INFORMATION - HOUSING & CIVIL STAKEHOLDERS
THE REMOVAL OF THE RIGHT TO MAKE AN APPLICATION TO VARY OR SET ASIDE A PREVIOUS TRIBUNAL ORDER UNDER SECTION 37 RESIDENTIAL TENANCIES ACT 1995 AND SECTION 41 HOUSING IMPROVEMENT ACT 2016
On 14 December 2017 part of the Statutes Amendment (SACAT No 2) Act 2017 was given assent. Section 121 of the Act repeals section 41 of the Housing Improvement Act 2016 (the HIA) and section 214 of the Act repeals section 37 of the Residential Tenancies Act 1995 (the RTA). Section 37 RTA and section 41 HIA allowed a party to proceedings in the Tribunal to make an application to vary or set aside an order of the Tribunal.
Section 37 RTA and section 41 HIA have not been replaced with any similar provision. Therefore, no party to a dispute dealt with by the Tribunal under the RTA or HIA has the right to apply to vary or revoke a Tribunal order.
However, there are other options which may be available to a party to a dispute under the RTA or HIA where a party is seeking to change a Tribunal order made to determine that dispute.
Options available to a party seeking to change a SACAT order made under the RTA
Section 85 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) allows a person who is named in a Tribunal order to seek a review of that order if the person did not attend or participate in the original hearing, was not represented at the original hearing and has a reasonable excuse for not participating or being represented in the original hearing.
The application process
Any request for a review hearing must generally be made within 7 days of the original hearing, must be made by a person completing an application form, paying the fee and lodging any supporting documents.
The SACAT process
The Tribunal hearing will be conducted in 2 stages: first, the Tribunal member will decide whether or not the person had a reasonable excuse for not attending the original hearing. Second, if the Tribunal member decides that was the case (ie that the person did have a reasonable excuse for not attending the original hearing); the Tribunal member will then review the original decision. If the Tribunal member decides it is appropriate to do so, they can change or revoke the original decision.
What will be regarded as a reasonable excuse for failure to attend or participate in a Tribunal hearing?
The following examples are intended as a guide only.
Examples of what may constitute a reasonable excuse could be:
- The person was ill and therefore unable to attend or a member of the immediate family was ill resulting in the person being unable to attend (but a medical certificate or evidence of hospital admission should be provided);
- The person was overseas/interstate and was unaware of the hearing (a copy of an itinerary or airline tickets should be provided);
- The person was working in a remote location and unable to be contacted (a copy of a work roster or pay slips should be provided;
- The person did not receive notice of the hearing
Examples of what may not constitute a reasonable excuse could be:
- Pre-booked property inspections;
- A routine dentist appointment.
A request for a slip rule order because of a Tribunal error
Section 84 SACAT Act allows a Tribunal member to correct an order when an obvious error has been made (eg payments are required fortnightly instead of weekly, or there is an error such as “2017” being stated instead of “2018”).
Any request for a slip rule order may be made in writing (by email), does not need to be made on an application form and no fee is payable.
It may be useful to state a note of caution here: a slip rule order will only be made in cases where it is abundantly clear on the face of the order that an error has been made.
An application for internal review
If a person disagrees with an outcome of a hearing, ie: the person considers that the Tribunal member’s decision is wrong, then the person should lodge an application for internal review. Internal review applications are effectively applications which used to be dealt with by the District Court as “appeals”.
An application for internal review is made under section 70 SACAT Act. Generally, the application must be made within one month of the Tribunal order. Special fees which are set out on our website apply. The application will be conducted by a senior member of the Tribunal and any appeal from such a decision may only be made to the Supreme Court (with leave of the Court).
When dealing with an application for internal review under section 70 SACAT Act, the Tribunal is required to make the correct or preferable decision taking into account the evidence at the original hearing, any other evidence the Tribunal considers is relevant and by giving appropriate weight to the original decision.
Up until now it has been relatively common for the Tribunal to receive an application to vary a Tribunal order by consent. For example, the order may contain a payment plan, the tenant has been unable to make a payment for one reason or another but has offered to make up the missed payment. If the parties agree, then the parties will lodge a request for the Tribunal to make an order to vary the previous Tribunal order. Generally the application will be made by the tenant but the agent/landlord will indicate their consent (eg by email) and the Tribunal will make an order accordingly without conducting a hearing – subject to considering the appropriateness of the request.
The repeal of section 37 RTA means that this option is no longer available.
However, other options are:
- The request can be made by the agent/landlord as a request/application based on the non-compliance of the tenant with a payment plan in an existing Tribunal order. If the tenant agrees with the proposed variation to the previous Tribunal order, then the tenant can indicate their consent by email or in some other way (in writing) and if the Tribunal considers it is appropriate to do so, the Tribunal may make an order by consent and without conducting a hearing (no fee would be payable).
- The parties themselves may agree to vary the previous Tribunal order and may record their agreement in writing. The issue with this option is that even if the parties record their agreement in writing, any such agreement is not part of a Tribunal order and therefore the landlord/agent cannot seek another Tribunal hearing or make a request for a bailiff to evict the tenant due to the tenant having failed to make a payment required by the agreement.