AML (a pseudonym) v Longden Super Custodian Pty Ltd - [2023] VSCA 170

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.

---

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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read AML (a pseudonym) v Longden Super Custodian Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSCA 170
Decision Date: 27 July 2023

CaseChat Overview and Summary

The matter before the court was an appeal by AML against the decision of Longden Super Custodian Pty Ltd, seeking judicial review of a decision by the Victorian Civil and Administrative Tribunal (VCAT). AML argued that the VCAT had breached procedural fairness by refusing to adjourn a hearing, which led to the grant of a possession order in favour of Longden. The court was required to determine whether the judge had erred in summarily dismissing AML's appeal from the VCAT decision, specifically focusing on whether the appeal had a real prospect of success and if there had been a breach of procedural fairness.

The court addressed two primary issues: whether the appeal had a real prospect of success, and whether the VCAT had breached procedural fairness. The judge concluded that AML had not been denied procedural fairness, as AML had the opportunity to reschedule a telephone appointment with a registrar of the Magistrates’ Court. The email from 10 August 2022, which was not before the associate judge, supported this conclusion. The judge found that AML had the choice to participate in the telephone call instead of the VCAT hearing, and thus was not denied a reasonable opportunity to oppose the possession order.

The court ultimately held that AML's appeal had no real prospect of success. Both the associate judge and the judge found that AML had not demonstrated any procedural unfairness or material impact from the alleged breach. The court accepted that AML's participation in the telephone appointment was a choice and that he had the opportunity to reschedule, which was sufficient to meet the requirements of procedural fairness. Consequently, the court dismissed the appeal and refused AML leave to appeal.

The final orders of the court were that AML's appeal be dismissed, and leave to appeal be refused. The court's decision was based on the finding that AML's appeal had no real prospect of success and that there had been no breach of procedural fairness by the VCAT.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Sections 62–3 of the CPA provide:62 Defendant may apply for summary judgment in proceedingA 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 AMLhad 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].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.