Anderson v Sharpe

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0054

LENA ANDERSON	Applicant
v
DAVID SHARPE	Respondent

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JUDGES:	EMERTON P and KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF JUDGMENT:	19 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 166
JUDGMENT APPEALED FROM:	Anderson v Sharpe (No 2) [2024] VSC 279 (Gorton J)

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RESIDENTIAL TENANCY – Appeal to trial division against orders of Victorian Civil and Administrative Tribunal decisions for possession of residential premises – Orders based on non-payment of rent and on intention that premises be occupied by rental provider’s disabled daughter – Appeal from decision of trial judge dismissing applications for leave to appeal against decisions of VCAT – Whether judge erred in not concluding that VCAT had erred in determining respondent’s claims for possession before hearing and determining applicant’s claims for repair of premises and compensation – Whether breach of provisions of Victorian Civil and Administrative Tribunal Act 1998 and Charter of Human Rights and Responsibilities Act 2006 – Whether judge erred by not allowing time for response to notice under s 35 of Charter.

Residential Tenancies Act 1997, ss 75, 76, 77, 91ZM, 91ZZA, 330A; Victorian Civil and Administrative Tribunal Act 1998, ss 97, 102, 148; Charter of Human Rights and Responsibilities Act 2006, ss 8, 13, 15, 18, 20, 24, 35.

Young v Chief Executive Officer (Housing) (2023) 97 ALJR 840; [2023] HCA 31; Osland v Secretary, Department of Justice (2010) 241 CLR 320; [2010] HCA 24, considered.

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Counsel
Applicant:		In person
Respondent:		Mr C Pym
Solicitors
Applicant:	In person
Respondent:	MA Legal

EMERTON P
KAYE JA:

The respondent is the owner of a residential property at 26 Benson Street, Benalla (‘the property’). In June 2020, the respondent leased the property to the applicant, initially for a period of 12 months. The lease was renewed for a further period of six months in June 2021, and, thereafter, the applicant remained in occupation of the premises on a holdover tenancy.
A number of disputes arose between the parties. As a consequence, the respondent commenced proceedings in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) seeking orders that the applicant vacate the property. The applicant herself commenced a number of proceedings, alleging, in effect, that the respondent had failed to keep the property in proper repair.
On 19 April 2024, in VCAT proceeding R2023/6067 (‘the first Tribunal proceeding’), the Tribunal, constituted by Deputy President Warren, ordered the applicant to vacate the property by 19 April 2024, and to pay outstanding rent in the sum of $20,907.40. That order was based on a notice to vacate, given by the respondent, pursuant to s 91ZM of the Residential Tenancies Act 1997 (‘the Act’), on the ground that the applicant was in arrears in payment of rental.
On 26 April 2024, in a second proceeding, VCAT reference number R2023/14647 (‘the second Tribunal proceeding’), the Tribunal, constituted by Senior Member Campana, ordered the applicant to vacate the property by 3 May 2024. That order was based on a notice to vacate, pursuant to s 91ZZA of the Act, on the ground that the property was required for occupation by the respondent’s daughter.
The applicant applied for leave to appeal against the two orders made by the Tribunal, on 19 April 2024 and 26 April 2024, in two proceedings in the Trial Division, pursuant to s 148(1) of the Victorian Civil and Administrative TribunalAct 1998 (‘the VCAT Act’).
On 29 May 2024, Gorton J, before whom the application for leave to appeal was heard, delivered judgment dismissing each application.[1]
[1]Anderson v Sharpe (No 2) [2024] VSC 279 (‘Reasons’).
The applicant now seeks leave to appeal the orders made by his Honour on the following grounds:
1.The lower court erred by determining the applicant’s rights had been fairly balanced.
2.The lower court failed to consider the effect of the respondent’s breaches on the operation of the lease agreement.
3.The lower court erred by failing to allow time for the Victorian Solicitor General and the Equal Opportunity and Human Rights Commission to respond to the notice issued under section 35 of the Charter of Human Rights and Responsibilities Act 2006.

Background circumstances

The principal point relied on by the applicant, on this application, is that the Tribunal erred in failing to hear compensation claims, which she had lodged against the respondent, before, or at the same time as, the Tribunal heard the claims by the respondent for possession of the property. In order to analyse the submissions made by the applicant in that respect, it is necessary to set out the relevant background circumstances of the case in a little detail.
The property consisted of a two bedroom weatherboard house. The respondent purchased it in 2017, initially as an investment, but with the intention that, in due course, his daughter, who suffers from a disability, would occupy it.
On 23 June 2020, the applicant entered into a tenancy agreement with the respondent for a period of 12 months, commencing on 26 June 2020. Subsequently, on 26 June 2021, the parties entered into a second fixed term tenancy agreement for a period of six months. The rent payable under the agreement was $660 per fortnight ($330 per week).
On 8 September 2021, the parties entered into a Temporary Rent Reduction agreement in response to the difficulties arising from the COVID-19 pandemic. The agreement was specified to be for the period between 8 September 2021 and 5 October 2021. It reduced the rental payable for that period from $330 per week to $250 per week.
In the meantime, the respondent, who had been diagnosed with cancer, had arranged for his daughter, who was dependent on him, to reside in other rented premises in Benalla. Subsequently, on 15 November 2021, pursuant to s 91ZZA of the Act, the respondent sent to the applicant a notice to vacate the property in order to enable his daughter to move into it on a termination date of 22 January 2022 (‘the first notice to vacate’). The notice was accompanied by a statutory declaration, sworn by the respondent, stating that he would place his 27 year old daughter, who has an intellectual disability, in the property to become a permanent resident of it.
The applicant initially responded to the first notice by agreeing to vacate the property. She also requested that repairs be undertaken in respect of the property.
However, the applicant did not vacate the premises as indicated. On 19 December 2021, she wrote to the respondent, stating that there was an issue with the validity of the first notice to vacate. Subsequently, on 21 January 2022, the respondent withdrew the first notice to vacate as a result of that issue.
On 8 July 2022, the respondent sent to the applicant a notice of proposed rent increase, stating that the rent would increase by $20 per week (to $350 per week) commencing 14 September 2022. Three days later, on 11 July 2022, the applicant advised the respondent that she would challenge the increase, and that she would apply to Consumer Affairs Victoria for a rental assessment.
On 26 October 2022, the respondent issued the applicant with a second notice to vacate, under s 91ZZA of the Act, to enable his daughter to move into the premises (‘the second notice to vacate’). The notice specified a termination date of 3 January 2023, and was accompanied by a statutory declaration by the respondent.
On 24 November 2022, the applicant lodged a claim for compensation in the Tribunal (‘the compensation application’) against the applicant for an amount of $8,436.54. The claim alleged a failure by the respondent to carry out urgent repairs. The matter was entered into the Tribunal case management system as an application seeking an urgent repair under s 73 of the Act. The applicant objected to that classification of the claim. She stated that she was only seeking compensation and that she did not want urgent repair orders. As a consequence, the matter was referred to a Member of the Tribunal, and an order was made reclassifying it as a compensation application, which was managed by the Backlog Recovery Program of the Tribunal.
On 4 January 2023, the respondent made an application to the Tribunal for possession of the premises pursuant to s 91ZZA of the Act, based on the second notice to vacate (dated 26 October 2022), on the basis that he wished to have possession of the property, to enable his daughter to reside in it on a permanent basis.
In response, the applicant wrote to the Tribunal, requesting that her compensation application (which had been lodged on 24 November 2022) be heard with the s 91ZZA application. On the same day, a member of the Tribunal made an order refusing that request on the basis that the two applications raised different considerations.
On 20 January 2023, in response to the refusal by the Tribunal to hear the compensation application at the same time as the s 91ZZA application, the applicant wrote to the leasing agents of the premises, advising that she would not make any further payment of rent.
On 25 January 2023, the respondent issued the applicant with a notice to vacate, pursuant to s 91ZM of the Act, based on arrears of rental payable by the applicant (‘the third notice to vacate’). That notice subsequently, on 22 February 2023, became the subject of an application by the respondent to the Tribunal for possession of the premises pursuant to s 91ZM of the Act.
On 3 March 2023, the Tribunal struck out the initial s 91ZZA application (dated 4 January 2023), which had been based on the second notice to vacate, on the basis that that notice was invalid because the requisite statutory declaration, which accompanied it, had been redacted when it was provided to the applicant.
As a consequence, the respondent immediately (on 3 March) issued a further notice to vacate (‘the fourth notice to vacate’) pursuant to s 91ZZA, on the basis that his daughter was to move into the rented premises. The notice was accompanied by an unredacted statutory declaration. It had a termination date of 10 May 2023. That notice was the basis of the second application for possession, made by the respondent to the Tribunal.
On the following day, 4 March 2023, the applicant made an application to the Tribunal for urgent and non-urgent repairs (‘the first repairs application’). The application detailed repairs that had been requested by the applicant in August 2022.
The applicant did not make a separate application, under s 91ZZS of the Act, challenging the validity of the notice to vacate that supported the respondent’s second application to the Tribunal.
The second application by the respondent for possession, made under s 91ZM of the Act, came on for hearing in the Tribunal in the callover list on 24 March 2024. In the absence of the applicant, the Member, who conducted the list, made an order for possession of the premises, and an order that the applicant pay the outstanding arrears of rent totalling $3,880.[2]
[2]Sharpe v Anderson (Residential Tenancies) [2023] VCAT 514.
The applicant filed an appeal to the Trial Division of the Court against that decision. On 19 September 2023, the Court granted the applicant leave to appeal, and set aside the first and third orders, made by the Tribunal, which had granted possession of the premises to the respondent. The Court dismissed the appeal by the applicant against the order of the Tribunal that she pay to the respondent outstanding rent of $3,880.[3]
[3]Anderson v Sharpe [2023] VSC 559.
In the meantime, on 12 May 2023, the respondent made an application to the Tribunal for possession, based on the fourth notice to vacate (dated 3 March), which had been given to the applicant pursuant to s 91ZZA of the Act.
On 23 June 2023, the applicant sent to the respondent a breach of duty notice alleging that the respondent was in breach of s 67 of the Act in relation to his action seeking possession of the premises for the purpose of his daughter residing in them. On 3 July 2023, the applicant lodged an application in the Tribunal seeking compensation, based on that notice. That application has also been referred to the Backlog Recovery Program of the Tribunal for listing management, along with the applicant’s compensation application.
The parties continued to dispute over the issue of the repairs, which the applicant contended were required to be undertaken to the premises. On 3 November 2023, the applicant lodged a further application in the Tribunal for repairs. That application came before the Tribunal on 6 December 2023, and a number of orders were made by consent, which provided for the respondent to carry out work specified in the applicant’s application, subject to a number of conditions, which were directed to facilitating the effecting of those repairs.
Subsequently, further disputes arose between the parties. The applicant claimed that the respondent had failed to undertake the agreed repairs. On the other hand, the respondent contended that the applicant was impeding his ability to comply with the repair order. As a result, a further hearing of the repairs application was conducted in the Tribunal on 14 March 2024 and 25 March 2024. That hearing was not concluded at the time that the two matters before the Tribunal, which were the subject of appeal to this Court, were determined.
With that background in mind, it is necessary now to briefly summarise the two Tribunal decisions that were the subject of the appeal to the Trial Division of this Court.

First Tribunal decision

The first Tribunal decision[4] (dated 19 April 2024) concerned the application by the respondent for possession of the premises, based on the non-payment by the applicant of rent, pursuant to s 91ZM of the Act.
[4]Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375 (‘The First Tribunal Decision’).
In that proceeding, the applicant disputed that the rent was $350 per week, and, accordingly, she disputed that she owed to the applicant the amount claimed in the notice to vacate ($980).
The decision by the Tribunal involved the determination by the member, Deputy President Warren, of a number of different issues.
First, the Deputy President concluded that, on receiving the rent increase notice, the applicant had sufficient information available to her to enable her to determine whether the proposed rent increase was excessive and should be challenged.[5] The Deputy President determined that the applicant was given sufficient notice of the proposed rent increase, and, accordingly, the Deputy President determined that the notice was valid.[6] Further, the Deputy President noted that the applicant did not pursue her right to have an inspection carried out, and to have a report prepared by the Director of Consumer Affairs as to whether the proposed rent increase was excessive. Accordingly, the Deputy President found that the applicant had not taken the steps required by the Act to challenge the proposed rent increase. As a consequence, the weekly rental from 14 September 2022 was $350 per week.[7]
[5]Ibid [41].
[6]Ibid [44]–[46].
[7]Ibid [58].
The Deputy President then turned to the submission, made by the applicant, that she was not required to pay the full market rent as the premises did not meet the minimum rental standards under the Act. The Deputy President noted that the Act does not provide that a renter may withhold rent or refuse to pay rent until premises are made to comply with minimum rental standards, and that the Act does not provide that a renter may unilaterally decide to withhold rent either in part or in full.[8] Accordingly, the applicant was required to continue to pay the full amount of rent, notwithstanding that she was then making a claim for compensation.[9] The Deputy President concluded that the notice to vacate did overstate the amount of unpaid rent by $10, but that minor overstatement did not invalidate the notice to vacate.[10]
[8]Ibid [65], [69].
[9]Ibid [71].
[10]Ibid [81].
The Deputy President then considered the submission, by the applicant, that the notice to vacate had been served on her in retaliation for the exercise by her of her right to seek to have the premises repaired. The Deputy President noted that the Act does not provide for a notice to vacate, given under s 91ZM, to be challenged on such a ground. In addition, the Deputy President rejected the submission that the service of the notice to vacate was, in any way, retaliatory.[11]
[11]Ibid [89].
Accordingly, the Deputy President determined that the respondent was entitled to make the application for a possession order pursuant to s 91ZM of the Act, based on the failure by the applicant to pay rental due in respect of the property.
The Deputy President then considered whether, pursuant to s 330 of the Act, it was reasonable and proportionate to proceed to make a possession order against the applicant. In determining that question, the Deputy President considered each of the matters specified in s 330A of the Act. In that respect, the Deputy President found:
(a)The rent arrears arose solely because of the applicant’s unilateral decision to stop paying rent.[12]
(b)The non-payment of the rent was not trivial. The practical effect of the applicant’s actions was that the respondent had not received any rent for a period of in excess of 12 months.[13]
(c)No person (other than the applicant) was responsible for the failure of the applicant to pay rent.[14]
(d)There was no evidence that issues related to family violence had any impact on the applicant’s ability to pay rent.[15]
(e)There was no evidence that the applicant had made any attempt to remedy the breach (the non-payment of the rent).[16]
(f)The applicant conceded that she did not have the money that should have been paid by way of rent from 20 January 2023.[17] The member could not be satisfied that the applicant had, or would soon have, the capacity to remedy her breach.[18]
(g)There was no evidence that there was any other renter of the premises than the applicant.[19]
(h)The applicant did not provide any evidence as to the current source and amount of her income or as to what her future income would be. She did not provide any evidence that would support a finding that there was a reasonable alternative order or course of action that could be taken other than making a possession order.[20]
(i)In respect of the conduct of the respondent and his agent, the Deputy President considered in some detail the issue of the steps taken by the respondent to effect the repairs requested by the applicant. The Member determined that, having requested the respondent to undertaken repairs, the applicant had then placed obstacles in the path of the respondent’s ability to do so. If the applicant was of the view that the respondent did not comply with his obligations to carry out the repairs, the applicant could have followed the processes prescribed by the Act in that respect.[21] The Member concluded that the actions by the applicant in ceasing to pay rent were ‘totally unreasonable’.[22]
[12]Ibid [108].
[13]Ibid [119].
[14]Ibid [125].
[15]Ibid [127].
[16]Ibid [128].
[17]Ibid [130].
[18]Ibid [138].
[19]Ibid [140].
[20]Ibid [156].
[21]Ibid [182].
[22]Ibid [183].
For those reasons, the Deputy President concluded that it was reasonable and proportionate, in all the circumstances, to make a possession order.[23]
[23]Ibid [210].
The Deputy President further considered that it was not appropriate to postpone the operation of the possession order, or to postpone the issue of a warrant of possession.[24]
[24]Ibid [211]–[220].

The Deputy President noted that the applicant, in her closing submissions, had said that she was relying on the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). In doing so, the applicant had referred to s 32 of the Charter, but she had made no further submission in respect of it. The Deputy President expressed the view that, apart from s 24, the Charter does not bind the Tribunal when it is exercising judicial powers under the Act.[25] However, and in any event, the Deputy President considered that the making of an award of possession in the case did not contravene either s 13 or s 24 of the Charter.
[25]Ibid [229].
In conclusion, the Deputy President also referred to the complaint by the applicant that the application by the respondent for possession of the property had been heard and determined before her claims for compensation against the respondent.
The Deputy President explained that the operations of the Tribunal had been severely impacted by the COVID-19 pandemic, which had required the Tribunal to make decisions about the types of matters that would receive higher priority in being listed for hearing. In that respect, the Deputy President explained, applications seeking possession orders were given priority in the setting of a hearing date, and that applications in relation to the bond paid by a renter, and applications seeking orders of compensation, were given a lower priority in that respect. As a result, there was a significant backlog of cases relating to claims for repayment of a bond and claims for compensation. The Deputy President noted that the Tribunal had acknowledged that the delay in hearing compensation cases had resulted in stress and frustration, but the Tribunal had heard and listed matters as best it could, taking into account the severe impact of the COVID-19 pandemic on the operations of the Tribunal.[26]
[26]Ibid [247]–[254].

The second proceeding — Tribunal decision

The second Tribunal decision[27] concerned the application, by the respondent, for possession of the premises pursuant to s 91ZZA of the Act, on the basis that the premises were to be occupied by the respondent’s disabled daughter.
[27]Sharpe v Anderson [2024] VCAT 381 (‘The Second Tribunal Decision’).
In considering that application, the Tribunal member, Senior Member Campana, noted that the fourth notice, and that the statutory declaration that accompanied the notice, complied with the mandatory requirements of the Director.[28] The Senior Member also rejected the contention, by the applicant, that the notice was invalid because evidence was not provided with the notice, or in support of the claims in the statutory declaration, that the respondent’s daughter was dependent on him.[29]
[28]Ibid [109]–[111].
[29]Ibid [118].
The Senior Member then considered the contention by the applicant that the fourth notice to vacate was not genuine, and that it was motivated by a desire to retaliate against the applicant for asking for repairs to be undertaken.
The Senior Member noted that such a motive would not, of itself, invalidate a notice given under s 91ZZA.[30] However, claims of retaliation may be a basis for a proposition that a residential rental provider’s intention to move a family member into the rented premises was not genuine.[31] In that respect, on the basis of the evidence, the Senior Member was satisfied that the respondent did want to move his daughter into the rented premises. Accordingly, the respondent had established the prescribed grounds under s 91ZZA for the provision of a notice to vacate. The Senior Member accepted that the respondent had always planned that the property would be used to provide accommodation for his daughter in order to provide her with independence, and that that plan had been brought forward when the respondent was diagnosed with cancer in 2021 and required extensive treatment.[32] Accordingly, the Senior Member rejected the assertion, by the applicant, that the respondent did not intend to move his daughter into the rented premises.[33] The Senior Member thus concluded that the notice was valid.[34]
[30]Ibid [125].
[31]Ibid [127].
[32]Ibid [159]–[160].
[33]Ibid [161]–[166].
[34]Ibid [161].
The Senior Member then considered whether a possession order would be reasonably proportionate in accordance with the criteria specified in s 330A of the Act, and, in particular, sub-ss (g), (h), (i) and (j) of s 330A.
In respect of s 330A(g), the Senior Member concluded that the conduct of the applicant, in respect of the respondent’s daughter, and also her conduct in relation to the tradespersons who had been engaged to repair the premises, the respondent’s agents and the Benalla community generally, had had a significant flow-on impact on the respondent, which were all matters that supported a possession order being made.[35]
[35]Ibid [178].
In respect of s 330A(h), the Senior Member considered that the absence of other accommodation in the private rental market being available to the respondent’s daughter, that was secure, affordable and long-term, also supported a finding that it was reasonable and proportionate to make a possession order.[36]
[36]Ibid [185].
In respect of s 330A(i), the Senior Member noted that the applicant had a perception that she had been wronged by the respondent and her agent, which had consumed her and had a significant impact on her conduct. The Senior Member considered that the conduct of the parties did not support the applicant’s claims that the actions of the agents and the respondent had been in any way reprehensible or such as to persuade the Senior Member not to make a possession order.[37] The Senior Member did not accept that any of the s 91ZZA notices to vacate were given either in retaliation for the applicant asking for repairs or for changes being made to the rent ledger, or because the applicant had purported to exercise her rights under the Act.[38] The Senior Member concluded that the evidence did not support the applicant’s claim that the respondent and the agents had been trying to avoid their obligation to carry out repairs to the rented premises.[39] Accordingly, the Senior Member did not accept that the conduct of the respondent or his agent had been such as to support a conclusion that it was not reasonable and proportionate to make a possession order.
[37]Ibid [190].
[38]Ibid [193].
[39]Ibid [196].
Finally, the Senior Member concluded that the conduct of the applicant, the way that she had sought to enforce her rights under the Act, the impact of that conduct on the respondent, and the time that was consumed for the agents, together with the expectation that the hostility between the parties would not soon resolve, were all matters that also supported a finding that it was reasonable and proportionate to make a possession order.
The Senior Member then considered the submission by the applicant that any possession order, made before consideration of her outstanding claims to the Tribunal, would be prejudicial, discriminatory and a violation of her rights.
In that respect, the Senior Member noted that, in the earlier proceedings, Gorton J had declined to make an order that the Tribunal be directed to schedule the hearing of the applicant’s claims before any further applications by the respondent, his Honour noting that the scheduling of proceedings was a matter for the Tribunal.[40] The Senior Member accepted that the delay, in the finalisation of those matters, was having an impact on the mental and physical health of the applicant. The Senior Member also accepted that it was highly probable that the applicant would find it ‘almost impossible’ to find private rental accommodation in the current rental market, but noted that the applicant must take some responsibility for that problem, as she had publicly criticised the respondent and his agents in a manner which would deter any other potential rent provider from leasing premises to her.[41]
[40]Anderson v Sharpe [2023] VSC 559, [50], [55].
[41]Ibid [230]–[231].
In conclusion, the Senior Member was satisfied that it was reasonable and proportionate to make a possession order against the applicant.[42]
[42]Ibid [237].

Appeal to Trial Division

As noted, pursuant to s 148 of the VCAT Act, the applicant sought leave to appeal against the two decisions made by the Tribunal. The application was heard by the Gorton J on 23 and 24 May 2024, and judgment was delivered by his Honour on 29 May 2024, dismissing each application for leave to appeal.
In her notices of appeal to the Trial Division, the applicant expressed the questions of law involved in the appeal as follows:
Question of law 1) Is VCAT’s decision fair and reasonable when the findings are not supported, or a directly contradicted, by the evidence presented to the hearing?
Question of law 2) Do the orders meet the reasonable and proportionate test prescribed by s330 and s330A of the RTA?
Question of law 3) Did VCAT exercise its powers in accordance with its obligations under the VCAT Act — specifically s97, s98, and s102 — in its conduct of the proceedings and making of the orders?
Question of law 4) Did VCAT meet its obligations, and consider the rights of the appellant, under the Charter of Human Rights and Responsibilities Act 2006 – specifically s8, s13, s15, s18, s20, s24 – in its conduct of the proceeding and making of the orders?
The notice of appeal in respect of the first Tribunal decision contained 27 grounds on which the applicant sought to rely. The notice of appeal in respect of the second Tribunal decision contained 30 grounds. A significant number of those grounds, on their face, consisted of arguments in respect of particular factual findings made by the Tribunal. A number of the grounds were prefaced with the phrase that the Tribunal Member ‘made an error in law by …’, but, in reality, they only constituted arguments of factual (and not legal) error by the Tribunal Member.

Reasons for decision of trial judge

In determining the appeal, Gorton J first considered whether the applicant had been entitled to cease paying rent.
His Honour concluded that the Tribunal did not err by determining that the applicant was obliged to pay rent, notwithstanding that she contended that the respondent was in breach of his obligations under the lease and that she had an unresolved application for damages against him.[43] In reaching that conclusion, the judge noted that the Act contained a process, which may be followed if a renter contends that the leased premises required maintenance or did not meet minimal standards. That process did not permit a renter to stay in possession while declining to pay rent. The judge further noted that if common law contractual principles applied, and if, in the circumstances of the case, the tenant was entitled to rescind the lease, then in those circumstances, the applicant would not have had any right to remain in possession of the premises without being obliged to pay rent.
[43]Reasons, [22].
The judge then considered whether the Tribunal erred by hearing the respondent’s applications without first determining, or determining at the same time, the applicant’s claim for compensation.
In respect of that issue, the judge rejected the applicant’s contention that the Tribunal had erred in law by listing and determining the respondent’s applications for possession before it had determined her application for compensation, or by not determining both matters at the same time. His Honour stated:
I do not consider that the Tribunal has erred in law by listing and determining Mr Sharpe’s applications for possession before it has determined her application for compensation or by not determining both at the same time. The Tribunal is entitled to schedule matters for hearing in the manner it thinks appropriate. Deputy President Warren explained, at the end of his reasons, that the Tribunal has a significant backlog of claims for compensation and gives priority to claims for possession. There is nothing unlawful in this. There is no breach of the rules of natural justice, and there is no basis to conclude that there is some conspiracy, if indeed that is what Ms Anderson is contending, between the Tribunal and Mr Sharpe to do her harm.[44]
[44]Ibid [24].
The second question addressed by the judge was whether the Tribunal Member erred by failing to make findings on the applicant’s compensation claim. In respect of that issue, the judge rejected the application that it was an error of law for the Deputy President not to make findings on her claims in the course of determining the respondent’s application for possession. His Honour’s reasons for that conclusion were as follows:
Once Deputy President Warren took the view, correctly, that Ms Anderson remained under a legal obligation to pay rent, he was also entitled to take the view that the rights and the wrongs of, and facts underlying, Ms Anderson’s compensation claim were for determination in that claim and did not have finally to be determined by him in this possession application. He was concerned with whether rent was owing, whether the notice of vacate was valid and, if so, whether to make an order for possession. It was sufficient and appropriate for him, when making the value judgments required, to take into account the existence of this dispute and Ms Anderson’s contentions. This he did.[45]
[45]Ibid [26].
The judge further concluded that there was no basis for the applicant to contend that Deputy President Warren erred in law in concluding that rent of $350 per week was payable from 14 September 2022.[46] In respect of the question as to the amount of rent owing by the applicant to 5 January 2023, the judge noted that, even based on the applicant’s reconciliation, she owed at least 14 days’ rent on 25 January 2023. His Honour held that there was no basis for the applicant to challenge the finding by the Deputy President that she was in arrears in the amount of $970, and that the overstatement of the rent in the notice to vacate by an amount of $10 was not sufficient to invalidate the notice.[47]
[46]Ibid [28].
[47]Ibid [31].
The judge then referred to submissions by the applicant that both Deputy President Warren, in the first Tribunal decision, and Senior Member Campana, in the second Tribunal decision, had made a number of factual findings, which were erroneous.
The judge noted that the legislature had entrusted the task of deciding facts, and determining whether a possession order should be made, to the Tribunal, so that the court is only entitled to interfere if the applicant was able to establish that the Tribunal had erred on a question of law. His Honour was not persuaded that either Tribunal Member made any such error.[48] He outlined a number of submissions made by the applicant, and noted that in each of them, the applicant did no more than challenge findings of fact made by the particular Tribunal Member. His Honour was not persuaded that any of those findings of fact were irrational or unreasonable, and, thus, the Tribunal Member did not make any error of law in those findings.[49]
[48]Ibid [34].
[49]Ibid [38].
The judge then turned to the fourth question of law, specified by the applicant in her appeal to the Trial Division, which concerned the Charter. The judge noted that the applicant had not referred to that question in the written submissions she had filed on the appeal, but it was included as a ground of appeal in the application for leave to appeal against the orders made in the second Tribunal hearing. Specifically, that ground of appeal alleged that the Tribunal had discriminated against her as a renter by refusing to hear her applications, while giving priority to the applications made by the respondent.
The judge considered that, in the second Tribunal decision, Senior Member Campana was correct to conclude that the applicant had not made any claim of direct discrimination. His Honour further noted that, for the reasons already given, the Tribunal did not breach the Charter by hearing the respondent’s application for possession before, or in combination with, the applicant’s application for compensation.[50] Having reviewed the conclusions by Deputy President Warren, in the first Tribunal decision, concerning ss 13 and 24 of the Charter, his Honour considered that there was no reason to disagree with the Deputy President’s conclusions that those provisions had not been breached.[51]
[50]Ibid [45].
[51]Ibid [49].
Finally, the judge considered s 35 of the Charter, that requires a party to a proceeding to give notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) if a question of law arises that relates to the application of the Charter. The judge noted that neither party had complied with that obligation. His Honour further noted that the Charter does not set out the consequences of a party not complying with the obligation, and it does not preclude a court from hearing the proceeding in the absence of such notice being given.[52]
[52]Ibid [50].
His Honour further determined that, in the circumstances of the case, it was not necessary to delay the hearing of the applicant’s applications for leave to appeal so that the appropriate notices may be served. The applicant had not contended for the adoption of any particular interpretation of the Act based on a provision of the Charter. The arguments presented by the parties did not turn on the text of the Charter in a way that required his Honour to express a view on its application or operation.[53]
[53]Ibid [51].

Appeal — Principles

Before considering the individual grounds of appeal sought to be relied upon by the applicant, it is necessary, first, to identify the principles that apply to that appeal.
It is necessary to do so because, as we earlier noted, a significant number of the grounds of appeal relied on by the applicant in her appeals to the Trial Division from the two decisions of the Tribunal consisted of arguments that sought to impugn particular factual findings made by the Tribunal. In oral submissions on the present application, the applicant, in similar terms, submitted that the Tribunal had erred in making findings that were contrary to the evidence. In addition, the applicant argued that Gorton J, in hearing the appeals from the Tribunal, had failed to refer to the evidence relied on by the applicant in support of those grounds.
The appeal by the applicant to the Trial Division of the Court was made pursuant to s 148(1) of the VCAT Act, which provides:
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
Note
See sections 14A to 14D of the Supreme Court Act 1986.
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

Such an appeal is strictly limited to the resolution of questions of law.[54]
[54]Osland v Secretary, Department of Justice (2010) 241 CLR 320, 332 [19] (French CJ, Gummow and Bell JJ); [2010] HCA 24 (‘Osland’); Myers v Medical Practitioners Board (2007) 18 VR 48, 57 [33] (Warren CJ); [2007] VSCA 163 (‘Myers’); Sandbach v Victorian Legal Services Commissioner [2024] VSCA 143, [54] (Niall, Lyons JJA and J Forrest AJA) (‘Sandbach’).
It is fundamental to such an appeal that there be appropriate identification by the appellant of a question or questions of law to be determined by the Court.
In Patsuris v Gippsland and Southern Rural Water Corporation,[55] Garde AJA (with whom Tate and Kyrou JJA agreed) stated that principle in the following terms:
The limited nature of appeals under s 148 has subsequently been further emphasised by the High Court. Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The ‘question of law’ requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.[56]
[55][2016] VSCA 109.
[56]Ibid [43]–[44] (citations omitted).

In determining an appeal under s 148(1), the Court may only conclude that the Tribunal made a legal error in making a finding of fact if, on the evidence, it must be concluded that it was not open to the Tribunal to find the particular fact or draw the particular inference under consideration.[57]
[57]Osland, 332–3 [20] (French CJ, Gummow and Bell JJ); Myers, 57 [35] (Warren CJ); Victorian Legal Services Commissioner v McDonald (2019) 57 VR 186, 233–4 (Tate, Kaye and Emerton JJA); [2019] VSCA 18; Sandbach, [56] (Niall, Lyons JJA and J Forrest AJA).
As the Court explained in Karakatsanis v Racing Victoria Ltd:[58]
It will be seen that proposed ground 3 (to which in part proposed ground 4 relates) is expressed by reference to the weight of the evidence and in particular alleges that Kaye J ‘gave insufficient weight to’ various matters. This is not a proper form of ground on an appeal on questions of law. The basic problem facing the applicants is that they have lost at each stage of the proceeding upon the facts. The primary question raised before Kaye J was whether it was open to the Tribunal to conclude as it did on the evidence. If it was so open then the Tribunal did not commit an error of law in reaching the conclusion that it did, albeit that it may (or may not) have erred on the facts. The appeal was not concerned with the weight of the evidence insofar as that bore upon the assessment of the relative weight of competing considerations. It was concerned with the question of whether the Tribunal’s conclusion was properly open to it.
[58](2013) 42 VR 176, 186 [21] (Osborn and Beach JJA); [2013] VSCA 305.
In Osland, French CJ, Gummow and Bell JJ expressed that principle in the following terms:[59]
The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.
[59]Osland, 332–3 [20] (French CJ, Gummow and Bell JJ).

Ground 1 — Submissions

In support of ground 1, the applicant submitted that in declining to hear and determine her claim for compensation before the resolution of the respondent’s claim for possession of the premises, the Tribunal had failed to act in accordance with ss 97, 98 and 102 of the Act, and ss 8, 13, 15, 18, 20 and 24 of the Charter.
In support of that submission, the applicant noted that in her submissions to the judge, she had outlined sixteen ‘long term breaches’ of the lease agreement by the respondent, a number of which were safety-related and had ‘serious health consequences’, and which had caused the applicant ‘significant financial loss, health issues, disappointment and distress’.
In effect, the applicant submitted that she had been evicted without first having a fair hearing of the claims that she had made, that the respondent had failed to comply with his obligations under the tenancy agreement. The applicant submitted that the procedure, adopted by the Tribunal, was unfair to her, particularly, in circumstances in which, in a separate proceeding commenced by her, the Tribunal, by an order made 25 March 2024, had acknowledged deficiencies in the premises, which required attention by the applicant.
The applicant contended that the decision of the High Court in Young v Chief Executive Officer (Housing)[60] affirmed her right to equal protection under the law so that, consistent with ss 97 and 98 of the Act, the Tribunal was obliged to hear the compensation claim lodged by her either before or at the same time that it heard the claim by the respondent for possession of the premises. The applicant submitted that the tenancy dispute had arisen from the respondent’s ‘negligence’, and that she had been a compliant tenant despite breaches by the respondent of his obligations during the first 31 months of the tenancy. The applicant further submitted that, as a consequence of the respondent’s breaches of his obligations under the tenancy agreement, she had been unable to co-rent the premises, her rental profile had been ‘corrupted’ by the respondent, and her health and employment had been adversely affected.
[60](2023) 97 ALJR 840; [2023] HCA 31 (‘Young’).
In those circumstances, the applicant submitted that it could not be reasonable, proportionate, fair or in accordance with natural justice for the Tribunal to make orders for possession against her, before she was restored to the position she would have been in if the respondent had not breached the tenancy agreement and she was compensated for financial loss resulting from his breaches of the agreement. The applicant submitted that the judge’s conclusions amounted to a rejection of the obligations of the Tribunal, specified in the Act and in the Charter.
In addition, in support of ground 1, the applicant submitted that Gorton J failed to address the arguments that she had made, that the notice to vacate, dated 25 January 2023, was defective, as it misstated the amount of rental owing by her to the respondent.
In response, counsel for the respondent commenced by submitting that the grounds of appeal relied on by the applicant, and the submissions advanced in respect of them, do not raise any relevant question of law, but, rather, they constitute no more than a merits review of the decisions made by the Tribunal.
In response to ground 1, counsel submitted that it was not a breach of natural justice or procedural fairness for the Tribunal to hear and determine the application by the respondent for possession of the premises before it considered the applications made by the applicant. It was submitted that the Tribunal was entitled to schedule matters for hearing in the manner in which it thought most appropriate, and the possession orders sought in the proceedings instituted by the respondent were properly dealt with under the applicable statutory framework under the Act. Counsel noted that the applicant relied substantially on the decision of the High Court in Young, which concerned the Residential Tenancies Act 1999 of the Northern Territory. It was submitted that that legislation was relevantly different to the corresponding provisions contained in the Act. Further, counsel contended that the provisions of the Act do not permit a renter to stay in possession without continuing to pay rent.

Ground 1 — Analysis and conclusions

The central issue, raised by the applicant’s submissions under ground 1, is whether the Tribunal failed to comply with ss 97, 98 and 102 of the VCAT Act, and ss 8, 13, 15, 18, 20 and 24 of the Charter, by hearing and determining the two possession proceedings brought by the respondent, before hearing and determining her claims against the respondent for compensation and repairs.
In considering that issue, two points are of particular relevance. First, on a proper construction of the provisions of the Act, a renter does not have a right, while remaining in possession of leased premises, to refuse or defer payment of rent pending the conduct of repairs to the premises or resolution of any claim by the renter in respect of the condition of the premises. Secondly, on an analysis of the issues in the possession proceedings, it is quite clear that it was not necessary for the Tribunal to hear and determine any claim by the applicant, or to resolve any issue in respect of such a claim, in order to enable the applicant to defend the two claims made by the respondent for possession of the property.
In respect of the first point, an examination of the provisions of the Act makes it clear that a renter does not have a right to defer payment of rent, while remaining in possession of leased premises, pending the conduct of any repairs to the leased premises or the resolution of any claim by the renter in respect of the premises.
The provisions relating to the payment of rent are contained in Part 2 Division 3 of the Act. Section 39 provides that, under a residential rental agreement, rent accrues from day to day. Section 42 specifies how rent is to be paid. Section 44 provides for rent increases during the term of the tenancy. Sections 45 and 46 provide for the rights of a renter to complain about excessive rent.
Part 2 Division 5A of the Act contains the provisions relating to the general duties of residential rental providers. Section 65 provides that a residential rental provider must ensure that, on the day on which the renter has entered into occupation of the property, the premises are vacant and in a reasonably clean condition. Under s 68(1), a residential rental provider must ensure that the rented premises are provided and maintained in good repair and in a reasonably fit and suitable condition for occupation.
The provisions relating to the conduct of repair of premises during the term of a lease are contained in Part 2 Division 6 of the Act. Section 72(1) provides that a renter may arrange for urgent repairs to be carried out to the premises, and s 73 entitles a renter to apply to the Tribunal for an order requiring the residential rental provider to carry out such repairs. Under s 75, a renter is similarly entitled to apply to the Tribunal for an order requiring that the residential rental provider carry out non-urgent repairs. Section 76(1) of the Act provides that if the Tribunal is satisfied that the residential rental provider is in breach of the duty to maintain the rental premises in good repair, the Tribunal may make an order that requires: the residential rental provider to carry out specified repairs; the use of a suitably qualified person to carry out the repairs; and the payment of compensation.
Relevantly, s 77(1) provides that if the renter has given notice requiring repairs to be carried out to the rented premises, the renter may apply to the Tribunal for an order authorising the renter to pay the rent under the residential rental agreement into the Rent Special Account. That account is a trust account maintained by the Director of Consumer Affairs Victoria. Section 498AB(2) of the Act provides for the payment into that account of all money paid under an order of the Tribunal authorising the payment of rent (or hiring charges) into that account.
Thus, the Act contains specific provisions for the payment of rent and for the conduct of repairs in the course of a residential rental agreement. It is quite clear, from the structure of the Act, and from the provisions of the Act to which we have referred, that the obligation of a renter to pay rent is not conditional upon, or subject to, compliance by the residential rental provider with the obligation to maintain the premises in good repair. On the contrary, the Act makes specific provision in s 77 concerning how the obligation of the renter may be discharged, in circumstances in which the renter claims that the residential rental provider has failed to comply with the statutory obligation to maintain and repair the leased premises.
The second point, which is relevant in determining ground 1, is that the two applications by the respondent for possession of the property involved quite different and distinct issues to those which are involved in the applications by the applicant for compensation and repairs. It was not necessary for the Tribunal to hear and determine the claims made by the applicant for compensation, in order, in some way, to enable the applicant to resist or defend the claims made by the respondent for possession of the property.
The first Tribunal proceeding involved the claim by the respondent for possession of the premises, based on the non-payment by the applicant of rent, pursuant to s 91ZM of the Act. The three principal issues, which the Tribunal was required to determine in respect of that application, were:
(1)Whether in fact the applicant was in arrears in payment of the rent due to the respondent.
(2)The validity of the notice to vacate served by the respondent on the applicant on 22 February 2023.
(3)Whether, by reference to the considerations specified in s 330A of the Act, it was reasonable and proportionate to make a possession order, taking into account the interests of, and the impact on, the applicant and the respondent in making such an order (s 330(1)(f)).
In the second Tribunal proceeding instituted by the respondent, based on s 91ZZA of the Act, the principal issues were:
(1)Whether the notice to vacate, given by the respondent to the applicant, was valid — that is, whether the respondent genuinely required the premises for the purpose that they be occupied by his daughter, who was wholly or substantially dependent on him.
(2)Whether, in such a case, by reference to the considerations specified in s 330A the Act, it was reasonable and proportionate to make an order for possession, taking into account the interests of the parties and the impacts of the order on both the applicant and the respondent.
By contrast, the claims for compensation, made by the applicant, involve quite different issues.
First, in those proceedings, it will be necessary for the applicant to establish a relevant breach by the respondent of his obligations under the Act, including those contained in s 60 and s 68A. That issue, itself, will involve a number of factual questions, including the identification of the aspects of the premises which required repair, the nature and scope of the work that was required to effect those repairs, and whether the respondent had undertaken the repairs sufficiently (or at all).
The second issue, which will arise in the claims made by the applicant, concerns whether the applicant appropriately complied with her obligation to permit the respondent (and repair workers engaged by him) to enter the premises for the purposes of effecting the requisite repairs, pursuant to s 85 and s 86(1)(c) of the Act. In the context of the present case, it is apparent that that question will be a live issue.
Thus, the issues, that were relevant to be determined by the Tribunal in the two applications made by the respondent for possession of the property, were quite distinct from the issues which will fall to be determined in the claims made by the applicant for compensation. The applicant was not in any way constrained, or prejudiced, in her defence of the two possession applications made by the respondent by reason of the fact that the claims made by her for compensation and repair of the premises had not first been determined by the Tribunal. The applicant could not maintain that, as a consequence of the fact that her claim for compensation had not first been heard and determined, she was precluded from having a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, or to make submissions to the Tribunal, in defence of the two possession applications brought by the respondent.

Alleged breaches of VCAT Act

It follows that it could not be maintained that, in hearing and determining the issues in each of the possession proceedings, there was a failure by the Tribunal to comply with the requirements of ss 97, 98 and 102 of the VCAT Act.
In each proceeding, the Tribunal, in accordance with s 97 of the VCAT Act, acted fairly and according to the substantial merits of the case in the particular proceeding. In accordance with s 98, the Tribunal complied with the rules of natural justice; the applicant and the respondent were each accorded a right to be heard, and it was not suggested that the Tribunal, in hearing the two applications by the respondent, in some way acted unfairly in determining the issues that were in dispute in them. In conformity with s 102, each party was provided a reasonable opportunity to call or give evidence, to examine, cross-examine[61] or re-examine witnesses, and to make submissions to the Tribunal.
[61]In so holding, we recognise that the applicant claims to have been denied the opportunity to cross-examine expert witnesses in the second Tribunal proceeding. Witnesses were apparently not in attendance at the hearing. There is no ground of appeal alleging that Gorton J ought to have found that the applicant was denied procedural fairness by the Tribunal in the second Tribunal proceeding because of the unavailability of witnesses. Nor were we taken to any material supporting such a complaint. It is evident that, given the very large and unwieldy number of grounds of appeal in both Tribunal proceedings, Gorton J dealt with many of them collectively. In the circumstances this was quite appropriate.
It is no answer to this that the applicant claims to have been unable to pay the rent because of the dispute over the repairs. As we have explained, the obligation of the renter to pay rent while remaining in possession and occupation of the rented premises was not, as a matter of law, conditional upon, or subject to, the resolution of any claim that she made for either repairs or compensation under the Act. It could not, therefore, be maintained that, by hearing and determining the applications by the respondent for possession of the premises separately to, and before, the applications made by the applicant for repairs and compensation, the Tribunal in any sense failed to balance the right of the applicant to resist those claims by the respondent.
The principal submission, made by the applicant under ground 1, was that the Tribunal was obliged to hear the applicant’s compensation claim before the claims for possession brought by the respondent, in order to ‘fairly balance the rights and obligations of both [parties]’.
As a statutory tribunal with a substantial jurisdiction, VCAT is necessarily required to formulate a process by which its business is conducted. Subject to appropriate regard for the rights of the respective parties, it is essentially a matter for the Tribunal, in the conduct of its statutory jurisdiction, to determine in which order particular categories of proceedings should be heard and determined.
In the first Tribunal determination, the Deputy President explained that the operations of the Tribunal had been severely impacted by the COVID-19 pandemic, which had required the Tribunal to decide the kind of proceeding which would be accorded higher priority in terms of being listed for hearing. It appears that, in that process, it was determined that applications seeking possession orders were given priority over other matters, including applications seeking orders for compensation.[62]
[62]First Tribunal Decision, [250]–[253].
In the exigencies arising from the impact of the COVID-19 pandemic on the operations of the Tribunal, it was necessary and appropriate for the Tribunal to adopt a procedure by which particular categories of proceeding were accorded some priority in the listing of cases for determination by the Tribunal. The disposition by the Tribunal of the two possession applications by the respondent, before it disposed of the applicant’s claims, was entirely consistent with that process.

In submissions in support of ground 1, the applicant also sought to rely on an order by the Tribunal dated 25 March 2024 in proceedings, which she commenced against the respondent in respect of the repair of the premises. The applicant, in effect, submitted that that order constituted a recognition by the Tribunal that the premises were not in proper repair. Accordingly, it was submitted that, in those circumstances, it was unfair, and contrary to natural justice, for the Tribunal to hear and determine the respondent’s claims for possession of the premises in circumstances in which the Tribunal had accepted that the respondent had failed to keep the property in proper repair.
There are a number of difficulties with that proposition. First, on a proper analysis, the order made by the Tribunal on 25 March 2024 did not constitute an adjudication by the Tribunal that the premises were in disrepair. As we have earlier mentioned, the parties agreed to consent orders on 6 December 2023 concerning the repair of the premises. Subsequently, the parties were unable to agree on the scope of the works, and also on the circumstances in which the applicant would provide access to the rented premises to enable the necessary repairs to be undertaken. The orders dated 25 March 2024 did no more than seek to address those two issues, by providing directions as to how, and in what circumstances, access should be provided to the property to enable the repairs, sought by the applicant, to be carried out.
Further, and in any event, as the foregoing analysis of the proceedings before VCAT makes clear, the issues in the proceedings brought by the respondent for possession of the premises were quite separate to and independent of the issues which were necessary to be resolved in the proceedings instituted by the applicant. In those circumstances, as we have discussed, by hearing and determining the issues in each of the proceedings separately, the Tribunal did not fail to comply with ss 97, 98 and 102 of the VCAT Act.
In support of ground 1, the applicant relied on the recent decision of the High Court in Young in support of the proposition that, in order to fairly balance the rights and obligations of the parties, the Tribunal was obliged to hear the applicant’s compensation claim either before or at the same time as the claims made by the respondent for possession of the premises. In her written submissions, the applicant referred to a number of passages from the decision of the High Court which she contended supported that proposition.[63]
[63]Young, 844 [12] (Kiefel CJ, Gageler and Gleeson JJ), 851 [56], 855–6 [75]–[77] (Gordon and Edelman JJ).
It is quite clear, from a consideration of the issues that were before the High Court, and the Court’s reasons, that that decision does not advance the applicant’s case in the present application.
In Young, the court was concerned with a claim made by the applicant, as administrator of the estate of Kwementyaye Young, against the respondent in respect of premises leased by Ms Young from the respondent at Ltyentye Apurte (Santa Teresa), an Aboriginal community approximately 85 km from Alice Springs. For 68 months of the tenancy, the premises had not had a back door in the doorframe. Clause 12(1) of the prescribed tenancy agreement provided that the landlord would take all reasonable steps to provide and maintain the locks and other security devices necessary to ensure the premises were reasonably secured. The issue before the Court was whether the applicant was entitled to claim damages as compensation for the distress and disappointment to Ms Young due to the failure of the respondent to comply with that requirement.
It is quite evident that the passages of the judgment of the High Court, referred to by the applicant, were expressed in a context that was quite different to the issues that were required to be determined in the present case. The decision of the High Court, that the applicant was entitled to recover damages for disappointment and distress suffered by Ms Young as a consequence of the breach by the respondent of the terms of the tenancy agreement, does not support the proposition relied on by the applicant, namely that the Tribunal was obliged to hear her compensation claims before or at the time at which it heard and determined the claims of possession made by the respondent.

Alleged breaches of the Charter

It is further evident, from the foregoing considerations, that the procedure adopted by the Tribunal in this case did not involve any contravention of the rights of the applicant under the provisions of the Charter relied on in support of ground 1.
Specifically, the procedure of the Tribunal, in hearing and determining the possession application before it heard and determined the applicant’s compensation claim, did not involve a contravention of s 8 of the Charter: it did not, in any way, discriminate against the applicant, nor did it contravene the applicant’s entitlement to be treated equally before the law.
The process adopted by the Tribunal did not contravene the applicant’s right, under s 13 of the Charter, not to have her home unlawfully or arbitrarily interfered with; rather, the process adopted by the Tribunal involved the determination of the rights of the parties to possession of the property in accordance with the Act.
It is not clear at all how the applicant maintains that there was any contravention of her right to hold or express an opinion under s 15 of the Charter, or of her right under s 18 of the Act to participate without discrimination in the conduct of public affairs.
Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. For the reasons discussed, the hearing and determination by the Tribunal of the respondent’s claim for possession, before it heard and determined the applicant’s claim for compensation, did not constitute the deprivation of the applicant’s property ‘other than in accordance with law’.
Finally, s 24 of the Charter provides that a party to a civil proceeding has a right to have it decided by a competent independent and impartial tribunal after a fair and public hearing. In the present case, for the reasons that we have discussed, it is clear that the applicant was accorded a fair and public hearing, and there is no suggestion that the Tribunal was other than independent and impartial.
For those reasons, it follows that the Tribunal did not contravene the rights of the applicant under the provisions of the Charter by adopting a procedure in which the claims for possession by the respondent were heard separately, and before the claims by the applicant for repair of the premises and compensation.

Other submissions on ground 1

In oral submissions, the applicant also sought, under ground 1, to contend that Gorton J had erred by failing to rule on a submission put to him that the notice to vacate, dated 25 January 2023, was defective, because it had misstated the amount of rental owing by her to the respondent.
It is difficult to understand how that proposition supports ground 1, which is to the effect that Gorton J erred by determining that the applicant’s rights had been fairly balanced.
However, and in any event, contrary to the submission by the applicant, Gorton J did appropriately consider and determine the arguments, made by the applicant, concerning the notice to vacate.
As we have earlier noted, in the first Tribunal decision, Deputy President Warren specifically addressed the issue as to whether the notice to vacate had overstated the amount of unpaid rent. The Deputy President concluded that the notice had overstated the amount of unpaid rent by $10, which was inconsequential in the context of the amount of rent owing by the applicant to the respondent, such that it did not invalidate the notice to vacate.[64]
[64]First Tribunal Decision, [75]–[81].
In determining the appeal by the applicant from that decision, Gorton J specifically addressed the question of the rent owing by the applicant to the respondent as at the date of the notice to vacate (25 January 2023). His Honour rejected the submissions by the applicant challenging the finding by the Deputy President that, at the time of the service of the notice to vacate, she was in arrears of rental by the amount of $970, and his Honour accepted that the circumstance that the notice overstated the outstanding rental by $10 did not invalidate the notice to vacate.[65]
[65]Reasons, [30]–[31].
For the foregoing reasons, ground 1 of the application for leave to appeal must fail.

Ground 2 — Submissions

In support of ground 2, the applicant relied on s 330A(i) of the Act, which provides that in determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the behaviour of the residential rental provider and the provider’s agent. In that respect, the applicant submitted that the ‘lion’s share’ of responsibility for the dispute between the parties rested with the respondent’s rental agents. The applicant submitted that as a consequence of the conduct of those agents, she had been deprived of peaceful enjoyment of the property and she had suffered consequential financial loss. The applicant submitted that the decision of the High Court in Young established that, as a consequence of the conduct of the agents, and the defective condition of the premises, she was entitled to damages that included compensation for her distress and disappointment. The applicant noted that her argument, that she was entitled to recover those losses in order to enable her to relocate appropriately, was not considered by the Tribunal or by the judge. Rather, the Tribunal and the judge had focussed solely on the right of the respondent to continue to receive rent, regardless of the circumstances of the leasing agreement.
In response to ground 2, counsel submitted that it is not the duty of a judge to decide every matter that is raised in argument. Further, counsel submitted, the arguments, made by the applicant under ground 2, were no more than an attempt to agitate matters that are relevant to a separate proceeding that she has commenced against the respondent’s real estate agent in the Federal Circuit and Family Court of Australia. It was submitted that those issues are not relevant to the questions of law, which the applicant raised before the trial judge, and they can have no bearing on any material aspect of the applicant’s application for leave to appeal. Moreover, it was submitted that, in effect, the applicant, by her submissions under ground 2, was doing no more than attempting to engage in an impermissible merits review of the VCAT decisions.

Ground 2 — Analysis and conclusions

Ground 2 contends that the primary judge ‘failed to consider the effect of the respondent’s breaches on the operation of the lease agreement’.
As expressed, that ground does not allege an error by the judge in determining whether the Tribunal had made an error of law in either of its decisions. However, bearing in mind that the applicant is not a trained lawyer, it is appropriate to consider ground 2 as alleging that the judge erred in concluding that the Tribunal did not fail to consider the effect of the respondent’s breaches on the operation of the lease agreement.[66]
[66]Cf Karakatsanis v Racing Victoria Limited (2013) 42 VR 176, 184–187 [19]–[25] (Osborn JA); [2013] VSCA 305.
The notices of appeal, from the decisions of the Tribunal, did not contain any ground to that effect. Each notice did contain one ground which alleged that the Tribunal member made an error of law ‘by failing to consider the respondent had repeatedly breached urgent repairs orders’. Despite the difference in the way that the grounds of appeal are now formulated, it is appropriate to consider ground 2 in the manner that we have discussed.
In essence, under ground 2, the applicant has contended that in each of the two decisions, the Tribunal member failed properly to take into account s 330A(i) of the Act, which provides that, in determining whether it is reasonable and proportionate to make a possession order, the Tribunal is required to have regard to the behaviour of the residential rental provider and the provider’s agent.
A review of the two decisions of the Tribunal demonstrates that, contrary to that contention, in each case the Tribunal member, in referring s 330A(i) of the Act, did consider the contentions made by the applicant concerning the conduct of the respondent and his agent.
In the first Tribunal decision, the Deputy President noted the submission by the applicant that the respondent was in breach of his duty to repair the premises, and that she was not required to pay rent until those repairs had been effected.[67] The Deputy President noted that the evidence presented by the applicant could be interpreted as showing that the respondent had been ‘slow’ in responding to the request for repairs made in August 2022. However, on the other hand, there was evidence that the applicant had not been cooperating with the respondent and the tradespeople in having those repairs carried out.[68] In particular, the applicant had conceded that she had refused entry to the premises to some tradespeople notwithstanding that the agent had served a notice of entry on her.[69] The Deputy President considered that the conditions of entry to the premises, sought to be imposed by the applicant — that she would be filming and recording all movements of tradespeople while they were in the premises — were unreasonable.[70] The Deputy President rejected the evidence of the applicant that there was an agreement with the respondent that he would attend the premises on a weekly basis to conduct maintenance of it.
[67]First Tribunal Decision, [161].
[68]Ibid [163].
[69]Ibid [166].
[70]Ibid [168].
The Deputy President accepted that at one point the rent ledger tendered by the agent had failed to take into account the rent reduction agreement between the parties. However, when the applicant requested reconciliation of the rent, she failed to provide the agent with copies of her bank statements to facilitate the requisite reconciliation of the account.[71] The Deputy President further noted that when the applicant lodged applications with the Tribunal seeking compensation and urgent repairs, she had declined to pay, and sought postponement of payment of, the requisite application fee, which had the effect that the Tribunal could not proceed with either application at that time.[72]
[71]Ibid [175].
[72]Ibid [179].
In conclusion, in respect of s 330A(i), the Deputy President stated:
However, for the purposes of determining whether it is reasonable and proportionate to make a possession order, I consider the fact that having requested Mr Sharpe to undertake repairs that Ms Anderson then placed obstacles in the path of his ability to conduct such repairs. If Ms Anderson was of the view that Mr Sharpe was not complying with his obligations under the Act to carry out repairs, then she could have followed the processes set out in the Act to address her concerns. Ceasing to pay rent is not an option that the law allows a renter in her position to unilaterally adopt.
Whilst it may be open to a Tribunal after having heard all of the evidence to find that Mr Sharpe did not comply with his obligations to carry out repairs within a reasonable timeframe, I find that the actions by Ms Anderson in simply ceasing to pay any rent to have been totally unreasonable. This finding supports the making of a possession order.[73]
[73]Ibid [182]–[183].
That review of the consideration by the Deputy President, of the competing positions of the parties under s 330A(i) of the Act, demonstrates that the Deputy President did give consideration to, and take into account, the claims by the applicant in respect of the conduct of the respondent and the respondent’s agent. Contrary to the submission of the applicant, the Deputy President (and the judge) did not focus solely on the right of the respondent to continue to receive rent ‘regardless of the circumstances of the leasing agreement’.
It is equally apparent that, in the second Tribunal proceeding, the senior member did give appropriate consideration to the issues raised by the parties in their competing submissions concerning s 330A(i) of the Act.
As we have noted, the Senior Member observed that the applicant had a perception that she had been wronged by the respondent and the agent. However, having considered the competing cases presented by the parties on that issue, the Senior Member considered that the facts and the history of the conduct of the parties did not support the applicant’s claims that the actions of the respondent and the agent were ‘in any way reprehensible or such as to persuade me that a possession order should not be made’.[74]
[74]Second Tribunal Decision, [190].
Specifically, the Senior Member noted:
Further, the evidence presented in this case does not support claims by the Renter that the Rental Provider, and the agents, are trying to avoid their obligation to carry out repairs at the rented premises. The material provided shows a lengthy dispute about what repairs are needed, miscommunication and dispute over times for access by trades and the Renter placing conditions on that access. The evidence supports a finding that there were delays by the Renter in making any application to the Tribunal for repair orders, that the Rental Provider encouraged such an application to be made to resolve the issue of access and when orders were made by consent for repairs to be carried out, it was the Rental Provider who sought to renew the proceeding to resolve yet another dispute over access.[75]
[75]Ibid [196].
The Senior Member rejected the proposition, advanced by the applicant, that the conduct of the agents and the respondent, in seeking payment of the rent, was unreasonable or inconsistent with the usual practice in the real estate industry.[76] The Senior Member then concluded:
For the reasons provided, I do not accept that the conduct of the rental provider or agents, when considered in the context of the history of numerous disputes relating to the rental agreement, is such as to support a conclusion that it is not reasonable and proportionate to make a possession order.[77]
[76]Ibid [197].
[77]Ibid [199].
Thus, it is quite evident that, in the second Tribunal decision, the Senior Member did appropriately consider and take into account the issues raised by the applicant, concerning the conduct of the respondent and his agent, in determining whether it was reasonable and proportionate to make a possession order in respect of the premises, pursuant to s 91ZZA of the Act, in order that the premises be available to be occupied by the respondent’s daughter.
For those reasons, contrary to ground 2, in each decision the Tribunal did not fail to give a proper consideration to the applicant’s contention concerning the effect of the alleged breaches by the respondent on the operation of the residential rental agreement. Rather, it is clear that in each case, the Tribunal, in assessing whether it was reasonable and proportionate to make a possession order, gave appropriate consideration to the contentions made by the applicant that the respondent had breached specific obligations contained in the residential rental agreement.
It follows that the judge was not in error in concluding that, in each case, the Tribunal had appropriately considered the matters prescribed by s 330A of the Act, in determining whether in the circumstances it was ‘reasonable and proportionate’ to make a possession order.[78]
[78]Reasons, [39].
Accordingly, ground 2 of the application for leave to appeal must fail.

Ground 3 — Submissions

In support of ground 3, the applicant noted that although she had cited the Charter in her notices of appeal, as a self-represented litigant, she had not been aware that a s 35 notice should be issued. That matter was only raised by the judge in the course of the hearing, when his Honour asked the respondent’s counsel about the issue. The applicant noted that after the conclusion of oral argument, and after the judge had reserved his decision (on 24 May 2024), she had issued a s 35 notice herself on 26 May 2024. However, on 28 May 2024, she received notice that the judge would deliver his reasons on the following day. When the applicant raised with the judge why he had not allowed the Victorian Government Solicitor or the Commission time to respond, the judge stated that he did not wish to delay the decision any further. The applicant submitted that that was not a valid reason not to allow proper process to be followed in the case. She submitted that if that process had been followed, the judge might have been persuaded to reach a different conclusion.

Counsel for the respondent submitted that the contentions, relied on by the applicant in support of ground 3, are misconceived for four reasons.
First, it was submitted, the applicant sought to agitate a point that was not — and could not have been — considered by the primary judge. At the date of the hearing before the primary judge, neither party had provided a s 35 Charter notice to either the Attorney-General or the Commission .
Secondly, it was submitted, there was no obligation for the parties to give the notice contemplated in s 35. In the present case, no question was raised as to the interaction between the Charter and the Act.
Thirdly, it was submitted, the applicant had failed to identify the response (if any) from the Attorney-General or the Commission, and there is no evidence that either entity would have sought to intervene in the proceeding.
Fourthly, counsel contended that the primary judge was guided by the interests of all parties. His Honour was prepared to delay handing down the decision, in order to give time for the Attorney-General and the Commission to respond, subject to the applicant paying one week’s rent, which the applicant refused to do.

Ground 3 — Analysis and conclusions

Ground 3 of the proposed grounds of appeal is to the effect that the judge erred by failing to allow time for the Victorian Solicitor General and the Commission to respond to the notice issued by the applicant under s 35 of the Charter. It will be recalled that that notice was issued by the applicant after the conclusion of argument before the judge, and shortly before his Honour delivered his reasons for decision.
The fourth question of law, specified in the applicant’s notice of appeal to the trial division from the second Tribunal decision, was to the following effect:
Did VCAT meet its obligations and consider the rights of the appellant under the Charter of Human Rights and Responsibilities Act 2006 — specifically s 8, s 13, s 15, s 18, s 20, s 24 — in its conduct of the proceedings and making of the orders?
The judge noted that the applicant, in her written submissions, had not referred to that question of law. She had, however, included a ground of appeal that the Senior Member had erred by finding that discrimination is confined only to matters referred to in equal opportunity law, and that the Tribunal thus discriminated against the applicant as a renter.[79]
[79]Ibid [44].
The judge concluded that the Senior Member had been correct to consider that the applicant had not made a claim of direct discrimination, and his Honour, for the reasons already discussed, concluded that the Tribunal was not in breach of the Charter by hearing the respondent’s application for possession before determining the applicant’s claim for compensation.[80]
[80]Ibid [45].
The judge further noted that neither party had given notice to the Attorney-General or to the Commission pursuant to s 35 of the Charter.[81] His Honour considered that, in the circumstances of the case, it would not be appropriate to delay the hearing of the applicant’s application for leave to appeal in order that such notices be served. In particular, the applicant had not contended that any particular interpretation of the Act should be applied in a manner which would be inconsistent with a provision of the Charter. Further, the competing submissions of the parties did not turn on the text of the Charter. In addition, his Honour noted that the applicant had declined his invitation to pay one week’s rent to the respondent as a condition of his Honour extending the stay of the possession orders for one further week.[82]
[81]Ibid [50].
[82]Ibid [51].
Section 35(1) of the Charter provides:
Notice to Attorney-General and Commission
(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if—
(a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or
(b) in any case, a question is referred to the Supreme Court under section 33.
(2) For the purpose of subsection (1), a notice is not required to be given to—
(a) the Attorney-General if the State is a party to the relevant proceeding; or
(b) the Commission if the Commission is a party to the relevant proceeding.
Section 6(2)(b) provides that the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and under Division 3 of Part 3 of the Charter.
In submissions before the judge, it was not in issue that those provisions of the Charter applied to the Tribunal, and to the hearing of the appeal from the decisions of the Tribunal. Further, it is quite apparent that there was no issue, either before the Tribunal or in submissions before the judge, concerning the interpretation of any of the provisions of the Charter that were relied on by the applicant.
Specifically, as we have noted in considering ground 1, the applicant relied on ss 8, 13, 15, 20, 24 and 32 of the Charter. It is quite evident that no issue raised by the parties, or considered by the judge, concerning how those provisions, or any of them, should be construed in the context of the proceedings. As the judge noted, the applicant did not argue for the application of any particular interpretation of a provision of the Act in a manner which was inconsistent with a provision of the Charter. Consequently, there was no occasion for the parties to give notice in the prescribed form to the Attorney-General and the Commission pursuant to s 35(1)(a) of the Charter.[83]
[83]Ibid [51].
It therefore follows that the judge did not err by declining to allow time for the Attorney-General and the Commission to respond to the s 35 notice provided to him by the applicant.
Accordingly, ground 3 of the application for leave to appeal must fail.
Conclusion
For the foregoing reasons, the applicant has failed to succeed on each of the proposed grounds of appeal. It follows that the application for leave to appeal must be refused.
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[2024] VSCA 166

19 July 2024