AML (a pseudonym) v Longden Super Custodian Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0070

AML (A PSEUDONYM)[1]	Applicant
v
LONGDEN SUPER CUSTODIAN PTY LTD	Respondent

[1]These reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2023
DATE OF JUDGMENT:	27 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 170
JUDGMENT APPEALED FROM:	[2023] VSC 345 (McDonald J)

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Appeal from decision of judge summarily dismissing appeal from decision of Victorian Civil and Administrative Tribunal to not adjourn and proceed to hear landlord’s application for a possession order – Whether judge erred in holding that appeal had no real prospect of success – Whether Tribunal breached procedural fairness by refusing or not considering adjournment – Application for leave to appeal refused.

Civil Procedure Act 2010 ss 62, 63; Victorian Civil and Administrative Tribunal Act 1998 s 148.

Isbester v Knox City Council (2015) 255 CLR 135; Sullivan v Department of Transport (1978) 20 ALR 323.

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Counsel
Applicant:		In person
Respondent:		Ms C Jones
Solicitors
Applicant:
Respondent:	Patten Robins Lawyers

MACAULAY JA
J FORREST AJA:

Introduction

This is the fifth occasion on which the applicant has challenged, in a division of the Supreme Court, the correctness of a decision by the Victorian Civil and Administrative Tribunal (‘VCAT’) to refuse or not consider his application to adjourn a hearing of his landlord’s claim for possession of his rental premises.
On each occasion a judge (or judges) determined that the applicant had not made out a prima facie case that he had been denied procedural fairness by not adjourning the hearing.
We also consider that the applicant’s case is without merit and set out our reasons below for refusing leave to appeal.

Background

On 18 December 2017, the respondent, Longden Super Custodian Pty Ltd (‘Longden’), and the applicant, identified by the pseudonym AML, entered into a 12-month residential tenancy agreement in respect of premises at Glen Iris. Upon its expiration, the tenancy continued as a periodic monthly tenancy.
On 6 May 2022, Longden served on AML a notice to vacate, as it intended to sell the property. AML did not do so.
On 22 June 2022, Longden commenced a proceeding in the VCAT seeking orders for possession.
On 22 August 2022, AML was notified of the scheduled VCAT hearing date on 2 September 2022 for Longden’s application for possession. On 23 August 2022, AML emailed the VCAT requesting (or to put it more accurately, declaring) that the hearing be adjourned. After some correspondence between the parties and the VCAT, the details of which will be set out shortly, the VCAT member, Member Galvin, proceeded to hear Longden’s application for a possession order on 2 September 2022 in the absence of any person on behalf of the applicant attending the hearing to seek an adjournment. Member Galvin granted the possession order and AML was required to vacate the premises.
On 12 September 2022, AML applied, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), for leave to appeal against the possession order. Longden in turn sought summary dismissal of that application pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (‘CPA’) on the basis that it had no real prospect of success.
On 5 April 2023, Irving AsJ acceded to Longden’s CPA application and dismissed AML’s application for leave to appeal.[2]
[2]AML (a pseudonym) v Longden Super Custodian Pty Ltd [2023] VSC 146 (the ‘summary judgment’).
On 13 April 2023, AML filed a notice of appeal to the Trial Division against the summary dismissal.
In the meantime, on 18 April 2023, AML issued a summons, seeking: an injunction permitting him to remain in possession; and an order staying the execution of a warrant of possession, which the VCAT had issued pursuant to the order of Member Galvin.
On 21 April 2023, Forbes J dismissed the summons and application. AML then sought leave to appeal, to this Court, against Forbes J’s decision. Leave was refused.[3]
[3]AML (a pseudonym) v Longden Super Custodian Pty Ltd [2023] VSCA 118.
Returning to AML’s application for leave to appeal against Irving AsJ’s summary dismissal, on 17 June 2023, McDonald J in the Trial Division refused AML leave to appeal that decision.[4]
[4]AML (a pseudonym) v Longden Super Custodian Pty Ltd [2023] VSC 345 (‘Reasons’).
On 7 July 2023,[5] AML sought leave to appeal against McDonald J’s decision.
[5]The application was amended on 14 July 2023.

The adjournment application and the VCAT hearing

Central to the present application are correspondences which occurred between 22 August 2022 and 1 September 2022, the day before the VCAT telephone hearing.
On 23 August 2022 at 8:00 am, AML sent an email to the VCAT, copied to Longden’s real estate agent, concerning an adjournment of the hearing for the possession order. AML’s email included the following passage:
There was a notice of hearing yesterday. I attach it. The hearing has to be rescheduled because I have other things next week on a Friday morning. Is a civil case. Was booked two weeks ago. I’d like please not to disclose anything.
On 23 August 2022 at 11:31 am, the VCAT dismissed AML’s adjournment application. Its orders provided as follows:
On an application for adjournment by the renter VCAT finds:
1. The application for an adjournment was made on 22 August 2022 because the renter has a civil court case on the same day as the VCAT hearing but has not provided a copy of any notice of the civil hearing in support of the adjournment application.
2. The consent of the residential provider has not been obtained.
3. There are insufficient grounds for granting an adjournment.
4. The renter has not provided sufficient evidence to support the application for an adjournment such as a redacted notice of hearing.
5. The renter may appoint a person to represent the party at the hearing.
VCAT orders:
1. The application for adjournment is refused.
2. The principal registrar is directed to send the parties a copy of this order as soon as possible, including by email if practical.
Note: VCAT may consider a further application for adjournment if the consent of the residential rental provider is obtained or sufficient evidence in support of the application is provided.
On 23 August 2022 at 2:48 pm, AML emailed VCAT without copying the email to Longden, stating:
I confidentially attach the correspondence from the Magistrates’ Court saying that there is an appointment with a registrar on 2 September 2022 at 11.30am.
Please do not disclose this to the other party.
The correspondence from the Magistrates’ Court, which was attached to AML’s email, read as follows:
The court has booked you in for an appointment via telephone, to discuss your application with a registrar via telephone on 2 September 2022 at 11.30am …
Please ensure you are available via telephone at the time of the appointment. You will receive a phone call from an unknown number during this time. If you do not answer at the time of appointment, the court will not process your application and will await to hear from you to book an appointment again.
On 24 August 2022 at 11:51 am, Longden’s solicitors, although unaware of AML’s email of 2:48 pm the previous day, emailed the VCAT:
This matter has been protracted for some months, included a previous similar application having previously being appealed to the Supreme Court by the Respondent Renter. I am also mindful of the heavy case load currently facing VCAT.
My client would oppose an adjournment and respectfully seeks that the matter proceed as listed next Friday 2 September 2022.
On 26 August 2022, AML emailed the VCAT, copied to Longden, requesting for a second time that the hearing be adjourned:
I was informed yesterday at 4.30pm that the previous request to reschedule the 2 September hearing was not granted because it said it had to have evidence. There was no notification of this decision. I made the request on 23 August at 8.00am. I sent the evidence at 2.48pm, confidentially. Seems the decision was made before this. Thus, I make a second request to reschedule it with the evidence sent on 23 August at 8 am and 2.48pm to be taken into account.
On 29 August 2022, Longden’s solicitors emailed VCAT, copied to AML, attaching some documents to be relied upon at the hearing and referring to the fact that the matter was ‘listed for an Application on Friday 2 September 2022’.
On 1 September 2022, AML emailed VCAT:
I was informed that the hearing tomorrow was not adjourned. Was said that a decision about the 25 August request I made, was not made the previous six days. Thus the hearing may be adjourned at the hearing tomorrow.
I’m not going to be at the hearing.
Whether or not AML received the VCAT’s order made at 11:31 am on 23 August 2022 — as to which there was no clear evidence — AML conceded before this Court (as he had before the judge) that he was well aware of his right to appoint a representative to attend the VCAT to represent him at the hearing (as stated in paragraph 5 of the order dated 23 August 2022).
As mentioned previously, on 2 September 2022 the hearing before Member Galvin proceeded in AML’s absence. It is important to note that the hearing at the VCAT was conducted by telephone.[6] That is, it was not necessary for AML or his representative, should he have appointed one, to physically attend at a VCAT hearing room. Neither AML nor any representative on his behalf appeared at the telephone hearing. Longden was represented by its solicitor (by telephone). Longden was granted an order for possession.
[6]This information about the nature of the hearing at VCAT was conveyed to the Court by AML at the hearing of the application for leave to appeal, and confirmed by counsel appearing for Longden.

The appeal under s 148 of the VCAT Act

The asserted questions of law and grounds of AML’s application for leave to appeal pursuant to s 148 of the VCAT Act are reproduced as follows:
QUESTIONS OF LAW:
1. Was the Tribunal in error in the way it handled the renter’s adjournment application by not replying for 7 days up to the hearing, among other? Thus, it didn’t exercise jurisdiction and there was procedural unfairness?
2. Was the Tribunal in error in the way it proceeded to make the possession order, by not replying to the renter’s adjournment application, not providing the adjournment application messages and evidence to the member at the hearing, not being aware of it at the hearing, thus not taking into account the adjournment application and that the renter has a civil court case and thus is not there to present his case because of it? It didn’t exercise jurisdiction, there was an error in jurisdiction or procedural unfairness?
3. The possession order has to be set aside?
THE GROUNDS RELIED UPON ARE:
1. The renter said that has a civil court case on the day the Tribunal scheduled the hearing and asked to reschedule it. The Tribunal didn’t reply to the renter’s request (the second), there is no evidence of taking it into account, there is no evidence of taking into account the renter’s evidence about it, didn’t provide the adjournment request messages and evidence to the member at the hearing, the renter wasn’t at the hearing to present his case. Then the Tribunal made a possession order. It didn’t exercise jurisdiction, there was an error in jurisdiction and procedural unfairness.

The decisions of Irving AsJ and McDonald J

Sections 62–3 of the CPA provide:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
It is unnecessary to set out the terms of s 64 as no issue arises on the application for leave to appeal concerning the operation or application of that provision.
In essence AML’s questions of law on his s 148 application for leave to appeal (set out above) alleged two errors by Member Galvin in granting the possession order in favour of Longden: a denial of procedural fairness and a failure to exercise jurisdiction.[7] Both Irving AsJ and McDonald J held that AML’s proceeding had no real prospect of success.
[7]Reasons, [11].
McDonald J succinctly summarised Irving AsJ’s reasons and decision for summarily dismissing AML’s application as follows:
The Associate Judge’s judgment is underpinned by two principal findings. First, that AML did not establish that he was denied procedural fairness. Second, if there had been any denial of procedural fairness, AML did not establish that he was deprived of the opportunity of making a submission on 2 September 2022 that might have affected the outcome of the proceeding.[8]
[8]Reasons, [28].
Before us, AML accepted the correctness of the judge’s statement of the two principal findings made by the associate judge. In his conclusion on the appeal from the associate judge — conducted by way of a rehearing[9] — the judge upheld the associate judge’s decision by reference to the first of those two findings. That is, having analysed in considerable detail the correspondence and the conduct of the VCAT hearing, McDonald J concluded that AML had not been denied procedural fairness, and that it was therefore unnecessary to consider whether, if there had been a denial of procedural fairness, that denial would have been material.[10]
[9]Supreme Court (General Civil Procedure) Rules 2015 r 77.06 (‘Rules’); Reasons [9].
[10]Reasons, [41].
In determining that AML had not been denied procedural fairness, McDonald J addressed the numerous grounds of appeal that AML raised in respect of Irving AsJ’s decision. Given that AML was a self-represented litigant, McDonald J took a ‘broad view’ of AML’s grounds and submissions.
Grounds 1–8 concerned an email dated 10 August 2022, which was not produced to Irving AsJ but was before McDonald J.[11] The contents of that email are set out at [19] above. McDonald J noted that Irving AsJ had concluded, without knowing the contents of the email, that AML had not been denied procedural fairness; and considered that its contents fortified that conclusion.[12] In the judge’s view, the contents of the email fortified that conclusion because they revealed that the nature of the ‘civil court case’ referred to in AML’s first email of 23 August 2022 was in fact a telephone appointment with a registrar of the Magistrates’ Court to discuss an application to be made by AML, and that the appointment would be rescheduled if AML was unable to attend the call. These two facts meant, in the judge’s view, that AML
had to opportunity to reschedule his telephone appointment at 11:30am with a registrar at the Melbourne Magistrates’ Court. He elected to participate in a telephone call with registrar rather than participate in the Tribunal hearing… This was his choice… He was not denied a reasonable opportunity to oppose the making of the possession order’.[13]
[11]AML did not exhibit the 10 August email in the evidence on the summary judgment application. Longden did not have it in its possession because it had been kept confidential as requested by AML. Hence, it was not considered by the associate judge nor were submissions made about it. It was introduced into evidence by AML on the appeal before McDonald J and accepted as ‘fresh evidence’ pursuant to r 77.06(9) of the Rules: Reasons [37].
[12]Reasons, [38], [41].
[13]Reasons, [36].
Ground 9 contended that Irving AsJ failed to consider that the landlord and his solicitor had misled the VCAT. McDonald J rejected that contention. He noted that Irving AsJ had had regard to: the correspondence between 23 August 2022 and 1 September 2022; and the VCAT transcript, showing that Longden’s solicitor had referred Member Galvin to AML’s 1 September 2022 email foreshadowing his non-attendance and had made submissions as to whether that email should be construed as a ‘further request’ for an adjournment.[14]
[14]Reasons, [39]–[40].
McDonald J considered grounds 15–18 concerning Irving AsJ’s finding that
AML did not provide any evidence about whether he attempted to find someone who could represent him at the VCAT hearing and did not explain why this option was impossible or unacceptable.[15]
His Honour held that Irving AsJ was correct to take into account AML’s failure to send a representative, and his failure to explain that failure; and that AML’s failure to send a representative was ‘relevant to the question of whether AML was denied an opportunity to be heard’.[16]
[15]Reasons, [30], quoting the summary judgment, [36].
[16]Reasons, [32]–[33], [41].
Finally, in rejecting AML’s contention as to denial of procedural fairness McDonald J said:
AML’s request for an adjournment of the hearing on 2 September 2022 was not a reasonable request. He elected to participate in the telephone appointment with a registrar at the Melbourne Magistrates’ Court rather than attending the hearing in the Tribunal. He could have sent a representative to appear on his behalf and make an application for an adjournment. He has provided no explanation for his failure to do this. He was not denied procedural fairness because he was provided with a reasonable opportunity to respond to the application for a possession order. The Associate Judge was correct to conclude that there had been no denial of procedural fairness. In reaching this conclusion I have had the benefit of access to the 10 August 2022 email which supports a conclusion that AML was not denied procedural fairness.[17]
[17]Reasons, [41] (emphasis added).
The emphasised sentence is the judge’s conclusion about the correctness of the associate judge’s first principal finding. As already mentioned, the judge went on to say that as a consequence of that finding, it was unnecessary to consider the question of whether, if there had been a denial of procedural fairness, the denial was material in the sense that there was a realistic possibility that a different decision could have been made on 2 September 2022 had AML been accorded procedural fairness.[18] In other words, the premise for any consideration of the second finding was not established.
[18]Reasons, [41].

This application for leave to appeal the decision of McDonald J

By application for leave to appeal against McDonald J’s decision, AML now advances three proposed grounds of appeal.[19] AML is self-represented and has, as we understand it, no formal legal training. However, as his written and oral submissions demonstrated, he is intelligent and articulate.

Ground 1 — Procedural unfairness

[19]We will refuse leave to appeal under each of these three grounds, but for convenience, each proposed ground will be referred to as a ‘ground’.

Allowing for the fact that AML is unrepresented, at its heart this ground appears to attack the conclusion of McDonald J (and Irving AsJ) that there was no denial of procedural fairness by Member Galvin in refusing or not considering the adjournment application, and therefore proceeding to grant the possession order. It is important to recognise that the procedural unfairness argument was directed to the manner in which the adjournment request was ‘handled’. The consideration of any denial of procedural fairness was focused upon the way in which the Tribunal dealt with or failed to deal with that request.

AML repeats the arguments he made before McDonald J in that:
(a)the VCAT ‘mishandled’ the adjournment application;
(b)the possession order was made in AML’s absence;
(c)Irving AsJ erred in issuing summary judgment on the basis that AML had failed to provide the evidence and submissions that he would have provided to VCAT had he been afforded procedural fairness;
(d)Member Galvin had not been made aware of certain ‘evidence in the renter’s correspondence’ which was material, and Irving AsJ had also failed to consider said evidence; and
(e)AML did not need to justify not sending a representative, because he was not obliged to send one.
The decision of McDonald J was clearly correct. As his Honour stated, the primary issue was whether the refusal by Member Galvin to grant or consider the adjournment request amounted to a denial of procedural fairness.
The principles are clear and were appropriately summarised by McDonald J:[20]
In Isbester v Knox City Council,[21] Gageler J stated:
The standard incidents of procedural fairness, as it ordinarily conditions the exercise of a statutory power, include ‘the absence of the actuality or the appearance of disqualifying bias’ in addition to ‘the according of an appropriate opportunity to be heard’. The content of each of those incidents of procedural fairness accommodates to the particular statutory framework as well as to the particular factual context of a particular exercise of the power.[22]
The Tribunal is bound by the rules of natural justice: s 98(1) VCAT Act. A refusal to grant a reasonable request for an adjournment can constitute a failure to provide a party the opportunity of adequately presenting their case.[23] The duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present their case. Neither s 98(1) of the VCAT Act nor the common law ‘imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled’.[24]
[20]Reasons, [21]–[22] (emphasis in original).
[21](2015) 255 CLR 135; [2015] HCA 20.
[22]Ibid 154 [55].
[23]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 [40] (Gaudron and Gummow JJ); [2002] HCA 11; Sullivan v Department of Transport (1978) 20 ALR 323, 343 (‘Sullivan’).
[24]Sullivan (1978) 20 ALR 323, 343.
The judge rightly concluded that AML had not been denied procedural fairness as:
(a)he was aware before the commencement of the VCAT hearing that his second adjournment request had not been determined;
(b)he could have sent a representative to request an adjournment and provided no explanation for failing to do so;
(c)from the terms of the 10 August 2022 email from the Magistrates’ Court he could have rescheduled his telephone appointment with the Magistrates’ Court registrar; and
(d)he elected to participate in a telephone appointment with a Magistrates’ Court registrar (if he did so) rather than attend the VCAT hearing.
McDonald J focused upon the issue of whether AML had been subject to procedural unfairness in the VCAT hearing by it not adjourning the hearing. This question was the primary one and necessarily anterior to the subsidiary question of whether, if such procedural unfairness had attended the VCAT hearing, whether it was capable of having made a difference to the outcome. This was patently the correct approach.
Particularly relevant to the question of any denial of AML’s reasonable or appropriate opportunity to be heard on his adjournment request and the VCAT response was consideration of the engagement which was purportedly inhibiting AML from attending the VCAT hearing on 2 September 2022. In his 22 August 2022 email to VCAT, AML characterised it as a ‘civil case’. That was not so. In fact, as the 10 August 2022 email demonstrates, the asserted engagement was merely a scheduled phone conversation with a registrar of the Magistrates’ Court of which AML had the option of ‘book[ing] an appointment again’.
We initially understood from the filed material on the application for leave to appeal that the VCAT hearing was a physical, in-person attendance in a hearing room. On that understanding, it was difficult enough to comprehend how being on the end of a mobile telephone to a Magistrates’ Court registrar at about the same time as the scheduled VCAT telephone hearing would practically prevent AML’s appearance before the VCAT to advance any adjournment application. Understanding that both attendances were to be by telephone makes it even more difficult to accept that AML could not participate in the hearing and present any argument concerning the adjournment.
In summary, as at 1 September 2022, at the latest, AML knew: the hearing listed for 1 September 2022 was proceeding; his first request for an adjournment had been refused; his second request for an adjournment had not been granted but may be considered at the hearing at 11:30 am on 2 September 2022; and he either could participate in the VCAT telephone hearing himself or appoint a representative to participate on his behalf. He did neither of those things. No person appeared before the VCAT to advance his request for an adjournment before the Member hearing Longden’s application for possession. It was not that he could not appear; rather, he would not appear. McDonald J was correct to find that AML chose not to appear.
Irving AsJ’s observation (on the summary dismissal application) is directly to the point:
A further problem arises if AML’s line of argument were to be accepted. That is, it would leave the process before VCAT to his convenience. Such a position is beyond what the duty to provide procedural fairness requires and is contrary to modern case management principles and the need for finality in litigation. It also does not strike the appropriate balance between the interests of both parties to the litigation.[25]
[25]Summary judgment, [35].
We would go further. It is not for the parties to litigation in this day and age, and with the pressures on courts to deal with cases efficiently and speedily, to dictate whether a case will or will not proceed on a particular day or time. That is the Court’s decision.
Although, in his application for leave to appeal, AML sought to advance in detail arguments concerning the ‘materiality’ of the denial of procedural fairness, citing in particular the principles in Nathanson v Minister for Home Affairs,[26] since the judge did not determine the appeal on that basis, and as we consider that the judge was able to determine the appeal without doing so, it is not necessary for us to consider those arguments.
[26]Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26.
It follows that we can identify no error in McDonald J’s decision. Ground 1 must fail.

Ground 2 — False impression

By ground 2, AML contends that Longden created a false impression to Member Galvin that there had been no active adjournment application at the 2 September 2022 hearing, and that there was no reason why AML had not been present.
AML submitted that if Member Galvin had been aware of the circumstances then she may have adjourned the hearing or not made the possession order in the terms she did.
This ground goes nowhere. It raises no issue about the correctness of the decision of McDonald J. In any event the VCAT transcript demonstrates that Longden’s solicitor brought AML’s 1 September 2022 email to the Member’s attention.[27] As McDonald J said:[28]
Appeal ground 9 contends:
The Associate Judge didn’t properly consider what was really done in VCAT, including that the landlord and his solicitor misled the Member (made a wrong consideration/didn’t make a relevant consideration/didn’t exercise jurisdiction).
This ground of appeal has no merit. The Associate Judge’s judgment refers to the eight documents exhibited to AML’s affidavit of 12 October 2022. These documents set out the correspondence between AML, the respondent and the Tribunal during the period 23 August 2022 and 1 September 2022. The Associate Judge also referred to the transcript of the proceedings in the Tribunal on 2 September 2022:
The transcript of the VCAT hearing on 2 September 2022 shows that Mr Murdoch, Longden’s solicitor, brought to the VCAT Member’s attention AML’s further email indicating that AML would not be at the hearing. The Member noted that AML may apply to review the Member’s order but that, in doing so, AML would have to provide a good excuse for not attending the hearing and a good defence to the possession order. The Member noted that there was nothing in the material before him that indicated the requirements for making the possession order were not met or that it would not be reasonable and proportionate to make the possession order.
The transcript records that Mr Murdoch then said to the Member that AML’s email of 1 September 2022 does not constitute, in terms, a further request for an adjournment and that even if it had, AML’s adjournment application had been denied only days before. The Member responded by stating that he had a discretion to consider any adjournment request received overnight on the day of the hearing but that there was no one present asking for an adjournment.[29]
[27]Summary judgment, [9].
[28]Reasons, [39].
[29]Summary judgment, [9]–[10].
Ground 2 also must fail.

Ground 3 — Mandatory considerations: VCAT did not perform its statutory duty and did not exercise jurisdiction

By ground 3, AML contends that the VCAT failed to take into account mandatory considerations, to perform its statutory duty and to exercise its jurisdiction.
This ground is also without merit. As McDonald J explained:
At the hearing on 5 June 2023 AML sought leave to amend his notice of appeal by adding the following ground of appeal:
Did not consider that the possession order was invalid or unlawful because the member had not made the mandatory considerations required in s 330 and s 330A of the Residential Tenancies Act 1997. The appellant said at the 23 March 2023 hearing that the member would have to consider s 330A and the landlord gave no evidence.
The grounds of appeal in AML’s application for leave to appeal do not raise the issue of whether the possession order was invalid by reason of the Tribunal Member failing to address the mandatory consideration required by s 330 and 330A of the Residential Tenancies Act 1997. As the appeal grounds did not raise the alleged failure of Member Galvin to consider s 330 and 330A, the proposed ground of appeal is not a basis for challenging the Associate Judge’s finding that the application for leave to appeal had no real prospect of success. In any event, [3] of the possession order made on 2 September 2022 records the Member’s finding that having regard to the matters in s 330A of the Residential Tenancies Act 1997 it was reasonable and proportionate to make the possession order. The gravamen of AML’s complaint is that the possession order was made without the Member having submissions from AML as to why it was not reasonable and proportionate. The proposed appeal ground does not add anything to the grounds which raise the issue of whether the appellant was denied procedural fairness. The application for leave to amend is refused.
This passage shows that the question whether the possession order was invalid because the VCAT failed to address mandatory considerations when making it was not a question raised by any ground of appeal before the judge. We would not entertain an application for leave to appeal the judge’s decision upon such a ground. For what it is worth, however, we consider that the judge was correct to remark that such a ground would not have added anything to the existing grounds.

Conclusion

In our view, none of AML’s three proposed grounds of appeal is reasonably arguable. Leave to appeal will be refused for each.
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[2023] VSCA 170

27 July 2023