Residential tenancy - Internal review application by tenant - Cross-application by landlord

Residential tenancy - Jurisdiction - Whether matter within jurisdiction - Jurisdictional grounds of review fail

Residential tenancy - South Australian Housing Trust - Vacant possession - Breach of agreement - Non-payment of water usage costs

Residential tenancy - South Australian Housing Trust - Water charges - Shared water charges - Landlord obligations in relation to apportionment of shared water charges

Residential tenancy - South Australian Housing Trust - Water charges - Shared water charges - Defects in invoices issued by landlord - Landlord ordered to re-issue invoices in correct form

Residential tenancy - Landlord and tenant relationship - Specific matters - Whether landlord owed tenant fiduciary duty - Landlord does not owe tenant fiduciary duty

Administrative law - Cross-application by landlord - Collateral Review - Source of Tribunal's jurisdiction - Whether collateral review of South Australian Housing Trust water policy on apportionment of charges permitted - Tribunal not able to collaterally review water policy whilst exercising residential tenancies jurisdiction - Original decision set aside in part

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 59, 70

Residential Tenancies Act 1995 ss 3, 5, 24, 73, 80, 93, 110

South Australian Housing Trust Act 1995 s 32

Real Property Act 1886 ss 192, 193

South Australian Housing Trust Regulations 2010 reg 9

South Australian Civil and Administrative Tribunal Rules 2014 r 24

Hermann Horbelt v Andrew Elliott and Margaret Turner [1995] SASC 5333

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41

Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71

South Australian Housing Trust v Pawelzik; South Australian Housing Trust v Popczynski [2015] SASCFC 194

Raschke v Firinauskas [2018] SACAT 19

Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559

Mr M Boisseau, Crown Solicitor's Office, for the Respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(b)

1. Mr Pawelzik is a tenant of the South Australian Housing Trust (SAHT). He lives at Unit 3, 3 Old Treasury Lane, Adelaide (the premises). Mr Pawelzik and the SAHT have been in dispute over Mr Pawelzik's liability to pay bills for water at the premises for many years. This internal review is a continuation of that dispute.
2. The decision Mr Pawelzik seeks to review was made by the Tribunal, constituted by Acting Deputy President Johns, in its original jurisdiction on 25 July 2018. The decision related to an application made by the SAHT under the Residential Tenancies Act 1995 (the RT Act) for vacant possession of the premises, for breach of the Conditions of Tenancy. The SAHT asserted that Mr Pawelzik failed to pay amounts owed to it relating to water usage and that this terminated the tenancy.
3. Hearings in the original proceedings occurred over several days with evidence taken and a site view. Following conclusion of the evidence and submissions the Tribunal did not grant the SAHT vacant possession. Instead, the Tribunal made a series of findings relating to the way in which the SAHT may charge for water. The Tribunal directed the SAHT to issue revised invoices based on those findings, and adjourned the application.
4. Both parties sought internal review of the Tribunal's orders. Mr Pawelzik's application is the primary review and the SAHT brought a counter-application, i.e. a review on different grounds. The SAHT did not support Mr Pawelzik's grounds of review. Mr Pawelzik did not support the SAHT's grounds of review. Those reviews are to be decided by my orders.

Procedural history of relevance and procedural points on this review

1. Throughout the lengthy history of Mr Pawelzik's dispute with the SAHT, his applications or responses have occurred in tandem with those of a neighbour, Mr Popczynski. They both consider that the SAHT is not entitled to charge them for water in the manner that the SAHT has done. They are not joint applicants however, and advance some different arguments from one another.
2. The hearings that gave rise to the decision on 25 July 2018 were conducted so as to achieve an efficient hearing of two applications with significant overlap in their factual and legal content. Acting Deputy President Johns took evidence from the applicant, the SAHT, and directed that the evidence could be relied upon in SAHT v Popczynski 2017/SH000452, and SAHT v Pawelzik 2017/SH000451. Acting Deputy President Johns issued a decision in the Popczynski matter dated 25 July 2018 which ran to 18 pages with a one page summary at the end. Acting Deputy President Johns also issued a two page decision in the matter of Pawelzik, which included the following paragraphs:
   1. I consider that the issues in this dispute are essentially the same as those issues raised in the matter 2017/SH000452 (South Australian Housing Trust v Popczynski).
   2. I will make orders which are essentially the same as those I have made in matter number 2017/SH000452. Those orders are made for the same reasons as the reasons for which I made the orders in matter number 2017SH000452. Rather than incorporate those reasons into the body of this order, I will simply annex those reasons to this order.
3. Acting Deputy President Johns then went on to make orders specifically related to Mr Pawelzik and the premises.
4. I will refer to the two page decision as "the original decision" and the annexed reasons and summary as "the annexed reasons".

1. The original decision followed six hearing dates: 10 February 2017, 10 April 2017, 30 November 2017, 5 April 2018, 23 April 2018 and 24 April 2018.
2. In the original decision, Acting Deputy President Johns made certain findings relevant only to Mr Pawelzik's circumstances in paragraph 1-7 inclusive of the two pages that related to Mr Pawelzik. Relevantly, she found that:
   • The SAHT and Mr Pawelzik had a tenancy agreement for the purposes of the RT Act;
   • Mr Pawelzik had been served a notice of breach for failure to pay the SAHT the sum of $1,872.94 for water invoices issued between 11 June 2008 and 24 August 2015; and
   • He did not pay the amounts claimed.
3. The key findings derived from the annexed reasons are as follows:
   • Following the Supreme Court decision delivered in December 2015, the Trust re-issued Mr Pawelzik with fresh invoices covering the periods July 2008 to August 2010 and September 2010 to date (paragraph [31]);
   • Following non-payment of the invoices, the SAHT made an application for vacant possession;
   • The circumstances constitute a "tenancy dispute" under the RT Act and SACAT has jurisdiction (paragraph [55]);
   • The SAHT is entitled to charge Mr Pawelzik for water supplied through a shared meter (paragraphs [56]-[63]);
   • The water supply to Mr Pawelzik's unit is currently being measured by the Frome Street meter (paragraph [72]);
   • The SAHT's evidence established that the water meter readings for which water use has been claimed have been taken either from the Cypress St meter or the Frome Street meter (paragraph [76]);
   • The SAHT's evidence established that the invoices and the screen dumps of information on which the SAHT relied to charge Mr Pawelzik relate to "the Land" (paragraph [81]);
   • The SAHT's method of apportionment for those who use water supplied through a shared meter is to divide the account by the number of premises, having first reduced the overall bill by 30% to account for variations in usage between premises that cannot otherwise easily be measured (paragraph [82]);
   • The lower rate applicable to the first kilolitre of water per premises (paragraph [83]);
   • SA Water rates change each year. SAHT issued some invoices which contained calculations based in part on the wrong rate (paragraphs [95] and [111]); and
   • The apportionment approach taken by the SAHT is generally fair and equitable subject to certain changes that the Tribunal directed to be incorporated (paragraphs [101] and [107]).
4. In the annexed reasons, Acting Deputy President Johns found that there were two defects in the SAHT's actions. One was to issue invoices that incorrectly calculated the amounts owed because of the oversight relating to rates changing from one financial year to another. The other was that she found that the allocation policy for tenants whose water was not delivered through a shared meter was not fair and equitable and she directed a recalculation such that fairness and equity would be achieved.
5. Acting Deputy President Johns ordered the Trust to issue revised invoices which addressed the defects she had identified. Those new invoices were required to:
   • (a) identify each individual water meter to which the invoice relates and the meter reading for that particular water meter;
   • (b) not claim any amount of water use based on an estimated reading for a particular water meter where the actual meter reading is 0;
   • (c) not exceed a claim for use which is higher than 50kls for any period of six months;
   • (d) where the invoice covers two different financial years then the invoice must clearly state the rates on which the charges are based and -
     • only charge at the lower of the rates applicable for both financial years; or
     • charge at the appropriate rate for water use for each financial year.
6. To facilitate this occurring, Acting Deputy President Johns adjourned the proceedings to allow revised invoices to be issued. She directed that the SAHT must allow the tenant 28 days to pay the amount of the revised water invoices. If Mr Pawelzik did not pay, the SAHT was authorised to apply to the Tribunal for further hearing to either seek a payment plan or an order for possession. Acting Deputy President Johns also directed the SAHT to either provide Mr Pawelzik with a copy of the Water Usage Policy or ensure that there is a copy readily accessible by him.
7. None of these things occurred. Mr Pawelzik sought internal review and the SAHT made a counter-application.
8. Mr Pawelzik brought an application for internal review under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) within the one month period for such reviews to be sought. His grounds are set out in a document dated 23 August 2018. In response to the tenant's application, SAHT made a counter-application[1] challenging specific aspects of the original decision and annexed reasons.
9. Whilst there is a question as to whether the orders made were of a final or interlocutory nature, which affects rights of internal review, both parties seek to have their challenges to the findings and orders decided now. In accordance with the Tribunal's objective of resolving the substantial merits of a dispute, I consider it appropriate to proceed.
10. The task for the Tribunal on internal review is to reach the correct and preferable decision, having regard to the decision at first instance and the materials relied upon in reaching it, and any evidence admitted on review. On review, the decision-maker must give appropriate weight to the decision of the decision-maker at first instance. Evaluating that weight is done by considering a number of factors, including:
    • whether there were errors of process at first instance;
    • whether the decision-maker is performing their role using specialist knowledge or skill; and
    • whether witnesses' evidence was required to be evaluated and whether the decision-maker was in a better position to make such assessments about the witnesses' evidence.

1. During the hearing on 5 March 2019 it became apparent that Mr Pawelzik was relying on a version of the Residential Tenancies Act in force as at 28 April 2013. In relation to the application brought in the Tribunal for vacant possession, the version of the Act that is required is that in force at the time of the application. However, some aspects of this dispute require examination of the law as it was at different dates in the past. To the extent that the issue is material, it will be identified in these reasons which version of the legislation governs the issue under discussion.

1. In the hearing, I reviewed the materials that were before the original decision-maker, and the documents provided by the parties in support of their applications for review. In that second category were:
   • application for review by Mr Pawelzik dated 23 August 2018;
   • counter-application by the SAHT dated 7 December 2018;
   • written submissions of both parties accompanying their applications;
   • additional written submissions of the SAHT dated 24 January 2019; and
   • additional written submission of Mr Pawelzik dated 22 February 2019;
2. Mr Pawelzik's grounds of review were numerous. The grounds can be discerned from the application, written submissions and oral submissions at the hearing. The grounds fall into several categories, including that:
   • The Tribunal did not have jurisdiction to make the original decision;
   • The Tribunal should not have entertained the application;
   • The hearing miscarried for a variety of reasons; and
   • The original decision (including the annexed reasons) was wrong for a variety of reasons.
3. At a directions hearing on 11 December 2018, and bearing in mind the nature of the review to be conducted under s 70 which requires an analysis of the evidence adduced at first instance and may entail the receipt of fresh evidence in the discretion of the Tribunal on review, I directed the parties to confine their arguments at the full hearing on 5 March 2019 to the legal issues arising from the original decision and annexed reasons. I decided that any ground of review that required the Tribunal to make factual findings that were different from those found or relied upon by Acting Deputy President Johns would be considered following a further hearing, if such a hearing became necessary, at a later date.
4. At the internal review hearing on 5 March 2019, Mr Pawelzik did not confine himself to his written grounds or to grounds that related to alleged legal error. However, to the extent that the arguments he raised entailed a challenge to events or things that were not the subject of evidence or sought to be led at the hearing before Acting Deputy President Johns, I decline to receive fresh evidence. I therefore consider that the hearing on 5 March 2019 provided an adequate opportunity for Mr Pawelzik to put the arguments that he had in objection to the original decision and annexed reasons.
5. The challenges Mr Pawelzik raised to the original decision and annexed reasons are addressed individually below, grouped using the four categories described in paragraph 21 above.

No 'dispute' under the Residential Tenancies Act

1. In the third paragraph of ground 1 of Mr Pawelzik's written grounds dated 23 August 2018, he says:

There is no tenancy dispute under the Act. The charging is not contractual since 2010. The Tribunal does not have the jurisdiction to make the decision and orders that were made on 25 July 2018. The decision does not reflect this.

1. Section 24 of the RT Act confers jurisdiction on the Tribunal to hear and determine a tenancy dispute:

24 - Jurisdiction of Tribunal

(1) The Tribunal has -

(a) exclusive jurisdiction to hear and determine a tenancy dispute;

(b) subject to the regulations - jurisdiction to hear and determine claims or disputes arising from tenancies granted for residential purposes by the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust, or arising under agreements collateral to such tenancies (including such agreements that may involve a third party).

(a) a claim under a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or

(b) a dispute between parties or former parties to a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement, about matters arising under the agreement or this Act; or

(c) any matter that may be the subject of an application under this Act to the Tribunal;

1. Mr Pawelzik put this argument at first instance. It was addressed at paragraphs [54] to [55] of the annexed reasons as follows:

The Trust has made an application to the tribunal seeking an order for vacant possession of the tenant's property on the basis of his breach of the Conditions of Tenancy. The Conditions of Tenancy are the residential tenancy agreement between the Trust and the tenant. The purpose of the regulations was not to establish the ability of the Trust to charge the tenant for water use (which already arises under the Conditions of Tenancy), but the manner in which that would occur.

Accordingly this application falls within the definition of "tenancy dispute" as defined by Section 3 of the Act and the Tribunal has jurisdiction to deal with the application under Section 24 of the Act.

1. The SAHT submitted that Acting Deputy President Johns' findings at paragraphs [54]-[55] as to jurisdiction should be upheld. The bills that were not paid related to an obligation under the residential tenancies agreement and their non-payment gave rise to a 'tenancy dispute' within the meaning of s 3. Further, the fact that from 2010 onward the SAHT's power to charge for water was derived from reg 9 of the South Australian Housing Trust Regulations 2010 (the SAHT Regulations) rather than from the contract, does not remove it from the jurisdiction of the Tribunal as contended by Mr Pawelzik. Regulation 9 defines the responsibility of the landlord and tenant with reference to their roles in a tenancy agreement. This reflects the Full Court's reasoning at paragraphs [119]-[120] of its decision.
2. I consider that Acting Deputy President Johns dealt with this issue correctly in the decision. There was no lack of jurisdiction to hear the SAHT's vacant possession application.

No jurisdiction - charging for water is an excluded item

1. Mr Pawelzik also argued that the Tribunal had no jurisdiction to hear the SAHT's application for vacant possession because the relevant section of the RT Act is one that does not apply to SAHT tenancies. Mr Pawelzik argued that as s 73 of the RT Act, which deals with the imposition of rates, charges and taxes, is not a provision applicable to Housing Trust tenancies. From this, Mr Pawelzik concluded that the Tribunal has no jurisdiction to hear a dispute between the SAHT and one of its tenants concerning statutory charges for water use.
2. Section 5 of the RT Act limits the application of the Act to SAHT tenancies as follows:

(2) The following provisions of this Act (and only those provisions) apply to residential tenancy agreements under which the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust is the landlord, to residential tenancies arising under those agreements and to related disputes -

(a) Part 3 (South Australian Civil and Administrative Tribunal);

(ab) Section 65 (Quiet enjoyment);

(b) Section 66 (Security of premises);

(c) Section 71 (Tenant's conduct);

(ca) Section 87 (Termination on application by landlord);

(cb) Section 89A (Termination based on domestic abuse);

(d) Section 90 (Tribunal may terminate tenancy where tenant's conduct unacceptable);

(e) Section 93 (Order for possession);

(f) Section 99 (Enforcement orders for possession);

(g) Division 3 of Part 8 (Powers of the tribunal);

(h) Division 4 of Part 8 (Representation).

1. It is immediately apparent that s 73 is not listed above. Section 73 provides:

73 - Statutory charges

(1) It is a term of a residential tenancy agreement that the landlord must bear all statutory charges imposed in respect of the premises.

(2) However, the following provisions apply subject to subsections (3) and (4):

(a) if the supply of water to the premises is separately metered - rates and charges for water supply are to be borne by the tenant; and

(b) in any other case - rates and charges for water supply are to be borne by the landlord.

(3) A tenant is not required to pay rates and charges for water supply if -

(a) the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those rates and charges by the water supply authority; or

(b) the tenant has requested from the landlord a copy of the account for the rates and charges and the landlord has failed to provide the copy to the tenant within 30 days of the request and at no cost.

(4) A landlord must ensure that an amount borne by a tenant under an agreement under subsection (2)(a) or under subsection (2)(b)(i) is reduced by -

(a) in the case of a tenant on land held as a single title consisting of a single place of residence - the water security rebate amount; or

(b) in the case of a tenant on land held as a single title consisting of more than 1 place of residence - the proportionate water security rebate amount,

(and if the reduction under this subsection results in a negative amount, 0 is to be substituted for that amount).

(5) If, during the billing period in which a landlord obtained the benefit of the water security rebate amount, the premises to which the rebate relates were subject to more than 1 residential tenancy agreement, the landlord must ensure that a reduction under subsection (4) is applied to the amount borne by a tenant under each tenancy agreement on a pro rata basis according to the number of days in the billing period in which each tenancy agreement respectively applied at the premises.

(6) In this section -

proportionate water security rebate amount, in relation to a tenant on land held as a single title consisting of more than 1 place of residence, is the amount that results from dividing the water security rebate amount for that title by the number of places of residence at the land to which the title relates;

water security rebate amount, in relation to rates and charges for water supply to residential premises, means the amount specified in an account for those rates and charges (whether before or after the commencement of this definition) as representing the rebate for water security purposes.

1. Section 73 is not listed in the provisions that apply to SAHT tenancies because the SAHT imposes obligations with respect to rates, charges and the like through its Conditions of Tenancy. The absence of s 73 from the list in s 5 does not deprive the SAHT of the right to impose water charges or exclude a dispute about such charges from the Tribunal's jurisdiction. The jurisdiction is invoked because there is a dispute as to whether Mr Pawelzik has complied with the Conditions of Tenancy.
2. The jurisdictional grounds of review fail.

Grounds asserting that the Tribunal should not have entertained the application

1. For a variety of reasons, Mr Pawelzik considers that the Acting Deputy President ought to have summarily dismissed the SAHT's application. This section of my decision considers that group of arguments.

The land was not properly identified in the notice to remedy breach as required by the Real Property Act

1. It was common ground that the SAHT served Mr Pawelzik with a Notice to Remedy Breach of Agreement dated 18 November 2016. Mr Pawelzik argued on review that the notice was defective because it failed to identify the land that was the subject of the application. Instead, the application merely identified the demised property. Identification of the land was necessary, he submitted, under the source of the SAHT's entitlement, which is its ownership of the land under the Real Property Act 1886 (the RP Act). Acting Deputy President Johns ought not to have found that the notice was valid in this regard because to do so required an inference from the contract between him and the SAHT.
2. This was not an issue directly raised in the written grounds of review.
3. As I understand this argument, Mr Pawelzik submits that s 93 of the RT Act, which is the provision authorising the Tribunal to order possession of premises, is a form of ejectment and must comply with Part 17 of the RP Act. Amongst other things, a notice of ejectment must, in accordance with s 193 of the RP Act, identify the land to which it relates.
4. The Notice to Remedy Breach of Agreement and Notice of Termination[2] issued by the SAHT stated:

Notice by the South Australian Housing Trust to Tenant to remedy breach of the Conditions of Tenancy.

To: Rudi Pawelzik

Address of premises: 3/3 Old Treasury Lane, Adelaide SA 5000

I hereby give notice that you are in breach of the tenancy agreement that relates to the premises referred to above.

1. There are three further references in the notice to 'the premises'. There is no reference to the real property.
2. Part 17 of the RP Act is entitled "Ejectment" and opens with the following sections:

192 - Summons to give up possession

Any of the following persons (in the following sections called the claimant) may cause any person in possession of land under the provisions of this Act to be summoned to appear before the Court to show cause why the person summoned should not give up possession to the claimant -

(a) the registered proprietor of a freehold estate in possession;

(b) any registered mortgagee or encumbrancee where the person in possession is a mortgagor or encumbrancer in default, or a person claiming under such mortgagor or encumbrancer;

(c) any lessor with power to re-enter where the rent is in arrear for three months, whether there be or be not sufficient distress found on the premises to countervail such rent, and whether or not any previous demand shall have been made for the rent;

(d) any lessor where a legal notice to quit has been given, or the lease become forfeited, or the term of the lease has expired.

193 - Summons to contain description of land

The summons shall contain a description of the land, and shall require the person summoned to appear before the Court on a day not earlier than sixteen days after the service of the summons. The summons shall be served in the same manner as a writ of summons in an action for the recovery of possession of land in the Supreme Court.

1. The difficulty with Mr Pawelzik's argument is that the SAHT was not purporting to eject him from possession of land under the RP Act. He was not in possession of land. He was entitled to occupy specified premises, being Unit 3, 3 Old Treasury Lane, Adelaide, subject to Conditions of Tenancy. The manner and basis on which the entitlement to occupy could be terminated and his possession of the premises (as opposed to any land on which the premises are situated) is governed by the Conditions of Tenancy and the RT Act, and not Part 17 of the RP Act. This argument regarding a defect in the notice does not succeed.

Housing SA is a 'water industry entity' that should pursue its claims in another forum

1. Mr Pawelzik argued that Housing SA is a 'water industry entity' and is using the mechanism of SAHT's contract with him to pursue a claim that is separate from his tenancy agreement.
2. A water industry entity under the Water Industry Act 2012 is a body licensed under that Act. There was no evidence before me about that issue. In any event, it is difficult to discern a connection between the Department's status under the Water Industry Act and the SAHT's entitlement, under contract, to charge a tenant for water supplied to the premises the subject of the contract and to use the jurisdiction of the Tribunal to seek orders that the Tribunal is authorised to issue under the RT Act.

The Tribunal should have rejected the SAHT's claim as out of time

1. Mr Pawelzik asserted that the SAHT's application ought to have been rejected by Acting Deputy President Johns because there was evidence before her that the SAHT had failed on numerous occasions to issue an accurate invoice to him, and that it was now too late for the Trust to claim the charges as a debt. He referred to the analogous situation under s 73 of the RT Act in which a private landlord fails to serve notice upon a tenant of a water charge imposed by SA Water. Section 73(3) currently provides:

(3) A tenant is not required to pay rates and charges for water supply if -

(a) the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those rates and charges by the water supply authority; or

(b) the tenant has requested from the landlord a copy of the account for the rates and charges and the landlord has failed to provide the copy to the tenant within 30 days of the request and at no cost.

1. This issue does not appear to have been argued at first instance, and was not contained in the grounds of review. In any event, the analogy is not apt. In this case, the Trust did not charge Mr Pawelzik for water until 2008. In April 2008, it notified him that it intended to commence charging. It has issued Mr Pawelzik with various invoices since that time. Mr Pawelzik has always resisted the charges. There has been continuous litigation about the liability to pay the invoices and the way in which they have been calculated. Much of that litigation has been protracted. I do not accept that the SAHT's right to charge has been defeated by that litigation. It was open to the SAHT to bring the application and for the Tribunal to determine it, notwithstanding that it relates to charges that have accumulated over a decade.

Plans containing false information were adduced as evidence by the SAHT

1. Mr Pawelzik contended that the whole of the decision dated 25 July 2018 should be set aside because the SAHT had tendered plans in an earlier hearing in different proceedings that falsely identified a certain meter or meters as connected when such meter or meters were not connected.
2. This ground of review was not identified by Mr Pawelzik in his written grounds, or at the directions hearing. It relates to evidence tendered at hearings prior to the hearing that gave rise to the decision now challenged. It requires factual findings to be made which do not relate to the factual findings in the decision that is the subject of the review.
3. This ground of review fails because it does not challenge any finding of fact or application of the law to a fact arising from the decision.

1. Mr Pawelzik argued that the Trust had not complied with the order of Acting Deputy President Johns that the Trust re-issue the invoices within the time it said it would do so. The SAHT did not apply for a stay of the order and therefore, Mr Pawelzik submitted, the SAHT was in breach of the Tribunal's directions. Mr Pawelzik did not elaborate upon how the SAHT's non-compliance with the order, being conduct subsequent to an order, provides a basis to set aside the order. I find that this ground of review is not competent.

1. Mr Pawelzik submitted that the SAHT's non-compliance with the orders of courts and this Tribunal has been a pattern of conduct since the SAHT's first application regarding non-payment of water charges determined by Member Carey in the former Residential Tenancies Tribunal.[3] Mr Pawelzik maintained that the SAHT has failed to present information to its tenants and to the various bodies hearing the disputes in a manner that is readily comprehensible. Rather, the SAHT has provided an impenetrable morass of information from which it is not reasonable to expect tenants or third parties (such as the Tribunal) to distil the tenants' obligations. That unreasonableness is to be measured taking into account the vulnerability of the tenant group with which the SAHT is contracting.
2. I understand Mr Pawelzik to be saying that the Tribunal at first instance ought not to have entertained the Trust's application because of its past conduct or because it did not present a sufficiently clear factual basis of the charges to the Tribunal of the basis for its entitlement to charge, or both.
3. The extent to which the SAHT was obliged to prove the factual basis for the charges is best addressed in conjunction with the SAHT's argument, made in its counter-claim, as to the nature of the Tribunal's task in a vacant possession application. That is discussed further in paragraph [102] below.
4. There is no basis in law or fact for the Tribunal to set aside the decision at first instance because of the SAHT's conduct in or in response to this or previous proceedings between the SAHT and Mr Pawelzik.

Grounds which assert that the hearing miscarried

1. Mr Pawelzik submitted that the hearing leading to the original decision had miscarried because Acting Deputy President Johns had permitted one of the SAHT's witnesses, Mr McNulty, to remain in the hearing room throughout the hearing. This issue was not raised at the time of the hearing, but perhaps Mr Pawelzik was unaware that Mr McNulty was proposed to be called. Mr Pawelzik did not elaborate on review as to how Mr McNulty's presence was procedurally unfair or what effect that might have had on the Tribunal's decision such that I should now decide that the decision was not correct or preferable.
2. The SAHT defended the procedure that had been undertaken at first instance. Counsel for the Trust, Mr Boisseau, referred me to Hermann Horbelt v Andrew Elliott and Margaret Turner[4] per Olsson J which cited with approval the English case of Tomlinson v Tomlinson (1980) 1 All ER 593:

It seems to me that the right course is this: witnesses should not be under any obligation to leave the court, except where an order is made excluding them; that the proper course for justices to pursue, if an application is made to them, would be to exclude the witnesses, unless they were satisfied that that would not be an appropriate step to take; but that, if they think it is a case in which perhaps the witnesses should be excluded, then where a party is not represented they should suggest that perhaps he might like to make an application to that effect. This of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the court.[5]

1. The procedure of the Tribunal may be determined by the Tribunal and must be conducted with a minimum of formality. It does not strictly follow Court rules or procedure, but steps that assist in securing a fair hearing are often taken. This may include the exclusion of witnesses at the beginning of a hearing to maximise the reliability of evidence by reducing the likelihood of contamination of witnesses' evidence. In this case, I accept that Mr McNulty was the SAHT's instructor in the proceedings and that was the basis for him remaining in the hearing room. More importantly, the nature of application being made by the SAHT, and the evidence led to support the application, did not attract any particular need for the quarantining of witnesses. It was not a contest of eye-witnesses, but an application based on an assertion of non-payment of bills. Mr Pawelzik submitted that the unity of position between Mr McNulty and the SAHT's deponent Mr Wierenga suggested that the hearing had miscarried, I do not accept that submission. I am not satisfied that Mr McNulty's presence in the hearing led him to 'adopt' Mr Wierenga's evidence about the role of valuation parcels in water charging.
2. More importantly, nothing in that evidence appears to have materially affected Acting Deputy President Johns' decision and accordingly, I find no reason to set aside her decision based on this complaint.

Grounds asserting that the Tribunal's decision was wrong

1. Mr Pawelzik contended that water charges could not be imposed because the amounts charged had not been 'reconciled'. This argument was set out in paragraph 20 of Mr Pawelzik's written submission. He says:

The Trust has refused to reconcile the amounts in their notation text:

BAL. FOR ADJUSTMENT-TRANS OF 01/10/2013-$43.24. REF 020723455

12/11/13 16:55:57 CHRDEI

REVISED WATER CHARGE FOR 2ND HALF OF 2012/13 IS $173.06 PER PROPERTY A

T 50% DEDUCTION OF TOTAL EWS CHARGES TO HOUSING SA - AS PER POLICY. WA

TER CREDIT REQUEST FORM SENT BY HO JANSIM. *REM ADJ NOT REQUIRED

(note: this was obtained through a freedom of information application. It was not included or explained in any invoices).

Despite the Trust and the Crown Solicitor's Office having significant resources, it is self-evident they have made no effort to reconcile the dollar amounts in the notation text. All they have done is answer with unsubstantiated verbiage and vague remarks about some undefined 'relevant policy' (paragraphs 3-5 SAHT submission 25 May 2018):

1. For properties with shared water meters, where a dispute or issue arises concerning water use, for example, a leak or a burst water pipe, Housing SA may pay an amount of the tenants' water use invoice, based on previous water use. Such an issue may be identified by a tenant, or a contractor or provider working at a particular property. In practice, where there are no previous readings or if there is some other reason not to use previous readings, a credit or deduction of 20% of the water use charge may be applied.
2. This would be in addition to the 30% discount already applied to properties with shared water meters.

5. This is consistent with the relevant policy.

1. The invoice is not a recalculation; it adds costs previously claimed. (paragraph 11 SAHT submission 25 May 2018):

11. Upon recalculation, as can be seen from the invoiced marked '3' attached to the Additional Submissions to SACAT, the group total of 6534KLs (which is the sum of 2,376 plus 4,158), less 30% allowance, gives a group total of 4573KLs. This was divided by 48 to give an individual charge of 95 KLs (rounded down) for the period 11/9/09-13/9/10.

This is despite the members' directions that costs demanded after a lengthy time were not fair and equitable (handout during hearing 10 April 2017). The Trust did not charge for three SA Water quarterly invoices with no explanation given or referenced. This invalidates policy claims (Trust submissions).

The invoices issued cannot be reconciled with my statement of account.

1. Mr Pawelzik elaborated on this submission in the hearing. He said that Member Carey in an earlier proceeding, had said Mr Pawelzik was entitled to reconciled accounts. He said that Judge Anderson, in a different earlier proceeding, had ordered the Trust to "bring in what you rely on to produce the invoices". He argued that he is entitled to accounts from SA Water but has not been given them. He is led to suspect that the SA Water accounts rendered to SAHT cannot be reconciled with the invoices he has received.
2. I understand this as an argument that the Tribunal should not have made a finding that Mr Pawelzik owed a debt to the Trust because the Trust had failed to adequately, and as ordered in earlier proceedings, explain how the debt was calculated by reference to the SA Water accounts received by SAHT.
3. There are two aspects of this argument. One is whether the SAHT had established to the Tribunal's satisfaction that the debt was owed in the amount claimed, and the other was whether the SAHT had discharged any obligation it had to establish to Mr Pawelzik how it had calculated the debt. These issues were addressed concurrently in the hearing by the Tribunal requiring the SAHT to adduce evidence about the basis of the calculations.
4. This issue was the subject of evidence adduced by the Trust and in particular affidavit evidence of Ms Shripper from SA Water to the effect that invoices are not issued by SA Water to SAHT in the same manner that they are issued for private property owners. Rather, the charges are conveyed by way of a regular 'screen dump' of information establishing SA Water's charges with respect to particular properties. Acting Deputy President Johns' reasons set out in some detail how the charges are calculated, particularly in paragraphs [64] to [81] of the annexed reasons.
5. What is clear from the decision is that Acting Deputy President Johns satisfied herself of each of the steps taken by the SAHT in reaching the amounts claimed. There are two aspects in respect of which she finds the SAHT to have been in error. The first is that the SAHT applied a particular financial year's charge to periods exceeding that year. She directs that the invoices be corrected accordingly. The second is that she finds the apportionment policy not to be fair and equitable and directs the SAHT to charge in accordance with different criteria.
6. Mr Pawelzik's submissions did not demonstrate any error in the findings or the use to which they were put.
7. There was also evidence given at the hearing about the extent of disclosure that could be made to the tenants. At paragraph [86] to [90] inclusive, Acting Deputy President Johns said:

The Trust was asked to consider whether further information could be provided to tenants on the Trust invoices for water use.

The Trust's response is contained in the statutory declaration of Todd Wierenga dated 18 July 2017 and in summary is that due to the unique billing mechanism between SA Water and the Trust, the Trust considered that the invoices it has provided to the tenants and which is listed below, is adequate. That information is:-

• amount payable
• property address
• assessment number
• reading dates
• meter reading (kl)
• amount of water used (kl)
• amount charged at each tier
• meter reading and amount used in previous billing period.

In addition, where there is a shared meter the Trust invoice also includes -

• amount of the 30% landlord allowance (kl)
• tenant's share of the group total (kl).

The issue of the amount charged to the tenant at the lower rate

The Trust was also asked to consider whether the Land could be effectively subdivided so that for example the Treasury Lane apartments would be on a different assessment number from the Frome Street Apartments which would result in the tenants receiving a higher proportion of water use calculated at the lower rate however, the Trust's response was that it was not practical to do this.

The Trust's response to this question is contained in the sworn statement of Paul McNulty dated 23 April 2018 in which Mr McNulty states that the Trust is unable to seek further separate valuation parcels for the property described as 1 - 48, 3 - 13 Old Treasury Lane, valuation parcel number 0207234568 without significant onsite excavation and construction work at that property which would be unduly onerous due to the cost.

Transparency

I am satisfied that generally the information provided by the Trust's invoices to tenants in relation to water use is adequate. However, in this particular case due to the fact that the tenant is being invoiced for water use measured by 2 shared meters, I consider that the Trust invoice should identify the particular water meter to which the meter reading relates.

1. It was not suggested before Acting Deputy President Johns or before me that a SAHT tenant has a legal right to a 'reconciliation', except insofar as Mr Pawelzik referred to other decision-makers having directed it to occur. Acting Deputy President Johns did not consider it in that context but rather that the information as to how the calculations inform an assessment of whether the charges have been lawfully imposed.
2. A related argument advanced by Mr Pawelzik at first instance was that the Trust was not entitled to charge a tenant until it had established to the tenant that it had paid SA Water. Acting Deputy President Johns found at para [63] that it was not necessary for SAHT to prove to a tenant that it had paid for water use at the land. To the extent that this was intended to be incorporated into the challenge on review, I consider that the finding should not be disturbed.
3. Mr Pawelzik has not established a legal entitlement to a reconciliation or any further information regarding past invoices, based on the statements of decision-makers in previous hearings or otherwise. Nor has he shown that Acting Deputy President Johns' decision was not correct or preferable in relation to her conclusions regarding how the SAHT made its calculations or Mr Pawelzik's entitlement to information.

The Tribunal should have dismissed the SAHT's application upon a finding of invalid notices

1. Mr Pawelzik submitted that Acting Deputy President Johns ought to have dismissed the SAHT's application, given that she found that the invoices were incorrect. Instead, she adjourned the application and issued directions, giving an opportunity to the SAHT to cure the defect. As with some of the other grounds, this argument was put for the first time at the oral hearing and was not in the written grounds of review.
2. The justification given by the Tribunal for the course of action that was adopted is set out at paragraphs [111] - [112] of the annexed reasons. Acting Deputy President Johns said:

I find that the notice of breach is invalid as the Invoice 3 (issued 10/10/16 and for the period 11/9/09 to 13/9/10) claimed for water use at the rates published by SA Water for the 2009/2010 financial year[6] instead of either charging only for water used in that financial year at that rate and then for the water used for during the 2008/2009 financial year at the published rate for that financial year[7] or only charging at the rate published for the 2008/2009 financial year.

I will not dismiss the application because of that technical breach. I have decided that the most appropriate course is to adjourn the application and to require the Trust to issue fresh invoices which meet the requirements outlined above. I will also issue directions to the Trust to ensure proper disclosure of their Water Usage Policy.

1. Mr Pawelzik is correct that one course of action that might have been taken by Acting Deputy President Johns was to dismiss the application. She chose not to adopt that course and explained her reasons for that. I consider that this was the preferable course of action.
2. It was clearly Acting Deputy President Johns' intention that the Tribunal assist the parties to resolve this long-running dispute and in particular, resolve the merits of the dispute. I do not interfere with the decision on the basis of the decision to adjourn rather than dismiss.

1. Mr Pawelzik asserted a breach of fiduciary duty by the SAHT in his grounds of review. In his written submission dated 19 February 2019 this argument is advanced in the following manner:

The Trust's fiduciary duty has been misrepresented by both the Trust and Acting Deputy President B Johns. In fact, both Hospitals and Breen have been construed in a very malicious manner, the intent of which is to cause me harm. There is no question that there is a fiduciary duty. The breach is against this duty.[8]

1. At the hearing on 5 March 2019 Mr Pawelzik did not elaborate on this point. However, Mr Pawelzik's argument as put at first instance was described by Acting Deputy President Johns as follows:

The tenant argued that the Trust is not entitled to charge him for water supplied to his unit through a shared meter because:-

• ...
• The Trust owes him a fiduciary duty because of the letter written by J R Connolly, General Manager of the South Australian Housing Trust dated 28 July 1995 which attempted to explain the consequences of the passing of the Housing Trust (Water Rates) Amendment Act which came into operation on 1 July 1991 and stated -

At this stage, your dwelling does not have a separate water meter. Until it does, you will not be charged for the water you use. The Trust will continue to pay for it, and for the water used to maintain any common areas around your dwelling...

The tenant argued that because of that fiduciary duty the Trust is precluded from charging him for water use.

1. As to the application of fiduciary duty to the relationship between the SAHT and Mr Pawelzik in the performance of its functions under the contract or under statute, Acting Deputy President Johns said (at [60]):

I do not consider that the tenant is entitled to rely on Mr Connolly's letter as a reason for not paying for water use. A fiduciary duty will only apply in special circumstances. I do not consider that the promise in the letter is binding or that Mr Connolly owed a fiduciary duty to every tenant to whom such a letter was written. In any event, if the tenant wanted to rely on this argument he should have done so in the Supreme Court proceedings.

1. The SAHT submitted that the relationship between landlord and tenant is not an established class of fiduciary duty. Further, it argued that the letter referred to is not apt to create such a duty, and was simply a letter explaining the consequences of legislative amendments that occurred in 1991 which did not constitute a promise that changes would not occur. Finally, the SAHT submitted that even if there were a fiduciary duty it would be subsidiary to the terms of the parties' contract, and in this case would only serve to confirm the SAHT's obligation under the law i.e. to consider what was fair and equitable in the apportionment of the charge across all of the tenancies served by the shared meter.
2. Mr Pawelzik is within a class of tenant (public housing tenant), and the SAHT is within a class of landlord (public housing provider), that attract specific rights and obligations to one another created by statute, and in particular by the South Australian Housing Trust Act 1995 (the SAHT Act) and the RT Act. However, I am not satisfied that it has been established that the SAHT was in the position of fiduciary with respect to Mr Pawelzik, either in a general sense or somehow by virtue of the content of the letter dated 28 July 1995 sent by the SAHT to Mr Pawelzik. In any event the letter appears to have been superseded by reg 9 of the SAHT Regulations which provides:

9 - Responsibility for payment of water rates

Where SAHT is the landlord of premises subject to a tenancy agreement, SAHT and the tenant under the tenancy agreement are responsible for water rates payable under Part 5 of the Waterworks Act 1932 in respect of the premises as follows:

(a) SAHT is responsible for payment of the supply charge for the right to a supply of water to the premises;

(b) the tenant is responsible -

(i) if a separate meter is fitted to the premises to measure the quantity of water supplied to the premises - for all water rates (other than the supply charge) payable in respect of the premises;

(ii) if no such separate meter is fitted to the premises - for the proportion (as determined by SAHT in respect of each financial year) of all water rates (other than the supply charge) payable in respect of the premises.

1. I do not consider that Acting Deputy President Johns was wrong to refuse to dismiss the SAHT's application on the basis that the letter created a fiduciary duty on the part of SAHT to him and that the duty obliged the SAHT not to impose the water charge upon him.

The SAHT was not acting in good faith and being fair and equitable

1. Mr Pawelzik submitted that I should find that the invoices issued by the Trust to him were wrong and that this demonstrates that the Trust not being fair and equitable and not acting in good faith. Again, this ground of review is related to one raised by the Trust and it is convenient to deal with both arguments together. However, I consider that in any event Mr Pawelzik's reliance on the "good faith" ground is a reference to the use of that term by the Full Court in South Australian Housing Trust v Pawelzik; South Australian Housing Trust v Popczynski.[9] In that decision regarding Mr Pawelzik and his neighbour Mr Popczynski, the Chief Justice said:[10]

I agree with Blue J that the proportion of the amount charged by SA Water other than the supply charge is to be determined by SA Water in good faith pursuant to the contractual power conferred by Clause6(f) of each Respondents' Conditions of Tenancy.

[...]

[T]he supplementation of Clause 6(f) means that in the earlier period the power is contractual and, therefore, limited by contractual obligations of good faith of the kind mentioned by Blue J. However, with the enactment of Regulation 9, the determination became administrative in nature. In the later period contractual considerations are replaced by those considerations which attend the exercise of an administrative power.

The Trust is empowered by clause 6(f) to make an assessment of the water supplied in respect of the premises. This requires the Trust to act in good faith to make what it considers is a fair and equitable assessment of the portion of the water supplied via a common meter to the tenant's unit and to other tenants' units sharing that meter.

... For the same reasons as apply to the construction of clause 6(f) of the Conditions of Tenancy, the words should be construed to apply to all water supplied by a meter shared by the tenant's premises with other premises. The Trust is then required to determine the proportion of the total cost of the water supplied to be charged to the tenants whose premises share the meter in question.

In determining the proportion of the total cost to be charged to tenants sharing a meter for September 2010 onwards, the Trust makes an administrative determination. In so doing, it is bound to act in accordance with the principles governing the exercise of the statutory power conferred by regulation 9. In practice, this is likely to be similar to its contractual obligation when making a determination for the period before September 2010 to act in good faith to make what it considers is a fair and equitable assessment of the proportion of the cost of the water to be charged to the tenants whose premises share a common meter.

...On appeal, the respondents contend that the Trust's apportionment of shared water equally between the tenants sharing the water is not fair and equitable because some tenancies have one occupant and others have two or more occupants and the apportionment should differentiate by reference to the number of occupants.

The issues before the Residential Tenancies Tribunal and the District Court were the issues raised above. They did not extend to the method of apportionment as between tenants. It is not appropriate to entertain that issue at this stage of the appeal process. However, in terms of the future supply of water, the Trust should consider the respondents' contention and consider whether it ought to differentiate between tenancies in some way by reference to number of occupants.

1. It will be necessary to return in more detail to consider the SAHT's obligations under the contract to act in good faith as identified by the Full Court in South Australian Housing Trust v Pawelzik; South Australian Housing Trust v Popczynski .[12] However, at this point it is sufficient to observe that the Full Court's statement of the role of the good faith obligation was not made in the context of the provision of accurate invoices or the provision of information to the tenants to allow the tenants to understand how the Trust's charges had been calculated. The Full Court's statements were confined to a characterisation of the activity that the SAHT must undertake to apportion the total amount between tenants using a shared meter. The Court stated that the apportionment is constrained by the obligation to act in good faith when performing the task under a contractual obligation and by the principles governing the exercise of statutory power of when acting administratively. The Court observed that the constraints on the SAHT in performing each exercise were likely to be similar. [13]

The decision was wrong because for each meter, there must be a supply charge

1. Mr Pawelzik submitted that the Full Court's decision in South Australian Housing Trust v Pawelzik; South Australian Housing Trust v Popczynski had the effect of requiring the SAHT to establish that it was subject to a consumption charge. This is because the supply charge purportedly passed on to Mr Pawelzik could not be imposed without a consumption charge. Mr Pawelzik asserted that SACAT was bound to uphold the Supreme Court decision and had therefore made an error. However, the proposition referred to is not a proposition that can be derived from the decision. The Full Court did not make a finding regarding the relationship between a supply charge and a consumption charge. Accordingly, this ground of challenge to the Tribunal's decision cannot succeed.

1. Mr Pawelzik argued that the finding that "the land" comprised 48 units on 3 Old Treasury Lane constituted a failure to uphold the distinction of the Supreme Court between "land" and "demised property".
2. In the Supreme Court decision, the Court was required to consider what the parties intended in their tenancy agreement by the word "property". The word is used in the conditions of tenancy on several occasions, and of particular significance was its use in clause 6(f) under which the tenant agreed to pay the SAHT the amount from time to time assessed for additional water in respect of "the property" or such proportion thereof as the SAHT determined. The Court found that 'the property" in that context referred to the demised premises.[14] Perhaps significantly, the Supreme Court used the term "the Land" to refer to land bounded by Angus Street, Frome Street, Old Treasury Lane and Cypress Street.[15] Acting Deputy President Johns used the term "the Land" as a short-hand term for "the land on which the Treasury Lane Apartments and the Frome Street Apartments is situated".[16] Nothing turns on this. Acting Deputy President Johns was not obliged to use the same words as those used in the Supreme Court decision, and there was nothing material arising from the different terms.

1. I am not satisfied that Mr Pawelzik has demonstrated that the original decision (including the annexed reasons) was not correct or preferable on the arguments he has put forward.

1. The SACAT Rules authorise a counter-application on internal review.[17] The SAHT submitted a counter-application that the decision was not correct or preferable, on a narrower and different set of grounds than those alleged by Mr Pawelzik. The original decision directed the SAHT to reissue an invoice to Mr Pawelzik in accordance with four directives as set out in order 2:

1. identify each individual water meter to which the invoice relates and the meter reading for that particular water meter; 2. not claim any amount of water use based on an estimated reading for a particular water meter where the actual meter reading is 0;

1. not exceed a claim for use which is higher than 50kls for any period of 6 months;

1. where the invoice covers two different financial years then the invoice must clearly state the rates on which the charges are based and - * only charge at the lower of the rates applicable for both financial years; or * charge at the appropriate rate for water use for each financial year.
2. The SAHT did not challenge the Tribunal's direction requiring it to re-issue the invoices as set out in orders 2(a), (b) and (d) of the original decision, but has challenged the decision insofar as it imposes the obligation in 2(c).
3. The SAHT argued three grounds of review in support of its counter-application. The first related to the period of charging from September 2010 onwards, when charging for water began to be governed by reg 9 of the SAHT Regulations. The SAHT maintained that the Acting Deputy President's order 2(c) amounts to a review of an exercise of administrative decision-making power by the SAHT, in circumstances where no such review is authorised.
4. The second ground of review maintained that in relation to the charges covering the period July 2008 to August 2010 the Tribunal undertook a task beyond the limits of the review it was authorised to undertake. The authorised review was to consider whether, in relation to the period, the SAHT had properly exercised its contractual power. Instead, the Tribunal purported to substitute its determination of what was a "fair and equitable" allocation of water use between Mr Pawelzik and other tenants.
5. The third ground of review was that the Tribunal failed to reach the correct and preferable decision because its substituted view resulted in an outcome that is not a fair and equitable allocation of water use between Mr Pawelzik and other tenants.
6. The SAHT argued these grounds in Popczynski v SAHT which was heard (in terms of the SAHT's submissions) on 18 April 2018. Mr Pawelzik was in the body of the hearing room to hear those submissions. When it came to the hearing for Mr Pawelzik's internal review, the SAHT was content to rely on its written submissions and the oral submissions that had been made in the Popczynski matter and I permitted this to occur.
7. Of the SAHT's counterclaim, Mr Pawelzik opposed the arguments. His written submission said:

I dispute the Trust's cross appeal in its entirety. The Crown Solicitor appears to be arguing that the Trust can behave with criminal negligence in any given circumstance, but that this should be ignored so long as it is policy, although it's not clear which policy is being referred to, is done in good faith. The trust has already argued in another case, which relied on Acting Deputy President B Johns decision, that it would be unfair to other tenants if only Mrs J Proctor had a 50kl, cap. They claimed the cap does not apply to all tenants, it therefore does not restrict or alter policy. .... The Trusts' vexatious cross appeal obfuscates the fact that it did not comply with the Tribunals order to resubmit invoices. The Trust is in the habit of not complying with orders and giving false and misleading answers.

1. The SAHT's first two grounds relate to the scope of the Tribunal's power to review the SAHT's decisions.
2. The SAHT asserted that the Full Court decision established that the SAHT had the power to charge tenants who receive water through a shared water meter, a proportion of the water charges imposed by SA Water. That proportion is a matter for the SAHT to determine, constrained by contractual principles (in respect of the period July 2008 to August 2010 and administrative principles (in respect of charges imposed since September 2010). Mr Boisseau for the SAHT submitted that the starting point is the declarations made by the Full Court foreshadowed in the judgement of Blue J at paragraphs [124] and [125]:

A declaration should be made pursuant to section 35 of the Residential Tenancies Act 1995 (SA) that in respect of the period from July 2008 to August 2010 the Trust was entitled to ascertain in good faith and to charge each respondent a fair and equitable proportion of the consumption charge for water supplied to each respondent and other tenants via a shared meter or meters being the water measured by the Flostar and Woltex meters.

A declaration should be made pursuant to s 35 of the Residential Tenancies Act 1995 (SA) that in respect of the period from September 2010 onwards the Trust is entitled to ascertain in accordance with the principles governing the exercise of the statutory power conferred by regulation 9 and to charge each respondent a proportion of the consumption charge for water supplied to each respondent and other tenants via a shared water meter or meters being the water measured by the Flostar and Woltex meters.

1. Accordingly, the SAHT issued invoices in November 2016. Those invoices were not paid, and a notice of breach was issued under s 80 of the RT Act, which provides:

80 - Notice of termination by landlord on ground of breach of agreement

(1) If the tenant breaches a residential tenancy agreement, the landlord may give the tenant a written notice in the form required by regulation -

(a) specifying the breach; and

(b informing the tenant that if the breach is not remedied within a specified period (which must be a period of at least seven days) from the date the notice is given then -

(i) the tenancy is terminated by force of the notice; and

(ii) the tenant must give up possession of the premises on or before a day specified in the notice (which, subject to subsection (2)(c), must be at least seven days after the end of the period allowed for the tenant to remedy the breach).

(2) - (7) [not relevant]

1. The breach was not remedied by 3 January 2017 as required by the notice and so an application was made under s 93 of the RT Act to the Tribunal for vacant possession, which provides:

93 - Order for possession

(1) If a residential tenancy is terminated by notice of termination under this Act or, in the case of a tenancy under which the South Australian Housing Trust is landlord, under the residential tenancy agreement, the landlord may apply to the Tribunal for an order for possession of the premises.

**Note - **

The landlord may not make the application if the notice of termination is ineffectual under section 92A.

(2) If the Tribunal is satisfied that the tenancy has been terminated, the Tribunal may make an order for possession of the premises.

(3) The order for possession will take effect on a date specified by the Tribunal in the order, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended1.

(4) However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may -

(a) suspend the operation of the order for possession for up to 90 days; and

(b) extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant.

(4a) In extending the operation of the residential tenancy agreement, the Tribunal may make modifications to the agreement that it considers appropriate (but the modifications cannot reduce the tenant's financial obligations under the agreement).

(5) If the tenant fails to comply with an order for possession, the landlord is entitled to compensation for any loss caused by that failure.

(6) The Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under subsection (5).

1. The SAHT's notice operated, according to the SAHT, as a notice of breach and of termination upon a failure to remedy within the period specified in the notice. That termination enlivened the SAHT's entitlement to apply for vacant possession.
2. The SAHT submitted that the Tribunal erred in approaching its task of determining the SAHT's application. The SAHT contends that order 2(c) was beyond power. It submits that the role of the Tribunal envisaged by the RT Act in deciding whether to grant possession was limited to the ascertainment of the correctness of the facts upon which the alleged breach is based, and the exercise of any discretion as to whether vacant possession should follow. It should be made clear at this point that the exercise of that discretion is not relevant to this decision as Acting Deputy President Johns did not reach that point. Rather, the complaint made by the SAHT was that in determining the validity of the notice of breach, the Tribunal considered the policy applied by the SAHT in reaching Mr Pawelzik's portion of the water bill, found the policy to be deficient and substituted the Tribunal's own view of an appropriate policy.
3. The SAHT submitted that there are several matters into which the Tribunal might properly enquire into in relation to its application for vacant possession. Those enquiries include whether the debt relates to a water charge for water supplied to Mr Pawelzik's premises, and whether the alleged debt was calculated correctly (in an arithmetic sense), whether the claim for payment had been property communicated, and whether the statutory steps relating to remedying the breach had been taken, and whether the debt has in fact been repaid. Much of the litigation between the parties over the past six years has concerned the question of the proper calculation of the amount claimed, about which Mr Pawelzik remains dissatisfied.
4. The SAHT contended that the Tribunal went beyond those proper enquiries when it evaluated the manner in which the SAHT had apportioned the water charge between the premises, such apportionment having been performed in accordance with a policy that was not amenable to review by the Tribunal in the context of the disposition of an application for vacant possession under the RT Act.
5. I accept the SAHT's arguments in relation to the proper scope of the hearing of the application. The Tribunal has a power to review certain decisions of the SAHT by virtue of s 32C and s 32D(8) of the SAHT Act. Such reviews are conducted under s 34 of the SACAT Act in the Tribunal's review jurisdiction. By reference to the way that the SAHT's application was made to the Tribunal and the Tribunal's treatment of it, that was not the nature of the exercise being undertaken by the Tribunal in this case. The SAHT applied for an exercise of the Tribunal's original jurisdiction and the Tribunal's process and decision is consistent with that. This was not an application by Mr Pawelzik challenging a decision of the SAHT under the SAHT Act.
6. In any event, as the SAHT pointed out, the class of decisions that may be reviewed in that manner excludes "a complaint about a policy of the Government, the Department or SAHT (as compared to a complaint about whether or not such a policy has been complied with or implement in accordance with the terms of the policy)". Rather, the Tribunal was determining the SAHT's application to grant vacant possession on a notice of breach of conditions. It was engaged in a judicial or quasi-judicial task, not acting as a review body.[18]
7. Accordingly, if that aspect of the Tribunal decision regarding the SAHT's water policy was within power, it is because the Tribunal was entitled to make such an order as part of its decision on the vacant possession application.
8. A basis for such authority (suggested by the SAHT, against its own interests) might be derived from the doctrine of collateral review. That doctrine is usually invoked by a party seeking to establish its case by means that entail an indirect challenge to the validity of a government act that underpins the dispute.
9. The doctrine was summarised in Director of Housing v Sudi [19] by Weinburg J as follows:[20]

In this country, collateral review has generally been confined to cases where the government act that is impugned is alleged to be ultra vires or in excess of jurisdiction, and in consequence void. In more recent times, even these constraints have been regarded as inadequate. Courts have tended to restrict the ambit of collateral review even further. The reasons given are instructive. The first is that courts of supervisory jurisdiction have, in recent years, extended the grounds upon which public bodies can be held to have acted ultra vires. The distinction between jurisdictional and non-jurisdictional error, though maintained, has been greatly narrowed. As a result, the law relating to judicial review is now highly complex and, it has been suggested, is best administered by those courts with the experience, and expertise, to engage in this role.

The next reason sometimes proffered is that collateral review allows the limitations properly imposed on judicial review to be circumvented. If collateral review is too widely permitted, then rules about standing, time limits, and the discretion vested in reviewing courts in relation to the granting of remedies, may fall by the wayside.

A third reason is that collateral review can bring about undesirable consequences. For example, it can result in lengthy hearings on tangentially related matters, all within the course of a trial designed to deal with quite different issues. This concern relates mainly to criminal trials. Where collateral review occurs, it has the potential to cause the trial to go off the rails. The trial comes to a standstill while the court embarks upon a consideration of matters such as whether a particular warrant had been validly issued, or whether an appropriate authorisation had been properly obtained. On occasion, this involves the calling of witnesses and the production of a significant body of extrinsic evidence.

Finally, it has been suggested that collateral review is likely to lead to inconsistency in decision-making regarding the validity of government action. This objection may have particular force in relation to decisions taken by inferior courts and tribunals.

(footnotes omitted)

1. In that case the Court of Appeal considered whether VCAT, in determining an application for vacant possession under the Residential Tenancies Act (Victoria), had the power to inquire into whether the public housing landlord has contravened the Human Rights Charter (Victoria) in bringing that application. The relevant part of the Charter said to be breached was s 38 which makes it unlawful for a public authority to act in a way that is incompatible with a human right or fails to give proper consideration to a human right. This raised the question of a tribunal's power to enquire into and determine questions collateral to the statutory power being exercised.
2. Warren CJ said:[21]

[...] Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal's ability, if any, to conduct such inquiries remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach "some relevant legal consequence" to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.

(footnotes omitted)

1. The Court found that the legislative scheme told against the implication of a power to collaterally review. Warren CJ said:[22]

[...] I am satisfied that the RTA and the VCAT Act evince an intention to deny VCAT power to collaterally review the validity of a purported administrative decision that happens to be material to the tenancy dispute before VCAT. Or, to put it differently, the two Acts evince an intention that, in dealing with applications under the RTA, VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.

(emphasis added)

1. In respect of an application for vacant possession under the Victorian Residential Tenancies Act, Maxwell P said that such proceedings:[23]

[...] are not conditioned on the exercise of a valid administrative act by a public official. They are conditioned on the exercise of a right to possession of land. It is immaterial whether the relevant premises are in public or private ownership.

This circumstance points very strongly to the exclusion of collateral review. In a statutory scheme which applies without differentiation to public and private landlords, it would be quite anomalous if the tribunal were empowered - in cases where application was made by the director as public landlord - to inquire into the lawfulness of the director's decision to seek possession. This is simply no basis for implying into the jurisdiction-conferring provisions a power in the tribunal to conduct such a collateral review.

1. As Maxwell P noted, a decision (such as that in Sudi) under one set of provisions creates no precedent when the like question arises under a different set of provisions, because the answer lies in the scheme under which the question arises.[24] This approach was noted without disapproval, in obiter observations by Blue J in Zweck v Town of Gawler.[25]
2. The administrative decision in Sudi was the decision of the public housing authority to decide to seek vacant possession. In this case, the SAHT's complaint is that Acting Deputy President Johns examined and rejected the SAHT's policy as to how to distribute liability across those who are supplied water from a shared meter. Therefore, the right of collateral review must extend to a review of the content of the policy and not merely its application in an individual case, if the relevant part of the Tribunal's decision is to be affirmed.
3. The case against inferring a right of collateral review of the SAHT's policy in this case under consideration is strong. This does not derive from the similarities in the SA and Victorian regimes, which are quite different from one another. The case against inferring a right of collateral review derives from a close examination of the SA regime and the nature of the administrative act that was substituted by the Tribunal.
4. The features in favour of a collateral review are those broad-ranging powers in both the RT Act and the SACAT Act directed at enabling the Tribunal to resolve disputes quickly and without fragmentation.[26] However, the existence of a particular process by which a challenge to an administrative decision of the SAHT can occur (under the SAHT Act and the review provisions of the SACAT Act) indicate that the legislature intended that the scope of the function under the Residential Tenancies Act should not be given a wide interpretation such as to encroach upon, and potentially circumvent, those other processes. Section 32A of the SAHT Act, set out below, confines a challenge to a decision of the SAHT so as to expressly prohibit a challenge to a policy of the Government, SAHT or the Department. The better view of the role of the Tribunal when determining a vacant possession application brought by the SAHT under the RT Act is that the scope of that exercise does not entail a collateral review, because it has a role reviewing decisions under s 32A of the SAHT Act as follows:

Part 3A - Appeals

32A - Interpretation

(1) In this Part -

reviewable decision means a decision of SAHT -

(a) on an application to SAHT -

(i) for housing assistance; or

(ii) for priority housing; or

(iii) for rent assistance, or other forms of concessions with respect to rent, or in relation to a bond; or

(iv) with respect to a matter arising under a tenancy agreement where SAHT is landlord; or

(b) with respect to any other matter that may -

(i) involve an assessment or decision by SAHT with respect to a person's housing needs or position; or

(ii) affect a tenant of SAHT; or

(c) with respect to any other matter brought within the ambit of this definition by the regulations, but does not include a decision where a complaint against the decision would fall within the ambit of subsection (2);

tenant includes a former tenant;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013.

(2) The following matters are excluded from the operation of this Part:

(a) a complaint about a policy of the Government, the Department or SAHT (as compared to a complaint about whether or not such a policy has been complied with or implemented in accordance with the terms of the policy);

1. Further, the fact that it is the Tribunal that is expressly conferred with the jurisdiction to hear reviews of decisions made under s 32A militates in favour of the Tribunal having a more limited role when performing its functions under the RT Act.
2. This is not to say that the Tribunal has no power of collateral review in the performance of its functions. It is not necessary to define the boundaries of the Tribunal's power. It is sufficient to observe that the legislative schemes (the SACAT Act and SAHT Act as a scheme and the SACAT Act and RT Act as a separate scheme) provide that, when performing the task of determining an application for vacant possession by the SAHT in the original jurisdiction, the Tribunal cannot collaterally review the SAHT water allocation policy. This is because there is a separate existing mechanism for a challenge to the SAHT's administrative decisions, and it expressly excludes a challenge to the type of decision in question, i.e. a policy. Bearing in mind that the Tribunal's source of power and jurisdiction is entirely statutory, the preferable construction is that when exercising its tenancies jurisdiction it is not empowered to set aside the SAHT's policies.
3. Acting Deputy President Johns in paragraphs [92] to [108] conducted an examination of the policy and determined it not to be fair and equitable. To that extent, the decision must be set aside. Only order 2(c) is affected by this conclusion. Having satisfied herself that the issuing of the notice and other steps were lawfully undertaken, the task of the Tribunal was to exercise the residual discretion.
4. Having concluded that the decision was not correct and preferable insofar as it modified the water allocation policy that the SAHT had adopted and applied, it is not necessary to consider the SAHT's other grounds of review including whether the SAHT's policy is fair and equitable.
5. The correct and preferable decision following consideration of both of the applications for review is to vary the orders of the Tribunal to reflect this decision. All of the orders will be affirmed except in relation to direction 2(c), which is set aside.
6. I will make a further order pursuant to s 70(7) so that the matter may proceed.

1. The decision of the Tribunal is affirmed save that order 2(c) is set aside.
2. The parties have liberty to apply to the Tribunal in the original jurisdiction for further orders.

[3] SAHT v Popczynski & Popczynski v SAHT; SAHT v Pawelzik [2013] SARTT 3337 (20 February 2014).

[4] [1995] SASC 5333 (15 November 1995).

[5] Hermann Horbelt v Andrew Elliott and Margaret Turner [1995] SASC 5333 at 596-597.

[6] Being $1.28 at Tier 1 rate and $2.48 at Tier 2 rate.

[7] Being $0.97 at Tier 1 rate and $1.88 at Tier 2 rate.

1. [8] I understand the reference to Hospitals and Breen to be references to Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 (25 October 1984) and Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996).

[9] [2015] SASCFC 194.

[10] [2015] SASCFC 194 at [2] and [18].

[11] [2015] SASCFC 194 at [97]; [113]-[114] and [121]-[122].

[12] [2015] SASCFC 194

[13] [2015] SASCFC 194 at [114].

[14] [2015] SASCFC 194 at [87] and [94] (Blue J).

[15] [2015] SASCFC 194 at [26] (Blue J).

[16] [2015] SASCFC 194 at [32].

[18] Raschke v Firinauskas [2018] SACAT 19 (5 June 2018); Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559 at 604 (Weinberg J).

[19] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559.

[20] [2011] VSCA 266; (2011) 33 VR 559 at 598 [225]- [228].

[21] [2011] VSCA 266; (2011) 33 VR 559 at 566-567 [31].

[22] [2011] VSCA 266; (2011) 33 VR 559 at 569 [43].

[23] [2011] VSCA 266; (2011) 33 VR 559

[24] [2011] VSCA 266; (2011) 33 VR 559 at 581 [102].

[26] See, for example: Residential Tenancies Act 1995, s 110 (sets out the broad powers of the Tribunal in dealing with tenancy disputes, including the discretion to make an order for vacant possession or decline to do so in favour of a different order such as a payment plan); South Australian Civil and Administrative Tribunal Act 2013, s 59 (principles governing proceedings), s 44 (directions for conduct of proceedings), s 45 (consolidating and splitting proceedings).