AML v Longden Super Custodian Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0043

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

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2023
DATE OF JUDGMENT:	18 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 118
JUDGMENT APPEALED FROM:	[2023] VSC 204 (Judge Forbes)

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Materiality – Appeal from decision of judge refusing application for interlocutory injunction from decision of Victorian Civil and Administrative Tribunal order to vacate premises previously leased by applicant – Whether primary judge erred in failing to conclude that no arguable error in decision of Tribunal – Whether primary judge erred in concluding that the balance of convenience did not weigh in favour of the grant of the interlocutory injunction – Application for leave to appeal refused.

Nathanson v Minister for Home Affairs (2022) 403 ALR 398; Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421.

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

NIALL JA
KAYE JA:

The applicant seeks leave to appeal against an order made by Forbes J of the Trial Division on 21 April 2023. By that order, her Honour refused an application by the applicant for an interlocutory injunction, and further or alternatively, for a stay pending an appeal by him to the Trial Division. That appeal is in respect of an order by the Victorian Civil and Administrative Tribunal (‘VCAT’) granting possession to the respondent of premises which he had previously leased to the applicant.

Background circumstances

On 18 December 2017, the respondent and the applicant entered into a fixed twelve month residential tenancy agreement in respect of unit 405/12 High Street, Glen Iris (‘the property’) which is owned by the respondent. After the expiration of that term, the rental agreement was not renewed, and accordingly the tenancy continued as a periodic monthly tenancy from 18 December 2018.
On 6 May 2022, the respondent served on the applicant a notice to vacate the property, as the respondent intended to sell it. The applicant did not vacate the property. Accordingly, on 22 June 2022, the respondent commenced proceedings in VCAT seeking orders for possession. On 2 September 2022, Member D Galvin of the Tribunal made an order granting possession of the property to the respondent, and requiring the applicant to vacate the property (the ‘possession order’).
On 12 September 2022, the applicant lodged an appeal, in respect of the possession order, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). In response, by summons dated 22 November 2022, the respondent made an application, pursuant to ss 62 and 63 of the Civil Procedure Act 2010 , seeking summary judgment in respect of the s 148 appeal.
The summary application was initially heard before Irving AsJ on 21 February 2023. On that date, his Honour adjourned the hearing of the application until 23 March 2023, in order to give the applicant the opportunity to file further material in response. On the adjourned date, Irving AsJ heard the summary application. On 31 March 2023, his Honour delivered reasons, granting summary judgment dismissing the s 148 appeal, on the basis that it had no real prospects of success. His Honour listed the proceeding for further directions on 5 April 2023, in order to determine the orders that should be made as a consequence of his decision.
On 5 April 2023, Irving AsJ made orders that the summary judgment application be granted, and that the appeal by the applicant under s 148 of the VCAT Act be dismissed.
In the meantime, on 5 September 2022 the respondent made an application to VCAT for a warrant of possession of the property. On 15 November 2022, Acting Deputy President Warren ordered that the Principal Registrar not issue a warrant of possession before 10 February 2023. On 31 March 2023, the respondent notified VCAT that it had obtained summary judgment in respect of the s 148 appeal, and requested that the warrant of possession be issued. On 13 April 2023, VCAT issued a warrant of possession in respect of the property.
On the same date, the applicant served a notice of appeal, seeking to appeal to the Trial Division of the Court from the decision of Irving AsJ, dated 5 April 2023. On 18 April 2023, the applicant issued a summons, seeking an injunction permitting him to remain in the property, and an order staying further execution of the warrant of possession. On the same day, Forbes J adjourned the applicant’s summons to 20 April 2023. Her Honour also listed the applicant’s appeal, from the decision of Irving AsJ for hearing on 5 June next.
The application by the applicant, for an injunction and stay pending determination of the appeal from the decision of Irving AsJ, was heard by Forbes J on 20 April 2023. On the following day, her Honour delivered judgment, and made orders dismissing the applicant’s summons dated 18 April, and refusing the application, by the applicant, for an interlocutory injunction and for a stay of the orders of Irving AsJ.
The current application for leave to appeal to this Court is from that decision by Forbes J.
In order to determine the present application, it is necessary to summarise, briefly, the VCAT proceedings and the proceedings that were, respectively, before Irving AsJ and, subsequently, Forbes J.

The VCAT proceedings

In essence, the appeal against the decision of VCAT was made on the basis that the Tribunal had failed to comply with the principles of procedural fairness.
The application by the respondent to VCAT, for possession of the premises, was listed to be heard on 2 September 2022. On 23 August 2022, the applicant requested that the listing of the application be relisted. Subsequently, on 25 August 2022, he was informed that that request had been refused. The applicant subsequently contacted the Tribunal, on 29, 30 and 31 August 2022, and also 1 September 2022, making a further request that the matter be adjourned. On 1 September 2022, he was informed that no decision had been made, and that any decision, to adjourn the application, would need to be made at the hearing on the following day (2 September 2022). On that day, the applicant did not attend the hearing at VCAT, and it proceeded and was determined in his absence.

The proceeding before Irving AsJ

As mentioned, Irving AsJ upheld the application, by the respondent, for summary determination of the appeal by the applicant against the decision of VCAT, on the basis that the appeal had no real prospects of success. In essence, his Honour considered that the central issue, in the appeal, was whether the alleged breach of procedural fairness in the hearing before VCAT would have made a difference, if the applicant had been given the opportunity to present his case to VCAT.
When the application came before Irving AsJ on 21 February 2023, the applicant was granted an adjournment, in order to enable him to file material demonstrating that, as a result of VCAT’s rejection of his adjournment application, he had been deprived of an opportunity to make a sustainable proposition to VCAT that would have affected the outcome of the application, made by the respondent, for possession of the property.[1]
[1][2023] VSC 146 [31].
In his reasons, Irving AsJ noted that, when the matter came on for further hearing before him on 23 March 2023, the applicant declined to respond to repeated invitations by his Honour to inform him of the arguments that he would have presented in VCAT, which might have affected the outcome of that proceeding.[2] In particular, the applicant did not submit that the notice to vacate was invalid, nor that the making of the possession order was not reasonable and proportionate, nor that VCAT did not, in some way, act in accordance with s 330 of the Residential Tenancies Act 1997. Accordingly, his Honour concluded that the applicant had failed to establish that he had been deprived of the opportunity of making a sustainable proposition to VCAT, that might have affected the outcome of the proceeding before the Tribunal.[3] For those reasons, Irving AsJ was satisfied that the applicant’s appeal, from the decision of VCAT, had no real prospect of success, and that it should therefore be dismissed.[4]
[2]Ibid [32].
[3]Ibid [34].
[4]Ibid [37]-[42].

The application for an interlocutory injunction and stay

As noted, the applicant then applied to the Trial Division of the Court for an interlocutory injunction, or a stay, permitting him to reside in the property, pending the determination of his appeal from the decision of Irving AsJ to the Trial Division.
In determining that application, Forbes J concluded that, while it was possible that, within the numerous grounds of appeal relied on by the applicant, there might be an arguable basis upon which to appeal from the decision of Irving AsJ , nevertheless, the applicant’s prospects of success on the appeal were ‘precarious’.[5] Her Honour considered further that, while the applicant would suffer some disruption if the injunction was not granted, nevertheless, he had not adduced any evidence to suggest that he did not have the financial resources to locate to temporary accommodation, pending the determination of the appeal. Nor was there any suggestion that damages would not be an appropriate remedy, if his claim ultimately succeeded.[6] On the other hand, the respondent had been intending to sell the property with vacant possession since 2021, he had suffered and was suffering financial hardship by reason of the delay in the sale of the property, and any injunction would occasion significant costs and further delay to him.[7] For those reasons, her Honour dismissed the application for an interlocutory injunction, and the alternative application for a stay.
[5]AML v Longden Super Custodian Pty Ltd [2023] VSC 204 [34].
[6]Ibid [39].
[7]Ibid [36], [40].

The application for leave to appeal – Applicant’s submissions

The application for leave to appeal from the decision of Forbes J is made on three grounds, which may be summarised as follows:
(1)The primary judge erred in concluding that, in order to establish a prima facie case of error in the decision of Irving AsJ, the applicant must demonstrate that, as a consequence of the breach of procedural fairness by VCAT, he was deprived of a realistic possibility of achieving a different outcome before the Tribunal.
(2)The primary judge erred in failing to conclude that the balance of convenience weighed in favour of the grant of the interlocutory injunction.
(3)The primary judge made a number of errors in the exercise of her discretion to refuse the application for an interlocutory injunction.
In his written case, the applicant submitted, under ground 1, that, based on the decision of the High Court in Nathanson v Minister for Home Affairs,[8] he was not required to demonstrate that the denial of procedural fairness by VCAT had deprived him of a realistic possibility of a different outcome before the Tribunal. Further, and in any event, the applicant submitted that, if he had been present at the hearing before VCAT, he could have raised a number of issues, including the entitlement of the respondent to issue a notice to vacate under s 330(1)(a)(i) of the Residential Tenancies Act, and the validity of the notice to vacate. Further, it was submitted, it was not unreasonable, in the circumstances, that the applicant was not able to attend the hearing before VCAT. The applicant had twice requested that the hearing be adjourned, so that he would be able to attend a hearing of another matter, that was scheduled to take place before the Magistrates’ Court on the same date.
[8](2022) 403 ALR 398; [2022] HCA 26 (‘Nathanson’).
The applicant further submitted that the balance of convenience favoured the grant of the interlocutory injunction. He noted that the property was his home, in which he had lived for some five to six years. The applicant submitted that, in those circumstances, damages are not an appropriate remedy, because a person’s home is unique to that person. The applicant submitted that he had paid rent up to 17 May 2023, and that he had given an undertaking to pay a further three months’ rent, if the judge had granted the injunction.
Finally, the applicant submitted, the judge made a number of House v The King[9] errors. He submitted that he was not required to specify the submissions he would have made before VCAT, if he had not been deprived of procedural fairness. In addition, he submitted that the judge applied the wrong test in determining whether to grant an injunction, by determining whether there was a prima facie case to set aside the decision of the Associate Judge, whereas (he submitted) the correct test was whether there was a prima facie case to set aside the possession order made by the Tribunal. Further, he submitted, the judge erred in failing to determine that the maintenance of the status quo, pending the hearing of the applicant’s appeal from the decision of Irving AsJ, was that the applicant should stay in his home. Finally, the applicant submitted that the judge did not ‘properly exercise jurisdiction’, and that her Honour did not provide adequate reasons for her decision about the balance of convenience.
[9](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

The respondent’s submissions

In response, counsel for the respondent submitted that the applicant had not established that there was any arguable error in the conclusion by the judge that, in order to establish a prima facie case of error in the decision of Irving AsJ, the applicant must demonstrate that, as a result of the alleged breach of procedural fairness by VCAT, he was deprived of a realistic possibility of achieving a different outcome before the Tribunal.
Counsel noted that, under s 330 of the Residential Tenancies Act, VCAT must make an order for possession of premises, if it is satisfied that the notice to vacate, served by the lessor, is valid, and it is reasonable and proportionate in the circumstances, to make the order. Counsel noted that the applicant did not respond to a number of opportunities provided to him by Irving AsJ, during the hearing of the summary judgment application, to outline the basis of any dispute he might have had as to the findings by the Tribunal that the notice to vacate was valid, and that it was reasonable and proportionate to make a possession order. Counsel further submitted that any failure by VCAT, to have afforded the applicant procedural fairness, would only involve jurisdictional error if the failure had been material to the decision by VCAT. Accordingly, it was submitted, it is not reasonably arguable that the primary judge erred by concluding that the decision by VCAT had not involved any jurisdictional error.
In response to the second ground, counsel noted that, as the lease had been determined, AML has no legal or equitable interest in the property and no right to possession of it. The beneficiary of the self-managed superannuation fund, which was operated by the respondent, was suffering financial hardship, based on the need to sell the property, and the costs incurred in attempting to do so. On the other hand, the applicant had failed to demonstrate that he does not have the financial resources to locate to temporary accommodation, pending the appeal from the decision of Irving AsJ to the Trial Division. If the applicant is ultimately successful on that appeal, it is likely that the property would still be available for the applicant to lease. As the appeal is due to be heard shortly, the applicant would only suffer any inconvenience for a short period of time. For those reasons, it was submitted that the primary judge did not err in concluding that the balance of convenience did not support the grant of an interlocutory injunction to the applicant.
In response to the third proposed ground of appeal, counsel submitted that, contrary to the contentions made by the applicant, the judge correctly applied the principles stated by the High Court in Nathanson. In particular, counsel noted that the judge had observed that the High Court in Nathanson stated that in most cases, where an applicant has been deprived of a chance to make submissions on a topic of relevance, it may be readily concluded that the applicant had been deprived of a reasonable possibility that the outcome might have been different. However, counsel submitted, that proposition does not relieve an applicant from the need to establish that the breach of procedural fairness was material to the outcome of the proceeding.

Analysis and conclusion

In order to be granted leave to appeal, the applicant must demonstrate that there was, at the least, an arguable error of law in the decision by Forbes J to refuse his application, for an interlocutory injunction, permitting him to continue to reside in the property, and for a stay of execution of the warrant of possession.[10]
[10]House v The King (1936) 55 CLR 499, 504-5; Bradto Pty Ltd v The State of Victoria (2006) 15 VR 64, 67 [4] (Maxwell P, Charles JA).
The decision by Forbes J was, essentially, on a matter of practice and procedure. In such a case, an appellate court must exercise particular caution and restraint in seeking to identify any relevant error in the decision that is the subject of the appeal.[11]
[11]Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
As a consequence of the multiplicity of applications by the parties in this matter, it is necessary to focus precisely on what the applicant must establish in order to succeed on the application that is before this Court.
In summary, the applicant appealed to the Trial Division of this Court against the orders of VCAT, granting possession of the property to the respondent. Irving AsJ summarily dismissed that appeal. The applicant has appealed from the decision of Irving AsJ to the Trial Division. In effect, the applicant sought, before Forbes J, an interlocutory injunction, restraining the effect of the orders made by VCAT, pending: (a) the hearing and determination of his appeal to the Trial Division from the order, made by Irving AsJ, dismissing the appeal to the Trial Division from VCAT; and (b) if that appeal is successful, the hearing and determination of his appeal to the Trial Division from the orders so made by VCAT.
In order to succeed on the application for an interlocutory injunction, the applicant was required to establish the following two propositions:
(a)that there was a serious issue to be tried as to whether he was entitled to possession of the property; and
(b)that the balance of convenience favoured the grant of an injunction in his favour.[12]
[12]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-3 (Kitto, Taylor, Menzies and Owen JJ); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19] (Gleeson CJ, Crennan J), 81-84 [65]-[72] (Gummow and Hayne JJ).
In order to succeed on the application for a stay of execution of the warrant of possession, the applicant was required to demonstrate the existence of special or exceptional circumstances, which would take the case out of the general rule, that an appeal does not ordinarily operate as a stay, so that a successful party is entitled to the benefit of the decision that is the subject of the appeal. The applicant would be able to demonstrate the existence of such special circumstances, if there were a real risk that it would not be possible for him to be restored substantially to his former position if, ultimately, he were to succeed on the appeal.[13]
[13]Cellante & Ors v G. Kallis Industries Pty Ltd [1991] 2 VR 653, 655, 657 (Young CJ); Maher v Commonwealth Bank of Australia [2008] VSCA 122 [19]–[27] (Dodds-Streeton JA).

The principal arguments, that were addressed to us, focused almost exclusively on the decision of Forbes J to refuse the application for an interlocutory injunction. However, in the circumstances of the case, the test that would be applied in respect of the application for a stay, would involve a consideration of the same issues that are raised by the application for leave to appeal from the decision of Forbes J to refuse the application for an interlocutory injunction.
We turn, then, to the two propositions, which the applicant was required to establish before Forbes J, and to the submissions, which he has made in contending that the judge erred in respect of her determination of those two issues.
The first issue — whether there was a serious issue to be tried — would depend on whether the applicant could demonstrate that it is reasonably arguable that Irving AsJ erred in concluding that summary judgment should be entered in respect of the applicant’s appeal to the Trial Division from the decision of VCAT. That question, in turn, would involve a consideration whether it is reasonably arguable that, assuming (for present purposes) that there was a breach of procedural fairness in the proceeding before VCAT, the applicant could demonstrate that, as a result, he had been deprived of an opportunity to put a sustainable proposition to VCAT, which might have affected the outcome of the proceeding in the Tribunal.
On that first issue, Forbes J concluded that the prospect, that there was a serious issue to be tried, was ‘precarious’.[14] In our view, that analysis was plainly correct.
[14]AML v Longden Super Custodian Pty Ltd [2023] VSC 203 [34].
As a preliminary matter, we would observe that it is by no means apparent that there was a serious issue to be tried as to whether there had been any denial by VCAT of its obligation to accord the applicant procedural fairness.
In the proceeding before VCAT, the applicant had been informed, eight days before the hearing of the application by the respondent for possession of the property, that his application for an adjournment had been refused. Subsequently, on the day before the hearing, he was informed that his second application for an adjournment had not been determined, and that it would be necessary that he, or a representative, attend the hearing in order to make an application for an adjournment. Notwithstanding that advice, the applicant did not attend the hearing before VCAT on 2 September 2022, and he did not arrange for any representative to attend there on his behalf. In those circumstances, and bearing in mind that VCAT has a significant amount of business, which it is required to dispose of, we would not be readily persuaded that the Tribunal member acted in breach of his obligation to accord the applicant procedural fairness by proceeding to hear and determine the application, by the respondent, for possession on that date.
Further, in this context, it must be borne in mind that the applicant had a right to seek a review of the orders made on 2 September 2022, pursuant to s 120 of the VCAT Act. In reaching his decision on 2 September 2022, the Member specifically referred to that right. In submissions before us, the applicant confirmed that he was aware of that right. He submitted that it was appropriate for him not to avail himself of the right, because it would have involved him assuming a ‘reverse onus’ to prove his case before VCAT. That proposition is not entirely correct. The applicant was only required, under s 120, to demonstrate that he had a reasonable excuse for not attending the hearing on 2 September, and that he had a reasonable case to argue in relation to the application by the respondent for possession. The existence of the statutory right to have a rehearing of the matter before VCAT further undermines the applicant’s assertion that he had been denied procedural fairness in that proceeding.[15]
[15]Compare Calvin v Carr [1980] AC 574, 591–3 (Lord Wilberforce); Twist v Randwick Municipal Council (1976) 136 CLR 106, 111–2 (Barwick CJ), 116–17 (Mason J); Murray v Greyhound Racing Control Board of Queensland [1979] Qd R 111, 119 (Connolly J); Preston v Carmody (1993) 44 FCR 1, 16–18 (Wilcox J).
In those circumstances, we would not be readily persuaded that there was a serious issue to be tried, that the applicant had been denied procedural fairness.
However, the hearing before Irving AsJ, and the application before Forbes J, proceeded on the assumption that the applicant could demonstrate that, in the circumstances, it was arguable that there was a serious issue to be tried as to whether he had not been accorded procedural fairness by VCAT. It is therefore appropriate that we determine the present application, based on the same assumption.
It is well established that where there has been a breach of procedural fairness, it must be demonstrated that that breach was material, in the sense that, if the appellant had been accorded procedural fairness, there is a ‘realistic possibility’ that the decision of VCAT could have been different. In the present case, the applicant would establish that the breach of procedural fairness is material, if he could demonstrate that it operated to deny him an opportunity to give evidence, or make arguments, to the Tribunal, which might have had a realistic possibility of producing a successful outcome in that proceeding.[16]
[16]Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421, 433 [2], 445 [45]-[46] (Bell, Gageler and Keane JJ) ; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, [2] (Kiefel CJ, Keane and Gleeson JJ), [85] (Gordon J).
That principle was stated by Bell, Gageler and Keane JJ, in their joint judgment in Minister for Immigration and Border Protection v SZMTA, in the following terms:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.[17]
[17](2018) 264 CLR 421, 445 [45]–[46].
In the present application, the applicant has maintained that Irving AsJ erred by concluding that his appeal from VCAT had no prospects of success, because his Honour incorrectly held that the applicant was required to establish that he had been deprived of the opportunity of advancing a sustainable proposition that might have affected the outcome of the proceeding before VCAT, if he had been afforded the opportunity to appear before the Tribunal.
In support of that submission, the applicant has placed particular reliance on the following passage from the joint judgment of Kiefel CJ, Keane and Gleeson JJ in Nathanson,[18] in which, in respect of the concept of materiality, their Honours stated:
Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal’s denial of procedural fairness deprived him of a realistic possibility of a different outcome. That realistic possibility was demonstrable from the record of the Tribunal’s decision. Contrary to the conclusion of the majority of the Full Court of the Federal Court of Australia, the appellant was not required to articulate a specific course of action which could realistically have changed the result. It follows that the appeal must be allowed and the matter remitted to the Tribunal for determination according to law.[19]
[18]Nathanson (2022) 403 ALR 398.
[19]Ibid 401-2 [2] (citations omitted).
That passage in Nathanson must be understood in the context of the issues that were before the Court, and in the context of other passages later in the decision of the joint judgment, which explained the operation of the principle of materiality in a case in which a breach of procedural fairness has been established.
In Nathanson, a delegate of the Minister made a decision not to revoke the mandatory cancellation of the appellant’s visa, pursuant to the relevant provisions of the Migration Act 1958 (Cth). The decision of the delegate was made on the basis of the provisions of Ministerial Direction 65. The appellant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision. In the meantime, Ministerial Direction 65 was replaced with Ministerial Direction 79, which was identical to the previous Direction, save that it also included a direction that, in assessing the nature and seriousness of the non-citizen’s conduct, the decision maker must apply the principle that crimes of a violent nature against women or children are viewed ‘very seriously regardless of the sentence imposed’. On the hearing before the Tribunal, the appellant, who represented himself, was aware that allegations of domestic violence were relevant to the Tribunal’s review, and he was also aware that the Minister had obtained two police reports of family violence involving him. However, the appellant was not aware of the nature and effect of that requirement in Ministerial Direction 79. At the Tribunal hearing, the Tribunal member noted that she was considering the application, under Ministerial Direction 79, but said (incorrectly) that that Direction had only made ‘minor changes’ to the previous Direction. Specifically, the Tribunal did not draw the appellant’s attention to the point that the Ministerial Direction raised a new issue, placing particular emphasis on the relevance of domestic violence, which was to be viewed ‘very seriously’.
In those circumstances, the High Court held that there had been a breach of procedural fairness, which had deprived the appellant of a realistic possibility of a different outcome. Specifically, the Court noted that if the appellant had known about the change in the Ministerial Direction, he would have taken the opportunity to address that issue, by leading evidence, or presenting submissions to the Tribunal. It was accepted that the appellant had strong reasons to rebut the material before the Tribunal, and, at the least, he could have placed the domestic violence incidents in some context, which might have persuaded the Tribunal that they were less serious than appeared from the police reports.[20]
[20]Ibid 411 [36]-[39].
It was in that context, that Kiefel CJ, Keane and Gleeson JJ, concluded that the appellant was not then required to articulate a ‘specific course of action’, which could have changed the result, because the realistic possibility that he might do so was ‘demonstrable’ from the record of the Tribunal’s decision.
In explaining the content of the requirement of the proof of materiality of a denial of procedural fairness, their Honours expressed the applicable principles in the following terms:
As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.[21]
[21]Ibid 410 [32]-[33] (citations omitted); see also 413-4 [45]-[47] (Gageler J).
In the present case, on the face of it, the facts before Irving AsJ were straightforward. The term of the initial lease having expired, the applicant had remained in possession of the property on a monthly tenancy. The applicant did not demonstrate, before Irving AsJ, any respect in which the notice, served on him by the respondent, terminating that tenancy, was arguably invalid, or ineffective. Irving AsJ had afforded to the applicant repeated opportunities to demonstrate how, if he had attended the hearing before VCAT, he might have advanced an argument, or presented evidence, that might have affected the outcome of that proceeding.
In the present application, the applicant contended that there were a number of propositions, which he could have addressed as to the validity of the notice, which had been served on him. However, the applicant did not seek to rely on any of those propositions before Irving AsJ, notwithstanding that his Honour had provided to him the opportunity to do so.
In those circumstances, Forbes J was correct in determining that the applicant’s prospects of establishing a serious issue to be tried, as to his right to possession of the property, were, at best, ‘precarious’. As such, the applicant has not demonstrated a sufficient basis for establishing an arguable error under ground 1 of the proposed grounds of appeal.
Further, in respect of ground 2, the applicant has failed to demonstrate that Forbes J erred in determining that the balance of convenience did not support the grant of the injunctive relief sought by him.
As her Honour noted, the applicant did not provide any material that demonstrated that he did not have sufficient financial resources to locate to temporary accommodation during the appeal. Nor was it demonstrated that damages would not be an appropriate remedy, if, ultimately, his appeal to the Court from the decision of VCAT was successful.
On the other hand, the lease had been determined. The respondent had been intending to sell the property since July 2021, and he was frustrated in dealing with the property, due to the applicant’s continued occupation of it. The affidavit of the respondent’s solicitor demonstrated that the respondent had suffered, and was continuing to suffer, financial hardship on the basis of his need to sell the property, and of the costs that he had incurred in attempting to do so. Taking those matters into account, the balance of convenience clearly weighed strongly against the grant of interlocutory relief in favour of the applicant.
We are further of the view that the third proposed ground of appeal is without merit.
As discussed, contrary to the submissions advanced on behalf of the applicant, it was necessary for the applicant to demonstrate that, if there was a breach of procedural fairness, it was material, in the sense that it had deprived him of the opportunity to give evidence, or make arguments to the Tribunal, and, thus, had deprived him of the possibility of a successful outcome before the Tribunal.
The second point, relied on by the applicant in support of the third proposed ground of appeal, is that Forbes J committed an error in applying the incorrect test, as the correct test was whether there was a prima facie case to set aside the possession order made by VCAT. That point is without substance. The applicant sought an injunction, before Forbes J, pending determination of his appeal to the Trial Division from the decision of Irving AsJ, granting summary judgment to the respondent. As we have discussed, the applicable test — that was correctly identified and applied by Forbes J — was that, in order to be granted such an injunction, the applicant was required to establish that there was a serious question to be tried, as to the correctness of the decision, made by Irving AsJ, to grant summary judgment. In essence, that proposition required the applicant to demonstrate that there was some arguable error, by Irving AsJ, in concluding that the applicant’s application, for leave to appeal from the decision of VCAT, did not have any real prospect of success. In her reasons, Forbes J addressed that issue, and, as we have discussed, correctly determined that, putting it at its highest, the prospect as to whether there was a serious issue to be tried was ‘precarious’.
Further, contrary to the submission, advanced by the applicant, the maintenance of the ‘real status quo’ did not involve the applicant remaining in the house. The applicant did not own the property. His lease had expired. He had no legal right to remain in possession of it.
Finally, contrary to the submissions of the applicant, the judge did give appropriate and adequate reasons for her conclusion that the balance of convenience did not warrant the granting of the injunction. In reaching that conclusion, the judge balanced the short-term inconvenience, which would be occasioned to the applicant, if the injunction were refused, against the detriment to the respondent, if he were precluded from taking possession of the property until the hearing and determination of the appeal.
For those reasons, we are not persuaded that any of the proposed grounds of appeal are reasonably arguable. Accordingly, the application for leave to appeal, from the decision of Forbes J, must be refused.

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[2023] VSCA 118

18 May 2023