Squire & Squire v South Australian Housing Trust (No 2) - [2015] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
SQUIRE & SQUIRE v SOUTH AUSTRALIAN HOUSING TRUST (No 2)
[2015] SADC 13
Reasons of His Honour Judge Beazley
17 February 2015
LANDLORD AND TENANT - TERMINATION OF THE TENANCY
Final orders - relevance of events which have occurred since the decision of the Tribunal and the publication of this court's findings on the appeal - whether this court ought rescind the decision of the Residential Tenancies Tribunal, and make its own decision; or alternatively, remit various matters to the Tribunal for further consideration in accordance with the directions and recommendations contained in the primary reasons - observations as to scope of the Act and whether amendments ought be considered by Parliament.
Held: In the circumstances which have arisen it is not appropriate for the court to substitute its own decision. Accordingly appeal allowed but remitted to the Tribunal for further consideration.
Residential Tenancies Act 1995 (SA) ss 5(2), 24, 35, 41, 90, 110 and 112(2); District Court Act 1991 (SA) ss 42E and 42F; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ; South Australian Civil and Administrative Tribunal Act 2013; South Australian Housing Trust Act 1995, referred to.
Squire & Squire v South Australian Housing Trust [2015] SADC 2; Timms v South Australian Housing Trust [2003] 226 LSJS 42; Hargreaves v South Australian Housing Trust [2012] SADC 166; S A Housing Trust v Marscull [2000] SASC 389; S A Housing Trust v Branson (2009) SARTT 18; Gyemore v Department of Housing & Public Works [2014] QCATA 314; Cutbush v Team Maree Property Service [2010] QCATA 20; Dowker v Prime Property Group SA Pty Ltd [2014] SADC 152, considered.

SQUIRE & SQUIRE v SOUTH AUSTRALIAN HOUSING TRUST (No 2)
[2015] SADC 13
Introduction

On 16 January 2015, I published my Reasons for Decision in respect of an appeal by Fay Squire, a tenant of South Australian Housing Trust (‘the Trust’) and her son, Rodney Squire against orders made by the Residential Tenancies Tribunal on 12 November 2014.[1]
[1] Squire & Squire v South Australian Housing Trust [2015] SADC 2.
The Tribunal had ordered that the Residential Tenancy Agreement entered into by Fay Squire on 6 September 1997 in respect of premises at 2/10 Homes Court at Magill, be terminated in consequence of, inter alia, misconduct by Rodney Squire to certain staff of the Trust, pursuant to s 87(2) of the Act.
The appeal involved some issues of public importance, including whether the Act provides adequate remedies to the Trust to protect its employees from harm in the course of their employment when dealing with apparently aggressive tenants, and the efficacy of relief which may be granted by the Tribunal under the Act. The relief available to the Tribunal, and the capacity of this Court, on appeal to fashion a satisfactory resolution of tenancy disputes, has been the subject of comment by another Judge of this Court in Dowker v Prime Property Group (SA) Pty Ltd.[2]
[2] [2014] SADC 152 (subject to appeal). This decision is the subject of an appeal to the Full Court of the Supreme Court, reserved on 9/2/15.
The Trust is in a different position to other landlords under the Act. This is because of its charter to provide accommodation for the most needy. Its staff often have to deal with persons suffering from psychological difficulties, and those exhibiting aggression. In particular s 5(2) of the Act significantly limits the powers of the Trust. Further the Trust is subject to the review provisions of the South Australian Housing Trust Act, 1995. However the Trust’s remedies seem to be more limited than those available to some similar bodies in comparable interstate legislation.[3] In Queensland the equivalent Housing Authority recently changed its Social Housing Policy to discourage objectionable behaviour by tenants. It included a three strikes policy, leading to a termination order. See Gyemore v Dept of Housing and Public Works.[4] No similar power is vested in the Trust.
[3] See Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 297, 305, 327, 329, 331, 335 and 340 and See Gyemore v Dept of Housing and Public works [2014] QCATA 314, and Cutbush v Team Maree Property Service [2010] QCATA 20.
[4] [2014] QCATA 314.
The underlying facts, the subject of the appeal, were canvassed, at length, in the primary judgment, and there is no need to repeat them in detail.
The parties to the appeal had restricted their submissions to the findings of the Tribunal that the Squires had breached s 87(2) of the Act, as the proved conduct of Rodney Squire was such that he was ‘likely to cause personal injury’ within the meaning of that expression in s 87(2). The Tribunal had also made findings on issues other than s 87(2); however saw no need to make any orders because of its findings on the s 87(2) relief.
It is sufficient to note that I had reached the same conclusions as the Tribunal as to the facts – namely that Rodney Squire had indeed made the impugned statements to the staff of the Trust on 24 September 2014; and that he and his mother had engaged, over a considerable period of time, in demanding, rude, degrading and unnecessary comments bordering on harassment to Trust employees.
I, however, had reached a different conclusion from that of the Tribunal as to the s 87(2) relief. I concluded, as a matter of law, that upon the proper construction of s 87(2) of the Act, the proved misconduct of Rodney Squire, in particular, was not sufficient to satisfy the statutory test that it was ‘likely to cause personal injury’ within that section.
I did however conclude that such proved conduct would satisfy a lesser test, namely a finding that it gave rise to a ‘risk of personal injury’ to the staff of the Trust. I concluded that it would have been open to the Tribunal to make a Restraining Order against Rodney Squire pursuant to s 112(1) of the Act.
The Tribunal is vested with specific powers to grant relief or make orders beyond that sought in the application. Section 35 of the Act provides as follows:
(1)    The Tribunal may make an order in the nature of an injunction (including an interim injunction) or an order for specific performance.
(2)    However, a member of the Tribunal who is not legally qualified cannot make an order under subsection (1) without the approval of the Presiding Member of the Tribunal.
(3)    Although a particular form of relief is sought by a party to proceedings before the Tribunal, the Tribunal may grant any other form of relief that it considers more appropriate to the circumstances of the case.
(4)    The Tribunal may make interlocutory orders on matters within its jurisdiction.
(5)    The Tribunal may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.
(6)    The Tribunal may, in the exercise of its jurisdiction, make ancillary or incidental orders.
In the ordinary course of events I would have ‘rescinded the decision of the Tribunal and substituted a decision that I might deem appropriate,[5] in this case a Restraining Order under s 112(1) of the Act, effectively restraining Rodney Squire from any contact with the Trust employees other than by correspondence. There was no need to make a Restraining Order for the protection of the next door neighbour, because an Intervention Order had already been obtained by the police, in the Magistrates Court, for his protection.
[5] District Court Act 1991 s 42F.
I had also considered whether an order could be made, and if so, whether it should be made ‘converting’ Fay Squire’s tenancy into a Probationary Tenancy, in consequence of her proven conduct, and that of her son.
There were however some unusual procedural factors present in the subject case, and certain intervening events which have caused me to reflect upon the appropriate orders.
Relevant background events
The Trust had initially applied pursuant to s 90 of the Act for an order for the termination of the tenancy on the basis of what it alleged to be unacceptable conduct by the Squires, to their neighbour. That application was based upon the alleged ‘interference by the Squires with the reasonable peace, comfort and privacy’ of another Trust tenant, who resided at 1/10 Homes Court at Magill.
It sought the termination of the Residential Tenancy Agreement. I had noted in the primary reasons that, if it had been pressed in the Tribunal and had the Tribunal concluded that s 90 had been satisfied, it would have been incumbent upon the Tribunal to consider other remedies including the conversion to a Probationary Tenancy, rather than termination.[6]
[6] SA Housing Trust v Branson (2009) SARTT 18.
The events the subject of that application were discussed at length in the primary reasons.[7]
[7] Squire & Squire op cit n3 at p6.
As it transpired, the s 90 application was adjourned by a differently constituted Tribunal to enable a mediation to take place.
The subject s 87(2) event intervened on 24 September 2014. While the Tribunal did treat that event as a separate ‘application’ for an order under s 87(2) of the Act, it clearly took into account the factual dispute giving rise to the allegations made in the s 90 application.
It made the specific findings of fact – the subject of the s 90 application that Rodney Squire had damaged the neighbour’s door; and that personal injury to ‘a person in the vicinity of the premises’ is likely.[8]
[8] Squire & Squire at p8.
As I have noted, I have reached the same findings of fact as the Tribunal and there is no reason why the Tribunal would be constrained from making orders consistent with these reasons, in the event that I remitted this matter to it.
There was no dispute before the Tribunal than an Intervention Order had been sought by the police against Rodney Squire for the protection of the neighbour, and that such an order had been made by the Magistrates’ Court pursuant to the Intervention Orders (Prevention of Abuse) Act, 2009.
At the time of the hearing before the Tribunal it was plain that Rodney Squire and the neighbour could not co-exist at their respective premises. Each blamed the other for breaches of the peace. The police had intervened on numerous occasions.
Events subsequent to the Tribunal decision
The appeal to this Court, generally, is to be determined upon the evidence which was before the Tribunal.[9] As I noted in the primary reasons I permitted the Squires to give evidence on relevant matters on the appeal. In fact there were no relevant matters addressed. However, Rodney Squire deposed to an exacerbation of the disputes with the neighbour since the decision of the Tribunal. He said that he had been forced to make 17 phone calls to the police and to the employees of the Trust, to complain about the conduct of the neighbour. Mr Squire complained that the police had blamed him, rather than the neighbour for the conduct and had indeed arrested him on two occasions.
[9] District Court Act 1991 s 42E(1).
At the time of the delivery of the primary reasons it was obvious that either Rodney Squire or the neighbour would have to move to other accommodation, as it was impossible for them to co-exist. A complicating factor was the age and health of Fay Squire, who had been a long term tenant at those premises.
I invited submissions from the Trust and the Squires as to whether this court ought make final orders or refer the matter back to the Tribunal, for further consideration by it in accordance with my primary reasons.
I directed that Rodney Squire make no contact with any Trust employees directly or indirectly during the adjournment.
I was concerned at that time that, irrespective of whether a Restraining Order ought be made against Rodney Squire for the protection of the Trust employees, the s 90 application in respect of the neighbour remained a live issue.
Events subsequent to the publication of the courts findings
Mr Wierenga, who appeared for the Trust, indicated that the Trust had used its best endeavours to resolve the impasse with the neighbour, and that it was probable that the neighbour would agree to be relocated.
While the successful relocation would remove the ongoing dispute with this neighbour the Trust remained concerned about the need to protect its employees and any new tenant.
It sought a Restraining Order against Rodney Squire for the protection of its staff.
As to Mrs Squire it sought, by way of relief an order effectively converting her permanent Residential Tenancy Agreement into a Probationary Agreement. This, it submitted, would act as a warning to Mrs Squire and indeed her son that they must not cause difficulties to any new tenant, and must ensure the protection of Trust employees. It referred to the history of disputes between the Squires and other tenants.
It submitted that if such orders were made the appropriate mechanism was an order for termination of the existing agreement under s 90 of the Act, and the immediate grant of a Probationary Agreement. It sought the following orders:
1.That the Residential Tenancy Agreement with Mrs Squire be terminated under s 90 of the Act with an undertaking by the Trust to grant Mrs Squire a probationary 12 month fixed term lease. The purpose of such an order is that Mrs Squire will remain in the property with no change in her conditions of tenancy and will be on probation for a period of 12 months. In the event the identified misbehaviour is remedied, the Trust would then offer Mrs Squire a five or 10 year fixed term lease.
2.That a Restraining Order be made against Rodney Squire pursuant to s 112(1) of the Act restraining him for a period of 12 months from:-
·Harassing, intimidating, threatening or assaulting any employee of South Australian Housing Trust.
·Contacting directly or indirectly any employee of South Australian Housing Trust either in person or by telephone save that he may be at liberty to correspond in writing to the Housing Trust.
·Attending in person at the branch of South Australian Housing Trust at 120 Flinders Street Adelaide 5000.
·Being within 100 metres of the premises (namely the Fay Squire premises) at Unit 2/10 Homes Court Magill when any home visit is scheduled by SA Housing Trust employees, such scheduled visit to be organised on seven days’ notice.
Fay Squire attended the subject hearing as to the relevant orders. Rodney Squire did not attend. He provided some submissions in writing. Fay Squire expressed her desire that I ought proceed in the absence of Rodney Squire. She made no submissions as to either the form of the Restraining Order nor the imposition of a Probationary Agreement, presumably in anticipation of the orders being considered by the Tribunal in due course. She continued to deny any breaches of the peace by Rodney Squire. By inference she maintained that because the neighbour would be relocated, there would no longer be a need for any Restraining Order nor other relief. I do not accept that submission. The need for a Restraining Order remains, in light of the history of disputes with adjourning tenants, and the attitude of Rodney Squire to the Trust employees.
The powers of this court on appeal
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.
Discussion
As I have noted, the Trust submitted that I ought rescind the decision of the Tribunal based as it was upon s 87(2) of the Act, but substitute for it the draft orders which it submitted were appropriate under s 90 and s 112(1) of the Act.
While there would in the ordinary course be a great deal of merit in that approach pursuant to s 42F(b) of the District Court Act, 1991; there are various factors which lead me to conclude that I ought allow the appeal but remit these matters to the Tribunal for further consideration in accordance with my recommendations. Those factors include the events subsequent to the Tribunal’s orders including the relocation of the adjoining tenant; and the fact that the s 90 application remains unresolved.
Restraining Order
The first of those recommendations is that Rodney Squire ought be restrained from making contact directly or indirectly with any employee of the Trust. Of course the discretion to make such an order would remain with the Tribunal, in the event that this matter was remitted to it.
In my opinion such a Restraining Order ought be made on the facts as found by the Tribunal and by this Court on appeal.
That draft order which is included as an addendum to these reasons is premised upon such an order being made pursuant to s 112(1) of the Act. I have some concerns as to the jurisdiction of this Court, as contrasted with the Tribunal, to make such an order. Even if this Court does have such jurisdiction a question remains whether in light of recent events this Court ought make such an order.
It is trite that as from 30 March 2015 the administration of the Act will vest in the newly established SACAT.[10] I have been informed that the practice of the Tribunal is to decline to make restraining orders under s 112(1) of the Act, and for Intervention Orders to be obtained in the Magistrates Court.
[10] South Australian Civil and Administrative Tribunal Act 2013.
If that is indeed the policy then one may understand the logic in taking that course.
Pursuant to the Intervention Orders (Prevention of Abuse) Act, 2009, the Magistrates Court has power to issue orders under that Act to include any form of restraint that is needed to protect a victim from abuse. It provides relief where personal abuse and harassment is established.
This would appear a much easier test than the need to prove the likelihood of personal injury for the purposes of s 87(2), or the risk of personal injury in s 112. A breach of the Intervention Orders (Prevention) of Abuse) Act carries a maximum penalty of imprisonment for two years, as contrasted with one year in s 112 of the Residential Tenancies Act.
In the Second Reading Speech in respect of the Intervention Orders (Prevention of Abuse) Bill at page 5, it was said:
An application to the Magistrates Court for an intervention order may be made regardless of whether the police have been called out to an incident and regardless of whether there has been a previous act of abuse. A person need not have been abused already to invoke these laws, which are designed as much to protect from apprehended abuse as from further abuse. …
This provision does not prevent applications by other parties to the agreement to the Residential Tenancies Tribunal or to the South Australian Housing Trust under the provisions of the Acts.
Both Acts have some difficulties associated with them. A Restraining Order under s 112(1) of the Act is more flexible in that it can be made for a specific period or until further order. In my opinion given that the evidence before the Tribunal already establishes the test in s 112(1) of the Act, my recommendation is that an order ought be made under s 112(1) of the Act.
It of course is a matter for the Tribunal to exercise its discretion. I have already provided a copy of the draft Restraining Order to the Squires and the Trust.
Probationary Tenancy Agreement

The question of the issue of a probationary tenancy to Mrs Squire is more problematic. This reflects some deficiencies in the legislation. In light of a finding that there is a risk of personal injury to its staff, it is odd that the only remedy is for a Restraining Order to issue.
Clearly where there is a breach of s 87(2) it is open to the Tribunal to either terminate the tenancy or alternatively to provide a lesser sanction than immediate termination by converting the tenancy to a provisional tenancy.[11] However a finding that there is a risk of personal injury to the Housing Trust staff does not give rise of itself to such a remedy in the hands of the Housing Trust. Section 89 of the Act does not apply to the Housing Trust. Section 90 is restricted to the use of premises for an illegal purpose, causing or permitting a nuisance or causing or permitting an interference with another person who resides in the immediate vicinity.
[11] South Australian Housing Trust v Branson (2009) SARTT 18.
The s 90 application, in the subject case was based upon the ongoing disputes with the next door neighbour. It now appears clear that through their endeavours the Housing Trust will relocate the next door neighbour so that that factor will cease.
In my opinion however both Mr and Mrs Squire must be put on notice as to their conduct with the introduction of a new tenant in those premises.
It would be better if amendments were made to the Act by Parliament to enable the Trust to better protect its officers in cases where there is a risk that personal injury will be suffered by them. Such an amendment ought permit conversion into a Probationary Agreement. A three strikes policy could be considered for personal abuse which has been recognised by Parliament as a serious issue leading to the enactment of the Intervention Orders (Prevention of Abuse) Act itself. At present there is a wide power in s 110(1)(m) of the Act. It will be for the Tribunal to determine whether that section is sufficient to empower the Trust to convert the tenancy into a Probationary Tenancy.
Ultimately, in light of the recent events, it will be for the Tribunal to determine whether it has power to make a conversion order, and if so whether it will make such an order, in the circumstances, now that the neighbour has been relocated.
Conclusion
In accordance with my reasons delivered on 16 January 2015 (Squire & Squire v South Australian Housing [2015] SADC 2) and these remarks, I allow the appeal and set aside the order of the Tribunal terminating the tenancy upon the s 87(2) grounds. However pursuant to s 42F(b) of the District Court Act 1991, I remit these matters to the Tribunal for further consideration, and with my recommendation that a Restraining Order issue against Rodney Squire.
While I have made no recommendation as to the converting of the permanent tenancy agreement into a probationary one, it is entirely a matter for the Tribunal to determine whether such an order can or will be made.
I repeat that any orders remain of course a matter entirely in the discretion of the Tribunal. In any event it must be made plain to Mr and Mrs Squire that if there are to be any other acts of harassment then the Housing Trust would be at liberty to make fresh applications to the Tribunal.
Formal Orders:
1.That the appeal is allowed.
2.That the matters be remitted to the Tribunal for further consideration in accordance with the Court’s recommendations, and reasons.
ADDENDUM
DRAFT RESTRAINING ORDER OF THE RESIDENTIAL TENANCIES TRIBUNAL
·Section 112(1) Residential Tenancies Act, (1995)
TO: RODNEY SQUIRE
       Unit 2/10 Homes Court
       MAGILL SA 5072
I order pursuant to the above section:
1.    That for the protection of the employees of South Australian Housing Trust, you Rodney Squire be restrained, for a period of 12 months ending on 27 January 2016, from:
1.1harassing, intimidating, threatening or assaulting any employee of South Australian Housing Trust.
1.2contacting directly or indirectly any employee of South Australian Housing Trust either in person or by telephone.
1.3attending in person at the branch of South Australian Housing Trust at 120 Flinders Street Adelaide 5000.
1.4being within 100 metres of the premises at Unit 2/10 Homes Court Magill when any home visit is scheduled on 7 days notice.
2.    South Australian Housing Trust is at liberty to apply to the Residential Tenancies Tribunal for the variation or revocation of this order.
3.    A copy of this order is to be served upon Rodney Squire.
Dated         day of               2015.
…………………………….
The within order was served upon Rodney Squire on the     day of
2015 by
…………………………….