Legal Research
Cases
Berih v Homes Victoria (No 4)

Berih v Homes Victoria (No 4)

Link copied

Case Copied 4 April 2025 73 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2024 00280

BARRY BERIH	Plaintiff
v
HOMES VICTORIA	Defendant

---

JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	28–29 October 2024, 27–28 February 2025
DATE OF JUDGMENT:	4 April 2025
CASE MAY BE CITED AS:	Berih v Homes Victoria (No 4)
MEDIUM NEUTRAL CITATION:	[2025] VSC 169

---

ADMINISTRATIVE LAW — Judicial review — Decision of Homes Victoria to implement a program to retire and redevelop 44 public housing towers in Melbourne — Group proceeding brought by resident of one public housing tower, seeking judicial review of Homes Victoria’s decision — Whether Homes Victoria’s decision justiciable — Housing Act 1983 (Vic) ss 9, 15 — Public Administration Act 2004 (Vic) ss 3, 5— Berih v State of Victoria (No 2) [2024] VSC 230 — Comcare v Banerji (2019) 267 CLR 373.

ADMINISTRATIVE LAW — Judicial review — Procedural fairness — Whether Homes Victoria was obliged to give Group Members opportunity to be heard before making decision — Whether relevant power conditioned on observance of procedural fairness — Whether decision affected any legally recognised right or interest of Group Members — Whether realistic possibility of Homes Victoria making different decision if Group Members had been heard — Housing Act 1983 (Vic) ss 6, 9, 10, 13, 14, 15, 18, 19, 32 — Residential Tenancies Act 1997 (Vic) s 91ZY, pt 7 div 1 — Keasey v Director of Housing (2022) 66 VR 45 — Badari v Minister for Territory Families and Urban Housing [2025] NTCA 1.

HUMAN RIGHTS — Charter of Human Rights and Responsibilities — Right to home — Whether s 38(1) of Charter applied to decision — Whether Homes Victoria gave proper consideration to relevant human rights in making decision — Whether decision limits Group Members’ human rights — Whether any limitation to human rights justified under s 7(2) of Charter — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 4, 7(2), 13(a), 17(1), 20, 38 — Keasey v Director of Housing (2022) 66 VR 45 — Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 — Thompson v Minogue (2021) 67 VR 301.

EVIDENCE — Objection to evidence — Plaintiff objected to evidence on grounds of inadmissible opinion and hearsay without identified basis, and sought exclusion of unfairly prejudicial evidence — Reasons for ruling that evidence admissible, other than some evidence excluded as unfairly prejudicial — Evidence Act 1995 (Cth) ss 135, 136.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K O’Gorman SC, with Mr L Howard, Mr T Farhall, and Ms G Cafarella	Inner Melbourne Community Legal
For the Defendant	Mr L Brown SC, with Ms E Smith and Mr J Maxwell	Victorian Government Solicitor

TABLE OF CONTENTS

Relevant provisions — Housing Act................................................................................ 4
The Decision......................................................................................................................... 9
Ruling on objections to evidence..................................................................................... 12
Can the Decision be reviewed by the Court?................................................................ 18
Was Homes Victoria obliged to…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Berih v Homes Victoria (No 4) and more:

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSC 169
Decision Date: 4 April 2025

CaseChat Overview and Summary

In Berih v Homes Victoria (No 4), the applicant, a resident of one of the 44 public housing towers slated for retirement and redevelopment by Homes Victoria, sought judicial review of Homes Victoria’s decision to implement the program. The case was heard in the Supreme Court of Victoria. The primary focus of the application was whether Homes Victoria's decision was justiciable under the relevant statutes, and if the decision-making process complied with procedural fairness and human rights obligations.

The legal issues in the case revolved around whether Homes Victoria was required to adhere to procedural fairness principles before making the decision, whether the decision-making process affected any legally recognised rights or interests of the residents, and whether the decision limited the residents' human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court had to determine if the decision was conditioned on observing procedural fairness and whether Homes Victoria gave proper consideration to the relevant human rights in making the decision. Additionally, the court examined if any limitation on human rights was justified under the Charter.

The Supreme Court of Victoria found that Homes Victoria's decision was justiciable and that the decision-making process did not breach procedural fairness or human rights obligations. The court held that the decision was not conditioned on observing procedural fairness as the relevant powers under the Housing Act 1983 (Vic) did not imply such a requirement. Furthermore, the court concluded that while the decision affected the residents' right to home, the limitation was justified under the Charter. The court also ruled that some evidence presented was unfairly prejudicial and excluded it from consideration.

The final orders of the court were that Homes Victoria's decision was lawful and did not infringe on the residents' rights under the Charter. The court dismissed the application for judicial review.

Orders