AML v Longden Super Custodian Pty Ltd (Appeal from Summary Judgment Order)
[2023] VSC 345
•23 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03618
| AML (a pseudonym) | Appellant |
| v | |
| LONGDEN SUPER CUSTODIAN PTY LTD | Respondent |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June 2023 |
DATE OF JUDGMENT: | 23 June 2023 |
CASE MAY BE CITED AS: | AML v Longden Super Custodian Pty Ltd (Appeal from Summary Judgment Order) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 345 |
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APPEAL – Appeal from judgment and orders of Associate Judge granting summary judgment in respect of an application for leave to appeal from order of Victorian Civil and Administrative Tribunal – Associate Judge concluded that application for leave to appeal had no real prospect of success and that the interests of justice did not warrant a full hearing on the merits – No legal, factual or discretionary error established by appellant – Appeal dismissed – Supreme Court (General Civil Procedure) Rules 2015 r 77.06, 77.06(9) – Civil Procedure Act 2010 ss 63, 64 – Victorian Civil and Administrative Tribunal Act 1998 ss 98(1), 148 – Residential Tenancies Act 1997 ss 330, 330A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms C Jones | Patten Robins Lawyers |
HIS HONOUR:
Introduction
On 12 September 2022 the appellant (AML) filed an application pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) for leave to appeal against a possession order made in the Victoria Civil and Administrative Tribunal (‘Tribunal’) on 2 September 2022.
On 5 April 2023 Irving AsJ granted the respondent’s application for summary judgment in respect of AML’s s 148 application.[1] On 13 April 2023 AML filed a notice of appeal against the summary judgment order. The primary question for determination in this appeal is whether the Associate Judge erred in concluding that AML’s s 148 application had no real prospect of success.
[1]AML v Longden Super Custodian Pty Ltd [2023] VSC 146 (‘Associate Judge’s Reasons’).
For the reasons which follow this question is to be answered in the negative and the appeal will be dismissed.
Background
On 18 December 2017 AML and the respondent entered into a fixed 12-month residential tenancy agreement in respect of 405/12 High Street, Glen Iris (‘the property’) which is owned by the respondent. At the expiration of the 12 month term, the rental agreement was not renewed. The tenancy continued as a periodic monthly tenancy from 18 December 2018.
On 6 May 2022 the respondent served AML a notice to vacate the property, as the respondent intended to sell it. AML did not vacate the property. On 22 June 2022 the respondent commenced proceedings in VCAT seeking orders for possession. On 2 September 2022, Member Galvin 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 AML lodged an appeal in respect of the possession order pursuant to s 148 of the VCAT Act. By summons dated 22 November 2022, the respondent applied for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (‘CP Act’).
The summary judgment application was heard by Irving AsJ on 21 February 2023 and 23 March 2023. On 31 March 2023 his Honour delivered reasons, granting summary judgment and dismissing the s 148 appeal on the basis that it had no real prospects of success. Further, his Honour was not satisfied that, despite there being no real prospect of success, AML’s s 148 application should not be disposed of summarily because it was not in the interests of justice to do so, or that the dispute was of such a nature that only a full hearing on the merits was appropriate. His Honour made orders granting the summary judgment application on 5 April 2023.
On 13 April 2023 AML filed a notice of appeal from the judgment and orders of Irving AsJ. The appeal was heard on 5 June 2023.
An appeal from an Associate Judge to a Judge of the Trial Division is governed by Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015. An appeal from an Associate Judge to a Judge of the Trial Division is an appeal by way of rehearing. The appellant is required to establish legal, factual or discretionary error before appellate power may be exercised.[2] AML bears the onus of establishing that Irving AsJ made a legal, factual or discretionary error when concluding that AML’s application for leave to appeal under s 148 of the VCAT Act had no real prospect of success.
[2]Oswal v Carson [2013] VSC 355, [11].
AML’s application for leave to appeal under s 148 of the VCAT Act sets out three questions of law and one ground of appeal:
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.[3]
[3]Appellant’s Notice of Appeal filed 12 September 2022.
The questions of law and ground of appeal identify two errors by the Tribunal when making the possession order: a failure to exercise jurisdiction and a denial of procedural fairness. Before addressing the question of whether the Associate Judge erred in concluding that the application for leave to appeal had no real prospect of success, it is necessary to set out in more detail the background to the hearing in the Tribunal on 2 September 2022 at which the possession order was made.
On 22 August 2022 AML was provided with a notice of hearing in the Tribunal of an application by the respondent for a possession order. The following day at 8.00am AML sent an email to the Tribunal, copied to the respondent’s real estate agent, requesting an adjournment of the hearing. The email included the following:
There was a notice of hearing sent yesterday. I attach it. The hearing has to be rescheduled because I have other things next week on Friday morning. Is a civil case. Was booked two weeks ago. I’d like please not to disclose anything further.[4]
[4]Exhibit APP-1 to the Appellant’s Affidavit dated 12 October 2022, 7.
AML’s application for an adjournment was dismissed at 11.31am on 23 August 2022. The Tribunal’s order provides 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 rental 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.[5]
[5]Ibid, 13.
AML sent a further email to the Tribunal at 2.48pm on 23 August 2022. The email stated:
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.[6]
[6]Ibid, 7.
The correspondence from the Magistrates’ Court attached to AML’s email was 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 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.[7]
[7]Exhibit APP-2 to the Appellant’s Affidavit dated 2 June 2023, 4.
On Wednesday 24 August 2022 at 11.51am the solicitors for the respondent emailed the Tribunal as follows:
This matter has been protracted for some months, included a previous similar application having previously been 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.[8]
[8]Exhibit APP-1 to the Appellant’s Affidavit filed 12 October 2022, 8.
I infer that the email set out above was in response to the Tribunal order of 23 August 2022 rejecting AML’s application for an adjournment, which noted that the Tribunal may consider a further application for an adjournment if sufficient evidence in support of the application was provided.
On 26 August 2022 at 8.01am AML sent a further email to the Tribunal, copied to the respondent’s real estate agent and solicitor:
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 1 September 2022 at 3.01pm AML sent a further email to the Tribunal, copied to the respondent’s solicitors:
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.
The application for a possession order proceeded before Member Galvin on 2 September 2022. There was no appearance by or on behalf of AML. During the hearing, the respondent’s solicitor made the following submission:
I’m just going to address you on one very small point, which I don't think anything turns on it, but I should bring it to the tribunal's attention. And that is, that a further email sent by the respondent - or the renter - yesterday, complaining about the fact that his adjournment request wasn't granted, and notifying the tribunal that, ‘I'm not going to be at the hearing, ‘ is what he wrote in the email.[9]
In response, Member Galvin observed that AML might seek a review of the possession order.
A refusal to grant a reasonable request for an adjournment can constitute a denial of procedural fairness
[9]Transcript of VCAT Proceedings, T 6 L 2–9 (2 September 2022); Exhibit APP-1 to the Appellant’s Affidavit filed 12 October 2022, 20.
In Isbester v Knox City Council,[10] 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.[11]
[10](2015) 255 CLR 135.
[11]Ibid 154, [55].
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.[12] 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’.[13]
[12]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 [40] (‘Bhardwaj’); Sullivan v Department of Transport (1978) 20 ALR 323, 343.
[13]Sullivan v Department of Transport (1978) 20 ALR 323, 343.
On 23 August 2022 AML’s application for an adjournment of the hearing scheduled for 2 September 2022 was rejected. He made a further application for an adjournment on 26 August 2022 which had not been determined prior to the commencement of the hearing on 2 September 2022. He was aware of this but nevertheless chose not to attend the hearing. He could have sent a representative to the hearing on 2 September 2022 to make an application for an adjournment on his behalf but did not do so.
On 10 August 2022 AML received an email from a Registrar of the Melbourne Magistrates’ Court advising him:
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.[14]
[14]Exhibit APP-2 to the Appellant’s Affidavit dated 2 June 2023, 4.
AML was advised in the same email:
Please ensure you are available via telephone at the time of 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.[15]
[15]Ibid.
AML did not have a hearing in the Magistrates’ Court on 2 September 2022. He had a telephone appointment with a Registrar to discuss an application for a personal safety intervention order. AML elected to participate in that telephone call rather than attend the hearing at the Tribunal on 2 September 2022. It is apparent from the terms of the email forwarded to AML by the Magistrates’ Court on 10 August 2022 that he had the option of seeking to reschedule the telephone appointment which was booked in for 11.30am on 2 September 2022. There is no evidence that AML made any attempt to do so.
AML’s notice of appeal
AML is a self-represented litigant with no legal training. His notice of appeal contains 18 grounds. When the appeal was heard on 5 June 2023 he made an application to add a further ground of appeal. I shall address this matter below. None of the grounds of appeal meaningfully engage with the question of whether the Associate Judge’s conclusion that AML’s application under s 148 VCAT Act had no real prospect of success. As AML is a self-represented litigant it is appropriate to adopt a broad view of the grounds contained in the notice of appeal, coupled with the written and oral submissions which he advanced on 5 June 2023.
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.
As to the question of whether AML was denied procedural fairness, the Associate Judge stated:
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.
Additionally, AML was aware at the time of the VCAT hearing that his first adjournment application had been refused but that he had been afforded the opportunity to send a representative to the hearing. He did not take up that opportunity but rather, renewed his application for an adjournment. That application was made on the same basis as his first application but arguably better supported by evidence. He was aware immediately before the VCAT hearing that VCAT had not made a decision on his second adjournment application. In those circumstances the outcome of his first adjournment application remained the state of play. AML informed VCAT he would not attend the hearing. 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.[16]
[16]Associate Judge’s Reasons (n 1) [35]–[36].
Appeal grounds 15 to 18 challenge the Associate Judge’s finding at [36]:
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.
Appeal grounds 15 to 18 are as follows:
15 Is unclear in the reasons whether and how the argument about sending a representative in the Tribunal affected the decision of the associate judge.
16 This argument wasn’t raised by anyone in the hearing. The associate judge said that the 2 questions in the hearing are the attachment and the evidence of the appellant. There was nothing said about sending a representative. By the way the associate judge conducted the hearing created a wrong impression or distracted the appellant. Thus, there was procedural unfairness.
17 The associate judge made a wrong consideration / applied wrong test in saying that the appellant has to show that sending a representative was “impossible” or “unacceptable”.
18 In all the circumstances, was not unreasonable or wrong that a representative was not sent at the hearing. The appellant only found that the hearing is going to go ahead at 3 pm the day before the hearing.
In written submissions dated 17 February 2023 filed prior to the hearing before the Associate Judge, the respondent submitted:
AML was afforded a reasonable opportunity to attend the hearing, appoint a person to represent him at the hearing, and provide sufficient evidence to support his adjournment request and failed to avail himself of these opportunities.[17]
AML’s contention that the respondent did not raise his failure to send a representative to the hearing on 2 September 2022 is not correct. The Associate Judge did not fall into error by taking into account AML’s failure to advance a meaningful explanation as to why he did not send a representative to the hearing on 2 September 2022. This issue was relevant to the question of whether AML was denied an opportunity to be heard.
[17]Respondent’s Outline of Submissions in Support of Application for Summary Judgment dated 17 February 2023, [43(b)].
The grounds in support of AML’s application for leave to appeal identify various administrative shortcomings on the part of the Tribunal prior to the hearing on 2 September 2022:
·The Tribunal’s failure to reply to his second request for an adjournment;
·The failure to take into account the evidence which he sent to the Tribunal on 23 August 2023 which he relied upon in support of his second adjournment application;
·The failure of the Tribunal to pass on to Member Galvin the material which he had filed in support of his second adjournment application.
If, as a result of an administrative error, a party is denied a reasonable opportunity to present their case, this may constitute a denial of procedural fairness. In Minister for Immigration and Multicultural Affairs v Bhardwaj (‘Bhardwaj’),[18] the Immigration Review Tribunal affirmed the cancellation of Mr Bhardwaj’s student visa at a hearing which he did not attend. Prior to the hearing Mr Bhardwaj’s migration agent had written to the Tribunal requesting an adjournment of a scheduled hearing on account of Mr Bhardwaj’s illness. As a result of an administrative error the letter was not brought to the attention of the Tribunal Member, who proceeded with the hearing in Mr Bhardwaj’s absence and revoked his student visa. It was conceded by the Minister that the decision cancelling the visa was made in circumstances where Mr Bhardwaj was denied a reasonable opportunity to answer the case against him.[19]
[18]Bhardwaj (n 11).
[19]Ibid 612.
In Bhardwaj the failure to pass on the migration agent’s request for an adjournment to the Tribunal Member had the consequence that Mr Bhardwaj was denied a reasonable opportunity to answer the case against him. If as a result of an administrative oversight, Member Galvin was not provided with the material which AML had sent to the Tribunal in support of his second adjournment application, it does not follow that AML was denied a reasonable opportunity to oppose the making of a possession order. First, unlike Mr Bhardwaj, AML knew that an order was made on 23 August 2022 rejecting his adjournment application. Second, on 1 September 2022 AML was advised that his second adjournment application had not been determined and that the proceeding scheduled for 2 September 2022 was going ahead. Third, AML was expressly given the opportunity to send a representative to the hearing on 2 September 2022 on his behalf.
Further, unlike Mr Bhardwaj, AML’s request for an adjournment was not a reasonable request. First, the material he provided to the Tribunal in support of the adjournment application was provided on a confidential basis. AML made a specific request that it not be disclosed to the respondent. The respondent had written to the Tribunal on 23 August 2022 foreshadowing its opposition to any application for an adjournment. If the Tribunal had granted the second request for an adjournment relying upon material which was not disclosed to the respondent this may, itself, have constituted a denial of procedural fairness. Second, the request for an adjournment was not reasonable because no explanation was provided by AML as to why he could not reschedule the telephone appointment which was scheduled for 11.30am on 2 September 2022. The Associate Judge’s reference to AML’s line of argument leaving ‘the processes before VCAT to his convenience’ is apt.[20] AML had an opportunity to attend the hearing personally or by way of a representative on 2 September 2022. He had an 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 a registrar rather than to participate in the Tribunal hearing on 2 September 2022. This was his choice. His request for an adjournment of the Tribunal hearing on 2 September 2022 was not a reasonable request. He was not denied a reasonable opportunity to oppose the making of the possession order.
[20]Associate Judge’s Reasons (n 1) [35].
The 10 August 2022 email from the Magistrates’ Court was not provided to the respondent until it was annexed to an affidavit filed by AML on 2 June 2023 in support of an application for an order staying the order of Irving AsJ. The email is relevant to an assessment of whether the application for an adjournment was reasonable, and whether the denial of the application constituted a denial of procedural fairness. The Court has power pursuant to Rule 77.06(9) to admit fresh evidence on an appeal from an Associate Justice.[21] The 10 August 2022 email supports a finding that AML was not denied procedural fairness. As such, it supports Irving AsJ’s finding that AML’s application for leave to appeal under s 148 of the VCAT Act did not have a real prospect of success.
[21]Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 32.
Appeal grounds 1 to 8 arise out of and are concerned with the failure of AML to have produced the 10 August 2022 email at the time of the hearing before the Associate Judge. The respondent submitted during the hearing before the Associate Judge that due to AML’s failure to produce the email he had failed to establish an evidentiary basis for a finding that his second adjournment application could have been granted if it had been pressed during the hearing on 2 September 2022. Ultimately, the Associate Judge concluded that it was unnecessary to consider whether AML had in fact provided the Tribunal with an evidentiary basis to grant his second adjournment application.[22] No error is disclosed by this reasoning. The Associate Judge’s finding that AML was not denied procedural fairness is a sound basis for his conclusion that his application for leave to appeal has had no real prospects of success. The Associate Judge was able to conclude, without having access to the 10 August 2022 email, that AML had not been denied procedural fairness. The 10 August 2022 email has been admitted into evidence for the purpose of the current appeal. The contents of the email support the Associate Judge’s conclusion that AML was not denied procedural fairness. Appeal grounds 1 to 8 are of no utility. Appeal grounds 1 to 8 provide no support for the proposition that AML’ application for leave to appeal under s 148 of the VCAT Act has a real prospect of success.
[22]Associate Judge’s Reasons (n 1) [38].
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.[23]
[23]Associate Judge’s Reasons (n 1) [9]-[10].
The premise of appeal ground 9, namely that the landlord and his solicitor misled the Tribunal, is without substance.
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. As a consequence of this finding it is 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 is a realistic possibility that a different decision could have been made on 2 September 2022 had AML been accorded procedural fairness.[24]
[24]Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 747–8 [32]–[33] (Kiefel CJ, Keane and Gleeson JJ); Noureddine v Adlard [2022] VSC 719, [67] (Walker JA); Hanson v Director of Housing [2022] VSC 710, [70] (Walker JA).
Section 64 Civil Procedure Act 2010
Pursuant to s 64 of CP Act:
a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Irving AsJ addressed the application of s 64 of the CP Act as follows:
The difficulty is that AML has not put before the Court, even in a summary form appropriate in the context of a summary dismissal application, any evidence capable of supporting his case rising above the level of mere assertion. AML asked the Court to infer he would have had submissions that could have affected the outcome at VCAT. He refused, however, to outline, beyond referring to general topics that might be addressed in submissions and other legal proceedings, the content of those submissions on the basis that it would be unfair for the Court to require him to do so on a summary dismissal application. Similarly, AML relied on a copy of his email to VCAT showing there was a document attached said to support his adjournment application, but despite opportunities to do so, did not put the attached document itself before the Court. AML again submitted that it would be unfair for the Court to require this of him on a summary dismissal application. The result of this course is that AML has left the Court without a basis to be satisfied that a hearing on the merits is appropriate. On the basis of the evidence and submissions I am not so satisfied and am also not satisfied that such a course would be in the interests of justice.[25]
[25]Associate Judge’s Reasons (n 1) [41].
This reasoning does not disclose any error by Irving AsJ in declining to exercise the discretion conferred by s 64 of the CP Act.
Appellant’s application to amend
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.[26]
[26]Appellant’s Proposed Amended Notice of Appeal from Associate Judge dated 30 May 2023.
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.
Conclusion
The appeal from the judgment and order of the Associate Judge is dismissed. I shall provide the parties with an opportunity to make submissions on the question of costs.
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