Timms v South Australian Housing Trust No. Scciv-02-291

TIMMS v SOUTH AUSTRALIAN HOUSING TRUST
[2003] SASC 60
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: Mr Timms has appealed to this Court against a decision of the District Court dismissing an appeal by Mr Timms against decisions made by the Residential Tenancies Tribunal (“the Tribunal”). He also appeals against a decision of the District Court disposing of an application by him for interim relief. The respondent to each appeal is the South Australian Housing Trust (“the Trust”). The District Court also heard and determined an application by the Trust for a declaration as to the amount owed by Mr Timms to the Trust as at 11 February 2002, the day on which the District Court disposed of the other appeals. Mr Timms appeals against that decision as well.
Proceedings before the Tribunal
During 2001 Mr Timms occupied residential premises as a tenant of the Trust. A dispute arose about payment of rent and other amounts. It suffices to say that for relevant purposes the Residential Tenancies Act 1995 (SA) (“the RTA”) governed that dispute, and the Tribunal had exclusive jurisdiction to determine the dispute: see s5(2) and s24(1)(a) of the RTA.
On 1 May 2001 the Tribunal held, among other things, that the Trust had validly terminated the lease.
At an adjourned hearing on 8 May 2001 the Tribunal reinstated the lease, conditional on Mr Timms paying to the Trust over time an amount which the Tribunal found Mr Timms owed to the Trust. The Tribunal ordered Mr Timms to pay to the Trust $50 each week in addition to his rental payments. The Trust was at liberty to give a notice of termination of the tenancy if he did not pay as required. A claim by the Trust for some other disputed amounts was adjourned.
On 13 June 2001 the Tribunal revoked the order of 8 May 2001. It did so in the context of a finding that Mr Timms had not made the payments required under the earlier order. The Tribunal made a new finding as to the overall amount owed by Mr Timms to the Trust. The Tribunal reinstated the tenancy, subject to Mr Timms paying rent and reducing the amount owed to the Trust in accordance with a specified schedule. A failure to comply with the schedule would enable the Trust to terminate the tenancy, or to apply to the Tribunal to do so.
That order appears to determine the amount then owed by Mr Timms, and to condition the continuation of the tenancy on his compliance with the schedule. Compliance with that schedule would, over some months, discharge the money owing to the Trust, while maintaining further rent payments.
On 20 December 2001 the Tribunal made further orders on an application by the Trust. Mr Timms was not present. The Tribunal found that due notice of the application had been given to Mr Timms. The Tribunal found that Mr Timms had failed to make the three most recently due payments, and ordered that the tenancy be terminated and that the Trust have possession of the premises. It found that the amount then owing by Mr Timms to the Trust was $355.35.
I mention here that Mr Timms does not deny these defaults. He says that he left Australia on 8 December, and admits knowing that he had missed two payments by then. He left Australia to visit his mother who was ill. His only explanation for the failure to pay was that he needed the money to prepare for his trip. He told the Court this during his submissions. No explanation was offered for his failure to inform the Trust. Mr Timms told this Court that he had made arrangements for the missed payments to be made up, within a day of his departure, from Centrelink payments due to be made to him. Unknown to him those payments stopped when he left Australia, and so the missed payments were not made up.
The Trust took possession of the premises. When Mr Timms returned to Australia on about 10 January 2002 he appealed to the District Court.
Proceedings in the District Court
Mr Timms appealed to the District Court against each of these orders.
The appeal lay pursuant to s41 of the RTA. The powers of the District Court on appeal are set out in s41(2) of the RTA, and are as follows:
“(2) On an appeal, the District Court may (according to the nature of the case)—
(a)    re-hear evidence taken before the Tribunal, or take further evidence;
(b)    confirm, vary or quash the Tribunal's decision;
(c)    make any order that should have been made in the first instance;
(d)    make incidental and ancillary orders.”
Mr Timms challenged the Tribunal’s decision as to the amounts owed to the Trust, and also its findings that he was in default, because he disputed the amounts in question. He complained that neither he nor the Tribunal were given by the Trust proper details of some of the amounts claimed. He complained that the orders for payment of arrears were unreasonable, having regard to his financial circumstances. He challenged the Tribunal’s decision that he was bound by the terms of the tenancy agreement, claiming that he had signed it under protest. He complained of the decision to proceed in his absence. He sought a complete rehearing of the matters before the Tribunal.
It is convenient to deal with one point now. Before this Court he admitted that when he signed the tenancy agreement under protest, he was informed that the Trust would not accept the tenancy agreement on that basis. He then signed another tenancy agreement. He argued that because he was already in occupation of the premises, in some way this meant that he was not bound by the tenancy agreement. There is no evidence to suggest that he was entitled to remain in occupation of the premises without signing a tenancy agreement. In my opinion there is no substance in this point. The District Court Judge correctly rejected this argument.
Mr Timms also filed in the District Court an “interlocutory application.” He sought an “interim order” suspending the “eviction order” of 20 December 2001 and the execution of that order, and an order that he be given possession meantime.
There was an initial hearing before a District Court Judge on 16 January 2001. Mr Timms appeared for himself, and the Trust appeared by an employee. The Judge summarised the history of the matter, checking that history with the parties. He asked occasional questions about the merits. He made some comments about the merits. Some aspects of the merits were canvassed by Mr Timms and the employee. The Judge conducted the hearing rather like a pre-trial conference or directions hearing, aimed at identifying the issues. In the circumstances that was appropriate. The Judge said that he had limited time, and would adjourn the matter for a week.
For convenience I mention here one point in particular. On appeal to this Court, Mr Timms complained that he did not realise, until after the Judge gave his ultimate decision, that the Judge had been dealing concurrently with the “interlocutory application” and the appeal on the merits. He argued that he thought that only the “interlocutory application” was being dealt with.
On that point, I note that at the conclusion of the first hearing, the Trust having agreed not to install a new tenant meantime, and to help Mr Timms to find private accommodation, the Judge said that unless the parties sorted things out meantime, when the hearing resumed:
“I’ll hear the evidence that you wish to give and make a decision on it.”
In the context of the manner in which the Judge conducted this hearing, and what the Judge said at this stage, my view is that it must have been clear to Mr Timms that the Judge had been canvassing the issues on both applications, and was intending to deal with both applications.
It would have been preferable for the Judge to have made this clear to both parties, but I am satisfied that Mr Timms understood the position.
On 23 January 2001 the hearing resumed. The Judge confirmed with the Trust’s representative that it would not install a tenant for a further week. Once again the Judge conducted the matter rather like a conference. However, he allowed Mr Timms to put his points, and he allowed the representative of the Trust to put his points. The Judge played an active role in identifying the issues and in guiding the arguments put to him. Although no evidence was given, and the contributions from the parties were, in effect, a mix of unsworn evidence, submission and argument, it is clear that all aspects of the merits were being canvassed. It is difficult to understand what Mr Timms could have thought all of this was about, if it was not in relation to the appeal itself.
Towards the end of this hearing the Judge said that he would fix a time for a further hearing. He said the purpose was to go back through the disputed amounts from the very beginning, and to identify the differences and the discrepancies. The Trust again agreed not to relet the premises meantime. Once again, bearing in mind that the Trust was agreeing not to relet the premises, it must have been clear to Mr Timms that the Judge was dealing with the merits.
The matter resumed on 11 February 2001. The Trust was now represented by counsel.
On 8 February 2001 the Trust had filed an application in the District Court, which was probably not served on Mr Timms until the morning of the hearing. The Trust sought a declaration as to the amount that Mr Timms owed the Trust as at 11 February 2001. This was a new issue.
The Judge conducted the proceedings as before. Once again, the amounts in question were examined, and the Judge heard what Mr Timms wanted to put on the facts and what he wanted to put by way of argument. The same applied to the Trust.
Early in the piece Mr Timms protested that the Trust’s application should be heard by the Tribunal. The Judge rejected that submission. In arguing that the application should be heard by the Tribunal, it was Mr Timms who made the point that what the Judge was hearing was an appeal against the Tribunal’s decision. The Judge reminded Mr Timms that he was dealing with an appeal and an interlocutory application. Once again, it is difficult to accept that Mr Timms did not realise that both matters were being dealt with.
The Judge then, in the manner outlined, engaged in a lengthy examination of the issues in dispute. It is apparent from the transcript that there was a certain amount of common ground between Mr Timms and the Trust, only some items being disputed. Not surprisingly, along the way the Trust agreed to concede two or three items to avoid argument. A lot of time was spent on the details of the amounts claimed. Mr Timms still accepted that in December he had been in breach of the required schedule for payments, but maintained that in the circumstances the Tribunal should not have acted as it did.
The Judge then delivered a ruling. He held that the orders of 1 May 2001 and 8 May 2001 were of no significance, having been overtaken by later orders. In that respect, in my opinion, he is clearly correct, subject to Mr Timms’ point that the Tribunal continued to err in its decision as to the amounts owed to the Trust. The Judge found that there was no error in the order of 19 June, or in the later decision of 20 December.
After the Judge delivered that ruling Mr Timms asked whether what the Judge had heard was the interlocutory application or the appeal. The Judge said that he had dealt with the appeal, the interlocutory application having been dealt with along the way by the Trust agreeing not to put anyone else in possession of the premises. Mr Timms then asked for two days to consider the judgment, before the Court released the Trust from its undertaking not to put another tenant into possession.
I am not satisfied that this passage indicated that Mr Timms did not understand what the Judge was doing. Even if it does indicate that at that moment Mr Timms did not understand, I am satisfied from my examination of the transcript that at earlier stages he did understand and must have understood that the Judge was dealing with the merits of the appeal as well as with the interlocutory application. Once again, I mention this point at this stage as a matter of convenience.
The Judge then dealt with the application by the Trust. He made a determination as to the amount owed to the Trust. His decision on that matter concludes with the comment that Mr Timms did not dispute the amount. Before us Mr Timms appeared to deny that he had not disputed the amount, although as I understood the submission he accepted that he did owe a substantial proportion of the amount in question.
Appeal to the Supreme Court
The appeal to this Court lies under s43 of the District Court Act 1991 (SA).
In argument before us the Court raised the question of whether the judgment under appeal is a judgment of the District Court in its “Administrative and Disciplinary Division.” The judgment of the District Court appears not to be a judgment given in that Division, because the RTA, unlike a number of other Acts, does not provide that an appeal from the Tribunal lies to the Administrative and Disciplinary Division of the District Court.
The relevance of the point is that if the appeal is from a decision of the Court in its Administrative and Disciplinary Division, leave is required to appeal on a question of fact: s43(3) of the District Court Act 1991 (SA). When the issue was raised by the Court, Mr Swan (counsel for the Trust) did not argue that the appeal fell within s43(3) of that Act, and in the end we heard full submissions from the parties. Not having heard submissions from the parties on the question of whether the appeal is from a judgment of the Court in its Administrative and Disciplinary Division, it is not appropriate to express a final view on the matter, but as things stand I am of the view that Duggan J was correct in Grey v Stephens (unreported, 26 August 2002) when he held that such an appeal is not an appeal from a judgment of the Court in its Administrative and Disciplinary Division.
Procedural fairness
I have already said why I reject the submission by Mr Timms that he was not properly heard on the appeal, because he thought that the Judge was dealing with his interlocutory application. In any event, the transcript before the District Court indicates that the Judge considered the matters raised by Mr Timms by way of objection to the orders made by the Tribunal. There has been no unfairness in this respect.
However, the Judge should have explained to the parties how he proposed to deal with the appeal and with the interlocutory application. There is no need to follow any particular formula. However, as Mr Timms did not have the benefit of legal representation, it would have been better if the Judge had told him in what order he was going to deal with the two matters before him when the hearings in the District Court began, and how he was going to deal with them. It would have been desirable for the Judge to indicate the difference between submissions and evidence, and to determine at an early stage whether Mr Timms wished to present evidence in support of his appeal, and if so on what basis and whether he would be allowed to do so, as distinct from putting submissions in support of his appeal. If that course is followed, the risk of misunderstandings, and as a result, of unfairness is reduced and hopefully eliminated.
In the present case, the District Court Judge was not obliged to rehear the evidence taken before the Tribunal, although he had power to do so: s41(2)(a) of the RTA. On my understanding of the matter, there was no particular reason to rehear the evidence or to take further evidence, because Mr Timms was merely revisiting the substance of the matters considered and decided by the Tribunal. The only basis for rehearing the evidence, or taking further evidence, would appear to be that there was no transcript of the proceedings before the Tribunal.
In the end, following the relatively informal process outlined by me above, the Judge in effect allowed Mr Timms to put his case afresh, as if he was rehearing the evidence. Although the process was informal, and finished up being a mix of evidence and submissions, my view is that the process followed does not give rise to any risk of unfairness having been done to Mr Timms.
But it needs to be borne in mind that it is unlikely that Mr Timms would have appreciated the difference between submissions and evidence. Had it been necessary for the Judge to hear further evidence to determine the appeal, Mr Timms’ position might have been prejudiced as a result of him not understanding that the proper presentation of his appeal required him to give evidence, as distinct from put submissions. But the manner in which the Judge dealt with the matter sufficiently accommodated the needs of the situation before him.
As will appear shortly, this aspect of the process assumes a greater significance in relation to the Trust’s application to the District Court.
Disputed amounts and order for possession
The Tribunal was the appropriate body to determine the contest over the amount owing to the Trust, and to determine whether Mr Timms was in breach of his tenancy agreement, and to determine whether the Trust should be given possession of the premises.
On appeal, the role of the District Court in such a case will ordinarily be to determine whether or not some error by the Tribunal has been established, as distinct from hearing the case afresh. There was no need for the District Court Judge to allow Mr Timms to argue the merits afresh, apart from the fact that the District Court did not have a transcript of proceedings before the Tribunal, and to the extent that a convenient way of considering whether there had been error was to allow Mr Timms to deal with the matter as if it were being considered afresh. But the fact remains that the ultimate issue was whether error on the part of the Tribunal was demonstrated.
Having heard Mr Timms and the Trust at some length, the Judge was not satisfied that the Tribunal had erred.
It is not for this Court to revisit yet again the issue of how much Mr Timms owed to the Trust, whether he was in breach and whether an order for possession should be made. The issue for this Court is whether the District Court erred in dismissing Mr Timms’ appeal and in refusing his “interlocutory application”.
Having heard Mr Timms’ submissions, I am not satisfied that the District Court Judge erred on either matter. I would reject the challenge to the District Court decision on the appeal.
Mr Timms complained in particular that the Trust had not provided the Tribunal or Mr Timms with proper particulars of amounts claimed by the Trust. My impression is that any deficiency in that respect was remedied by the process followed before the District Court.
Mr Timms also complained that the orders made by the Tribunal for payment of arrears were unfair and unreasonable. I am not satisfied that any valid basis for attacking the orders on those grounds has been made out. This Court, and indeed the District Court, would be slow to interfere with a decision of the Tribunal on a matter like that.
I should add that Mr Timms appears to have persuaded the Tribunal, at some of the hearings, to revisit earlier decisions to some extent. The District Court Judge heard Mr Timms at some length. This Court has now heard Mr Timms. I am not satisfied that there has been any unfairness at the end of the day, or that error has been demonstrated by Mr Timms.
The Trust’s application
The Trust’s application for a declaration was served on Mr Timms only an hour or two before the final hearing before the District Court, according to Mr Timms.
In dealing with the Trust’s application, the Judge stated that Mr Timms did not dispute the amount that the Judge found him liable to pay.
I have not found a clear concession to that effect in the transcript. In his submissions to us, Mr Timms said that he did not have sufficient information about the amounts claimed to be able to dispute them. This appears to be a reference to claims by the Trust for charges for the removal of Mr Timms’ possessions from the premises in question, and for their valuation and storage. There is an underlying dispute about the amount payable for rent and in connection with the occupation of the premises, but the decision of the Tribunal, which the Judge found to be correct, had disposed of that issue.

The further claims made by the Trust for the first time to the District Court are claims which Mr Timms was entitled to require to be proved in the usual way. They had not been the subject of a decision by the Tribunal. I am not satisfied that Mr Timms properly understood that the claim by the Trust stood differently from his appeal, and that he was entitled, if the claim was to be dealt with in the District Court, to have the claim properly proved as to the amount in question. As far as I can tell, this was not explained to Mr Timms by the Judge.
Having regard to the late notice of the claim, and to the fact that Mr Timms was not given the opportunity to require the Trust to prove the components of the claim, I consider that fairness requires that the decision of the District Court on the Trust’s application be set aside, and that the application be remitted to the District Court for further consideration.
That would leave standing the order of the Tribunal of 21 December, giving the Trust possession of the premises in question, and determining that Mr Timms is liable to pay $355.35. That was the amount determined to be due as at 20 December 2001.
The Trust will have to decide whether to ask the District Court to rehear the application, or whether the Trust should make a further application to the Tribunal. On that point, although it was not the subject of any submissions before us, not having been raised at the hearing, I record my uncertainty about the District Court’s jurisdiction to hear the Trust’s application. The District Court had power to “make any order that should have been made in the first instance”, and also had power to make “incidental and ancillary orders.” I am uncertain whether that extends to dealing with money claims that arose after the last hearing before the Tribunal, and that had not been in any way considered by the Tribunal. Without the benefit of submissions, it is not appropriate to take the matter any further.
Conclusion
I would dismiss the appeal by Mr Timms against the decision of the District Court dismissing Mr Timms’ appeal to that Court.
I would dismiss the appeal by Mr Timms against the decision of the District Court refusing to suspend any further the order of the Tribunal of 21 December 2001 (relating to the hearing on 20 December 2001), and refusing to order that Mr Timms be given possession of the premises in question.
I would allow the appeal by Mr Timms against the decision of the District Court on the application by the Trust, declaring that Mr Timms was indebted to the Trust in the sum of $1,430.25. I would order that that application be remitted to the District Court for further consideration.
DUGGAN J: I agree with the orders proposed by the Chief Justice. I also agree with the reasons for judgment prepared by him.
GRAY J: I agree with the reasons of the Chief Justice and with the orders proposed.

[2003] SASC 60

28 February 2003