For the reasons set out below, the Tribunal's decision dismissing Mr Atkins' claim is upheld. The effect of this is that the Tribunal will not proceed to decide the substance of Mr Atkins' claims.
[2]
The events and orders of the Tribunal at first instance
[3]
Mr Atkins and his family moved from Coober Pedy and rented the property at Novar Gardens in October 2017. Since the outset of the tenancy, Mr Atkins has been dissatisfied with numerous aspects of the property which he considers to be unsafe and dangerous and requiring repairs. The relationship between Mr Atkins and the landlord's agent has deteriorated over the course of communications in relation to these matters. By the time Mr Atkins' application came before the Tribunal, the agent sought to bring an oral application to restrain Mr Atkins from communicating with her because of the tone and content of various emails she had received from him. The Tribunal considered that application, noted the inappropriate content of the communications but declined to make an order. The agent has since reported the matter to police.
During the first hearing, Tribunal Member Files ascertained that Mr Atkins' claim was primarily one for compensation and it was thereafter not treated as an application for termination of the lease. This is discussed further below. A claim for compensation by a tenant for a breach by the landlord in failing to conduct repairs is brought under ss 88 and 110 of the Residential Tenancies Act 1995. Such claims are often resolved by conciliation, and where this is not possible, a hearing. A typical claim might be heard by a Tribunal member who will take evidence from the parties in a hearing lasting two hours, and decide those issues at the conclusion of the hearing or shortly thereafter. In the first hearing of Mr Atkins' claims, the Tribunal member was not able to distil the issues fully for the parties and he issued directions. One of the difficulties with the application was that it sought determination of some disputes and sought certain remedies not able to be determined or issued by the Tribunal. Mr Atkins had an overlapping action on foot in the Magistrates Court.
The directions adjourned the application in the Tribunal pending the resolution of a Magistrates Court proceeding that the tenant had brought in respect of the same facts.
In response to the directions, Mr Atkins notified the Tribunal that the action in the Magistrates Court had been discontinued, and filed 140 pages by way of an Amended Claim in the Tribunal, and numerous copies of emails that had flowed between the parties and were lodged in the Tribunal registry, culminating in a copy of a letter from solicitors acting for the agent referring to police attendance on Mr Atkins in response to alleged threats from Mr Atkins to the agent.
On any view of it, the Amended Claim was a document from which it was difficult to derive propositions that might be a basis of legal rights. A sample is as follows:
[4]
11.9 Due to 8.8 Plaintive request a sincerer written apology from Miss Pilgrim for attempting to corrupt the Tenant Trust Ledger Report to expedite an illegal 7 day forced eviction. Failing to do so the plaintive exercises his right not to indulge in any further compromise for either defendant, the Landlord or RWAG. The tenant will exercise his full rights as a tenant [sic].
11.12.15 "Are You Serious" (Exhibit BULL26) Expiation Notice generated from a direct complaint from the defendant, being an abandon over length vehicle park in front of my rented home. The defendant does not live anywhere near my rented home. Pure malicious and ongoing harassment provoking a response. Have they ever heard of "Freedom of Information" nothing is kept a secret. The responsible Tenant asked all neighbours fist! There will be no retaliation from the Tenant [sic].
11.12.16 The false pure deceit allegations from Miss Pilgrim "As per our last communication, today's phone call and ongoing communication"(Exhibit BULL27& BULL28) as previously provided evidence; I have several industrial hearing loss. For the benefit to those, that though I could answer to phone. Industrial hearing loss is coursed by loud machinery mainly electrical because of the sound is electrical general. Thus, any electrical generated sound is now blanked out, LIKE PHONES. Here is the thing, I can hear you speck one on one because your voice is organically generated (no electric pulse's) ironically it may sound exactly like you on the phone but actually it is not you at all, but an electrical (mechanical) generated reproduction sound replacing the original organic sound from your throat. Unless Pilgrim is God, Hmm never thought of that maybe she is claiming to be God. "It's a miracle, a miracle I can hear again!" I can't use the phone [sic].
[5]
The Tribunal determined at first instance that there was no application for termination before the Tribunal. Notwithstanding that the tenant's original application nominated termination as an order sought, the Amended Claim described the possibility of such an order as "offensive".[1] The Tribunal found that in any event Mr Atkins had not followed the steps required under the Residential Tenancies Act to put a termination application before the Tribunal.[2] That left the various claims for compensation and an apology to be considered.
The Tribunal at first instance received and considered the discernible claims in the Amended Claim and concluded, when those claims were examined against the evidence that had been filed in support of them, that the application as a whole was misconceived or lacking in substance. On that basis, the Tribunal dismissed the application without proceeding to a further hearing.
Tribunal Member Files' also concluded that the tenant's application was brought for an improper purpose or was otherwise an abuse of process. His written decision and reasons dated 29 March 2018 are what is now before the Tribunal on review.
[6]
Since this matter was dealt with by way of an order that had the effect of bringing the proceedings to an end without determination of the substantive issues in dispute, a question arises as to whether a review can be sought from this type of order. I have concluded that it can.
Only Tribunal 'decisions' may be reviewed.[3] A decision is defined in s 3 to include a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order.
An order dismissing proceedings under s 48 is not an interlocutory order in prescribed circumstances. Therefore, Mr Atkins is entitled to seek an internal review of this decision. The document on which the order was issued was headed "Direction of the Tribunal' but I am satisfied that the dismissal, which was set out under a heading in the document "Orders of the Tribunal" was an order and not a direction.
[7]
The basis for Mr Atkins' challenge to the decision
[8]
I have taken into account a document entitled "Request for Internal Review" of 13 typed pages dated 31 March 2018, a written submission dated 29 April 2018 of 7 typed pages, an email copied to the Tribunal dated 30 April 2018 from Mr Atkins to Ray White Adelaide Group, and a one page document handed up at the hearing.
Mr Atkins described the decision at first instance as a scandal of justice, pure deception, offensive, despicable and criminal. As he has brought the application for internal review, it is his obligation to satisfy the Tribunal that the decision dismissing the application should be overturned.
In the seven page summary, dated 29 April 2018, Mr Atkins' first argument, over pages 1 - 4, appears to be asserting that the tenant followed the requirements of the contract and the legislation and therefore his substantive claim is a good claim.
The second argument, over pages 4 - 5, appears to be asserting that the tenant has no motive to act frivolously or vexatiously because he is the person most affected by the proceedings. It includes a statement that he has now decided to move out of the premises. It includes a statement that his intentions to move out are being thwarted by the agent.
The Tribunal was not able to understand the third argument on page 5 but it appears to allege that the effect of the decision was to make the Tribunal liable for accidents arising from the defects that might occur on the premises.
The fourth argument over pages 5 - 7 asserts that the tenants have suffered financial loss and inconvenience and that the landlord is being frivolous, vexatious, misconceived and lacking in substance, and is being used for an improper purpose and is otherwise an abuse of process.
The summary on page 7 asserts that the Member at first instance is being frivolous, vexatious, misconceived or lacking in substance, or is being used for an improper process, or is otherwise an abuse of process.
The submissions conclude with:
We no longer wish to stay; we agree to the demand to move ASAP.
We no longer request 12 months right to renewal.
We no longer request right to compensation paid in extending the lease.
We no longer request dangerous or any defects to be repair, not our problem.
We no longer request thru SACAT compensation for pain and suffering.
All rights reserved!
We do expect to be paid for a fair days work, pay the $8,751.53 plus interest contracts owed
We do expect to be paid compensation for the loss of income, for the non-supply of a full use of property delivered in a discussing condition, the right to peace and quite rental [sic].
I also took into account the content of a 2 page email dated 4 May 2018, a copy of which was provided to Mr Atkins, from Ms Pilgrim of Ray White Adelaide Group to SACAT containing the landlord's submissions in support of the decision at first instance.
In light of the difficulty in understanding some of Mr Atkins' submissions, the fact that they failed largely to address the order dismissing the proceedings, and Mr Atkins' assertion that he is dyslexic, I determined that it would be appropriate to conduct an oral hearing to enable Mr Atkins to have the opportunity to address specific issues put to him by the Tribunal.
[9]
The evidence and submissions of the parties at the hearing
[10]
Mr Atkins attended the hearing on internal review. Ms Pilgrim and Ms Cauchi of Ray White Adelaide Group attended for the landlord.
Mr Atkins informed me at the hearing that he is still living at the premises. The tenancy agreement is due to end on 1 November 2018. He is seeking an order from the Tribunal that:
[11]
(a) Overturns the original Tribunal order made on 29 March 2018; and
[12]
(b) The application for compensation is reheard by the Tribunal.
[13]
I explained to the parties that this hearing was not to hear evidence regarding the substantive issues between the parties. The purpose of this hearing is to give Mr Atkins an opportunity to convince the Tribunal that the dismissal of the claim by the previous Tribunal member should be overturned.
Mr Atkins told the Tribunal on review that he is a retired builder and is dyslexic and suffers industrial deafness, anxiety and post-traumatic stress disorder. I do not have any medical evidence before me about any of those issues. He is also a landlord of a property he owns in Coober Pedy. His co-tenant is his wife who has not participated in the internal review proceedings. The Tribunal has given Mr Atkins such assistance and opportunity as might assist him to have his matters decided by directing him, as far as possible, to the issues that he must address to make out his argument on review.
Mr Atkins' written submissions were based on his misunderstanding that the Tribunal at first instance had found that he had acted frivolously or vexatiously. I have some sympathy for him in this regard because the relevant provision in the SACAT Act under which the order was made is found under a heading "Frivolous, vexatious or improper proceedings". It was his plan to convince me that not only had he not been frivolous or vexatious, the agent had. It was explained to him that this was not the basis of the decision, and he was directed to the parts of s 48 that the Tribunal's decision had in fact referred to, namely that the proceedings were misconceived or lacking in substance. Mr Atkins had not brought the decision with him to the hearing but I read him the relevant portions.
The evidence he gave regarding the proceedings being misconceived was that he was 'directed' by the Tribunal to discontinue his proceedings in the Magistrates Court so that they may be heard in the Tribunal.
The relevant evidence that he gave regarding the proceedings lacking substance was a repeat of the assertions regarding the repairs that were required to make the premises habitable.
The decision at first instance found a further basis for dismissing the application. The Tribunal member also found that the proceedings being used for an improper purpose or were an abuse of process, which are alternative grounds for dismissal in s 48.
Mr Atkins gave evidence relevant to the findings about the abuse of process and improper purpose grounds. He conceded that he has used some inappropriate language in the correspondence between himself and the agent. However, he claimed that this was in response to threats by the agent to evict him and make it impossible for him to ever rent in Adelaide again. He claims that he was very agitated and stressed at the prospect of being homeless.
Ms Pilgrim submitted that the finding made by the previous Tribunal member was correct in that the tenant's application was not in relation to issues arising out of the tenancy agreement but a personal vendetta that the tenant has against the agent.
To support her argument, Ms Pilgrim referred to a page 123 of the tenant's Amended Claim. On that page, the tenant wrote:
[14]
As per tenant's comments being maligning (offensive) the question do you find this woman attractive is not offensive, the answer is offensive...Pilgrim set out to cheat me; she invited the right to retaliate! Being dishonest, pretending to be honest is mutton done up as land is it not, comment for yourself [sic].
[15]
Ms Pilgrim questioned how her attractiveness had any relevance in the proceedings before the Tribunal.
Ms Pilgrim also drew my attention to the fact that Mr Atkins is now claiming for loss of income. According to Mr Atkins' tenancy application, which he filled out prior to commencing this tenancy, Mr Atkins is a retired builder. Ms Pilgrim questioned how he could claim for loss of income if he is retired. She noted that, if the tenant is not retired, then the tenant provided the agent with false information. Ms Pilgrim is relying on these inconsistencies as evidence of Mr Atkins' approach to dealing with the agent.
Like the tenant, the agent was in fact more focused on the disintegration of the relationship between the tenant and the agent, as evidenced by various allegedly offensive communications from Mr Atkins to the agent, than the issues of the repairs required at the house.
[16]
Much of Mr Atkins' grievance was directed at the agent and not directly at the landlord. His legal rights insofar as they can be determined by the Tribunal, are those between the landlord and him. The agent is merely the landlord's representative in the transaction and in the proceeding. It is entirely understandable that a tenant views their dispute as with the agent as a tenant will often never meet the landlord. However, the failure to recognise that a dispute over legal matters concerning the tenancy is with the landlord and not the agent can lead a tenant to misunderstand that which might appropriately dealt with as a complaint about agent behaviour (directed, perhaps, to an industry body or to the regulator) and complaints about legal rights under the lease or legislation. It would appear that this has occurred to some extent in this matter. In making this observation, I do not suggest that the agent's conduct warranted any complaint. The correspondence on the Tribunal file, much of it lodged by the agent, is professional and courteous in content and tone.
It is important that the agents and the Tribunal do not contribute to this misunderstanding by describing the agent as a party to proceedings in documentation issued to the tenants.
[17]
This decision is made on internal review i.e. a review of a decision of a Tribunal member. On an internal review the Tribunal must examine the original decision of the Tribunal on the basis of the evidence or material before the Tribunal at that time. However the Tribunal may allow further evidence or material to be presented to it and I did so by permitting some further evidence to be led at the hearing.
The task of the Tribunal on internal review is to make the correct or preferable decision having regard to the original decision.
[18]
Section 48 of the SACAT Act empowers the Tribunal to dismiss a proceeding on any of several listed reasons. They are that the proceedings are:
[19]
Frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount: or
Being used for an improper purpose; or
Otherwise an abuse of process.
[20]
The power to dismiss is a powerful tool that enables the Tribunal to control the use of its resources. It must be exercised cautiously, and with the objectives of the Tribunal as set out in s 8 of the SACAT Act squarely in mind. These include the requirement to afford procedural fairness, to be responsive to people with special needs, and to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome. It is also relevant that the ongoing nature of the relationship between the parties affords each of them further opportunities to seek remedies for any new breaches that occur.
It may be expected that self-represented litigants will often fail to articulate their position in a manner that aligns with their legal rights.
The Residential Tenancies Act provides that parties shall not be represented unless leave is given for that to occur. It happens very rarely. The nature of the disputes, the degree in which the legal relationship between the parties is regulated under the lease and under the Residential Tenancies Act, and the expertise and experience of the Tribunal members, ensures that a lack of legal representation does not impede the reaching of outcomes in a timely fashion in approximately 12,000 applications each year. A tiny fraction of these are dismissed under s 48, as the Tribunal has developed great experience in resolving disputes by conciliation and, alternatively, distilling the legal issues and receiving the evidence required to determine the substance of the claims made.
This matter, therefore, is unusual.
[21]
Misconceived or lacking in substance - composite provisions
[22]
The first of the three bases on which the Tribunal may dismiss a claim under s 48 is that it is "frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount". The Tribunal found that Mr Atkins' application was "misconceived or lacking in substance" and, given the way in which the provision is worded and punctuated, correctly treated this as a composite term.
A claim is misconceived when it is based on a misunderstanding of the relevant legal principle upon which it is founded. A claim is lacking in substance when it entails an untenable proposition of fact or law.[4] The two are closely related and a claim may be deficient in both ways.
Whilst there is no detailed analysis of why the claim as a whole was misconceived or lacking in substance, the Tribunal did find that there was one aspect of the claim that the Tribunal had jurisdiction to decide and had been identified with sufficient information to allow it to be considered. That was the issue of claims by the tenant that the landlord failed to fulfil its obligations to attend to repairs to the premises under s 88 of the Residential Tenancies Act. The Tribunal concluded on the voluminous evidence that had been lodged that the landlord had acted reasonably diligently in response to those.
On review, I find that it was open to the Tribunal to determine the application under s 88 without proceeding to hear the parties' further oral submissions on it. The Tribunal must conduct its proceedings in a manner that complies with the SACAT Act including providing the parties an opportunity to be heard or otherwise have their submissions received. The Amended Claim was replete with examples of correspondence between the agent and the tenant that enabled a decision to be made, in conjunction with the oral evidence taken at the hearing conducted on 14 February 2018.
It is evident from a review of that documentation that it disclosed that Mr Atkins prosecuted part of his application as if he were the respondent. His Amended Claim (paragraphs 1- 7 inclusive) sought to answer various questions he perceived had been raised either by SACAT or the landlord via the agent. As a consequence, his Amended Claim did not contain claims, but responses. These aspects of the claim were misconceived.
The substantive claims are contained in paragraph 8 of the Amended Claim. The majority of the itemised matters are either not matters that are within the scope of Tribunal's powers to order, or are meaningless. In the former category were claims for compensation for the inconvenience of preparing for the hearing, loss of income for being "captive" in their home awaiting repairers, and "relief from the terms and conditions of the parties of the lease contract that were not executed and all it implies" and an apology. In the latter category were claims such as "challenge that the RWAG lease agreement annexure is illegal and very misleading' and "the Pilgrim book of lies" and "the credibility of the tenant". All of these were placed under the heading "one claim for mechanical compensation" totalling $40,000.
Thereafter the Amended Claim proceeds for a further four paragraphs (9-12 inclusive) over ten pages, and concludes with a summary of 3 pages and exhibits in excess of 100 pages. Paragraphs 9-12 do not disclose matters that are comprehensible as claims properly brought under the Residential Tenancies Act in the manner that the Residential Tenancies Act requires. Having once given the tenant the opportunity to be heard in person, it was open to the Tribunal at first instance to conclude that a further hearing would not result in any greater clarity or distillation of the issues.
I consider that the finding that the proceedings were misconceived or lacking in substance was correct. In this phrase, "lacking in substance" does not refer to the lack of material put before the Tribunal. Rather it refers to the lack of grounds for a properly brought application under the SACAT Act and the lack of relevance of the material advanced, to the matters the Tribunal could properly consider.
[23]
Improper purpose or otherwise an abuse of process
[24]
Having found that the Tribunal was correct to dismiss the claim on the grounds that it was misconceived or lacking in substance it is not necessary for me to consider the other grounds on which it was dismissed. However, for the assistance of the parties I will consider whether the findings that the proceedings were an abuse of process or brought for an improper purpose were correct.
The decision also referred together to the separate concepts of "improper purpose" and "otherwise an abuse of process". It found that the application was brought for "an improper purpose or is otherwise an abuse of process."[5] In the way that these phrases are set out in s 48 of the SACAT Act, they are not part of a composite phrase and together encompass circumstances which may or may not overlap. The Tribunal found that, "even if the tenant had a substantive claim, the manner in which he [had] dealt with the agent in the course of the proceeding amounts to use of the proceeding for an improper purpose and/or an abuse of process".
An improper purpose is a purpose different from or collateral to the achievement of the remedy sought in the proceedings. The Tribunal at first instance concluded that Mr Atkins' primary or only aim was to publish the story of his tenancy dispute on a television program. This conclusion was drawn from a statement by Mr Atkins that he intended to have television camera crews present at an inspection of the premises by the landlord. In making his decision, the previous Tribunal member also considered the contents of the tenant's correspondence to the agent. The member referred to paragraph 10.5.5 of the tenant's Amended Claim which stated:
[25]
Yes, I am attempting to make a current affairs programme 'The Land Agent from Hell' and I will use everything at my disposal to engage the public of Adelaide.
[26]
Whilst in no sense condoning that threatening manner of responding to the landlord's lawful request, I do not consider that it establishes that Mr Atkins brought the Tribunal proceedings for an improper purpose. I consider that, whilst misconceived, Mr Atkins brought the proceedings to have a dispute with his landlord determined.
That leaves the issue of whether the proceedings constituted an abuse of process. In Kowalski v Bourne the Full Court of the Supreme Court of South Australia described five categories of abuse of process in civil proceeding: [6]
a proceeding brought for an improper purpose;
a proceeding brought without reasonable grounds;
a proceeding brought in a clearly inappropriate forum;
a proceeding unjustifiably duplicating one pending in another forum causing oppression or injustice;
a proceeding unjustifiably seeking to litigate anew a case already disposed of by an earlier proceeding causing oppression and vexation.
A term when used in a statutory context must always be considered in relation to the statute. Given the other bases for dismissal set out in s 48, I consider that the fourth and fifth categories of abuse listed above are those which are encompassed by the term for the purposes of s 48. Items 1-3 inclusive are dealt with under the concepts of "misconceived", "lacking in substance" etc. already set out in s 48.
Once Mr Atkins had desisted from attempting to litigate the same set of facts for the same or overlapping remedies in the Magistrates' Court and the Tribunal simultaneously, it could not be said that he was unjustifiably duplicating actions in different forums. It is my conclusion that he has not been shown to have brought the application in a way that constitutes an abuse of process.
For completeness, the term "abuse of process" does not refer to whether either or both of the parties have acted abusively to one another. I make this point as the tenor of the communications between Mr Atkins and Ray White Adelaide Group was a subject about which both parties sought to advance evidence.
[27]
The decision of the Tribunal to dismiss the application was the correct and preferable decision. The basis for the dismissal is that the application was misconceived or lacking in substance but it has not been established that it was for an improper purpose or an abuse of process.