Residential Tenancies Act 1995 s 80, 113

Aboriginal Lands Trust Act 1966 (SA)

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 42, 47, 48, 49, 56, 57, 58 and 91

Freedom of Information Act 1991 (SA) s 40

Magistrates Court Act 1991 (SA) s 37

District Court Act 1991 (SA) s 42

Supreme Court Act 1935 (SA) s 40

South Australian Civil and Administrative Tribunal Rules 2014 (SA) r 27

South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 7

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Murtough v New South Wales Bar Association [2008] NSWADT 166

Mr S Whitten, Crown Solicitor's Office, for the applicant

Pursuant to section 84 of the South Australian Civil and Administrative Tribunal Act 2013, the Reasons for Decision handed down on 5 January 2018 in the matter of South Australian Housing Trust v Brady & Milera [2018] SACAT 2 are amended as follows:

Amend the reference from "Australian Lands Trust Act 1966 (SA)" to "Aboriginal Lands Trust Act 1966 (SA)".

Amend the reference from "South Australian Civil and Administrative Tribunal Rules 2015 (SA) r 27" to "South Australian Civil and Administrative Tribunal Rules 2014 (SA) r 27".

Amend the reference from "South Australian Civil and Administrative Tribunal Regulations 2014 (SA) reg 7" to "South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 7"

1. In these reasons, the parties retain the descriptors assigned in the primary proceedings. The tenants, who are the applicants for costs, are referred to as the Respondents. The South Australian Housing Trust ('SAHT') is referred to as the Applicant.
2. The primary proceedings were applications for vacant possession against the Respondents. The Respondents applied for costs following the withdrawal and subsequent dismissal of applications in the primary proceedings.
3. The Respondents are tenants of separate premises in Davenport whom the Applicant sought to evict for non-payment of rent. The issues arising are common to both matters and it was agreed that they be heard together.
4. The Respondents were represented by Campbell Law. Following the dismissal of both sets of proceedings, the Respondents applied jointly for costs in the sum of $4,293, which was claimed as 75 per cent of the total legal costs incurred by them as assessed by the scale of costs applicable under the Supreme Court Civil Rules 2006. The Applicant opposes the application for costs. The Applicant also submits that if an order is made for costs, the issue should be remitted for further argument as to the correct quantum.
5. The application was supported by an affidavit of the Respondents' lawyer, Mr Campbell, annexing a schedule of the costs incurred in the preparation of the matter for full hearing.
6. The Tribunal heard argument on the Respondents' application for costs on 8 November 2017 and I reserved my decision. For the reasons that follow, I do not make an order for a payment of costs in favour of the Respondents. The parties should bear their own costs.

1. The primary proceedings in matter 2016/SH004216 were brought by the SAHT by application lodged with SACAT on 11 April 2016 against Ms Lynne Milera for vacant possession of premises at 2 Simmons Street, Davenport, for non-payment of rent pursuant to s 80 of the Residential Tenancies Act 1995. An identical application was brought on 11 April 2016 against Ms Veronica Brady for vacant possession of premises at 5 Warren Crescent, Davenport, similarly for non-payment of rent.
2. The Applicants in the proceedings are tenants of premises situated on a parcel of land that was owned by the Aboriginal Lands Trust ('ALT') in 1976. The ALT leased the land to the Davenport Community Council Incorporated ('the Council') with consent of the relevant Minister which was required under the ALT's establishing legislation, the Aboriginal Lands Trust Act 1966 (SA) (the 'ALT Act'). In 1996 and thereafter, the Council then entered into periodic residential tenancy agreements in respect of premises on the land including the two that were the subject of these proceedings.
3. In 2015, the Minister for Social Housing, the ALT and the Council entered a deed under which the Minister was granted a 40 year under-lease of the land. On the Applicant's case, it was the intention of the parties that the Minister would become landlord of the properties and the landlord functions would be administered by the SAHT. Over a period of time, the SAHT on behalf of the Minister renegotiated various leases with individual tenants. No new tenancies were entered into with the two Respondents, who declined to sign up to new agreements with the Minister and did not pay rent to the Minister. The SAHT then brought the vacant possession proceedings in the Tribunal for unpaid rent.
4. There were three directions hearings over the course of a year, whilst the parties attempted to resolve the dispute by negotiation, following which the proceedings were set down for full hearing on 1 August 2017. On the day of the hearing, the applications for vacant possession were withdrawn by the Applicant. This followed an exchange of correspondence between the legal representatives of the parties in the days prior to the scheduled hearing about the legal issues in dispute. The Respondents made an application for costs.
5. It is not usually necessary for an adjudicator of an entitlement to costs to delve into the merits of the parties' arguments or the steps leading to the finalisation of the matter. However, in this case it is necessary to understand, at least at an overview level, some of the pre-trial events in order for the Tribunal to make an appropriate determination of the Respondents' application for costs. Firstly, however, an analysis of the legislative regime for awards of costs by the Tribunal is required.

The legislative and regulatory regime for costs in SACAT

1. The primary provisions regarding costs are contained within ss 57, 58 and 91 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). The task of considering the exercise of a costs discretion must be undertaken in its statutory context. As the High Court stated in Oshlack v Richmond River Council, "in many instances legislatures have found reason to depart from the traditional formula by enacting specific legislation varying the incidence and reach of costs orders...".[1] The 'traditional formula' is that costs follow the event i.e. a successful litigant is entitled to recover their costs. The legislature has established a statutory regime for costs in this Tribunal that takes a different starting point.

1. In the SACAT Act, 'costs' refers to expenses (including, but not limited to, representation expenses) and losses.[2] In this matter, the costs sought were representation costs. Section 91 deals specifically with costs other than those incurred by a party, namely costs associated with Tribunal-initiated actions such as the obtaining of an expert's report under s 42, and were not raised in this application.

1. Parties appearing in the Tribunal are entitled to be represented by counsel, subject to the provisions of a relevant Act.[3] The Residential Tenancies Act 1995, which is a 'relevant Act' as it confers jurisdiction on the Tribunal, makes specific provision for representation in s 113. Under that provision, a party to a tenancy dispute may only be represented where:

1. all parties to the proceedings agree to the representation and the Tribunal is satisfied that it will not unfairly disadvantage a party who does not have a professional representative; or 2. the Tribunal is satisfied that the party is unable to present the party's case properly without assistance; or

1. another party to the dispute is a lawyer, or is represented by a professional representative; or

1. the Commissioner has intervened in, or is a party to, the proceedings.
2. In these proceedings, both parties were represented which was unusual for a vacant possession application and reflected that the tenants' defence to the claim of non-payment of rent rested upon an analysis of the SAHT's legal standing to bring the application against them. It appears that the tenants were represented from about July 2016. The SAHT was represented by the Crown Solicitor's Office from about May 2017.

1. Section 57 of the SACAT Act provides that parties are to bear their own costs, unless the Tribunal has ordered otherwise or there is a legislative provision in providing expressly for costs to be determined otherwise in a particular type of case.[4] It is a different starting point to the discretions conferred upon the Magistrates Court,[5] District Court[6] and Supreme Court[7] in this state. The courts' statutory discretion tends to be broadly stated and the orders often reflect the outcome of the proceedings:

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation (footnotes omitted).[8]

1. From the starting point of parties bearing their own costs, s 57 of the SACAT Act provides that the Tribunal may make an order for costs against a party if it is appropriate to do so and after taking into account the following factors:[9]

1. the main objectives of the Tribunal that are relevant to simplifying proceedings and issues for the Tribunal and to keeping costs to parties in proceedings to a minimum insofar as is just and appropriate;[10] 2. the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit;

1. any other matter considered relevant by the Tribunal.
2. It must be borne in mind that the overarching principles are that parties bear their own costs unless it is appropriate for the Tribunal to make an order. None of the factors that must be considered overrides the general proposition.
3. The main objectives of the Tribunal are set out in s 8 of the SACAT Act. Whether a costs order is made is to be informed by these objectives and how a costs order will reflect or further those objectives.
4. The need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit recognises that legal proceedings can be used as a tool by one party to achieve ends other than to resolve the legal dispute.
5. Whilst the South Australian Civil and Administrative Tribunal Rules 2014 (SA) do not add to the factors to be considered, rule 27 provides that an application to determine the costs payable to a party must also include:
   1. a schedule giving details of the date and nature of the work performed and costs claimed for that work; and
   2. a copy of receipts for, or other evidence of, claimable expenses incurred by that party in the proceedings.
6. The Tribunal's ability to take into account any other relevant matter connotes the wide discretion in the Tribunal to consider a wide range of facts, circumstances and behaviours when determining what is appropriate in making an order.

Costs orders - dismissing or striking out proceedings

1. In addition to mandatory factors to be considered, there are special provisions relating to costs in proceedings that are dismissed or struck out. Where the Tribunal dismisses or strikes out any proceedings in prescribed circumstances, s 57(3) of the SACAT Act provides that the Tribunal should make an order for costs against the party against whom the action is directed, unless it is of the opinion that there is a good reason for not making an order in the circumstances of the particular case.[11] The prescribed circumstances for the purposes of s 57(3) are set out in South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 7 by reference to specified outcomes reached under particular provisions of the SACAT Act namely:
   1. Section 47(4): if the Tribunal makes an order dismissing or striking out all, or any part, of any proceedings for want of prosecution;
   2. Section 48(2): if the Tribunal makes an order dismissing or striking out the proceedings if they are frivolous, vexatious, misconceived, or lacking in substance or involves a trivial matter or amount, or is being used for an improper purpose, or is otherwise an abuse of process; and
   3. Section 49(2): if the Tribunal makes an order or determination if the Tribunal believes that a party is conducting the proceedings in a way that unnecessarily disadvantages another party, such as failing to comply with an order or direction or the Act. In such instances, it may, if the party causing the disadvantage is the applicant, order that the proceedings be dismissed or struck out; and if the party is not the applicant, determine the proceedings in favour of the applicant and make any appropriate orders; or order that the party causing the disadvantage be struck out of the proceedings.
2. In these matters, the SAHT filed a Notice of Withdrawal in respect of both applications and an order was made without a hearing. None of the provisions referred to above was relied upon in the finalisation of the proceedings. However, on the Applicant's submissions before me, the withdrawal occurred because it acknowledged that it could not establish that the SAHT acted on behalf of the Minister for Social Housing when it issued the notices of breach to the tenants. I have considered whether this amounts to the proceedings being 'misconceived' such that it may be a relevant matter for the Tribunal to take into account when determining whether an order for costs is appropriate. Mr Whitten for the SAHT was clear in his submission that the underlying proceedings are not misconceived in substance and may well proceed when the issue that led to the withdrawal is cured. I am satisfied that from the perspective of the relevance to a costs order, and without forming any view about the merits of the substantive arguments that may or may not need to be resolved in relation to these tenancies, the SAHT's error does not amount to the proceedings being 'misconceived'. Accordingly, I do not consider that the withdrawal occurred in "prescribed circumstances" such as would necessitate a different approach to costs in these proceedings than is set out in s 57(1).
3. It is necessary to address the provisions of s 58. This section sets out a number of discrete additional points about costs orders. As this costs application relates to an exercise of power in the original jurisdiction, certain factors the Tribunal must also have regard to in relation to review proceedings, set out in s 58(2), are not mandated in this case. None of the other provisions of s 58 are relevant. There was no suggestion that the parties' representatives had conducted themselves in a manner that resulted in "unnecessary costs".
4. Having considered the statutory regime it is necessary to return to the overarching principles of the parties bearing their own costs subject to a discretion to make an order for costs where it is appropriate, taking into account the mandated factors. The broad scope of "appropriateness" permits consideration of the nature of the proceedings. The Tribunal has diverse jurisdiction and increasingly so following the recent conferral of new review jurisdictions. In some of its areas of work, the nature of the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs. In the performance of original jurisdiction hearings of matters relating to housing, and to the guardianship, administration and mental health hearings that currently make up the volume of the matters heard by the Tribunal, the case for maintaining accessibility to the Tribunal including through parties bearing their own costs is strong.

How do the parties' arguments and conduct in these proceedings bear on the appropriateness of a costs order?

1. In their written submissions for the full hearing, filed on 19 May 2017, the tenants claimed that the Council's contractual obligation to obtain the consent of the Minister of Community Welfare under the head-lease had not transferred to the Minister for Social Housing who was administering the head-lease at the time of the vacant possession proceedings.[12] Therefore, the SAHT has no standing to bring the application for vacant possession on behalf of the Minister for Social Housing.
2. In brief, the Crown's position as set out in its submissions for the full hearing was that it is possible to safely conclude that the Minister for Social Housing is the landlord in respect of the subject tenancies and that the SAHT as the Minister's agent could properly exercise rights to recover rent and to seek orders for vacant possession for failure to pay rent. The Crown conceded that at various points in time in the history of the matter, there was a lack of evidence as to whether required consents had been given but that the presumption of regularity operated in favour of the assumption that they had. The focus of the submissions of both parties was the historical machinery-of-Government events that traced the legal relationships with the land and the houses on it.
3. The SAHT submitted, through the Crown Solicitor, that it was preparing to argue the matter when the Respondents' lawyer wrote to the Crown Solicitor on 31 July 2017 seeking evidence that the SAHT was the agent or delegate of the Minister for Social Housing and observing that the primary proceedings had not been brought by the Minister or by the Department but by the SAHT, a body corporate with distinct legal identity. This appeared to be directed at a new, additional argument towards a finding that the SAHT did not have the authority to bring the proceedings.
4. The Crown Solicitor identified that the receipt of this letter led to the obtaining of instructions from the SAHT that no such instrument of agency or delegation between the Minister for Social Housing and the SAHT (or statutory provision with the same effect) could be located and that indeed the proceedings had been brought by the SAHT in circumstances in which its authority to do so could not be established. The Crown Solicitor therefore obtained the instructions of the SAHT to withdraw the application and seek dismissal of the proceedings. Mr Whitten of the Crown Solicitor's office submits that the substantive issue underlying the dispute is still live and may be ventilated in future proceedings brought by a different State entity if not resolved by negotiation.
5. The point of rehearsing these issues is that they bear on two matters potentially relevant to costs. One is the question of whether the complexity of the matter and the nature of the issues that were to be traversed is relevant and if so, militates for or against an order for costs. The second is whether either party's conduct in identifying the critical issues immediately prior to the full hearing scheduled for 1 August 2017, indicates that a costs order should or should not be made. Both of these issues are examined after a re-consideration of the mandatory factors set out in s 57(2).

1. In these proceedings, the consideration of the mandatory factors in s 57 (2)(a) and (b) support a finding as to no order as to costs. It was submitted by the Respondents' counsel that fairness to the tenants, who were required to research a complex network of information about Governmental entities to mount their defence, led to the withdrawal of the claims and should also lead to an award of costs. However, those substantive issues were not resolved and it is premature to conclude that fairness dictates an award one way or the other or not at all.

1. Both counsel submitted that the matter was complex in that a good deal of time had been necessarily spent tracing the history of the succession of various Ministers and the provisions of various Acts in order to form a view about the lawfulness of the actions of the SAHT in bringing the proceedings. Complexity is not a factor expressly referred to in the costs provisions of the SACAT Act. It is a matter that is conceivably relevant under s 57(2)(d) of the SACAT Act as "any other matter considered relevant by the Tribunal". However, I do not find that the complexity of this matter warrants the disturbance of the overarching principle that parties bear their own costs. Complexity may arise in the form of statutory or documentary construction as in this case, and more commonly in the form of factual dispute. Given the jurisdiction of the Tribunal, both legally and factually complex matters can be expected to arise quite frequently. This matter is one such example and the complexity does not of itself demand a departure from the starting point of parties bearing their own costs.

1. Mr Campbell for the tenants submitted that a costs order was appropriate because the SAHT ought to have undertaken the research that was required to unearth the difficulties with the Crown's case at a much earlier stage. The proceedings were instead conceded at the eleventh hour when the respondents wrote to the Crown Solicitor urging a withdrawal.
2. Mr Whitten for SAHT submitted that in fact the parties had both conducted detailed research on the issues in dispute and the state of the written submissions indicated this but that the Respondents' identification of a new issue in their correspondence of 31 July 2017 was not a matter that it was reasonable to expect the SAHT to have foreseen.
3. It does appear that, as all too often occurs, the issues in dispute were not fully analysed until the days leading to the hearing notwithstanding that both parties had done considerable research prior to that. Whilst it is regrettable that this occurred, it falls short of conduct that would justify a costs order against the SAHT. I have considered the Respondents' submission that, as model litigant, the SAHT ought to have ensured that all of its authorities were in place before it sought to issue a notice of breach to the tenants. I do not consider that the model litigant obligations on the SAHT extend that far.[13] There is no evidence that the SAHT has knowingly exploited an advantage unfairly or otherwise acted inappropriately. I have taken into account that:

...as a general principle, tribunals exercising jurisdiction where parties are by statute protected from the usual costs consequences of litigating must be careful to ensure that parties do not abuse this statutory privilege by acting unreasonably, unfairly or oppressively towards their opponents.[14]

1. The SAHT's conduct does not provide a basis for displacing the starting point of parties bearing their own costs in this matter.

Are public authorities to be treated differently?

1. I have considered whether, although the argument that the SAHT has not conducted itself as the model litigant is not sustained, there is any reason to treat the success or failure of the SAHT as a public authority differently from the success or failure of a private party. I do not consider that it does. Apart from the fact that the legislature could easily have made a separate rule for public authorities (as it has done in relation to the freedom of information regime),[15] the indifference of the language of s 57(1) of the SACAT Act to a party's identity is consistent with McHugh J's observations in Oshlack v Richmond River Council that there should be no assumption that a success (or, in this case, failure) of a public authority should not be treated the same as the success or failure of a private party in terms of the costs consequences.[16]
2. Having considered the relevant factors, the Tribunal determines that an award of costs is not appropriate in this matter.

[1] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 104 [84] per McHugh J.

1. [4] For example, the Freedom of Information Act 1991 (SA) s 40(8) provides that an agency that seeks a review of a decision of the Ombudsman must bear the costs of the other party.

[5] Magistrates Court Act 1991 (SA) s 37.

[6] District Court Act 1991 (SA) s 42.

[7] Supreme Court Act 1935 (SA) s 40.

[8] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97 [67] per McHugh J.

[12] Respondents' Outline of Submissions dated 19 May 2017 paragraphs 39, 40.

1. [13] Crown Solicitors' Office Legal Bulletin 2 issued 10 June 2011 .

[14] Murtough v New South Wales Bar Association [2008] NSWADT 166 at [29] per Britton DP.

[15] Freedom of Information Act 1991 (SA) s 40(8).

[16] Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 at 107 [92] per McHugh J.