Squire & Squire v South Australian Housing Trust - [2015] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
SQUIRE & SQUIRE v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SADC 2
Decision of His Honour Judge Beazley
16 January 2015
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
Residential tenancy - appeal against findings and orders of the Residential Tenancies Tribunal - whether sufficient evidence to justify a finding that a tenant was likely to cause personal injury to officers of the Trust or a neighbour pursuant to s 87(2) of the Act - whether there is a risk that the tenant will cause personal injury to them pursuant to s 112(1) of the Act - whether the Tribunal erred in the exercise of its discretion to order the eviction of the tenants - whether it failed to consider alternative remedies which would permit the tenants to remain in possession while providing adequate protection to others.
Held: Tribunal erred in concluding that there was sufficient evidence that the tenant was likely to cause personal injury. Further in the exercise of its discretion the Tribunal did not give sufficient weight to the fact that the tenants had been in possession of the subject premises for some 17 years and were suffering from a range of physical and mental illnesses. It was however open on the evidence for the Tribunal to conclude that there was a "risk" that a tenant may cause such personal injury and that appropriate intervention orders could be made under s 112(1) of the Act to ensure that such a risk was obviated.
Parties to be heard as to whether this Court ought make final orders or alternatively order that the matter be remitted to the Tribunal for its consideration and orders made in accordance with these reasons, pursuant to s 42F of the District Court Act.
Residential Tenancies Act 1995 ss 5(2), 41, 87(2), 89, 90, 110 and 112(2); District Court Act 1991 ss 42E and 42F, referred to.
Darkan v R (2006) 227 CLR 373; Boughey v R (1986) 161 CLR 10; R v Hung [2012] QCA 341; Hargreaves v South Australian Housing Trust [2012] SADC 166; Timms v South Australian Housing Trust (2003) 226 LSJS 42; SA Housing Trust v Mascull [2000] SASC 389; SA Housing Trust v Panaou [2000] SARTT 1; SA Housing Trust v Branson [2009] SARTT 18, considered.

SQUIRE & SQUIRE v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SADC 2
Introduction

This is an appeal brought by Fay Squire and her son, Rodney Squire, pursuant to section 41 of the Residential Tenancies Act 1995 (the Act) from orders made by the Residential Tenancies Tribunal (the Tribunal) on 12 November 2014.[1]
[1] The Appellant Fay Squire was the sole party to the residential tenancy agreement with the Respondent, as and from 6 September 1997. Rodney Squire has resided permanently at the premises with his mother since 2005.
The effect of those orders is that the residential tenancy agreement entered into on 6 September 1997 by Fay Squire, as tenant, and South Australian Housing Trust, (the Respondent), as landlord, be terminated pursuant to s 87(2) of the Act on the expressed basis that “if the tenancy continues, the tenant Mr Squire is likely to cause personal injury to one of the landlord’s representatives or a person in the vicinity of the premises”.[2]
[2] Reasons for Order of the Tribunal, 12 November 2014, at page 5.
The Tribunal formally ordered that Fay and Rodney Squire must leave the tenancy at Unit 2/10 Homes Court, Magill (the Premises) by 12 noon on 2 December 2014. It directed that in the event that the Squires did fail to comply with that order, it could only be enforced by the Tribunal bailiff.
The genesis of the proceedings before the Tribunal, and before this Court, on appeal, is a dispute between the Squires and an adjoining tenant of the Respondent (to whom I shall refer as “Mr P”). This neighbour dispute commenced in or about the month of February 2014. The Squires’ and Mr P’s respective premises share a common wall. The Squires have principally complained about noise allegedly emanating from Mr P’s premises, which noise adversely affects their ability to sleep. Mr P complains about the Squires’ dogs, and the allegedly abusive conduct of both of the Squires. Each neighbour has complained about the other to the Respondent and to the police. The complaints have escalated out of control since February 2014.
Mr P obtained a restraining order in August 2014 against Rodney Squire. Mr P had asserted that Rodney Squire had damaged the front screen door of his unit. He has recently asserted that Rodney Squire has breached the terms of the restraining order, and the terms of a bail agreement, entered into by Rodney Squire following his arrest by police.
Rodney Squire asserts that between the preliminary hearing before this Court on 27 November 2014 and the full hearing of the appeal on 12 December 2014, he had felt obliged to complain to the police on 17 occasions about alleged undue noise caused by Mr P, which had kept him awake.[3]
[3] Transcript (12/12/14) pages T4 - 16.
The appeal raises some important issues of law, and the efficacy of relief which may be granted by the Tribunal under the Act. It involves many of the issues common to neighbour disputes, exacerbated in this case by the somewhat unusual personalities of the parties. As will become clear, there can be no doubt that Rodney Squire presents as a person with significant anger management problems. He is a heavily set man who appears, at least at first sight, as an aggressive individual. Whether that impression ought result in a finding that he is likely to cause personal injury to one of the Respondent’s representatives or Mr P is in issue in this appeal. Even if such a finding were justified, the question is whether the Tribunal properly considered its discretion to impose less draconian sanctions.
The appeal also raises the vexed question as to whether the Act provides adequate remedies to the respondent to enable it to protect its employees from harm in the course of their employment when dealing with apparently aggressive tenants.
A significant point of law involves the proper construction of ss 87(2) and 112(1) of the Act, and the different remedies implicit in those sections.
It is convenient to set out those sections as follows:
Section 87(2) of the Act provides that:
The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit –
(a)    serious damage to the premises; or
(b)    personal injury to -
i.the landlord or the landlord’s agent; or
ii.a person in the vicinity of the premises.
Section 112 of the Act provides that:
(1)    If the Tribunal is satisfied, on application by a landlord, that there is a risk that the tenant or a person permitted on the premises by the tenant may cause serious damage to property or personal injury, the Tribunal may make an order (a restraining order) restraining the tenant and other persons on the premises from engaging in conduct of a kind described in the order.
(2)    An application for a restraining order may be made without notice to the persons against whom the order is sought but, if the order is made without giving a reasonable opportunity to respond to the allegations against them, the Tribunal must allow them a reasonable opportunity to satisfy it that the order should not continue in operation.
(3)    A person must not contravene a restraining order.
Maximum penalty: Imprisonment for 1 year.
(my emphasis)
While the Tribunal made orders terminating the tenancy pursuant to s 87(2) of the Act, it does not appear that it gave sufficient consideration to a less draconian step either by the use of a restraining order pursuant to s 112(1) of the Act, or other alternatives under the Act. In the exercise of its discretion to evict, the Tribunal was obliged to weigh in the balance, the otherwise satisfactory conduct of Fay Squire as a tenant of over 16 years. It may be that in consequence of the underlying dispute between these neighbours, that there was no other alternative open to it.
Differently constituted Tribunals, in the past, albeit on different factual bases, have been reluctant to evict.
In one such case, involving a tenant spitting at a Housing Trust employee with potentially serious consequences, a differently constituted Tribunal elected, on the facts of that case, to vary the term of the residential tenancy agreement, pursuant to s 110 of the Act from the standard tenancy term to a probationary tenancy for a lesser period.[4]
[4] See South Australian Housing Trust v Branson [2009] SARTT 18 at p.5.
I repeat that the principal issue on this appeal is whether there was sufficient evidence to justify a finding that Rodney Squire was likely to cause personal injury as opposed to there being a risk that he might.
There are some unusual features of the subject proceedings which have complicated its possible resolution. These include the fact that there were two separate hearings by differently constituted Tribunals, and different remedies sought by the Respondent, from time to time.
There can be no criticism of the Tribunal for the manner in which it proceeded. By necessity it has been granted a wide range of procedural powers in ss 32 and 33 of the Act. In particular, it is not bound by evidentiary rules; it may adopt the findings, decision or judgment of a court that may be relevant to the proceeding; and may excuse a failure to comply with a provision of the Act. It will however be necessary, in the subject case, to set out, in some detail, the background to the subject proceedings.
Background
Fay Squire entered into a periodic tenancy with the Respondent on 6 September 1997, and accordingly had resided at the premises for 16½ years as at February 2014. At all times she has complied with her obligations to pay her rental payments to the Respondent. She has maintained the premises to a high standard as depicted in the bundle of photographs, tendered as Exhibit A1 on this appeal. The residential tenancy agreement was not produced on the appeal. I assume that it contains the standard Housing Trust terms.
Rodney Squire is her son. He was not a party to the residential tenancy agreement. He had from time to time resided with his mother. He has permanently resided at the property since about April 2005.[5]
[5] A “tenant” is defined in s 3 of the Act as “the person who is granted a right of occupancy under the residential tenancy agreement or a person to whom the right passes by assignment or operation of law and includes a prospective tenant”.
Since that time, Fay Squire has suffered from a series of illnesses including a heart attack and severe psychological distress. Despite his own illnesses, which include post traumatic stress disorder suffered when he was the victim of an armed robbery; and a subsequent stroke, Rodney Squire has become his mother’s carer.[6]
[6] Transcript, 12/12/14, at p.35-36.
The subject premises share a common wall with Unit 1/10 Homes Court, Magill, which premises have been let to Mr P by the Respondent since 9 March 2011.
Between March 2011 and February 2014, the Squires and Mr P appear to have had a cordial relationship, co-existing at their respective premises, without complaint.
In February 2014, Mr P accepted delivery of truck loads of mulch. Mrs Squire asserted that it was untreated, and that the smell was overpowering. She asserted that she suffered an allergic reaction to it. She requested Mr P to move it. She complained to the Respondent, however asserted that its response was inadequate. It was not until 7 March 2014 that Mr P moved the mulch so as to reduce its impact.
Thereafter the Squires continuously complained to the Respondent about noise allegedly emanating from Mr P’s premises; about his alleged drilling into foundations; about his alleged conduct in teasing their dogs; banging the fence; and continuously causing them to lose sleep.
The Squires complain that the Respondent’s officers have not assisted them. They have complained to the police, who have attended the respective premises on regular occasions.
This ongoing dispute between the Squires and Mr P led to the police attending on 27 August 2014. It was asserted, by Mr P, that Rodney Squire had threatened Mr P, and that he punched and struck Mr P’s security door, causing it to buckle and separate from its frame. Mr Squire was arrested. An interim intervention order was made against Mr Squire for the protection of Mr P. Rodney Squire denies the allegations made by Mr P. He asserts that Mr P would not attend for mediation, and provokes the Squires, in the anticipation that they will be evicted. Mr P complains that the Squires’ dogs bark excessively, and that he continues to be harassed by the Squires.
Amongst the terms of the intervention order are that Rodney Squire must not:
·assault, threaten, harass or intimidate Mr P;
·follow or keep him under surveillance;
·be within five metres of him;
·contact him in any way whether directly or indirectly;
·enter or remain on his property or at his place of employment.
The Squires have complained that the relevant officers of the Respondent have not taken their complaints seriously, and accordingly they have become frustrated. They demand that the Respondent must evict Mr P. The relevant officers assert that the Squires have yelled at them and have abused them, personally rather than as employees. The relevant officers assert that Rodney Squire has become “aggressive” with them, waving his arms and shouting insults at them. They assert that in consequence, any complaints by the Squires have been referred to a Regional Manager. Neither Mr P nor the Squires will consent to being relocated with each demanding that the other be relocated.
· Applications to the Tribunal
On 9 September 2014 the Respondent issued an application (“the first application”) seeking an order for the termination of the residential tenancy agreement with Fay Squire, pursuant to s 90 of the Act on the following grounds:
“Ms Squire resides at the above address with her son, Mr Rodney Squire. Housing SA has received information from a neighbour and SA Police that on 27 August 2014, Mr Squire attended at a neighbour’s property and damaged the front security door and yelled abuse at the neighbour.”
The essence of the first application was that Mr P was now a protected person in light of the intervention order, which prevented Mr Squire from being within five metres of him. In addition, the premises let to Mr P was the property of the Respondent, and accordingly its property had been damaged.
On 24 September 2014 the Tribunal, constituted by a single member, conducted a hearing of the first application. The Squires attended that hearing in person. Mr P gave evidence by telephone. Both parties asserted that the other party had been the cause of the dispute.
As the hearing involved the question as to whom was responsible for the damage to the security door, which was the subject of pending criminal proceedings, it may have been better for the first application to have been adjourned.[7] As it transpired, nothing of substance occurred at that hearing.
[7] See Hargreaves v South Australian Housing Trust [2012] SASC 166.
By inference, it seems that the Tribunal accepted that both parties had behaved poorly and contributed to the dispute. It appears clear, that at the hearing, the Squires interrupted the evidence of Mr P, by yelling unhelpful comments, while the latter was giving his evidence on the telephone. Little was achieved at that hearing after Rodney Squire started to make comments critical of the staff of the Respondent. Very properly, with respect, the Tribunal member concluded that the parties ought attempt to mediate the dispute. She adjourned the hearing until 17 October 2014 to enable such a mediation to occur. As it transpired, Mr P declined to attend for such a mediation. I draw no inference adverse to him in light of the intervention order.
· Alleged threat on 24 September 2014
Immediately following that adjourned hearing, an event occurred in the waiting room at the Tribunal. There is a dispute between the parties as to what was said, and whether Rodney Squire had threatened one of the Respondent’s employees.
What is not in dispute is that in the waiting room were Mr Todd Wierenga, Ms Callie Barrett and Ms Vicki Jenkins. Each were employees of the Respondent. The latter two had previously had contact with the Squires and had been the subject of complaints from them.
Mr Wierenga, who was the relevant team leader of the Respondent, had not previously had any contact with the Squires. The Respondent’s officers each deposed that Rodney Squire had previously left the premises, but had returned to confront them in the waiting room. Mrs Squire was not present. The three employees assert that Rodney Squire said words to the effect “If anything happens to Mum, you’ll get it. You’re gone. Callie do you hear me, you’re gone”.
Ms Barrett asserts that Mr Squire was animated and aggressive. She deposed that she felt threatened and was concerned for her safety. Rodney Squire disputes that evidence.
· The subject application
On 29 September 2014 the Respondent issued a fresh application to the Tribunal (“the second application”). It was expressed in wide terms, seeking an order to amend the first application, so as to raise the event on 24 September 2014 – that is, to treat the first application, as amended, as remaining on foot. In the alternative, it sought that it be treated as a separate application for an order terminating the residential tenancy agreement in consequence of an alleged breach of s 87(2) of the Act. It noted that the Respondent “also requests the Tribunal to consider enacting s 89 of the Residential Tenancies Act”.
The essence of the complaint by the Respondent in this second application is that Mr Squire approached representatives of the Respondent following the adjourned hearing before the Tribunal and threatened one of the representatives saying “If anything happens to Mum, you’ll get it. You’re gone. Do you hear me, you’re gone”.
Rodney Squire denies threatening any of the employees of the Respondent. Mrs Squire was not present when the alleged statement was made by Rodney Squire.
The Tribunal fixed the application for hearing on 11 November 2014, before an expanded Tribunal.
· The hearing of the second application
At the hearing, the Respondent was represented by the three relevant employees, Todd Wierenga, Callie Barrett and Vicki Jenkins. Both Mr and Mrs Squire attended, as did an advocate on their behalf, Ms Alison Randle.
In its reasons for decision the Tribunal noted that the application by the Respondent was effectively in three alternatives, namely s 90 of the Act which was the subject of the earlier application of 9 September 2014; alternatively for immediate possession of the premises pursuant to s 87(2) of the Act on the basis of threat made to officers of the Trust in the waiting area of the Tribunal on 24 September 2014; or in the further alternative that the tenancy be terminated under s 89 of the Act on the basis that the tenancy to continue would cause undue hardship to the Respondent.
· The evidence before the Tribunal
Callie Barrett gave evidence that after the previous hearing had been adjourned, she, Mr Wierenga and Ms Jenkins were in the waiting area of the Tribunal. Mr Squire returned to the waiting area, approached the three of them and said to her: “If anything happens to Mum, you’ll get it. You’re gone. Callie do you hear me – you’re gone”. She said that the threat had been made to her in a menacing and threatening manner. She detailed a history of discussions with Mr & Mrs Squire in July and September 2014 at which time the Squires had become aggressive towards her and shouted insults at her.

Mr Wierenga gave evidence that in light of the history of the matter, the management at Housing SA had made a decision that any telephone calls from Mr or Mrs Squire would not be taken by staff, but would be referred to the regional manager, and that if Trust officers were required to visit the properties, at least two staff members would attend. He confirmed the evidence of Ms Barrett as to the threat. Ms Jenkins confirmed the evidence of Ms Barrett and Mr Wierenga as to the “threat” by Mr Squire.
It was submitted by their advocate on behalf of Mr and Mrs Squire that Mrs Squire had lived at the property for 17 years without incident until Mr P moved next door. She submitted that the behaviour of Mr Squire had to be seen in light of his illness and the fact that he had been suffering a lack of sleep because of the alleged noise by Mr P. She submitted that it was not a threat of violence, and that it was not likely that there would be any personal injury to those employees.
· The conclusions of the Tribunal
The Tribunal expressly treated the second application as a separate application saying:
“As the grounds of the second application related to incidents involving Trust officers which were quite separate from those incidents that formed the basis of the (first) application, the Tribunal decided to deal with this (second) application as a separate application from the (first) application.”
The Tribunal referred to the allegations made by the Trust officers of a number of contacts between themselves and Mr and Mrs Squire since July 2014 where, the latter had become agitated and upset when the Respondent refused to do as they were asked.
The Tribunal referred to the alleged incident on 27 August 2014 in respect of the alleged damage by Mr Squire of Ms P’s front security door. While this event was not the subject of the second application, it was clearly relevant to the question of the likelihood of personal injury in the future. The Tribunal made the apparent finding that “Mr Squire went to the neighbour’s property and damaged the front screen door”. The Tribunal held that the words attributed to Mr Squire were made by him and that it was a threat made specifically to Ms Barrett. It determined that:
“Having considered all of the evidence, we have concluded that the evidence establishes on the balance of probabilities that if the tenancy continues, the tenant Mr Squire is likely to cause personal injury to one of the landlord’s representatives or a person in the vicinity of the premises. The Trust has placed particular procedures in place concerning all communications between Mr & Mrs Squire and Trust representatives. Even with those protocols in place, in view of our findings, we consider it is not safe for Trust representatives to attend at the property. In those circumstances we consider there is no option but to terminate the tenancy.”
Notice of Appeal
The Squires complain that the evidence before the Tribunal did not establish on the balance of probabilities that the tenants had caused personal injury to the landlord’s representatives nor that they would be likely to do so if the tenancy continues. They further asserted that the Tribunal had failed to accept nor even consider evidence which they had sought to tender to the Tribunal.
· The Appeal
On 27 November 2014 because of its urgency, I stayed the order for possession until the hearing of the appeal on 12 December 2014.
Upon the completion of submissions I continued the stay until judgment. I directed that neither Fay Squire nor Rodney Squire made any contact with any of the staff of the Respondent, other than for the payment of rent.
On the appeal, Fay Squire and Mr Rodney Squire appeared in person. The Respondent was represented by Mr Wierenga.
The powers of this Court on appeal
The appeal is vested in this Court in its Administrative and Disciplinary Division.[8] Section 42E of the District Court Act provides that:
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal –
(a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
[8] Section 41 of the Residential Tenancies Act – cf Timms v SA Housing Trust (2003) 226 LSJS 42.
Section 42F of the District Court Act provides that the Court may:
·    affirm the decision appealed against;
·    rescind the decision and substitute a decision that the Court considers appropriate;
·    remit matters to the Tribunal for consideration or further consideration in accordance with any directions or recommendations of the Court.
The evidence
As is plain, the appeal to this Court is constrained by the terms of s 41 of the Act, and the above sections of the District Court Act 1991. Generally, the Court must examine the decision of the Tribunal on the evidence or material before the Tribunal.
While the Court may permit further evidence to be called, mere dissatisfaction with the outcome in the Tribunal would not be a proper basis to allow further evidence.
The Squires made application that they be permitted to give evidence on the appeal. They asserted that they were denied the opportunity to present their evidence to the Tribunal, notwithstanding that they were represented by an advocate.
It appeared to me that neither Mrs Squire nor Rodney Squire understood the narrow basis for the findings of the Tribunal, namely that relating to the events involving the Trust officers and Rodney Squire on 24 September 2014.
I determined that both Mr and Mrs Squire would be permitted to give evidence on the appeal and that the Respondent, by its employee Todd Wierenga, would be permitted to give evidence on its behalf.
As it transpired, both Mrs Squire and Rodney Squire simply repeated that which had been raised on their behalf before the Tribunal. In particular, they sought to expand the issues to include the alleged conduct of Mr P. Their respective evidence was unhelpful to them on the appeal. Their conduct reinforced the factual findings of the Tribunal that the Squires had no insight into the effect of their complaints, and their willingness to engage “in rude, degrading and unnecessary comments directed at the landlord’s representatives”.[9]
· Rodney Squire
[9] Reasons of the Tribunal, 11/11/14, at p.4.
It is appropriate that I make some comments about this witness’ presentation. Mr Squire clearly has anger management difficulties and is inclined to make outbursts without appreciating what he was saying.
In answer to the simple question of whether he had said words to the following effect “If anything happens to Mum, you will get it, you’re gone, Callie do you hear me, you’re gone”, he answered:
“I said to these three people that if anything happens to Mum, either she gets sick or she has a heart attack or she drops dead, I’ll be looking for them. That’s all that was said. There was no mention of Callie Barrett at all. I mentioned it to the three of them as one so this fictional story that is being out there from Callie is absolute load of rubbish. If I was or did do that, why didn’t they get the police and have me locked up for two years for breaching my bail order as it stands at the moment.”
When asked what he meant to convey by that, he said:
“Well I’ll be suing the absolute crap out of them, nothing physical, nothing nasty, nothing anything.”
He said that the assertions by Ms Barrett and others about the conversation were “all fabricated lies”. He conceded that he lost his temper and had to go and get some fresh air. Subsequently in the appeal hearing, while Mr Wierenga was giving evidence, deposing to the fact that Mr and Mrs Squire had been yelling while witnesses were giving evidence before the Tribunal, Mr Squire interrupted saying “Absolute fucking lies”.
I reminded him that this was not helping his case. He replied “Can you let me know when I can question this ...?, I don’t want to sit here and listen to ...” and immediately left the court.
Time and again while Mr Wierenga was giving his evidence, Mr Squire alleged that both he and Ms Barrett were telling lies. He clearly wasn’t able to understand the potential consequences of a statement made in an aggressive manner to the staff of the Respondent. He seemed to think that the allegation made against him was of a physical assault. He said:
“There was no mention of me going back, killing people, pushing people, everything about people, there was nothing. That was all fabricated rubbish... What I meant was ‘I’m going to come after them and sue them’, no bashing, no stabbing, none of this bullshit that they’re carrying on with, excuse the language”.
He denied using the words “Callie do you hear me, you’re gone”. He said that not only did he not say those words, there was not even a possibility “not even a hope in hell” that he said those words.
He accepted that he was frustrated, angry and exhausted. He said that on two occasions he had been arrested by the police, allegedly for failing to keep away from Mr P. He denied the allegations by Mr P. He maintained that Mr P had lied in order to get him evicted. He said that on one of the occasions when he was supposed to have been yelling abuse in the backyard of his house, he was in fact playing bowls at Kensington.
That issue will need to be determined in another court.
His essential complaint was that his mother had lived at the subject premises for effectively 17 years. There had never been a complaint about their conduct prior to Mr P being granted the adjoining premises some three years previously. He deposed that he and his mother had been the subject of a concerted effort by Mr P since February 2014 to have them relocated. He feared that if his mother was evicted, that would be the end of her. He explained that this was the reason why he became so frustrated. He said that despite the way in which he may present and the fact that he might appear to be angry, he had never injured anyone, and would never do so. He deposed that he did not at any time intend to cause any fear in the three employees.
While his mother gave evidence, he continually interrupted her, asserting that he had “something vitally important” to say. In fact it involved nothing of relevance to this appeal. He then demanded that Ms Barrett be called as a witness. I declined that request.
· Fay Squire
She explained that she had suffered a heart attack about four years ago. She tendered photographs of Mr P’s premises as Exhibit A2, on the appeal, to establish what she alleged was the poor state of those premises when contrasted with the excellent condition of her premises. She explained that Rodney Squire was her carer and that she would be lost without his help.
When asked whether it would be a circuit breaker if her son moved to other premises, she maintained that the only way to resolve the ongoing dispute was for Mr P to be moved. She continuously complained about the Trust officers. She did not seem to understand their role as Trust officers. I accept that she had yelled at Ms Barrett when she refused her demand that she sleep at the premises to experience the noise from Mr P.
· Todd Wierenga
He gave evidence that he had not met nor had been involved with the Squires before the event of 24 September 2014 in the waiting room. He explained that during the Tribunal hearing, Rodney Squire would thump the table and continually disrupt the proceedings while witnesses were giving evidence.
He deposed that both Rodney Squire, and to a lesser degree, Fay Squire, yelled at witnesses. Relevantly, he deposed that Rodney Squire did use the threatening words directed to Ms Barrett as asserted in the second application. I accept entirely the evidence of Mr Wierenga. He gave his evidence clearly and without embellishment.
Other relevant provisions of the Act
I have already set out the respective provisions of ss 87(2) and 112(1) of the Act.
Other sections to which the Tribunal referred are respectively:
·Section 89 of the Act which relevantly provides:
(1)If the continuation of a residential tenancy would result in undue hardship to the landlord or the tenant, the Tribunal may, on application ... terminate the agreement from a date specified in the Tribunal’s order and make an order for possession of the premises as from that day.
·Section 90 of the Act provides that:
(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 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.
·Section 110(1)(m) provides that:
The Tribunal may, on application by a party to a tenancy dispute ... do anything else necessary or desirable to resolve a tenancy dispute.
Special provisions apply to the Respondent under the Act.[10]
[10] South Australian Housing Trust v Mascull [2000] SASC 389, per Lander J.
Section 5(2) of the Act limits the provisions of the Act which apply to residential tenancy agreements wherein the South Australian Housing Trust is landlord. While relevantly it includes Part 3, ss 65, 66, 71, 87, 90, 93 and 99, Division 3 of Part 8 and Division 4 of Part 8, it does not include s 89 of the Act.
Discussion and findings
In my opinion, the finding by the Tribunal that Rodney Squire had aggressively approached the three Trust officers in the waiting room on 24 September 2014, saying words to the effect “If anything happens to Mum, you will get it, you’re gone, Callie do you hear me, you’re gone”, was inevitable on the evidence.
Frankly, it could not seriously have been disputed. Independently of the Tribunal, I unreservedly accept the evidence of Mr Wierenga on that topic. I also have no doubt that Ms Barrett would reasonably have perceived it as a threat to harm her. I have no doubt that “personal injury” in s 87(2), includes mental harm, including stress.
Personal abuse and threatening conduct against Trust employees is appalling conduct. It seems to be an increasing problem for the Respondent.[11]
[11] See South Australian Housing Trust v Panaou [2000] SARTT 1.
The Tribunal was placed in a difficult position. It had before it an impasse wherein neither neighbour would mediate their escalating disputes, and each demanded more of the limited resources of the Trust’s officers. It is plain that while the Squires and Mr P remain in possession, these practical difficulties for the officers of the Trust will continue. The further complicating factor is that the complaints generally relate to the conduct of Rodney Squire and not Fay Squire. However, because of the state of her health, any order removing him permanently from the premises is simply not practical.
The question however before the Tribunal, pursuant to s 87(2) of the Act, was whether the Tribunal erred in concluding that “if the tenancy continues, the tenant Mr Squire is likely to cause personal injury to one of the landlord’s representatives or a person in the vicinity of the premises”.
While the Tribunal found that the threat had been made by Rodney Squire to Ms Barrett, and that it had to be taken seriously despite it being in the heat of the moment, it is plain that the Tribunal did not make a finding that Rodney Squire had caused personal injury to Callie Barrett. It restricted its finding to future conduct.
I infer that the Tribunal could not be satisfied that Rodney Squire had intended or was recklessly indifferent to causing personal injury to Ms Barrett.
In my opinion, despite his aggressive demeanour, Rodney Squire did not even appreciate that his words may have that effect. He was, in effect, “mouthing off”, and did not intend to threaten Ms Barrett, nor cause personal injury.
Section 87(2) of the Act
It is necessary to properly construe this section. It is somewhat poorly worded, and I readily accept that reasonable people may reach different views as to its meaning. Whatever its proper construction, it is clear that the Tribunal retains a discretion to evict a tenant, even if it is satisfied that s 87(2) has been established. It may, in its discretion, impose less draconian remedies, as I have previously discussed.
Section 87(2) is directed to the past, or alternatively the future conduct of both the tenant and a person permitted on the premises, by the tenant.
As to past conduct, its remedies are conditional upon a finding:
If the tenant, or a person permitted on the premises – with the consent of the tenant, has intentionally or recklessly, caused or permitted ... personal injury to the landlord or the landlord’s agent; or a person in the vicinity of the premises.
As I have noted, there was no finding that Rodney Squire had intentionally caused personal injury to Ms Barrett, nor to Mr P.
As to future conduct, it is conditional upon a finding:
If the tenant, or a person permitted on the premises – with the consent of the tenant – is likely to cause or permit “personal injury” to the landlord’s employees or, in effect Mr P.
For present purposes, I accept that Rodney Squire is a “tenant”, albeit that he was not a party to the residential tenancy agreement.
If he were not a “tenant”, then it would be necessary to be satisfied that Fay Squire as tenant had consented to or at least had known that Rodney Squire intended to cause or was likely to cause such personal injury.
· Likely to cause
The expression “likely to cause” has been the subject of much case law.
It is trite that the meaning of those words will depend upon the context in which they appear in legislation.[12]
[12] Darkan v R (2006) 227 CLR 373; Boughey v The Queen (1986) 161 CLR 10; R v Hung [2012] QCA 341.
In my opinion, in the context of the subject Act, “likely to cause” means something more, than “a risk” as referred to in s 112(1) of the Act.
It must be, at least, “a real and substantial risk”, or something which is “probable” as opposed to a “risk” or a possibility.
· Analysis of the reasons of the Tribunal
Although it is not necessary for me to so find, I repeat that in my opinion, the evidence could not warrant a finding that Rodney Squire recklessly or intentionally caused personal injury to Ms Barrett on 24 September 2014.
It was outrageous conduct by him, but it was, in my opinion, a mere mouthing off by him with no intention to harm her.[13]
[13] See South Australian Housing Trust v Panaou [2000] SARTT 1.
As to Mr P, there is in place an intervention order. While there has been a significant increase in the complaints between the neighbours, there has not been any suggestion of personal injury to Mr P as at the date of the Tribunal hearing.
· Cogent reasons
I must of course give due weight to the reasons of the Tribunal that Rodney Squire is likely to cause personal injury to either the Trust officers or Mr P in the future. I must not depart from its decision except for cogent reasons.
It is, with respect, not plain to me that the evidence warrants a finding that Rodney Squire is “likely to cause physical injury” if the tenancy continues.
I turn to the employees of the Respondent. They interact with the Squires only when the latter contact them by telephone; attend at the offices of the Trust; or whenever it is necessary for them to attend at the Squires’ home. It is plain that the Respondent has recognised a risk of “abuse” and made arrangements that the staff will not speak to the Squires. Any complaint by the Squires is directed to a nominated regional manager. In the event that employees need to attend at the Squires’ premises, they will attend with another employee.

The subject threat was made in rather heated circumstances following a Tribunal hearing.
Conclusion
In my opinion the evidence, when properly assessed, does not warrant a finding that it is likely (in the sense of a real and substantial risk) that Rodney Squire will cause personal injury to the Trust’s employees.
As to Mr P, I repeat that there is in place, the intervention order. There is insufficient evidence to find that Rodney Squire will cause personal injury to him.
In my opinion, at its highest, the evidence establishes that in light of Mr P and the Squires close proximity, there is a risk (not a real or substantial risk for the purpose of s 87(2)) but a risk for the purpose of s 112(1) of the Act, that Rodney Squire may cause personal injury to the Trust employees and Mr P.
In my opinion, that risk is low, but can be managed in the case of Mr P, by the intervention order already in place; and in the case of the Trust employees, by the continuation of the arrangements already in place through their employer, coupled with an intervention order pursuant to s 112(1) of the Act. Such an order carries a criminal sanction for its breach.
Mr Wierenga submitted that even if there were no risk of future personal injury, the present situation was untenable. The two neighbours simply cannot co-exist. He submitted that the Court could still terminate the Squires’ tenancy under other sections of the Act, including s 90. As I have made plain, in my opinion, the Squires ought be given one last chance before the draconian remedy of eviction is imposed. I readily accept that there are practical difficulties. At the moment, Mr Squire resides next door to Mr P, with the intervention order hanging over him. It would obviously be in everyone’s interests for one or both tenants to be relocated. In my opinion, the parties should be given the opportunity to consider the terms of an intervention order under s 112 of the Act.
Such an intervention order may include terms prohibiting Rodney Squire from directly or indirectly making contact with any employee of the Trust; and obliging him to remove himself from the premises during any visit by the employees to the premises.
I will hear the parties as to the terms of such an order.
If I were found to be in error in concluding that Rodney Squire could not be said to be likely to cause such personal injury, then in any event, in my opinion, the Tribunal’s discretion miscarried in the subject case.
Fay Squire has resided at the subject premises for 17 years. Until February 2014 she has been a model tenant.
She undoubtedly suffers from physical and psychological illnesses.
I have no doubt that the mere threat that she may be evicted, has been not merely a salutary lesson to her, but a shock. She ought be in no doubt that any exacerbation of the dispute with Mr P may result in potentially draconian consequences for her.
It must also be clear to Rodney Squire that he must modify his behaviour and control his anger.
Even if s 87(2) had been satisfied, contrary to my findings, in my opinion the proper exercise of the discretion would be to impose intervention conditions or other conditions less draconian than a summary eviction. I propose to adjourn the proceedings for seven days to enable the parties to consider their positions. I will make no orders this day, save to extend the stay upon eviction until further order.
I will hear the parties as to whether this Court ought make final orders, alternatively, order that the matter be remitted to the Tribunal for its consideration and orders in accordance with these reasons, pursuant to s 42F of the District Court Act.