the tribunal would hear evidence to determine whether an order ending the tenancy should be made pursuant to s90 of the Residential Tenancies Act.
Section 90 reads:
90 Tribunal may terminate tenancy where tenant’s conduct unacceptable
(1) The Tribunal may, on application by an interested person, terminate a residential tenancy and make an order for possession of the premises if it is satisfied that the tenant has –
(a) used the premises, or caused or permitted the premises to be used, for an illegal purpose; or
(b) caused or permitted a nuisance; or
(c ) caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises . . .
The hearing went ahead on the 16 February 2010. Ms Spiers attended and was unrepresented.
The Deputy Presiding Member heard evidence from an officer of the South Australian Housing Trust, from Detective Sergeant William-Brain of the Drug Investigation Branch of SAPOL and from Ms Spiers.
Detective Sergeant William-Brain gave evidence about two police raids on the premises. He also produced photographs taken during the November raid. It was his evidence that, on the occasion of each raid, police officers found chemicals and equipment consistent with the premises having been used as a laboratory for the manufacture of methylamphetamine.
Ms Spiers gave evidence. She asserted that the chemicals found by the police were household cleaning products and she further asserted that the chemicals were only at the premises at the insistence of her former boyfriend.
The Deputy Presiding Member rejected Ms Spiers’ evidence and accepted that of Detective Sergeant William-Brain. The Deputy Presiding Member went on to find that Ms Spiers had kept on the premises dangerous substances and that she had permitted the premises to be used for an illegal purpose, the manufacture of illegal drugs. That is, the Deputy Presiding Member found that Ms Spiers had used the premises for an illegal purpose contrary to s90(1)(a) of the Act. The Deputy Presiding Member ordered that Ms Spiers vacate the unit.
On appeal before me, Ms Spiers was represented by counsel, Ms Mildren, who argued two grounds of appeal. First, she argued that the South Australian Housing Trust did not produce any evidence of the conditions of Ms Spiers’ tenancy beyond the expiration of the first six months back in 1999.
Ms Mildren submitted that, there being no evidence of the subsequent tenancy, it was incompetent for the Trust to plead a breach of conditions. I need not deal further with that submission because the Deputy Presiding Member specifically disavowed it and made her decision solely on the basis of Ms Spiers’ alleged breach of s90(1)(a).
The second ground of appeal is that Ms Spiers was denied a fair hearing. As I understand the argument, Ms Mildren submitted that Ms Spiers could not properly put her case before the tribunal without incriminating herself in the criminal proceedings which had been initiated in the Magistrates Court after the raids. At the time of the hearing before the Residential Tenancies Tribunal, neither of those sets of charges had even reached the committal stage. Ms Spiers did not have, before the tribunal, the protection afforded by the privilege against self-incrimination and that the proper course would have been for the Tribunal to adjourn the proceedings until the criminal charges had been finally resolved. Ms Mildren referred me to decisions of the Tribunal where that course had been followed and she noted a statement of the Deputy Presiding Member in the decision the subject of this appeal that “The Residential Tenancies Act does not provide protection to parties against self-incrimination”.
I do not accept Ms Mildren’s submissions. In the first place, and with great respect to the Deputy Presiding Member, I doubt that the privilege against self incrimination is not available in proceedings before the Residential Tenancies Tribunal. The privilege is entrenched in the Common Law in South Australia. The right to claim the privilege will not be held or considered to have been abrogated unless the relevant statute makes its abrogation quite plain. I refer to the decision of the High Court (Mason AC J, Wilson J and Dawson J) in Pyneboard Pty Ltd v Trade Practices Commission and Ors (1983) 152 CLR 328 at 341:
In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v O’Toole (1977) 137 CLR 150.
Although proceedings before the Residential Tenancies Tribunal are not, in my view, judicial proceedings, the Presiding Member or Deputy Presiding Member is a lawyer and evidence is given on oath. In those circumstances, I am of the view that the privilege is available before the tribunal.
There is nothing in the Residential Tenancies Act to suggest otherwise. Indeed, the Act contemplates that persons required to give evidence before the Tribunal may have a reasonable excuse for failing to comply with that requirement. See s31(1) and (2). I see no reason why the claiming of the privilege would not constitute reasonable excuse for the purposes of those provisions of the Act.
I refer to the second limb of Ms Mildren’s submission, that the proper course was for the tribunal to adjourn the proceedings until the criminal charges had been dealt with. In my view it would be most inappropriate for the tribunal to have taken that course. In a period of less than 12 months, police officers had twice found a clandestine drug laboratory at Ms Spiers’ unit. It is well known that clandestine drug laboratories using chemicals of the type found at Ms Spiers’ premises are potentially hazardous. Indeed, I have presided over one case where the laboratory exploded, sending debris into neighbouring premises. In my view, the only safe course for the tribunal to take is the one which the one which the Deputy Presiding Member took. The appeal is dismissed.