SOUTH AUSTRALIAN HOUSING TRUST v GARLAND & ANOR [2026] SASC 97

Applicant: SOUTH AUSTRALIAN HOUSING TRUST Counsel: MR S O'FLAHERTY WITH MR C PAGER - Solicitor: CROWN SOLICITOR (SA) Respondents: TRENT GRAHAM GARLAND AND REBECCA ANNE ROBERTS Counsel: MR B HAYES KC WITH MR O MORRIS - Solicitor: THOMSON GEER Hearing Date/s: 07/05/2026 File No/s: CIV-25-007677 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Judicial Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SOUTH AUSTRALIAN HOUSING TRUST v GARLAND & ANOR [2026] SASC 97 Judgment of the Honourable Justice Bochner 25 June 2026 ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - ACT CIVIL AND ADMINISTRATIVE TRIBUNAL - POWERS AND FUNCTIONS ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - ACT CIVIL AND ADMINISTRATIVE TRIBUNAL - JURISDICTION The applicant has sought judicial review of two decisions of the South Australian Civil and Administrative Tribunal (SACAT) with respect to the renewal and reinstatement of leases in favour of each of the respondents. The two decisions reviewed by the SACAT involved decisions made by the South Australian Housing Trust (the applicant) not to renew the leases of the respondents. In both instances, the SACAT set aside the decisions and reinstated the tenancies. In relation to the first respondent, Mr Garland had entered into a probationary lease with the applicant for a property at Holden Hill, set to expire on 19 December 2024. During the tenancy, the applicant was advised by SAPOL that Mr Garland had been charged with a range of serious criminal offences, which involved the undertaking of illegal activity at the property. The applicant made an independent determination not to renew the lease upon its expiry. Mr Garland sought an internal review of that decision, which upheld the applicant’s determination. In relation to the second respondent, Ms Roberts had entered into a probationary lease with the applicant for a property as Mile End, set to expire on 8 October 2024. In this matter, the applicant received a number of complaints of antisocial behaviour in relation to Ms Roberts. The applicant, likewise, made an independent determination not to renew the lease, which was later affirmed by an internal review of that decision. -- 1 of 33 -- In both matters, a further external review was sought by the respondents to the SACAT, and the Senior Member made findings that the Tribunal was unable to be satisfied on the balance of probabilities, that allegations made were substantiated by corroborative evidence. In both matters the Senior Member invoked the principle in Briginshaw v Briginshaw and set aside the decisions of the applicant. The applicant made submissions on the following grounds of review: 1. In both decisions, the Tribunal misconceived its statutory task under s 34 of the SACAT Act. Rather than addressing the correct question, the Tribunal identified the wrong issue and proceeded on an erroneous understanding of the law; 2. In the Garland decision, the Tribunal failed to address mandatory considerations required by s 34 of the SACAT Act; 3. The Tribunal’s orders in the decisions exceeded its statutory authority; 4. The decisions lacked any “evident and intelligible justification”; 5. The Tribunal in the Garland decision denied SAHT procedural fairness in a manner that was material and unlawful; and 6. The Tribunal’s refusal to grant an adjournment in the Garland decision was legally unreasonable and constituted a denial of procedural fairness. The Respondents argued that the applicant in both decisions attended the SACAT without evidence of either charges or allegations against the respondents and expected the Tribunal to make serious findings on that basis. They argued that there was nothing erroneous in the Senior Member’s reference to Briginshaw and it amounted to no more than an appropriate indication that the Senior Member was not prepared to accept the position of the applicant in determining not to renew the lease. They further argued that the SACAT took into account all relevant considerations and did no more than re-exercise the power exercised by the original decision maker. Held, granting the application for judicial review and finding that three of the applicant’s grounds of review have been made out. Orders: 1. The decisions of the SACAT are quashed. 2. The matters will be remitted to the SACAT, to be determined according to law. South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37; South Australian Housing Trust Act 1995 (SA) s 7; Residential Tenancies Act 1995 (SA), referred to. Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; Re Drake (No 2) (1979) 2 ALD 634, applied. Kola v South Australian Housing Authority [2021] SACAT 8, distinguished. Tsiolis v South Australian Housing Trust Unreported, 2024/SIR0000269, 22 January 2025; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, discussed. Briginshaw v Briginshaw (1938) 60 CLR 336, considered. -- 2 of 33 -- SOUTH AUSTRALIAN HOUSING TRUST v GARLAND & ANOR [2026] SASC 97 Civil: Judicial review BOCHNER J. 1 The South Australian Housing Trust (“SAHT”) has sought judicial review of two decisions of the South Australian Civil and Administrative Tribunal (“the SACAT”) with respect to the renewal and reinstatement of leases in favour of the respondents, Mr Garland and Ms Roberts. The applications for review have been dealt with together because of the similarity of their circumstances. 2 The parties filed a Joint Court Book (“the JCB”) for the purpose of this matter. Many of the documents in the JCB have multiple page numbers. When I refer to page numbers in this decision, I will refer to the original page numbers of the document in question. The circumstances surrounding Mr Garland’s lease 3 On 20 December 2023, Mr Garland entered into a probationary lease with the SAHT, for a period of twelve months with respect to a property at Holden Hill (“the Holden Hill property”). Since 2020, he had held a series of short-term leases of a different property held and managed by the SAHT; he was moved to the Holden Hill property in March 2022 because of allegations of anti-social behaviour which had resulted in two formal warnings. 4 On 7 May 2024, the SAHT was advised by SAPOL that Mr Garland had been charged with a range of serious criminal offences, including drug and firearms offences. In particular, SAPOL advised that illicit drugs and firearms had been located at the Holden Hill property. On 17 October 2024, the SAHT advised Mr Garland that his tenancy would not be extended or renewed, and that he would need to vacate the property at its expiry on 19 December 2024. In its letter advising Mr Garland of this decision, the SAHT said:1 SA Housing Trust has taken this action because your conduct during your tenancy has been unsatisfactory in the following areas: 1. Neighbourhood disturbances. 5 Mr Garland sought an internal review of this decision. On his “Public Housing Appeal Form”, he stated:2 …I have very strong relationships with my neighbours. … I am not aware of any disputes amongst my neighbours and cannot think of any reason why my neighbours may believe I 1 JCB, LJC-7. 2 JCB, LJC-8. -- 3 of 33 -- [2026] SASC 97 Bochner J 2 have caused any alleged disturbance. I have also never received any noise complaints or complaints regarding any forms of disturbance during my tenancy… 6 On 12 December 2024, the SAHT’s decision was affirmed, with the reasons for this decision provided by the Peer Reviewer in an "Appeal Statement”.3 The Appeal Statement said the following: • SAPOL confirmed to the SAHT that illicit drugs and firearms were located at the Holden Hill property, and Mr Garland was charged with trafficking a commercial quantity of a controlled drug, possession of firearms without a licence and other related charges; • The SAHT completed a referral to the SACAT as a result of illegal activity taking place at the property. A directions hearing was held on 22 August 2024, at which time it was determined that the matter would be listed for a full hearing, not before 23 October 2024; • In the meantime, the lease fell due for review as a result of which the Housing Officer and Team Leader attended the property to conduct a lease review; • The Housing Officer noted that the property was maintained in a satisfactory condition and the account was up to date; • At this time, Mr Garland told the SAHT staff members that he thought the charges against him were to be dropped. Further inquiries were made of SAPOL, who advised that they were proceeding with the charges and confirmed that weapons and a commercial quantity of a controlled drug had been found at the Holden Hill property; • The SAHT assessed that the property had been used for illegal purposes, in breach of the conditions of tenancy. As a result, the recommendation was made not to renew the lease; • The SAHT’s Antisocial Behaviour Policy identifies the use of a property to manufacture, sell, cultivate or supply prohibited drugs as serious antisocial behaviour, which would allow the SAHT to take immediate action without issuing a formal warning; • Because SAPOL had verified the presence of illegal drugs found at the Holden Hill property and had assessed that the property had been used for an illegal purpose, the SAHT recommended non-renewal of the lease; • Further, the SAHT considered that the weapons found at the property posed a serious potential risk and danger to any person entering the property, in breach of the tenancy agreement. 3 JCB, LJC-9. -- 4 of 33 -- [2026] SASC 97 Bochner J 3 The Peer Reviewer found that the decision should be affirmed on the basis that illegal activity had occurred at the property. 7 Mr Garland lodged an application for an external review of this decision. A directions hearing was held on 31 January 2025, at which time Ms Cavallaro, who appeared on behalf of the SAHT, advised that the notice to vacate the property wrongly identified the reason for the refusal to renew as neighbourhood disturbances, when the reason was that illegal activity was being conducted at the property. The Deputy President before whom the directions hearing was held, noted, “the issue is whether that error affects the decision not to extend the tenancy”.4 8 The hearing was held on 6 March 2025. Mr Garland was assisted by Ms Sproull, a representative from an organisation known as RentRight SA. Ms Cavallaro and Ms Arkinstall attended on behalf of the SAHT. At the commencement of the hearing, Ms Sproull advised the Senior Member that Mr Garland was concerned that the hearing would not be fair, because his original appeal related to neighbourhood disturbances, and the SAHT was now arguing that the refusal to renew was because of antisocial behaviour and criminal activity. She said that he had prepared the appeal on the ground of neighbourhood disturbances, not antisocial behaviour or criminal activity. Mr Garland then made a submission about his preparation on the basis of neighbourhood disturbances. The Senior Member raised with Mr Garland the contents of the Appeal Statement, and in particular, that the basis of the SAHT’s decision was illegal conduct and antisocial behaviour. She queried whether there was, in fact, any unfairness to Mr Garland, given that he had been on notice since 12 December 2024 that the reason for the refusal to extend the lease was illegal conduct and antisocial behaviour, not neighbourhood disturbances. She found that the decision that she was reviewing was the decision not to renew the lease on the basis of illegal conduct and that there was no unfairness to Mr Garland in that regard. 9 In the course of the hearing, the Senior Member asked Mr Garland to tell the SACAT what, if any, charges he was facing. He appeared unable to do so, but confirmed that while a number of charges had been dropped, other charges were being pursued by SAPOL. The Senior Member then indicated that she would have difficulty making a decision in the absence of knowledge about the charges that Mr Garland was facing on that day. That comment appeared to be directed at Ms Cavallaro. 10 Ms Cavallaro explained that the decision not to renew the tenancy was made following advice from SAPOL that illegal activity was being conducted at the Holden Hill property. This was contrary to the terms of the lease and the SAHT’s Antisocial Behaviour Policy. Advice received from SAPOL more recently 4 JCB, LJC-11. -- 5 of 33 -- [2026] SASC 97 Bochner J 4 confirmed that Mr Garland remained subject to a number of charges relating to drug trafficking. 11 The Senior Member said that she was unable to be satisfied on the balance of probabilities that Mr Garland had breached the terms of the lease by using the property for illegal activities, if she did not know what charges remained on foot. When Ms Cavallaro sought to rely on the memorandum from SAPOL, the Senior Member advised that she would place little or no weight on the memorandum, in the absence of oral evidence from a police officer about the items found at the Holden Hill property that led to the charges. She said that, in the absence of further evidence, the SAHT would not be able to prove its allegation that Mr Garland had breached his tenancy agreement. After hearing further from the parties, she concluded that she was not satisfied that Mr Garland had breached his tenancy agreement. She said that she intended to set aside the decision under review, and asked whether any other orders should be made, indicating that one option was for her to reinstate Mr Garland’s tenancy. At this point, Ms Cavallaro sought an adjournment to obtain instructions. The Senior Member agreed to an adjournment of fifteen minutes to allow her to do so. 12 On the resumption of the hearing, the Senior Member confirmed that she would set aside the decision under review as she was not satisfied that Mr Garland had breached his tenancy agreement. She further advised that she would reinstate the lease. Ms Cavallaro sought a further adjournment to allow further evidence from SAPOL to be obtained. At this point, the Senior Member said:5 The hearing is over. I’ve made my decision. I’m giving you the courtesy – I’m giving the Housing Trust the courtesy of having some input into what other orders I should make. If you’re not in a position to provide that input today, again, no criticism of you, I’ll make a decision myself. The Senior Member determined that the lease should be reinstated as a periodic tenancy. 13 The Senior Member provided written reasons for her decision.6 She set out her reasons for rejecting Mr Garland’s contention that it would be unfair to proceed with the matter on the basis of reliance on illegal conduct rather than neighbourhood disturbances. She then outlined the evidence of the parties. She identified four questions that she needed to address in coming to a decision. They were:7 1. Is SAHT’s decision not to extend Mr Garland’s tenancy (the decision under review) a reviewable decision under section 34 of the SACAT Act? 2. What law applies to the decision under review? 5 JCB, LJC-16, p 27. 6 JCB, LJC-15. 7 JCB, LJC-15, p 4. -- 6 of 33 -- [2026] SASC 97 Bochner J 5 3. What policy applies to the decision under review? 4. Has SAHT been fair in its dealings with Mr Garland in relation to the decision under review? 14 As to the first question, the Senior Member determined that the decision was reviewable under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (“the SACAT Act”). As to the second, she said that the starting point was the terms of the tenancy agreement; in this regard, she highlighted various clauses setting out restrictions, such as keeping things that would be a danger to others, and not using or allowing the property to be used for illegal activities. She also noted clause 35.4, which requires the SAHT to give a tenant 28 days’ notice of an intention not to extend the tenancy. 15 With respect to the third question, the Senior Member noted that the SAHT had submitted that three SAHT policies were relevant: the Probationary and Fixed Term Lease Agreements Policy (“PFTLA Policy”), the Antisocial Behaviour Policy (“ASB Policy”) and the Ending a Public Housing Tenancy Policy (“EPHT Policy”). She then concluded that the policies did not need to be dealt with further, because of the conclusion that she had reached with respect to the fourth question. 16 The Senior Member commenced her consideration of the fourth question with the statement:8 In these proceedings, the Tribunal needs to be satisfied on the balance of probabilities of the matters alleged against Mr Garland. She then quoted the well-known passage from Briginshaw v Briginshaw:9 The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. 17 The Senior Member concluded that in the absence of corroborative evidence, the information that the SAHT obtained from SAPOL rose to no more than allegations and that it should have obtained reliable evidence before deciding not to extend Mr Garland’s tenancy. In effect, she found that the SAHT needed to do more than simply rely on the information provided by SAPOL. 18 The Senior Member found that Mr Garland was not afforded procedural fairness, because none of the allegations of illegal conduct were raised with him 8 JCB, LJC-15, [42]. 9 (1938) 60 CLR 336 at 362–363. -- 7 of 33 -- [2026] SASC 97 Bochner J 6 prior to the decision’s being made. If this had occurred, the SAHT would have been in a better position to consider the factors identified by President Hughes in Kola v South Australian Housing Authority,10 and would have been in a better position to consider other relevant factors, including those personal to Mr Garland which might have indicated that the lease should be renewed. She described the actions of the SAHT, in relying on the uncorroborated information provided by SAPOL, as “poor administrative decision-making”.11 She referred to the decision of the SACAT in Tsiolis v South Australian Housing Trust,12 where, on an application by the SAHT to terminate a tenancy on the ground of illegal conduct, the SACAT heard oral evidence from a police officer who gave evidence about what was found at the property in question. 19 The Senior Member concluded:13 In view of the lack of corroborative evidence, I simply cannot be satisfied on the balance of probabilities (and bearing in mind the Briginshaw caution), that Mr Garland engaged in the illegal activities alleged against him. Therefore I cannot be satisfied that Mr Garland breached his tenancy agreement. I note for the avoidance of doubt that Mr Garland’s admission that he had an inch-long double sided knife in his possession, and that this is the basis of the prohibited weapons charge, is not proof that the knife is a prohibited weapon and it does not constitute a finding that Mr Garland has acted unlawfully by having that knife in his possession. My findings mean that the entire basis of the decision under review falls away. Also, I do not regard one breach of bail conviction as a proper basis to decline to extend a tenancy agreement taking into account the Kola factors discussed above. The correct or preferable decision is that the decision under review must be set aside and Mr Garland’s tenancy reinstated. (underlining in original) The circumstances surrounding Ms Roberts’ lease 20 The SAHT granted Ms Roberts a short-term lease of a property in Mile End (“the Mile End property”), commencing on 6 October 2022. Further short terms leases were granted, with the last one being granted on 8 April 2023, for a period of six months. Before the expiry of the six-month term, the SAHT granted Ms Roberts a probationary lease of the Mile End property, commencing at the expiry of the last short-term lease, for a period of twelve months. It was due to expire on 8 October 2024. 21 On 31 January 2024, the SAHT received two complaints of antisocial behaviour by Ms Roberts. A formal warning was issued to Ms Roberts on 10 [2021] SACAT 8. 11 JCB, LJC-15, [60]. 12 Unreported, 2024/SIR0000269, 22 January 2025. 13 JCB, LJC-15, [67]–[72]. -- 8 of 33 -- [2026] SASC 97 Bochner J 7 13 February 2024. Between 13 February 2024 and 4 October 2024, the SAHT received a further seven complaints of antisocial behaviour by her. A second formal warning was sent to Ms Roberts on 24 July 2024. 22 On 29 August 2024, the SAHT advised Ms Roberts that the probationary lease would not be renewed at the expiry of its term. The reason given for the decision not to renew was “Neighbourhood disturbances”.14 Ms Roberts sought an internal review of this decision. 23 Ms Roberts was advised by way of letter dated 10 December 2024 that the decision under internal review had been confirmed. Reasons for that decision were provided to Ms Roberts in a document entitled “Appeal Statement”.15 The Appeal Statement described the various complaints made about Ms Roberts’ behaviour as well as the efforts made by SAHT officers to engage with her and the investigations made into the various complaints received. In particular, it noted that the complaints had been substantiated and that Ms Roberts had been offered support on two occasions which had been declined. The decision was made to confirm the decision under review. 24 Ms Roberts lodged an application for an external review of this decision. On the “Review of Housing SA Decision” form, she said:16 Since November 2022 I have tried to speak to Housing SA in regards to the issues with my property. I have tried many many times to speak with them on the phone and in person. I have gone through the appeal process and it has taken 3mths (sic) and 4 days for Housing SA to respond, i (sic) have also contacted the Minister for South Australia, i (sic) have tried ti (sic) engage with Housing SA for 26mnths (sic). I have also sought intervention orders through the magistrates which were granted. 25 Ms Roberts also provided a large volume of material to the SACAT to support her application. This material includes handwritten statements, correspondence and other material from the SAHT, copies of text messages, calling cards from SAPOL, court documents relating to intervention orders and medical documents. I have read all of this material but will only refer to it if it is relevant to the issues before me. I note that Ms Roberts disputes all of the allegations made against her in relation to antisocial behaviour. She also denies that she refused to engage with the SAHT about the complaints made by her neighbours. 26 The SACAT hearing was held on 13 March 2025. Ms Roberts appeared on her own behalf. Ms Piro and Mr Warner appeared for the SAHT. 27 The Senior Member invited Ms Roberts to address her about the SAHT’s reasons for not renewing her lease. Ms Roberts provided a summary of the difficulties that she had encountered while living at the Mile End property, 14 JCB, SLP-9. 15 JCB, SLP-11. 16 JCB, SLP-14, p2. -- 9 of 33 -- [2026] SASC 97 Bochner J 8 including her interactions with her neighbours and her responses to their conduct towards her. She also provided a summary of her attempts to engage with the SAHT. I note that many of the issues that she addressed were dealt with in the lengthy written submission that she provided to the SACAT (and which I have referred to at [25] hereof). Further, the Senior Member asked her to demonstrate how loudly she played music, which was one of the complaints made by her neighbours. She did this, using the same blue tooth speaker that she used at the Mile End property. 28 The Senior Member then invited Ms Piro to outline the position of the SAHT. Ms Piro summarised the basis for the SAHT’s decision not to renew the tenancy, including that Ms Roberts had breached the SAHT’s ASB Policy and had declined the supports offered to her to assist her in this regard. In particular, Ms Piro indicated that Ms Roberts had failed to comply with clauses 3.1 and 3.2 of the lease agreement, which provide:17 3.1 You are responsible for your behaviour and the behaviour of everyone who lives with or visits you. 3.2 You will not interfere with, or allow people who live with or visit you to interfere with the reasonable peace, comfort, or privacy of other people I the vicinity. … 29 Ms Piro advised that Ms Roberts did not engage with the various supports offered by the SAHT, including a tenancy practitioner support and a community response coordinator. She also described the actions taken by the SAHT to investigate the complaints made against Ms Roberts, and the SAHT’s response once they had considered that a complaint had been substantiated. The Senior Member sought to correlate the various complaints made against Ms Roberts with the documents with which she had been provided by the SAHT. 30 The Senior Member referred to the SAHT’s ASB Policy and asked Ms Piro to confirm that the SAHT was able to end a tenancy agreement once a tenant had received two formal warning and a third complaint about antisocial behaviour had been substantiated against the tenant. Once Ms Piro had done that, the Senior Member asked her to identify the formal warnings and the third substantiated complaint directed to Ms Roberts. She then asked Ms Piro to agree that the SAHT had not complied strictly with its policy at the time that it made the decision not to renew the tenancy, because she was unable to identify a third substantiated complaint. 31 The Senior Member invited Ms Roberts to respond to the matters raised by Ms Piro. Ms Roberts denied the allegations of antisocial behaviour made against her and described the problems that she had experienced when seeking to engage with the SAHT. 17 JCB, SLP-5, p2. -- 10 of 33 -- [2026] SASC 97 Bochner J 9 32 After hearing further from both parties, the Senior Member reserved her decision. 33 The Senior Member delivered her decision on 14 March 2025.18 In her reasons, she briefly summarised the material that was before her and the circumstances surrounding Ms Roberts’ tenancy. She identified the following four questions as those she was required to answer:19 a) Is SAHT’s decision not to extend Ms Roberts’ tenancy (the decision under review) a reviewable decision under section 34 of the SACAT Act? b) Has SAHT complied with any relevant law which applies to the decision under review? c) Has SAHT complied with any relevant policy which applies to the decision under review? d) Has SAHT otherwise been fair in its dealings with Ms Roberts in relation to the decision under review? 34 With respect to the first question, the Senior Member determined that the decision under review was a reviewable decision pursuant to s 34 of the SACAT Act. As to the second question, she noted that the starting point was the tenancy agreement, and in particular identified clauses 3.2, 35.3 and 35.4 as being the relevant clauses.20 Clause 3.2 prohibits a tenant from engaging in conduct that interferes unreasonably with the peace, comfort or privacy of other people in the vicinity. Clauses 35.3 and 35.4 deal with the ending of a tenancy, providing that (among other things) if the SAHT does not intend to renew a tenancy beyond its expiry date, SAHT will give the tenant 28 days’ notice of this decision. She concluded that the SAHT had complied with the notice provision in this matter. 35 In relation to the third question, the Senior Member noted that, while the SAHT had relied on the PFTLA Policy and the ASB Policy, she considered that the ASB Policy was “more adapted to addressing the issues arising in this matter”.21 She then set out the policy. 36 In relation to the fourth question, the Senior Member said that the Peer Reviewer was required to consider whether the original decision not to extend Ms Roberts’ tenancy was the right decision; this required the Peer Reviewer to consider whether, on the balance of probabilities, the evidence established that she had breached her tenancy agreement. Like with her decision in relation to Mr Garland, the Senior Member quoted the passage from Briginshaw, which I have set out at [16] hereof. 18 JCB, SLP-1. 19 JCB, SLP-1, [14]. 20 JCB, SLP-5, p2, p4. 21 JCB, SLP-1, [23]. -- 11 of 33 -- [2026] SASC 97 Bochner J 10 37 She then said:22 After having examined the Peer Reviewer’s decision and the available evidence, I consider that the Peer Reviewer based their decision on an uncritical acceptance of the cursory and poorly-documented information in SAHT’s Connect Database. This included the brief information entered into the Connect Database about the relevant SAHT officers’ investigation of the ASB complaints against Ms Roberts and their reasons for concluding that the complaints were “substantiated”. There is no indication of any other evidence available to the Peer Reviewer to fill in the gaps left in the Connect Database, such as police reports, ASB incident diaries, audio/video recordings, witness statements, and the like. This is not to say that these additional sources of information are essential in every case, just that they were not before the Peer Reviewer. They are also not before the Tribunal. I am also not satisfied that the Peer Reviewer had proper regard to the relevant policies or that the Peer Reviewer place any weight on any countervailing personal considerations relating to Ms Roberts that might have indicated that her tenancy should be extended. For these reasons, I conclude that the process undertaken by the Peer Reviewer was not procedurally fair to Ms Roberts and that I should place limited weight on their decision. 38 The Senior Member then described in very broad terms the allegations made against Ms Roberts. She said that she has “not placed weight on these allegations per se unless they were substantiated by corroborative evidence”.23 She further declined to place significant weight on the intervention order against Ms Roberts, on the basis that she consented to the making of the order without knowing the basis for it. The Senior Member noted that the SAHT determined not to extend Ms Roberts’ tenancy before there was a third substantiated complaint against her, nor did it give her an opportunity to demonstrate compliance with the behaviour agreement that she entered into on 24 July 2024. 39 As to Ms Roberts, the Senior Member noted that she “is a deeply vulnerable person”, who “is a troublesome and challenging tenant and neighbour”.24 She found that it was likely that Ms Roberts had exaggerated her complaints about her neighbours’ conduct towards herself. She found that she was not “entirely persuaded by Ms Roberts’ denials of wrongdoing”.25 40 The Senior Member then said:26 The primary task of the Tribunal is to determine whether the evidence establishes on the balance of probabilities that Ms Roberts breached clause 3.2 of her tenancy agreement. This is also required by SAHT’s Antisocial behaviour policy. In this regard, the “substantiated” ASB complaints against Ms Robert cannot be ignored as they form part of 22 JCV, SLP-1, [29]–[32]. 23 Ibid, [34]. 24 Ibid, [40]–[41]. 25 Ibid, [47]. 26 Ibid, [52]–[55]. -- 12 of 33 -- [2026] SASC 97 Bochner J 11 the foundational factual matrix to be considered in determining whether she has breached her tenancy agreement. … Despite the findings I have made above about Ms Roberts’ behaviour, I do not consider that the approach taken by SAHT to substantiate the ASB complaints against Ms Roberts is an appropriate basis for me to make a finding on the balance of probabilities (and bearing in mind the Briginshaw caution) that Ms Roberts has breached her tenancy agreement when the outcome of not extending Ms Roberts (sic) tenancy would be so consequential for her. Ms Roberts will be likely rendered homeless and likely also excluded from SAHT services for an extended period. She concluded:27 As I cannot be satisfied on the evidence that Ms Roberts breached her tenancy agreement, the basis for the decision not to extend her tenancy falls away. This is the outcome required by SAHT’s own Antisocial behaviour policy which relies on there being a breach of the tenancy agreement before action of any sort under that policy is taken against a tenant. 41 The Senior Member set aside the decision of the SAHT Peer Reviewer and reinstated Ms Roberts’ tenancy. 42 The SAHT has now sought judicial review of the Senior Member’s decision in both matters. They were heard together as they raised common issues. The grounds of review 43 The SAHT raised six separate grounds for review. 44 First, the SAHT says that the SACAT misapprehended the decisions under review, by characterising them as a tenancy disputes. It treated the decisions as ones to terminate a lease, rather than ones to renew a lease which had already expired through the effluxion of time. Whether Mr Garland and Ms Roberts had breached the terms of their leases was irrelevant to the decision being reviewed. As a result, the SACAT asked and answered the wrong question. This led the SACAT into making a further error by considering that it needed to be satisfied on the balance of probabilities of the matters alleged against Mr Garland and Ms Roberts and by applying the factors identified in Kola. 45 Second, the SAHT says that the decision of the SACAT relating to Mr Garland’s tenancy was infected by jurisdictional error, in that it failed to take into account the SAHT’s PFTLA Policy, as well as the terms of the tenancy agreement and Mr Garland’s history with the SAHT. 46 Third, the SAHT says that both decisions were made in excess of the SACAT’s powers and so were ultra vires. While the SACAT had the power to determine whether or not the correct decision was to renew the lease, it did not 27 Ibid, [58]. -- 13 of 33 -- [2026] SASC 97 Bochner J 12 have the power to determine the terms and conditions of a new lease to be granted to the respondents. 47 Fourth, in the alternative to the third ground, the SAHT says that the decision of the SACAT lacked justification as it substituted the decision of the SAHT not to renew the tenancies of Mr Garland and Ms Roberts with a decision to renew them as periodic tenancies with no fixed end dates. 48 Fifth, the SAHT says that it was denied procedural fairness in relation to the decision about Mr Garland’s lease by not allowing it to make submissions about the terms of renewal of Mr Garland’s lease and by failing to take into account the PFTLA Policy. 49 Sixth, the SAHT says that the refusal to grant an adjournment at its request amounted to a denial of procedural fairness and lacked evident and intelligible justification. 50 I will deal with each of the grounds of review in turn. Ground 1: The SACAT misapprehended the decisions under review, by characterising them as tenancy disputes The SAHT’s submissions 51 The SAHT says that, in treating the disputes as tenancy disputes, it insisted on proof of breach of the terms of the lease to the civil standard, by invoking the principles set out in Briginshaw. Further it treated as dispositive of the entire review, the question of whether a breach of the lease had been proved: that is, once it determined that a breach of the lease had not been proved to the civil standard, the expired tenancies needed to be reinstated as periodic tenancies. In effect, the SACAT asked the wrong question and applied the wrong test. 52 In characterising Mr Garland’s appeal as a tenancy dispute, the SACAT determined that the SAHT’s policies were not relevant to the questions before it. This led the SACAT to focus on whether allegations of criminal conduct could be proved on the balance of probabilities, rather than on a merits determination based on policy. This led the SACAT to make a further error in the invocation of Briginshaw, which focuses attention on an inter-partes dispute about contractual rights, instead of on the correct or preferable exercise of an administrative discretion. This is demonstrated by the SACAT’s analysis of the evidence provided by the SAHT of the conduct alleged against Mr Garland, and the lack of corroborative evidence from SAPOL or other evidence about that conduct. 53 This error in characterisation led to a further error on the part of the SACAT, in the application of Kola. Kola is a decision relating to the termination of an ongoing tenancy and has no application to the question of renewal. 54 The SAHT makes similar submissions with respect to Ms Roberts’ matter. In regard to this decision, it says that the SACAT treated the question of breach as -- 14 of 33 -- [2026] SASC 97 Bochner J 13 dispositive of the matter, with the same invocation of Briginshaw, as with Mr Garland’s matter. The characterisation of the matter as a tenancy dispute, rather than as a question of renewal, led to the misapplication of the SAHT’s ASB Policy, in that the SACAT determined that, in the absence of third substantiated complaint about Ms Roberts, the tenancy could not be terminated. This overlooks the fact that Ms Roberts’ tenancy was not in fact terminated; it was not extended when it expired through the effluxion of time. Again, the SACAT erred in requiring independent corroborative evidence of the behaviours alleged against Ms Roberts by reviewing the matter only as one involving the breach of the lease. The respondents’ submissions 55 I note that it was submitted on behalf of Mr Garland that the SAHT attended before the SACAT “without a skerrick of evidence actually suggesting that Mr Garland had done anything wrong whatsoever (let alone at the Holden Hill property), and had asked the Tribunal to make serious findings of fact that he had used the Holden Hill property for criminal purposes”.28 Indeed, counsel for Mr Garland placed significant emphasis on the absence of any evidence about the alleged offending at the hearing before the Senior Member. Similarly, with Ms Roberts’ matter, emphasis was put on the lack of corroborative evidence in relation to the conduct about which complaint was made. 56 The respondents submitted that, in undertaking a merits review, the reviewer must identify with precision the nature of the power pursuant to which the decision was made. In both of these matters, the SACAT was not limited to setting aside the decision of the internal reviewer; once it had made the decision to set aside a decision that it considered to be incorrect or inferior, it was empowered to exercise the same power itself. Thus, the SACAT, once it had determined to set aside the decision not to renew the lease, was entitled then to re-exercise the power by granting a renewal. By doing so, the SACAT did no more than exercise the same power as the original decision maker. 57 The respondents say that the SACAT did not mischaracterise the nature of the matters. It correctly identified the appropriate question as whether the decision of the SAHT not to renew the leases was the correct and preferable decision. It did not purport to exercise powers under the Residential Tenancies Act 1995 (SA). It concentrated on the allegations made against Ms Roberts and Mr Garland, because this is the way in which the SAHT approached the issues to be addressed. 58 Counsel for the respondents submitted that the decision of the SACAT should not be read with an eye attuned to the perception of error. By characterising the SACAT’s approach as treating the matter as a tenancy dispute, the SAHT does precisely this. 59 The respondents submit that there was nothing erroneous in the Senior Member’s reference to Briginshaw. It amounted to no more than an appropriate 28 FDN 14, [24]. -- 15 of 33 -- [2026] SASC 97 Bochner J 14 indication that the Senior Member was not prepared to accept, on the basis of incomplete information, that Mr Garland had committed the offences with which he has been charged, or that Ms Roberts has breached her lease. It was open to the Senior Member to determine which facts she required to be satisfied of and the proof that she required to reach the requisite level of satisfaction. 60 The respondents submit that the SAHT cannot now say that the SACAT was not to determine whether there had been a breach of the lease by either Mr Garland or Ms Roberts. This is precisely the way that the matter was characterised by Ms Cavallaro (in relation to Mr Garland’s review) and Ms Piro (in relation to Ms Roberts’ review). The SAHT had itself framed the basis for the decision in each case as one not to renew the lease because of a breach of its terms; it cannot not object to the SACAT’s making a determination on this question. By relying on the way that the SAHT itself framed the issues, the SACAT did not fall into error. In circumstances where the SAHT did not call any real evidence about the allegations made against either Mr Garland or Ms Roberts, it cannot be surprised that the SACAT did not find that those allegations had been made out. Once this occurred, the factual basis for the original decision was removed and it was open to the Senior Member to set it aside. Consideration 61 I consider that the Senior Member erred in treating these matters as tenancy disputes, to be decided on the basis of whether a breach of the lease had been made out. Throughout both decisions, the Senior Member couched her reasons in terms of whether a breach of the lease had been proved and then treated that as determinative of the review, even though neither lease was in fact terminated for breach. Each lease had come to an end through the effluxion of time. The decision under review was whether it should be renewed. 62 While the Senior Member was correct in noting that the starting point was the tenancy agreement itself, she then focused on the wrong clauses of the tenancy agreement: clauses 3.2(b) and 21 in relation to Mr Garland and clause 3.2 in relation to Ms Roberts. I note that, in relation to Ms Roberts, the Senior Member correctly identified clauses 35.3 and 35.4, as relating to the ending of a tenancy through the expiry of its term and the notice that SAHT must give of a decision not to renew. Having determined that the required notice had been given, she did not consider these clauses further. This led the Senior Member into error, in treating the matters as ones where it was necessary for the SAHT to prove a breach of the terms of the lease. In fact, the SAHT could determine not to renew the lease in each case because of a breach of its terms, or for no reason at all. Once the term of the lease had expired, the SAHT was under no obligation to renew it. In this regard, I note that clause 35.3 provides:29 29 See for example, JCB, SLP-5. -- 16 of 33 -- [2026] SASC 97 Bochner J 15 Unless ended sooner in line with this clause, your tenancy will automatically end on the expiry date shown on page 1. Further, under the heading “Probationary Lease?” on the first page of the agreement, are the words:30 This initial probationary tenancy period may, at our discretion, be extended for one further probationary period as reasonably determined by us. 63 These clauses make it clear that it was open to the SAHT to determine not to renew the leases, even in the absence of clear proof that they had been breached. Renewal was a matter entirely within the discretion of the SAHT. I consider that the fact that Ms Cavallaro and Ms Piro characterised each matter as one involving breaches of the lease does not change the nature of the decision made. It was not a decision to terminate the lease because of breach. I consider that the Senior Member allowed herself to be led astray by the characterisation of the matters by the SAHT representatives. 64 I do not consider that this is a situation where the SAHT has sought to raise a matter in this Court that was not raised before the SACAT. It is clear that the decision that was being reviewed was one whether or not to renew a probationary lease, not one dealing with the termination of an ongoing lease. 65 I consider that this error led to a misapplication of the principles set out in Briginshaw. If the leases were being terminated for breach, then it may well be appropriate to rely only on evidence that the Senior Member considered provided reasonable satisfaction that the breaches had been made out, thus leading to an appropriate invocation of Briginshaw. In such a circumstance I consider that it would be a matter for the Senior Member to determine the nature of the evidence that would provide such satisfaction. However, this is not such a case. The leases automatically terminated at the end of the terms, in circumstances where it was in the absolute discretion of the SAHT to decide whether to renew them or not. 66 To be clear, my finding is only that Briginshaw was wrongly applied in the circumstances of Mr Garland’s and Ms Roberts’ cases. I reach no conclusion as to the appropriateness of the application of Briginshaw in a case where a lease was terminated on the ground of illegal conduct or some other breach. Having said that, I note the words of French CJ in Minister for Immigration and Citizenship v Li,31 where he said:32 …the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings. (footnote omitted) 30 Ibid. 31 (2013) 249 CLR 332. 32 Ibid, [10]. -- 17 of 33 -- [2026] SASC 97 Bochner J 16 67 As I have said, in a matter where proof of breach was relevant, it would be a matter for the Member to determine the nature of the evidence that would provide satisfaction that breach had occurred. 68 The error made by the Senior Member in relation to Mr Garland’s review application is clearly demonstrated by her application of Kola to the matter. In Kola, the South Australian Housing Authority applied to the SACAT for the termination of Mr Kola’s tenancy on the basis that he had permitted the premises the subject of the tenancy to be used for illegal purposes. That is, it was seeking to terminate the tenancy prior to the expiry of its term. That is very different to the circumstances in these matters. The factors set out at [83] of the President’s decision have no application to a tenancy which has expired through the effluxion of time, and the question to be decided is one of renewal. 69 While the SACAT correctly noted that the appropriate question was whether the correct or preferable decision was to renew the leases, it was led astray by its focus on the reasons given by the SAHT for not renewing the lease. To reach this conclusion does not require a reading of the decisions with an eye attuned to error. Rather, it is an acknowledgement that, despite commencing in the correct place, the attention of the SACAT was distracted by a factor that could not be a determinative one in a case where the question to be decided was whether the lease should be renewed. 70 This ground is made out. Ground 2: The SACAT failed to take into account mandatory relevant considerations The SAHT’s submissions 71 The SAHT says that the SACAT failed to take into account mandatory considerations in three separate ways. These considerations are the SAHT’s PFTLA Policy, the relevant clauses of the tenancy agreement and Mr Garland’s history as a tenant, measured against the SAHT’s policies. 72 The policies of the SAHT guide its decision making to ensure that decisions are consistent and in line with its statutory purpose. The PFTLA Policy and the tenancy agreement provide the framework against which the tenant’s conduct is measured, to determine whether or not a tenancy should be renewed. The Senior Member should have considered Mr Garland’s entire history as a tenant, including the SAPOL contact against the PFTLA Policy and the terms of the agreement, rather than examining whether the alleged criminal conduct was proven to the civil standard. Treating the inquiry as one into the question whether the allegations made against Mr Garland were proved on the balance of probabilities prevented the SACAT from reaching the correct or preferable decision on the basis of all of the relevant material. In this regard, the SAHT relied on the decision of Re Drake -- 18 of 33 -- [2026] SASC 97 Bochner J 17 (No 2),33 where Brennan J as President of the Administrative Appeals Tribunal said:34 When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny. 73 The SAHT also relied on the decision of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray,35 where French and Drummond JJ, after confirming that the Administrative Appeal Tribunal is not bound by governmental policy, said:36 The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 420): " .,. the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power”. This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. …the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. … …It should be remembered however, that departure from an announced policy may not be open unless procedural fairness requirements have been observed: Century Metals & Mining NL v Yeomans (1989) 40 FCR 564. For present purposes it is sufficient to consider the position of the Tribunal. The Tribunal provides independent merit review, it is not a policy maker. The notion that the Tribunal may be bound to take into account applicable Ministerial policy as a relevant factor is fundamental to the approach enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the decision on the rehearing which followed the judgment of the Full Court in Drake v Minister for Immigration and Ethnic Affairs. 74 The decision of the SACAT is legally flawed because it did not test the facts of the matter against the criteria that guides public housing decisions. While the SACAT may not be bound by that policy, it remains a relevant matter that must be taken into consideration when determining what the correct or preferable decision 33 (1979) 2 ALD 634. 34 Ibid, 645. 35 (1994) 50 FCR 189. 36 Ibid, 206-207. -- 19 of 33 -- [2026] SASC 97 Bochner J 18 is. In the decision relating to Mr Garland’s lease, the Senior Member provided no reason for not considering the policy, save that it was “not necessary”.37 This does not amount to a cogent or considered reason why the policy should not be applied. By refusing to consider the policy against the background of Mr Garland’s history with the SAHT and the relevant clauses of the tenancy agreement, the Senior Member failed to take into consideration a mandatory relevant consideration. Mr Garland’s submissions 75 Counsel for Mr Garland submitted that the PFTLA Policy, rental history and clauses of the tenancy agreement did not amount to mandatory relevant considerations. On the basis of the facts found by the SACAT the PFTLA Policy was not relevant to the issues as framed by the SAHT. Once the Senior Member found that she was not satisfied that the Holden Hill property had been used for the purpose of illegal conduct, the PFTLA Policy was not relevant to any of the issues before her. As a result, failure to apply the PFTLA Policy would not result in jurisdictional error. Use of the property for illegal conduct was the only basis on which the SAHT determined not to renew the lease; as a result, other considerations were not relevant. No issues had ever been raised about the payment of rent by Mr Garland or his care and upkeep of the property. Once the factual matter relied on by the SAHT was rejected, no other consideration was relevant. 76 Counsel for Mr Garland applied the same reasoning to the clauses of the tenancy agreement. Once the Senior Member rejected the SAHT’s contention that Mr Garland had used the property for illegal activity, the clauses of the tenancy agreement prohibiting dangerous items and illegal activities ceased to be relevant. As to taking into consideration Mr Garland’s rental history with the SAHT, his counsel says that this was not the way in which the matter was framed before the SACAT. The SAHT relied only on the allegations of criminal conduct to justify its decision not to renew the lease; it should now be precluded from relying on other matters to justify it. Consideration 77 I consider that the Senior Member fell into error by determining that it was not necessary to take into consideration the terms of the PFTLA policy. It is clear from Gray and Drake that, while not bound by such a policy, it is incumbent on the SACAT to provide cogent reasons why it should not be applied. In this case, not only did the Senior Member not provide reasons for not applying the policy, she determined that she did not need to consider it at all. I repeat the words of French and Drummond JJ where they said:38 …the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. 37 JCB, LJC-1, [41]. 38 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 206. -- 20 of 33 -- [2026] SASC 97 Bochner J 19 78 I reject Mr Garland’s submission that the policy ceased to be relevant once the SACAT found that it was not satisfied that the Holden Hill property had been used for illegal purposes. This submission ignores both the policy itself, and the reasons for decision under review. The policy provides:39 During the review the SA Housing Trust considers if the tenant has met the conditions of their lease agreement. This includes assessing if the tenant: • has paid rent and other charges, for example water, maintenance • if they have a debt to the Sally Housing Trust and if they are repaying it in line with the Account management policy… • has had complaints made against them about antisocial behaviour • is maintaining the property, including outside areas • has received assistance they aren’t eligible for, for example incorrectly paying a subsidised rent • has used, or allowed the property to be used, for illegal purposes • owns or partly owns any residential property, in line with the Property ownership policy • is excluded from the property under the conditions of an intervention order • has any unresolved support issues and if they’re engaging with their support services It is clear that this list of factors is not exhaustive, given the use of the word “includes” to introduce the list. 79 The Peer Reviewer specifically invoked the terms of the policy, both in relation to the original decision not to renew, and the internal review of that decision. In particular, the Peer Reviewer said:40 During the review SAHT considers if the tenant has met the conditions of their lease agreement. This includes assessing if the tenant: … • Has used, or allowed the property to be used for illegal purposes … The complaints were investigated and substantiated by SAPOL and the policies applied correctly. Due to the seriousness of the illegal activity, it was recommended not to renew the lease for the property. 39 JCB, LJC-12. 40 JCB, LJC-9. -- 21 of 33 -- [2026] SASC 97 Bochner J 20 Conclusion The Peer Reviewer has concluded that the decision should be affirmed due to illegal activity occurring at the property, in line with the Probationary and Fixed Term Lease Agreements guideline. 80 The policy requires that the SAHT “considers” if the tenant has complied with the terms of their lease agreement, and to “assess” whether the tenant has used or allowed the property to be used for illegal purposes. It does not require the SAHT to reach a firm conclusion on whether these things have occurred, nor to be satisfied on the balance of probabilities that they have occurred. It must simply make an assessment of whether these behaviours have occurred. This allows the SAHT to determine not to renew a lease if it assesses – not finds or determines or is satisfied – that such conduct has occurred. 81 The Macquarie Dictionary defines “assess” to mean:41 1. to estimate officially the value of (property, income, etc) as the basis for taxation… 2. to fix or determine the amount of (damages, a tax, a fine, etc.). 3. to impose a tax or other charge on. 4. to measure or evaluate. Clearly the second and third definitions are not relevant to this matter. The first and fourth meanings, however, are directly relevant in that it makes it clear that to assess is to estimate, to measure or evaluate, not reach a firm conclusion. 82 This is supported by the definition of “assess” in the Concise Oxford English Dictionary, which reads:42 evaluate or estimate the value, importance or quality of. 83 Thus, the original decision maker, and the Peer Reviewer were not required to, and did not make a determination that Mr Garland had in fact engaged in illegal conduct at the Holden Hill property; nor was the decision made on the basis that such conduct had been made out. The decision was based on no more than an assessment that such conduct had occurred. Pursuant to the policy, they were required to do no more than this. 84 As a result, the policy was a relevant consideration that should have been taken into account by the Senior Member. I consider that the other matters that the SAHT submitted that the Senior Member did not take into consideration are part of the factual matrix that should have been taken into account when considering 41 Macquarie Dictionary (9th ed, 2023) ‘assess’ (def 1-3). 42 The Concise Oxford English Dictionary (10th ed, 2002) ‘assess’. -- 22 of 33 -- [2026] SASC 97 Bochner J 21 the policy. Failure to consider the policy encompasses these other matters that were not considered by her. 85 This ground is made out. Ground 3: the relief granted by the SACAT was beyond power 86 This ground applies to both Mr Garland and Ms Roberts and relates to the Senior Member’s order in each matter that the tenancy be reinstated on the basis of a periodic tenancy. The SAHT’s submissions 87 The SAHT says that it was beyond the power of the SACAT to reinstate an expired tenancy. It says that s 37 of the SACAT Act does not authorise the creation of new tenancies or the imposition of terms outside the SAHT’s own powers set out in s 7 of the South Australian Housing Trust Act 1995 (SA) (“the SAHT Act”). 88 Section 37 of the SACAT Act provides: 37—Decision on review (1) The Tribunal may, on a review under this Division— (a) affirm the decision that is being reviewed; or (b) vary the decision that is being reviewed; or (c) set aside the decision being reviewed and— (i) substitute its own decision; or (ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate, and, in any case, may make any order the Tribunal considers appropriate (including any interim order pending the reconsideration and determination of the matter by the decision-maker, or any ancillary or consequential order, that the Tribunal considers appropriate). (2) The fact that a decision is made on reconsideration under subsection (1)(c)(ii) does not prevent the decision from being open to review by the Tribunal. (3) The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision— (a) is to be regarded as, and given effect as, a decision of the decision-maker; and (b) unless the relevant Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, from the time when the decision reviewed would have, or would have had, effect. -- 23 of 33 -- [2026] SASC 97 Bochner J 22 (4) Without limiting subsection (3)(a), the decision-maker has power to do anything necessary to implement the Tribunal's decision. (5) Despite subsection (3)(a), the decision as affirmed, varied or substituted is not again open to review before the Tribunal as a decision of the decision-maker (but may be subject to appeal under this Act). 89 Section 7 of the SAHT Act provides: 7—Specific powers of SAHT (1) In addition to the powers conferred on SAHT by or under this Act or other Acts, SAHT may— (a) lease houses from an agent or instrumentality of the Crown or any other person; (b) let houses under its ownership, management or control for such periods as SAHT thinks fit, and exercise in relation to those houses the powers of a landlord; (c) subject to this Act (or any other Act), fix the terms, covenants and conditions on which houses are let by it; (d) pay bonuses or allowances to tenants who show special diligence and care; (e) divide, or subdivide, land for the development of houses; (f) build, alter, enlarge, repair and improve houses or enter into contracts under which houses will be built, altered, enlarged, repaired or improved on behalf of SAHT; (g) convert buildings into houses; (h) hold an interest in land under the Community Titles Act 1996 or the Strata Titles Act 1988 and participate in the membership or management of any corporation under either Act; (i) initiate, facilitate or participate in joint developments; (j) provide advisory, consultative, managerial, support or other forms of service, within the areas of SAHT's expertise, to other entities involved in the division, development or management of land or housing; (k) provide financial, and other, assistance in the public, private and community housing sectors, subject to the qualification that the provision of financial assistance will be subject to the approval of the Treasurer; (l) receive and administer funds on behalf of third parties, on an agency basis. (2) If SAHT sells an interest in residential property, the net proceeds of sale received by SAHT must be applied towards a purpose or purposes associated with the provision of housing within the State. (3) The assistance that may be provided under subsection (1)(k) may include— -- 24 of 33 -- [2026] SASC 97 Bochner J 23 (a) the provision of support or payments of money— (i) by way of grant; or (ii) by way of loan; or (iii) by way of funding agreements that involve the provision of financial benefits or accommodation (whether immediately or over a period of time); (b) the transfer of assets or rights. (4) SAHT may, by arrangement with the appropriate authority, make use of the services, facilities or staff of a government department, agency or instrumentality. 90 The SAHT says that s 37 gives the SACAT the power to affirm, vary or set aside the decision under review, and to substitute its own decision. It may also remit the matter to the SAHT. However, any substituted decision is limited to the same subject matter as the original decision. In these matters, this means that the only decision under review was whether or not the leases should be renewed. The granting of a new tenancy, the change of a tenancy from a fixed term tenancy to a periodic one, or the imposition of new terms and conditions on a tenancy are outside the ambit of the decisions which the SACAT was empowered to make, as they are not part of the decision not to renew the tenancies pursuant to s 37(3). Section 37(3) combined with s 37(4) requires the SAHT to implement any decision substituted by the SACAT for the SAHT’s own decision; however, it does not go so far as to allow the SACAT to grant new tenancies or set the terms and conditions of tenancies. 91 When s 37 of the SACAT Act is read in conjunction with s 7 of the SAHT Act it becomes clear that, when dealing with a decision not to renew, the power of the SACAT extended to substituting a decision to renew, but no further. The SACAT was then required to remit the matter to the SAHT to exercise the powers assigned to it under s 7 of the SAHT Act, including setting the term of a new lease and any conditions attached to it. The orders made by the Senior Member reinstated an expired tenancy and put in place a periodic tenancy, thus setting a term that is only within the power of the SAHT to impose. The respondents’ submissions 92 The respondents say that the Senior Member did no more than re-exercise the power exercised by the original decision maker. They say that the submissions of the SAHT are confused, in that, on the one hand, it says that renewal amounts to the granting of a fresh lease, but on the other hand, that the SACAT is not permitted to grant a fresh lease. This is despite acknowledging that the SACAT has the power to grant the renewal of a lease. Nor has the SAHT relied on any authority to support its contention that the SACAT does not have power to grant a tenancy or to fix its terms and conditions. Further, they say that there is no authority for the proposition that the SACAT is precluded from dealing with matters raised in -- 25 of 33 -- [2026] SASC 97 Bochner J 24 s 7 of the SAHT Act, when it is required to do so on review of a decision of the SAHT. 93 The respondents say that, regardless of this confusion, the SACAT has done no more than substitute what the Senior Member considered to be the correct or preferable decision, when the question under review was whether the tenancies should be renewed: her answer to this question was that they should be renewed and substituted her own decision to renew on certain terms. The Senior Member did no more than reinstate the original tenancies and varied their terms. She did not grant a new lease as contended by the SAHT. 94 The respondents further contend that, as the SAHT did not submit to the SACAT that the orders contemplated were beyond its power, it is not entitled to do so here. Consideration 95 In Frugtniet v Australian Securities and Investments Commission,43 the plurality said:44 … the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT. … The AAT and the primary decision-maker exist within an administrative continuum. The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration. (footnotes omitted) 96 The question that was before the SAHT Peer Reviewer was whether the tenancies of Mr Garland and Ms Roberts should be renewed. This is the question 43 (2019) 266 CLR 250. 44 Ibid, [51]–[53]. -- 26 of 33 -- [2026] SASC 97 Bochner J 25 that the SACAT was required to answer. If it was within the power of the SAHT Peer Reviewer to determine that the tenancies should be renewed then it was also within the power of the SACAT to so determine. The fact that, by the time the SACAT dealt with the matters the tenancies had expired is neither here nor there, because, pursuant to s 37(3)(b) of the SACAT Act, the decision of the SACAT takes effect from the time that the decision under review took effect. In Mr Garland’s case, the decision of the Peer Reviewer was communicated to him before the end of his lease; as a result, the SACAT decision would take effect from the same date. In Ms Roberts’ case, while the decision of the Peer Reviewer was made after the expiry of her lease, there is no suggestion that they could not have decided that the lease could not be renewed because it had already expired. 97 The SAHT’s submissions in relation to s 7 of the SAHT Act amounts to an argument that s 7 vests exclusive power in the SAHT to do the things set out in it. If the construction placed on s 7 of the SAHT Act was correct, it would preclude from review any decision made by the SAHT pursuant to s 7, including any decision to let a house to a tenant including the terms and conditions on which the lease is granted. Given that the SAHT does not argue that the decision in this matter is not a reviewable decision, this cannot be the case. 98 I consider that it was within the power of the Senior Member to determine that the preferable decision was that each tenancy should be renewed and to substitute that decision for the decision of the Peer Reviewer. This does not, however, empower her to require the grant of a lease on terms different to that which was in existence at the time the decision not to renew was made, or to grant a lease contrary to the SAHT policy framework, without a cogent reason for doing so. 99 The PFTLA Policy provides:45 Tenants are offered a 12 month extension of their probationary lease agreement at the end of the initial probationary lease if both of the below apply: • the tenant has had issues meeting the conditions of their lease agreement • the issues aren’t (sic) continuous or significant. Pursuant to this policy, the Peer Reviewer, if they determined to renew their leases, would offer no more than a 12-month extension of their probationary leases. Without a cogent reason for granting a renewal on more favourable terms than this, the Senior Member should have followed the policy and granted an extension by 12 months of the probationary leases. In reaching this conclusion, I adopt, with respect, the words of Brennan J in Re Drake (No 2) which I have already set out at [71] hereof. 45 JCB, SLP-12. -- 27 of 33 -- [2026] SASC 97 Bochner J 26 100 I do not consider that the SAHT is precluded from arguing here that it was beyond the power of the SACAT to make an order reinstating the lease on certain terms. In circumstances where the representatives of the SAHT were lay people, I do not consider that it is reasonable to expect them to make this rather nuanced argument. 101 This ground is made out in part. Ground 4: the decision of the Senior Member lacked evident and intelligible justification The SAHT’s Submissions 102 The SAHT submits that the decisions of the Senior Member lacked intelligible justification because in purporting to reinstate expired leases and create new tenancy estates, the decisions were inconsistent with the statutory scheme and lacked rational connection to its purpose. The SACAT was not empowered to create a new tenancy estate and yet it did so without considering whether the SAHT wished to be bound by the terms imposed or whether it would have sought other terms to protect its interests. 103 This is contrary to s 7 of the SAHT Act which vests exclusive authority in the SAHT to set the terms and conditions of a lease. The SACAT created new periodic tenancies with no fixed term, in a manner not contemplated by the SACAT Act. Reinstatement of the leases as periodic leases was ordered, without any identification of the source of power that allowed this to occur. The SACAT reinstated leases that no longer existed; as a result, there was nothing to reinstate and yet the Senior Member provided no explanation of any alternative legal interest that she sought to reinstate. The respondents’ submissions 104 The respondents say that this ground amounts to no more than a restatement of ground 3. In essence, it is that the SACAT did not have the authority to reinstate the leases which had already expired. This has been dealt with in the respondents’ response to ground 3. 105 Otherwise, ground 4 raises allegations of unreasonableness, without articulating those further. It also appears to confuse legal unreasonableness and failure to provide adequate reasons. Consideration 106 In Li, French CJ described the requirement of reasonableness in the following terms:46 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters 46 (2013) 249 CLR 332, [30]. -- 28 of 33 -- [2026] SASC 97 Bochner J 27 or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence”. As Professor Galligan wrote: “The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed”. (footnotes omitted) 107 Hayne, Kiefel and Bell JJ, on the other hand, gave a more expansive definition to unreasonableness. They said:47 The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. (footnotes omitted) They went on to say:48 As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnote omitted) 108 I agree with the respondents’ submission that the way that the SAHT articulated this ground appeared somewhat confused. It was largely presented as a variation of its third ground, that the SACAT made orders that were beyond its power. This ground must be rejected on this point. 47 (2013) 249 CLR 332, [72]. 48 (2013) 249 CLR 332, [76]. -- 29 of 33 -- [2026] SASC 97 Bochner J 28 109 If the ground were to be argued as a second limb to the earlier ground relied on by the SAHT, that the SACAT failed to take into account a relevant consideration, then it would arguably be supported by the decision of the plurality in Li. It was not, however, presented by the SAHT in this way. In the way that it was argued, it cannot be accepted. I have already found that the SACAT did, in fact, have the power to order renewal of the leases given that this was precisely the question before the original decision maker. I also repeat my earlier finding in relation to the exclusivity of the power conferred by s 7 of the SAHT Act. 110 In any event, when read in the context of the Senior Member’s reasoning, the decision did not “lack an evident and intelligible justification”.49 Once the Senior Member found that the allegation of breach was not made out, her conclusion that the lease should be reinstated is entirely explicable, despite my finding that this was the wrong question to ask. The decision falls, not because it lacked intelligible justification, but because the wrong question was addressed. 111 This ground is not made out. Ground 5: the SACAT denied the SAHT procedural fairness in relation to Mr Garland’s review application The submissions of the SAHT 112 The SAHT says that it was denied procedural fairness because the Senior Member refused to grant an adjournment before making final orders. This deprived it of the opportunity to make submissions about the nature of the lease that should be granted and its terms. The SAHT submits that, after the Senior Member indicated that she was considering reinstatement, Ms Cavallaro sought an adjournment to allow her to obtain instructions; this request was refused. This imposed an immediate time pressure on the SAHT to react to a new issue: the terms of the renewed lease. It also indicates prejudgement on the part of the Senior Member, in that she assumed that reinstatement of the lease was the automatic consequence of setting aside the decision of the Peer Reviewer. The attitude of the Senior Member is demonstrated by the transcript of the hearing, where she said:50 The hearing is over. I’ve made my decision. I’m giving you the courtesy – I’m giving the Housing Trust the courtesy of having some input into what other orders I should make. If you’re not in a position to provide that input today, again, no criticism of you, I’ll make a decision myself. Mr Garland’s submissions 113 Mr Garland denies that the SAHT was denied procedural fairness. When Ms Cavallaro requested an adjournment to take instructions on the question of consequential orders, an adjournment was granted. In fact, Ms Cavallaro used the time to take instructions on the calling of further evidence to establish a breach; 49 Ibid. 50 JCB, LJC-16, 25. -- 30 of 33 -- [2026] SASC 97 Bochner J 29 when she returned to the hearing room and sought a further adjournment for this purpose, it was this adjournment that was refused. There was nothing inappropriate in refusing to grant an adjournment to allow the SAHT to obtain evidence that it should have had available at the commencement of the hearing. Mr Garland further submits that Ms Cavallaro should have attended the hearing with instructions on the nature of the consequential orders that the SAHT would seek in the event that the review was allowed. She was invited to make submissions on this topic, and should have attended the hearing equipped to do so. Consideration 114 In Li, the plurality said:51 A denial of procedural fairness may result in a decision made in excess of jurisdiction to which s 75(v) of the Constitution will respond. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. (footnotes omitted) With respect, there can be no doubt that this is correct. I am not convinced, however, that there was any procedural unfairness to the SAHT in this matter. 115 I accept Mr Garland’s submission that the Senior Member did, in fact, allow an adjournment at the request of the SAHT so that Ms Cavallaro could obtain instructions on consequential orders. So much is clear from the transcript.52 I also do not consider that the Senior Member had prejudged the outcome at that stage. Immediately before granting the adjournment, she said:53 At this stage, I’m not committed to the full suite of orders, save for setting aside the decision. The following exchange then took place:54 Senior Member Ward: Okay. So, how much time do you think you might need? Ms Cavallaro: Perhaps half an hour, probably less. Senior Member Ward: It would have to be less, I’ve got another hearing at 11.15. Can you manage by 11 o’clock? Ms Cavallaro: Yes, that’s fine. There is no suggestion in this exchange that Ms Cavallaro considered that she was faced with unreasonable time pressure, or that the imposition of a short time frame to obtain instructions was otherwise unreasonable. 51 (2013) 249 CLR 332, [48]. 52 JCB, LJC-16, 25. 53 Ibid. 54 JCB, LJC-16, 26. -- 31 of 33 -- [2026] SASC 97 Bochner J 30 116 When the hearing resumed, the Senior Member gave a brief summary of her findings and said:55 And, accordingly, I’ll be reinstating the tenancy. I do not consider that this amounts to an indication that the Senior Member had prejudged the outcome. She had already determined that the decision of the Peer Reviewer would be set aside; as that was a decision not to renew the tenancy, it is logical to assume that, once the decision was set aside, the tenancy would be renewed. 117 The Senior Member then asked Ms Cavallaro if she had obtained instructions on consequential orders. The following exchange then occurred:56 Ms Cavallaro: So, the advice from our Compliance Unit is that we would like to request an adjournment to secure a SAPOL witness to provide further evidence. Senior Member Ward: The evidence should have been provided before now. The hearing is over. While, perhaps, the words chosen by the Senior Member were infelicitous, I am not satisfied that they demonstrate any procedural unfairness. She was correct, in the sense that the fact finding part of the hearing was over and the only matter left outstanding was final orders. She gave Ms Cavallaro an opportunity to obtain instructions and it is clear that Ms Cavallaro was able to do so. Unfortunately, she did not obtain instructions on the matter that was then before the SACAT. Without meaning any disrespect to Ms Cavallaro, that is her fault. 118 This ground is not made out. Ground 6: the refusal to grant an adjournment lacked evident and intelligible justification The SAHT’s submissions 119 The SAHT says that the refusal of the SACAT to grant an adjournment to obtain instructions was legally unreasonable and constituted a denial of procedural fairness. It was disproportionate and irrational as it prevented the SAHT from making submissions on a matter that affected it directly. It resulted in an outcome that was beyond power. 120 Once the Senior Member announced that the decision was going to be set aside, it was clear that the proceeding had entered into a new phase. The reinstatement of and imposition of terms on a lease are legally complex issues and the SAHT should have had an opportunity to make submissions on this point. The adjournment sought was modest and would cause no prejudice to Mr Garland who 55 JCB, LJC-16, 27. 56 Ibid. -- 32 of 33 -- [2026] SASC 97 Bochner J 31 remained living at the Holden Hill property, whereas the inability to make submissions on this point would cause substantial prejudice to the SAHT. Mr Garland’s submissions 121 Mr Garland submits that clear and intelligible reasons were given by the Senior Member, both at the hearing and in her written reason. She correctly stated that the SAHT was an experienced litigant which has a clear understanding of the expectations of the SACAT. If it wished to defend the decision of the Peer Reviewer, it was well aware that it needed to have all of its evidence available for the hearing. The SAHT failed to do this. Consideration 122 I consider that my determination of ground 5 deals with this issue. I do not consider that the SAHT was denied an adjournment to obtain instructions on consequential orders. It is clear that an adjournment was granted and that Ms Cavallaro was able to obtain instructions, albeit not on the question for which the adjournment was allowed. 123 By the time that Ms Cavallaro sought an adjournment to obtain evidence from a SAPOL witness, that time had well and truly passed. In effect, Ms Cavallaro was seeking to reopen her case after the Senior Member had told the parties what her decision was. The Senior Member made no error in refusing to grant such an adjournment. 124 This ground is not made out. Conclusion 125 I have found that three of the SAHT’s grounds of review have been made out. The decisions of the SACAT dealing with Mr Garland’s and Ms Roberts’ leases must be quashed. The matters will be remitted to the SACAT, to be determined according to law. -- 33 of 33 --