Burgess v Director of Housing

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 03510

EBONY BURGESS & ANOR	Plaintiffs
v
DIRECTOR OF HOUSING & ANOR	Defendants

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 - 14 May 2014
DATE OF JUDGMENT:	17 December 2014
CASE MAY BE CITED AS:	Burgess & Anor v Director of Housing & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 648

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ADMINISTRATIVE LAW - Judicial review - Decisions of the Director of Housing (Director) and Victorian Civil and Administrative Tribunal (VCAT) which would lead to plaintiffs’ eviction from public housing - First plaintiff alleged to have trafficked heroin from the premises - Decisions of Director to issue notices to vacate and apply for warrant of possession - VCAT grant of possession order and issue of warrant for possession - Stay granted on execution of warrant pending determination of proceeding - Plaintiffs seeking certiorari to quash decisions of Director - Threshold issue of whether decisions of Director amenable to certiorari - Consideration of continuing legal effect of decisions of Director - Whether Director failed to observe any requirement of natural justice in making decisions – Consideration of requirements of Director's own policy manual - Whether Director failed to take into account relevant considerations - Whether decisions of Director unlawful under s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Both decisions of Director invalidly made but only decision to apply for warrant amenable to certiorari - Consideration of what relief should be granted - Residential Tenancies Act 1997 (Vic) - Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 - Hot Holdings v Creasy (1996) 185 CLR 149 - Director of Housing v Sudi (2011) 33 VR 559 - Minister for Immigration v Bhardwaj (2002) 209 CLR 597 - Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Miah (2001) 206 CLR 57 - Minister for Immigration v Gray (1994) 50 FCR 189 206 - Banks v Transport Regulation Board (1968) 119 CLR 222.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Aghion and Ms C Melis	Justice Connect
For the First Defendant	Mr P R D Gray QC and Ms K M Evans	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Does the Court have jurisdiction to order certiorari?.................................................................. 4

Legislative framework................................................................................................................. 7
Director of Housing............................................................................................................. 7
Residential Tenancies Act.................................................................................................. 7

Factual context............................................................................................................................. 13
Notices to vacate and possession order......................................................................... 13
Request for warrant and warrant issued........................................................................ 17
Warrant execution stayed................................................................................................. 19

Threshold issue: Wingfoot principles...................................................................................... 20
Wingfoot distinguished?.................................................................................................. 20
(a)....... No error of law on the face of the record?.......................................................... 21
(b)...... Wingfoot did not involve a challenge to the magistrate’s decision?............. 22
(c)....... Issue estoppel as the basis of Wingfoot?........................................................... 23
Impractical and unjust consequences............................................................................. 23
The ‘right to seek judicial review’ is the ongoing legal consequence?..................... 26
Director’s decisions as ‘steps in a process’ that remains unperformed?................... 29
Notice to vacate and possession order............................................................. 34
Application for and issue of the warrant of possession................................. 35

Conclusion on threshold argument................................................................................ 38

Were either of the Director’s two decisions invalidly made?................................................... 38

Procedural fairness principles.................................................................................................. 39
‘Relevant matter’ principles...................................................................................................... 41
Notice decision............................................................................................................................ 41
Did the Director fail to observe any requirement of natural justice?........................ 43
The manual............................................................................................................ 45
Facts surrounding notice decision..................................................................... 49
Analysis and conclusion..................................................................................... 53

Did the Director fail to take into account a matter he was bound to consider?....... 55
Balance between negative impact of eviction on tenant and Director’s policy aim 56
Charter rights........................................................................................................ 57
Summary and conclusion.................................................................................... 60

Warrant application decision.................................................................................................... 60
Did the Director fail to take account of a matter he was bound to consider?.......... 61
‘Changed’ circumstance information not considered..................................... 63
Charter rights not considered............................................................................. 65

Summary and conclusion................................................................................................. 66

If either of the Director’s two decisions were invalidly made, what relief should be granted? 66

Summary of conclusions............................................................................................................ 66
Orders........................................................................................................................................... 67

HIS HONOUR:

Introduction and summary

Between March and June 2013, the Director of Housing (Director), the first defendant, and the Victorian Civil and Administrative Tribunal (VCAT), the second defendant, each took steps that had the combined result that a warrant was issued for the possession of the house in which Ebony Burgess, the first plaintiff, lives and in which her son Carlton Godwin, the second plaintiff, regularly stays (the rented premises). The Director is the landlord of the rented premises and Ms Burgess is the tenant. The Director’s ground for seeking to terminate the tenancy was that Ms Burgess had trafficked heroin from the rented premises.

Together, Ms Burgess and Carlton seek relief in the nature of certiorari to quash certain alleged decisions made by either the Director or VCAT involved in each step, using the procedure for judicial review provided under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Rules). Carlton, a child, sues by his mother as litigation guardian.

The steps taken by the Director and VCAT that brought about the issue of the warrant can be described succinctly:

(a) First, on 22 March 2013, the Director issued to Ms Burgess a notice to vacate the rented premises leased to her by the Director (the notice decision).

(b) Secondly, VCAT made an order on 13 May 2013 granting possession of the premises to the Director after he[1] applied for such an order based upon the notice to vacate (the possession order).

(c) Thirdly, on 18 June 2013, the Director applied for a warrant of possession of the premises (the warrant application decision).

(d) Fourthly, on the same date, VCAT issued the warrant (the issue of the warrant).

[1]Since late 2012, and at all relevant times, the Director was Mr Arthur Rogers.

On 21 June 2013, this Court stayed the execution of the warrant pending the determination of this proceeding, commenced that same day.[2] Ms Burgess remains in possession of the premises.
[2]Orders of Almond J made 21 June 2013: see [64] below.

Ms Burgess argued that each of the four steps involved a decision on the part of either the Director or VCAT which could and should be quashed. The Director accepted that each of the first three steps involved the making of a ‘decision’, but not the fourth step (ie. the issue of the warrant). In any event, he argued that none of the steps is now amenable to the remedy of certiorari.

For reasons I will explain, Ms Burgess does not directly impugn VCAT’s steps: neither the possession order nor the issue of the warrant (which, to adopt a neutral term, I will refer to collectively as VCAT’s ‘actions’). She only impugns the Director’s decisions that preceded those actions, namely, the notice decision and the warrant application decision. But, she argues that if the Director’s antecedent decisions are quashed so must the actions taken by VCAT in reliance upon them.

Ms Burgess claims that the two decisions made by the Director were affected by jurisdictional error in that the Director:

(a)did not accord procedural fairness or natural justice when making the notice decision on 22 March 2013;
(b)failed to take into account relevant matters he was bound to consider in making both decisions; and
(c)in making each decision, failed to act compatibly with or give proper consideration to certain rights secured by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’)in favour of the plaintiffs.

As well as certiorari, the plaintiffs seek associated declarations.

Only the Director appeared before the Court to oppose the claim. In accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors[3] VCAT announced that it would play no part in the proceeding but would abide the outcome of the Court.
[3](1980) 144 CLR 13, 35.

A threshold question emerged as to whether the Court had any jurisdiction to grant the primary relief of certiorari in respect of the Director’s two decisions. Applying principles drawn from the High Court’s decision in Wingfoot Australia Partners Pty Ltd v Kocak,[4] the Director argued that each of his two decisions, which in each case was anterior to an action taken by VCAT, ceased to have any ongoing legal effect once VCAT took its action. So, the Director argued, his notice decision ceased to have legal effect once VCAT made its possession order. Similarly, his warrant application decision ceased to have ongoing legal effect once VCAT issued the warrant.
[4][2013] HCA 43 (‘Wingfoot’).

Ms Burgess did not dispute the essential legal proposition relied upon by the Director. Nevertheless, she argued that the Wingfoot principle did not apply to the circumstances of this case for a variety of reasons. Alternatively, she contended that, properly analysed, the actions taken by VCAT did not expunge the entire legal effect of the Director’s decisions so that they each remained amenable to certiorari.

If the Director’s argument on this point is good, it disposes of the claim. But, if Ms Burgess’s argument is correct, it would become necessary to consider whether either of the Director’s decisions ought to be set aside on any of the grounds she has put forward.

Finally, if one or other of the Director’s decisions is quashed, the question then arises whether, as Ms Burgess would have it, it automatically follows that either or both of VCAT’s actions should also be quashed. Further or alternatively, she claims the court should declare that the actions were invalid and of no force or effect, and unlawful pursuant to the Charter.

Accordingly, the issues that I must determine are as follows:

(a) Does the court have jurisdiction to order certiorari in relation to either of the two decisions made by the Director?

(b) Were either of the Director’s two decisions invalidly made?

(c) If either of the Director’s two decisions were invalidly made, what relief should be granted?

For reasons which I state below, although both decisions were affected by jurisdictional error and were unlawful under s 38 of the Charter, I find that only the warrant application decision remains amenable to the remedy of certiorari. In the circumstances that now exist, it is appropriate that I at least declare that the warrant application decision was unlawful and of no legal force and effect. Beyond that, I intend to invite further submissions from the parties as to any further orders that should follow from my findings.

Does the Court have jurisdiction to order certiorari?

The function of certiorari is to quash the legal effect or the legal consequence of the decision or order made under review.[5] As Brennan J said in Ainsworth v Criminal Justice Commission:

Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.[6]

[5]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 per Mason CJ, Dawson, Toohey and Gaudron JJ (‘Ainsworth’).

[6](1992) CLR 564 at 595.

In Hot Holdings v Creasy,[7] Brennan CJ, Gaudron and Gummow JJ reasoned (at 159) that:

… for certiorari to issue, it must be possible to identify a decision which has a discernible legal effect upon rights. It is that legal effect which may be removed for quashing.

[7](1996) 185 CLR 149 (‘Hot Holdings’).

Extending that reasoning further, in Wingfoot the High Court (French CJ, Crennan, Bell, Gaegelar and Keane JJ) explained:

Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”[8]. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported effect of which is moot or spent. An order in the nature of certiorari in these circumstances would not be simply inutile, it would be unavailable.[9]

[8]Hot Holdings (1996) 185 CLR 149, 159.

[9]Wingfoot [2013] HCA 43 [25].

So, in Wingfoot, in reliance upon that principle, the High Court held that an order in the nature of certiorari was not available to quash the opinion of a medical panel given under the Accident Compensation Act 1985 (Vic) (‘ACA’) in the particular circumstances that existed. That was because, so the court held, the opinion of the medical panel ‘had no continuing legal consequences’; its ‘legal effect was spent’.[10]
[10]Wingfoot [2013] HCA 43 [40].

The court’s conclusion followed a detailed analysis of the legislative regime which governed the generation of a medical panel opinion, its use and effect. In summary, the ACA authorised a magistrate hearing a worker’s claim for statutory compensation following a workplace injury to refer a medical question, arising in the proceeding, to a medical panel constituted under the Act. The Act obliged a medical panel so appointed to give its certificate of opinion, and reasons for that opinion, within a particular timeframe. Section 68(4) provided that the opinion of a medical panel on a medical question so referred was ‘to be adopted and applied by any court … and must be accepted as final and conclusive by any court’.

Employing that process, the relevant magistrate had referred a medical question to a medical panel in a proceeding brought by the worker, Kocak, who claimed statutory compensation. The panel’s opinion was that Kocak’s claimed medical condition did not result from, nor had been materially contributed to by, the relevant workplace injury. The magistrate adopted and applied the medical panel’s opinion and dismissed Kocak’s claim for compensation under the Act.

After the magistrate had dismissed Kocak’s statutory compensation claim, Kocak sought judicial review of the medical panel’s opinion. But he did not do so to set aside the magistrate’s decision in the statutory compensation claim. Rather, he sought to review the medical panel’s opinion to prevent it being used against him in a common law claim he brought in the County Court for damages arising from the same workplace injury. The trial judge held that the panel’s opinion was not amenable to judicial review whereas the Court of Appeal held that it was, and ordered that it be quashed.

The question before the High Court was whether the medical panel’s opinion could be quashed. Involved in that issue was the question whether, under the ACA, the medical panel’s opinion, obtained for the resolution of the statutory compensation claim in the Magistrates’ Court, might also have a binding and conclusive effect in the legal controversy arising in respect of Kocak’s claim in the County Court for common law damages stemming from the same alleged injury. The Court answered that question in the negative. It held that once the magistrate adopted the medical panel’s opinion and dismissed the statutory compensation claim, the legal effect of the medical panel’s opinion was spent. Accordingly, certiorari was unavailable and the Victorian Court of Appeal’s decision to quash the medical panel’s opinion was set aside.

So, returning to the current case, it is the Director’s contention that certiorari is not available in respect of either of the two decisions made by the Director that Ms Burgess now seeks to impugn. Employing the language of Wingfoot, the Director contends that, after each of the two corresponding VCAT actions, the Director’s antecedent decisions have no continuing legal consequence. Put another way, the Director says that the legal effect of each of his decisions was spent when VCAT took its actions so that the Director’s decisions are no longer amenable to the remedy of certiorari.

To understand and analyse the arguments in relation to each of the two sets of decisions and actions, it is necessary to set out both the legislative and factual context in which these issues arise.

Legislative framework
Director of Housing

The Director of Housing is a position established by s 9 of the Housing Act 1983. The objects of the Housing Act include:

(a)To ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging ‑
(i)the provision of well-maintained public housing of suitable quality and location;[11]

[11]Housing Act 1983 s 6(1)(a).

The Director’s powers include, subject to the Residential Tenancies Act 1997 (‘RTA’), to lease any land vested in the Director on terms and conditions that the Director thinks fit.[12] Residential tenancies in Victoria, as in most jurisdictions, have been the subject of statutory control for many years. In Victoria, the legislation that now contains those controls is the RTA.
[12]Residential Tenancies Act 1997 s 14(1)(g).

As a landlord of residential premises, the Director is subject to the RTA as are the tenants of residential premises leased by the Director. Since the facts of this case concern the steps taken by the Director for the termination of Ms Burgess’s tenancy, I will confine myself to the provisions relevant to the regime for termination of tenancies and to the relevant grounds upon which termination was sought in this case. There is no dispute that at all relevant times a valid residential tenancy was in place. Ms Burgess had been the tenant of the relevant premises under a tenancy agreement with the Director since 2006.

Residential Tenancies Act

The purposes of the RTA include, in relation to tenancies of residential premises, ‑

(a)to define the rights and duties of landlords and tenants of rented premises;

…
(d)to provide for the inexpensive and quick resolution of disputes under this Act … .[13]

[13]Ibid s 1(a), (d).

Division 5 of Part 2 of the RTA specifies general duties of tenants and landlords. One of the tenant’s duties is not to use the rented premises or permit their use for any purpose that is illegal at common law or under the Act.[14]
[14]Ibid s 59.

Part 6 of the Act concerns termination of residential tenancies. Amongst other things, Division 1 provides that, despite any other law to the contrary, a tenancy agreement can only be terminated in accordance with the provisions of that division, Part 7 (concerning possession orders and warrants), or Part 8 (which is not relevant to this proceeding).[15] Further, it is an offence for a landlord to compel or attempt to compel a tenant under a tenancy agreement to vacate rented premises except in accordance with the Act.[16]
[15]Ibid s 216.
[16]Ibid s 229.

Amongst other means provided in Division 1, s 219 provides that a tenancy agreement terminates if the landlord gives the tenant a notice to vacate and either the tenant vacates on or after the specified termination date, or the agreement terminates in accordance with s 334 (a provision found in Part 7). Section 334, to which I will return below, specifies how and when tenancy agreements terminate if VCAT makes a possession order.

Subdivision 4 of Division 1 sets out the various grounds upon which a landlord may give a tenant a notice to vacate rented premises. Amongst other things, those grounds include malicious damage,[17] endangering safety of neighbours,[18] and not paying rent.[19] The two pertinent grounds for the purposes of this case are those set out in ss 250 and 250A because it was upon these grounds that the Director issued notices to vacate to Ms Burgess. As appears from its text, s 250A is a ground that is only available to the Director as landlord.

250 Use of premises for illegal purpose
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.
(2)The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.
[17]Ibid s 248.
[18]Ibid s 244.
[19]Ibid s 246.

250A Drug-related conduct in public housing
(1)The Director of Housing may give a tenant a notice to vacate rented premises of which the Director of Housing is the landlord if the tenant has, on the rented premises or in a common area, illegally—
(a)trafficked or attempted to traffick a drug of dependence; or
(b)supplied a drug of dependence to a person under 18 years of age; or
(c)possessed a preparatory item with the intention of using the item for the purpose of trafficking in a drug of dependence; or

(d)     possessed, without lawful excuse—
(i)       a tablet press; or
(ii)      a precursor chemical; or
(e)cultivated or attempted to cultivate a narcotic plant.

(2)The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.[20]

[20]Subsection (3) is omitted. It contains definitions of various terms such as ‘traffick’ and drug of dependence’, but no dispute arises in this case about the application of those terms to the facts.

Section 250A was introduced into the RTA on 1 July 2011. In introducing the provision, the Minister, Mr Delahunty, said:

Public housing is in high demand. At all times, the director must balance the needs of existing tenants with those who are waiting to be housed. Therefore, it is crucial that the director has effective means of managing the public housing program. This includes mechanism to end a tenancy agreement, in a timely manner, where that tenant is engaged in certain illegal activity, particularly drug trafficking, manufacturing or cultivation, in their premises or on the common areas of public housing estates, since that illegal activity impacts on the safety, security and wellbeing of the director’s tenants and their families.[21]

[21]Victoria, Parliamentary Debates, Legislative Assembly, 24 March 2011, 854 (Hugh Delahunty).

As will appear, it is also relevant to note that s 263 provides that a landlord may give a tenant a notice to vacate ‘without specifying a reason for the notice’ so long as the notice specifies a termination date at least 120 days after the date the notice is given. Such a notice is commonly called a ‘120 day notice’ or a ‘no reason notice’.

In Division 4 of Part 6 there are provisions governing the form to which a notice to vacate must conform if it is to be a valid notice. Amongst other things, a compliant notice must specify the reason or reasons for giving the notice.[22]
[22]RTA s 319(d).

Part 7 of the RTA is headed: ‘Regaining possession ‑ possession orders and warrants’. Relevantly, Division 1 of Part 7 makes provision for possession orders, and Division 4 makes provision for warrants of possession. Part 7 establishes that, if a landlord has given a tenant a notice to vacate rented premises, the landlord may apply to the tribunal for a possession order.[23] Sections 330, 333 and 334 are all of particular importance in this case. As can be seen from the terms of the provisions below, they establish 3 important propositions:
[23]Ibid s 322(1), (2). In the case of a notice given because a fixed term tenancy had expired or a ‘no reason notice’, an additional condition is required namely that the tenant has not vacated the premises.

(a) VCAT must make a possession order on the application of the Director if it is satisfied the Director was entitled to issue the notice to vacate;

(b) when making a possession order VCAT must direct the tenant to leave the premises, and must direct the registrar of the tribunal to issue a warrant of possession if one is requested; and

(c) it is only when possession of the premises is delivered to the landlord that the tenancy agreement terminates.

Those provisions are as follows:

330 Order of Tribunal
(1)The Tribunal must make a possession order requiring a tenant … to vacate rented premises … on the day specified in the order if the Tribunal is satisfied—
(a)in the case of an application where notice to vacate has been given, that—
(i)the landlord … was entitled to give the notice; and

(ii) the notice has not been withdrawn; and

…
(d)that the tenant … is still in possession of the rented premises … after the termination date specified in the notice to vacate or notice of intention to vacate; and

333 Contents of possession order
(1) A possession order must include—
(a)the day (being a day not more than 30 days after the day on which the possession order is made) by which—
(i)in the case of rented premises, the tenant must vacate those rented premises;

…
(b)a direction to the tenant, resident or site tenant (as the case may be) to vacate the rented premises … by the day specified in the order; and
(c)a direction to the principal registrar to issue a warrant of possession in accordance with section 351 on the application of the person who obtained the possession order.

334 Effect of possession order for rented premises or Part 4A site
(1)If a possession order is made under this Division in respect of rented premises, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord or mortgagee.

Turning to Division 4 which concerns warrants of possession, s 351 provides:

351 Issue of warrant of possession
(1)Subject to subsection (2), a person who obtains a possession order under this Part may apply to the principal registrar for a warrant of possession—
(a) immediately, if the possession order so provides; or
(b)within 6 months after the date of the possession order if the tenant, resident or site tenant fails to comply with the possession order.

(2)A person who obtains a possession order under Division 2 [which is not relevant to this case] may apply to the principal registrar for a warrant of possession not more than 30 days after the date of the possession order.
(3)An application under this section must be accompanied by the prescribed fee (if any).
(4)Subject to this Division, a warrant must be executed within the time stated in the possession order which must not exceed 30 days after the date of issue of the warrant.

By s 352, VCAT is given power when making the possession order to provide that the issue of any warrant be postponed for a period not exceeding 30 days from the date of the order. Such postponement may only be ordered if the tribunal is satisfied that hardship to the tenant, if the warrant was not postponed, would exceed the hardship to the landlord if it was. On the application of the person who obtained the warrant, VCAT is empowered to extend the time for execution of the warrant for periods of up to 30 days at a time.[24]
[24]Ibid s 354.

A warrant of possession must be in a prescribed form.[25] It must be directed to a member of the police force or an authorised person, give brief details of the possession order, and be signed by the principal registrar of the tribunal.[26]
[25]Ibid s 355(1)(a).
[26]Ibid s 355(1)(b)-(d).

The warrant of possession:

… authorises the person to whom it is directed to enter the rented premises … with such assistance as is necessary, to compel all persons for the time being occupying the rented premises … to vacate and give possession of them to the applicant for the order under which the warrant is issued.[27]

[27]Ibid s 355(2).

Not later than 60 days after a warrant of possession is issued the person to whom it is addressed (ie the police or an authorised person) must return it to the principal registrar with a written report as to whether or not it has been executed.[28] The warrant lapses if it is not executed within the time stated in the possession order, or within any time as extended by the tribunal.[29]
[28]Ibid s 357.
[29]Ibid s 356(2).

Further, the possession order itself (other than one of a kind that is not relevant in this proceeding) is discharged if the applicant for the order does not, within six months after the date of the order, apply for the issue of a warrant.[30]
[30]Ibid s 356(1).

Factual context
Notices to vacate and possession order

For present purposes, it is sufficient if I set out the background to the relevant possession order made at VCAT as rehearsed by the tribunal member in his reasons given for making the order:

1.The rented premises are situated at 18 Iluka Place Mornington (“the premises”). The tenant has resided there pursuant to a tenancy agreement with the landlord made on 16 February 2006.
2.The tenant, Ms Burgess, is single and 34 years old with a teenage son. She has had a long history of drug use which has included periods of time where she has been ‘clean’.
3.Police executed a search warrant at the premises pursuant to the Drugs, Poisons and Controlled Substances Act 1981 on 5 August 2008. This resulted in charges, including heroin trafficking, against Ms Burgess. She pleaded guilty and was convicted and received a 6 month suspended sentence.
4.On October 2011, police executed a search warrant at the rented premises which resulted in charges against Ms Burgess, including trafficking in heroin. It appears that she was held on remand for at least 10 months. She subsequently pleaded guilty and this resulted in a lengthy jail sentence, the severity of which was the subject of an appeal by her to the County Court.
5.Ms Burgess was eventually released on parole from the Dame Phyllis Frost Centre, where she had been serving her sentence, on 18 December 2012.
6.She is currently on parole until October 2013. Between her release and the time of the hearing, as part of her parole conditions, she has undergone regular and intensive screening for drug use. None of these tests have detected any evidence of current or ongoing drug use by Ms Burgess. She has also continued to attend counselling.
7.At the end of her incarceration and since her release, Ms Burgess has received support including case management and advocacy from Flat Out Inc. with her case worker being Ms Sharon Villanueva.
8.Upon her release from jail, the tenant discovered that the premises had been damaged by squatters and some of her possessions had been stolen. She undertook cleaning of the premises and had resumed occupation there at the time of the hearing.
9.A notice was given to the tenant by the landlord by registered post on 3 August 2012 pursuant to Section 263 (1) of the Residential Tenancies Act 1997. It specified a vacation date of 6 December 2012. Although it was a ‘no reason’ notice, it included various details of alleged contact between the landlord and the tenant which included initial advice to the Office of Housing that Ms Burgess was incarcerated and would be absent from the premises for a period of 3 months. However, after this initial advice, further enquiries revealed that she had still not been released culminating in the Office of Housing being advised as at 6 June 2012 that her release date continued to be unknown.
10.The landlord then issued an application on 7 December 2012 for a possession order pursuant to the no reason notice but also noting that due to her incarceration, Ms Burgess had not resided at the premises since 20 October 2011. However, it appears that this application was ultimately withdrawn.
11.By registered post on 31 January 2013, the landlord gave notices to vacate to the tenant pursuant to Section 250 (1) and Section 250A (1) of the Residential Tenancies Act 1997. The notices required Ms Burgess to vacate on 18 February 2013. She did not vacate and the landlord then issued an application for a possession order which was struck out by the Tribunal on 18 March 2013 without prejudice to the right of the landlord to make and serve fresh proceedings against the tenant. The application was struck out as the notices had not provided the 14 clear days required under the sections after having regard to the proper legislative interpretation.
12.Therefore, the application the subject of this proceeding has now been heard by the Tribunal pursuant to a fresh notice to vacate given by the landlord pursuant to Section 250 (1) of the Residential Tenancies Act 1997.[31]

[31]Reasons for decision of Member B Josephs dated 10 June 2013 in Director of Housing v Ebony Jane Burgess [2013] VCAT 926 (VCAT Reference No R2013/15312). These reasons were given for the making of an order for possession dated 13 May 2013. A separate order was made in VCAT Reference No R2013/15316 in the same terms, also dated 13 May 2013, and also with reasons dated 10 June 2013: Director of Housing v Ebony Jane Burgess [2013] VCAT 927. In both cases the order recited a finding that the landlord had given the tenant not less than 14 days’ notice to vacate under s 250(1) of the Residential Tenancies Act 1997. However, although the reasons given for each decision were very similar to one another, there were differences. The Director, in fact, reissued two notices to vacate: one under s 250 and the other under s 250A. The order made and reasons given in proceeding 15312 were clearly tailored to the application based upon the notice to vacate given under s 250. It appears that the order made and reasons given in proceeding 15316 were intended to be tailored to the application based on the notice given under s 250A, but the terms of the order itself did not reflect that intention.

Ms Burgess was represented by counsel at the VCAT hearing. Indeed, Ms Burgess had been receiving legal advice and representation from lawyers at the Public Interest Law Clearing House (PILCH), now known as Justice Connect, since 7 March 2013. PILCH was engaged after the first set of notices to vacate based upon ss 250 and 250A were issued and served. Lawyers from PILCH assisted Ms Burgess having those notices set aside at the tribunal for short service.

When the Director re-issued fresh notices to vacate, also based on ss 250 and 250A, and applied for a possession order, lawyers at PILCH identified possible grounds to seek judicial review of the Director’s decision to issue those notices. However, Ms Burgess was advised not to pursue judicial review at that stage but, instead, first to attempt to resist the Director’s application at VCAT for a possession order. The reasons for giving that advice were explained by Ms Burgess’s lawyers in an affidavit filed in this proceeding.[32] Apparently this view was taken because judicial review would involve cost, whereas VCAT was a cost free jurisdiction, and it was thought:

… there would still be time to issue judicial review proceedings following an unfavourable determination by VCAT.[33]

[32]Affidavit of Leigh Howard sworn 24 June 2013.

[33]Ibid.

PILCH wrote a detailed letter to the Director’s staff at the Frankston Housing Office on 11 April 2013 and followed it up with a further letter of 18 April 2013 (‘the April letters’). The April letters sought to persuade the Director to meet with PILCH and explore alternatives to ‘forcing homelessness on Ebony’. The letters detailed the impact that eviction would have on both Ms Burgess and her son Carlton. Amongst other things, the letters suggested the Director may have acted contrary to the Charter in various respects.

The Legal Services Director at the Department of Human Services responded on behalf of the Director. The Director did not admit any of the allegations made in the PILCH correspondence but argued:

… as your client has not issued, or even foreshadowed issuing, proceedings in the correct forum to agitate these issues, the Director does not propose to otherwise respond to your allegations at this time.

At the VCAT hearing on 13 May 2013, the issues for decision were limited. In accordance with s 330 of the RTA, the relevant inquiry for VCAT was whether:

(a)the landlord was entitled to give the notices;
(b)the notice was in proper form and had been issued and served allowing the requisite period of time;
(c)the notice had not been withdrawn; and
(d)the tenant was still in possession of the premises.

As already mentioned, if satisfied of those matters the tribunal was obliged to make the possession order.[34]
[34]See s 330 at [38] above.

The question of ‘entitlement’ required the Director to establish the factual grounds upon which each notice had been issued. After hearing evidence from the police, evidence of Ms Burgess’s plea of guilty in the County Court, and an admission made by her in cross-examination that she had trafficked heroin from the rented premises, the tribunal member said he was satisfied the Director was entitled to issue the notices.

As well as contesting the facts, Ms Burgess raised two further arguments:

(a)first, that having initially applied for a possession order based on a ‘no reason notice’, and having withdrawn it, the Director was precluded from seeking possession on different grounds ‑ the tribunal member rejected that ground; and
(b)secondly, even if the tribunal found that the possession order could be made, it should decline to make the order on a discretionary basis because of the hardship the order would cause to Ms Burgess and her son ‑ the tribunal also rejected that ground pointing out the mandatory nature of the order once the conditions were satisfied.

No appeal has been lodged against the tribunal’s order under s 148 of the VCAT Act. Nor have the plaintiffs sought judicial review of the tribunal’s orders on the basis of any error made by the tribunal itself. As I explained earlier, the remedy in respect of the possession order is sought solely upon the premise that the Director’s antecedent notice decision should be quashed for error.

It is convenient to note at this point that, when hearing and determining the Director’s application for the possession order, VCAT had no jurisdiction to review the notice decision or, for that matter, the decision to make the application itself. VCAT was not exercising its review jurisdiction. It was exercising original jurisdiction to decide whether a possession order must be granted under s 330 of the RTA.

That proposition was not disputed by any party before me. Indeed, for their own reasons, both sides relied upon it in different ways. The proposition was authoritatively determined by the Court of Appeal in Director of Housing v Sudi.[35] Their Honours (Warren CJ, Maxwell P and Weinberg JA) held that, when exercising its original jurisdiction, VCAT has no power to undertake a collateral review of the validity of the Director’s purported administrative decisions on judicial review grounds.[36] Her Honour, the Chief Justice, stated succinctly:

VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.[37]

[35](2011) 33 VR 559 (‘Sudi’).

[36]Ibid [43] (Warren CJ), [62], [63] (Maxwell P), [284] (Weinberg JA).

[37]Ibid [43]; see also [53].

Relevantly for the purposes of this case, the court’s ruling was expressed to extend to any judicial review, whether on the grounds of Charter unlawfulness or otherwise.

Request for warrant and warrant issued

VCAT’s possession order was dated 13 May 2013 although, on its face, it referred to the written reasons dated 10 June 2013.

After briefly reciting the critical findings it made, in compliance with s 333 VCAT made the following order:

The tribunal orders and directs that:
(1) The tenant must vacate the rented premises on 10 June 2013.
(2)The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 30 days after the date of issue (Any request must be made no later than 10 December 2013).

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

The evidence established that a copy of the order and written reasons was first provided to the Director on 18 June 2013. On the same date, the Senior Housing Services Officer at Frankston Office of Housing, Ms Bronwyn Campbell, sent a request for the issue of a warrant to VCAT by facsimile transmission. The same day, Ms Campbell received back from VCAT a letter notifying her that the warrant had been issued.[38] Nothing in the evidence suggests that any consideration was given to whether the warrant should be requested; it was simply requested as soon as the possession order arrived containing the direction to the registrar in conformity with s 333(1)(c).
[38]The warrant appears to have been requested and issued in proceeding R 2013/15316, the proceeding most likely to have been based upon the s 250A notice (see Note 33 above). Although, as it will later appear, there is an arguable difference in the natural justice requirements for the issue of each of the two notices, neither party took any point about the confusion over which of the two notices was the foundation of the possession order or the warrant.

In summary, there was a chain of four steps (which Ms Burgess says were each ‘decisions’), identified in [3] above, commencing with the Director’s decision to issue the ss 250 and 250A notices to Ms Burgess, being the notice decision, and culminating in VCAT issuing the warrant of possession. Arguably, although such a pairing might imply a particular view on the threshold question, those four steps might be divided into two chains: on the one hand, the decision to issue the notices to vacate coupled with the possession order; and, on the other, the decision to request the warrant coupled with the issue of the warrant. Alternatively, they may be characterised as three preliminary decisions leading to an ultimate ‘decision’ to issue a warrant of possession the execution of which would determine the tenancy.

In a sense, these alternative characterisations presage the debate I come to shortly.

Warrant execution stayed

No copy of the warrant was produced in evidence. But it may be inferred from the terms of the letter that VCAT sent back to Ms Campbell on 18 June that the warrant directed the Mornington police to attend at 18 Iluka Place, Mornington. The letter also suggests that the police were to await a telephone call from the Director as to the date when execution was to proceed.

Although the police attended the rented premises with the warrant on 21 June 2013 evidently the visit was not for the purpose of formally executing the warrant. I infer the visit was to notify Ms Burgess of the police’s intention to return and remove her forcibly should she not leave. But that visit prompted an urgent application in this Court for a stay of the execution of the warrant. A stay was granted by Almond J on an interim basis on that very day. The stay was then extended four days later after more detailed argument in the Practice Court.

When extending the stay until the hearing and determination of this proceeding, Ginnane J expressly noted that the stay:

… operates only upon the warrant for possession issued by VCAT on 18 June 2013.
The stay granted by these orders is not intended to restrict the Director of Housing from making any application for possession of the premises at 18 Iluka Place, Mornington that is otherwise lawfully available to the Director.

I will return to the significance or otherwise of that reservation in due course. But, for the present, it is important to note that because possession of the premises has not yet been yielded up by Ms Burgess to the Director, the tenancy agreement between them remains on foot and has not been determined. That is the product of ss 216 and 334 of the RTA.

Taking that proposition a step further, neither the issue of the notices to vacate (still less, the Director’s decision to issue them) nor the issue of the warrant itself (still less, the Director’s decision to request it) have had, of themselves, the ultimate legal effect of disturbing the tenancy.

That observation provides a convenient stepping-off point to the plaintiff’s arguments on the threshold issue identified above; that is, whether either of the Director’s decisions has any ongoing legal effect so as to remain susceptible to the remedy of certiorari.

Threshold issue: Wingfoot principles

Through their counsel, Mr Aghion who appeared with Ms Melis, the plaintiffs put forward a number of arguments in response to the Director’s threshold point. Those arguments were first articulated in written submissions in reply to the Director’s written submissions filed before hearing; secondly, in a written outline of opening which was then developed in oral opening submissions; and, thirdly, in written final submissions which were further developed orally. The plaintiffs’ arguments went through a number of iterations. I will seek to address all of them while giving greatest concentration to those upon which the plaintiffs appeared to place most reliance.

Wingfoot distinguished?

First, the plaintiffs argued that the facts in Wingfoot could be distinguished from the facts in the present case so that its principles could not be regarded as applicable. As I understood their arguments, the features of the Wingfoot case said to be different from the present were that:

(a) first, the error alleged in Wingfoot was an error on the face of the record of the medical panel’s decision whereas the error alleged in the present case is an error that goes to a condition of the Director’s power to decide, that is, a jurisdictional error;

(b) secondly, it was said that there was no challenge to the magistrate’s decision in Wingfoot whereas in the present case there is a challenge to the Director’s decisions; and

(c) thirdly, it was said that the Wingfoot decision turned upon an argument concerning issue estoppel which is not an argument that is raised in the present case.

The plaintiffs argued that these differences, if made out, justified the conclusion that the principle upon which the Director relied had no application to the present case.

I reject the plaintiffs’ arguments on these grounds. I will state my reasons briefly.

(a) No error of law on the face of the record?

It is true that the alleged error in Wingfoot was error on the face of the record which is not a ground on which certiorari is sought in the present case. But the avenue to the remedy of certiorari was not to the point.

As the court explained in Wingfoot,[39] jurisdictional error constitutes one basis on which the Supreme Court can make an order in the nature of certiorari to remove the purported legal consequences of a purported exercise of power under a State statute. An error on the face of the record constitutes a separate and distinct basis. In Wingfoot the employee’s challenge, it appears, was to the Court of Appeal’s conclusions that the panel’s failure to give adequate reasons constituted an error of law on the face of the record and that certiorari was an available remedy in those circumstances.[40]
[39]Wingfoot [2013] HCA 43 [26].
[40]Ibid [22], [23].

Having concluded that an error of law on the face of the record was, potentially, a ground for certiorari in the case of a medical panel’s opinion given under the ACA, the High Court said that it was unnecessary to consider whether inadequate reasons might also constitute jurisdictional error as a foundation for removing the purported legal consequence of the decision.[41] But, in a case where the alleged ground of invalidity is jurisdictional error, that statement in no way detracts from the application of the principle that there must be an identified, ongoing legal consequence of the decision in question for certiorari to be available as a remedy for an error of that kind.
[41]Wingfoot [2013] HCA 43 [29].

The first distinction raised by the plaintiffs between Wingfoot and the circumstances of this case does not assist them.

(b) Wingfoot did not involve a challenge to the magistrate’s decision?

The plaintiffs’ second ground of distinction seemed to rely on the proposition that, in Wingfoot, the magistrate’s decision was, relevantly, the ‘ultimate decision’ in respect of which there was no challenge and which was not liable to be set aside. By contrast, it was said that, here, the ‘ultimate decision’ — allegedly, the issue of the warrant — remains unperformed and is subject to at least indirect challenge.

That argument raises the question whether, as foreshadowed above, the first three ‘decisions’ in the chain were merely preliminary steps to an ultimate, unperformed decision, with the consequence that each of the preceding steps continue to have an ongoing legal consequence. I will address that argument below.

Of course, the Director argues that the fact that there was no challenge to the magistrate’s decision in Wingfoot is a point of similarity rather than dissimilarity. That is because, as the Director puts it, the relevant decisions in this case to be equated to the magistrate’s decision in Wingfoot are the decisions of VCAT in respect of which there is no discrete challenge.

In my view, the second alleged distinction between Wingfoot and this case merely begs a larger question which will be addressed below.

(c) Issue estoppel as the basis of Wingfoot?

The third alleged ground of distinction requires little consideration. In Wingfoot, the Court of Appeal had held that the medical panel’s decision had ongoing legal consequences after the magistrate’s determination. It gave two reasons for doing so. The first, it held, was because s 68(4) of the ACA had the effect that the panel’s decision was binding in other proceedings brought in respect of the same injury. And the second was because the finding of the magistrate, adopting the panel’s decision, created an issue estoppel in other proceedings brought in respect of the same injury.[42]
[42]Wingfoot [2013] HCA 43 [20].

In rejecting both of those propositions, the High Court held that the second so-called legal consequence (ie. issue estoppel) fell away because s 68(4) did not have the result the Court of Appeal had concluded it had.[43]
[43]Wingfoot [2013] HCA 43 [38], [39].

But the essential principle for this case, once again, is not dependent on the legal reason why the panel decision lacked ongoing legal consequence. Rather, the significance of Wingfoot for the present case is that the absence of any ongoing legal effect or consequence, for whatever reason, means that the remedy of certiorari is unavailable.

Impractical and unjust consequences

Next, the plaintiffs argued that it would be impractical and unjust to require a person in the position of Ms Burgess to have to race off to another jurisdiction (ie. the Supreme Court) to seek judicial review of the discretionary element of the Director’s decision while he or she was facing an application in VCAT in respect of the substantive issue.

The plaintiffs argued that the practical utility of the entitlement to judicial review would entirely depend upon the ability of a party to obtain a stay of the process at VCAT, which may be difficult to obtain. Further, they argued that the facts of this case in relation to the obtaining of the warrant illustrate the impracticality and injustice of such a requirement. That is, because there was no time gap between the relevant administrative decision (the Director’s warrant application decision) and the issue of the warrant by VCAT, there was plainly no opportunity at all for Ms Burgess to seek judicial review of the Director’s decision in another forum.

Such impracticality, the plaintiffs argue, compels the conclusion that the Wingfoot principle cannot be intended to apply in the way the Director suggests it does.

I reject the plaintiffs’ arguments on this ground.

First, concentrating for a moment on the Director’s notice decision, the evidence shows that the notices to vacate (ie. the second set) were issued and served on 22 March 2013, the Director’s application for a possession order was made on 9 April 2013, the hearing before VCAT took place on 13 May 2013 and VCAT’s decision was made on 10 June 2013. Therefore, after the Director’s notice decision, Ms Burgess had over seven weeks before the hearing, and another four weeks before VCAT’s decision was made, to apply for judicial review in a court of competent jurisdiction.

Also, as is apparent, Ms Burgess’s legal advisers considered the option of judicial review but advised against it.

In a situation of demonstrated urgency, courts will accommodate parties and make appropriate orders to protect rights. In any event, it is an untested proposition to assert that it would be difficult to get VCAT to stay its process to enable the party to seek judicial review if that party mounted an appropriate case with evidence of a genuine challenge. There is no reason that I know of to suppose VCAT would not grant a stay, particularly in view of the legal principles expressed in both Wingfoot and Sudi.

Moreover, should VCAT refuse to grant a stay, in an appropriate case the Supreme Court is empowered to order that the proceeding at VCAT be stayed pending the determination of judicial review in the court.

No doubt, the point raised by the plaintiffs is not necessarily tied to the facts of this case. Rather, they contend that the hypothetical potential for impracticality and injustice mitigates against acceptance of a principle that a party must review a relevant administrative decision before its legal consequence becomes moot by reason of a subsequent decision.

In my opinion, however, the so-called practical difficulties are not likely to produce the injustice that the plaintiffs say will occur. And, to the extent that there is an inconvenience and expense of having to litigate different aspects of the same decision in two jurisdictions, the remarks made by Warren CJ in Sudi are, with respect, entirely apposite. Her Honour said[44] that such bifurcation was a necessary consequence of setting up a specialist forum of limited jurisdiction. Any difficulties arising from that bifurcation are the flipside of the policy benefits of a limited jurisdiction, namely the quick, efficient, inexpensive and informal resolution of issues arising within the specialist domain. Relevant to one of the plaintiffs’ arguments, her Honour also observed that the bifurcation of the jurisdictions may, in some circumstances, require a court or tribunal to make an assessment of the strength of a party’s case in another forum.
[44]Sudi (2011) 33 VR 559 [39].

With those observations in mind, and in view of the means available to a party to have an arguable judicial review heard before a decision in VCAT is made, I reject the plaintiffs’ proposition that alleged impracticality and injustice compels a different conclusion.

So far, in dealing with and rejecting that proposition, I have concentrated on the facts associated with the first of the Director’s decisions − that is, the notice decision. I accept that on the facts of this case the second of the Director’s decisions, the warrant application decision, was followed almost immediately by the issue of the warrant. I will say more about the nature of the so called ‘decision’ to issue a warrant later. It is enough to say for the moment that a consideration of the warrant application decision and the issue of the warrant does not cause me to change the conclusions I have reached on this point.

The ‘right to seek judicial review’ is the ongoing legal consequence?

The third of the plaintiffs’ arguments on the threshold question builds upon the idea of the ‘bifurcated’ nature of the issues inherent in the notice decision, said to be recognised in Sudi. The argument was, I believe, a novel argument. It ran this way:

(a) When the Director made the notice decision, that decision had two separate legal effects or consequences: one was the generation of a right in the Director to seek to obtain a possession order from VCAT by proving the Director’s entitlement to issue the notice (ie. the factual basis underpinning the notice); the second was the generation of a right in Ms Burgess to seek judicial review of the discretionary component of the Director’s decision.

(b) Because VCAT only had jurisdiction to determine the entitlement question, and no jurisdiction to determine the validity of the Director’s exercise of discretion when making the notice decision, the VCAT decision to grant a possession order could only have determined the legal right or consequence that it had the jurisdiction to entertain.

(c) The same could be said, applying the same reasoning, of the Director’s warrant application decision, on the one hand, and issue of the warrant by VCAT, on the other.

(d) Therefore, Ms Burgess’ right to seek judicial review of the Director’s two decisions, being one of the two legal effects each of those decisions generated, was not ‘spent’ or made ‘moot’ by VCAT’s actions in granting a possession order and issuing the warrant. In relation to the notice to vacate in particular, only the entitlement ‘aspect’ of the Director’s decision was ‘bound up in’ and rendered moot by VCAT’s possession order.

(e) Accordingly, the remedy of certiorari is still available to quash each of the Director’s decisions if it is shown they were infected by jurisdictional error.

In my view there are numerous problems with this line of reasoning.

First, no authority was cited for the proposition that a single decision could be divided into its factual part and its discretionary part such that its discretionary ‘part’ could survive the legal conclusion of the process that the decision initiated.

Secondly, the fact that a particular act or decision involved the combination of more than one input or ingredient —here, the existence of facts that entitled the Director to issue a notice and his discretionary evaluation of whether he should issue the notice — does not, in my view, create two divisible legal effects of the decision. The notice decision has the one legal effect that the RTA gives to it: it entitles the Director to apply for a possession order which VCAT must grant if the facts underpinning it are established (subject to the formal requirements). Likewise, the warrant application decision authorised by a possession order has the one legal effect that the RTA gives to it: subject to payment of the fee, it produces a lawful command to police or an authorised person to evict tenants from property.

Thirdly, the mere fact that the legal effect of a single decision may be resisted by challenging the validity of the several ingredients required to make it does not give the decision as many legal effects as there are ingredients. Nor, in my view, is that position changed by the fact that to challenge one of those ingredients (ie. the discretion), a person must take that challenge to a different forum to the one that has the power to deploy the legal effect of the decision.

In my view, the plaintiffs’ argument on this point incorrectly substitutes for the notion of the legal effect or consequence of a decision the quite different notion of the inputs to making the decision. It also fixes on the potentially different remedies that may be required to challenge those inputs as if they were relevant legal consequences, which in my view they are not.

Fourthly, the plaintiffs’ argument uses the desired answer to the question as a condition of its reasoning to get to it. That is to say, to support their right to seek certiorari by judicial review, the plaintiffs argue that the surviving legal consequence of each decision after the making of the possession order or the issue of the warrant, is the right to seek judicial review itself. Seen in this way, the argument is entirely circular.

Another way of testing the proposition about an ongoing legal effect in respect of the notice decision, in particular, is to suppose for a moment that the notice decision is quashed. What then is the status of the possession order? The plaintiffs sought to argue that, if the director’s notice decision is quashed, then VCAT’s decision to grant the possession order must also be quashed. Why or how does that come about? VCAT’s decision was made upon it properly entering upon its jurisdiction. It had no power to review the discretion to issue the notice that enlivened its jurisdiction. So, even if the notice decision is quashed, the possession order remains. It is not disposed of.

As Warren CJ said in Sudi, VCAT was bound to assume the discretion had been validly exercised and to make its decision accordingly, confined solely to questions as to whether there was a proper factual basis for issuing it, whether in proper form and properly served. Having properly entered upon its jurisdiction to decide, VCAT’s decision to grant the possession order was then only reviewable on the statutory grounds provided (s 148 of the VCAT Act 1998) or by an Order 56 judicial review of VCAT’s decision itself. Neither basis has been invoked. There is no other basis to set aside a valid VCAT decision. So, the lack of any ongoing effect of the notice is seen by observing that once a decision is made to make or not make a possession order the notice itself has no ongoing, independent power to affect or influence any relevant outcome.

This reasoning could also be criticised for being circular: but that depends on where you choose to break into the circle. The plaintiffs wish to enter it only after presuming the notice decision has an ongoing legal effect, and then having that decision set aside, so as then to argue that the VCAT decision to issue the possession order is also susceptible to being quashed. In my view, that is flawed. To resolve the question whether the notice decision has any potential ongoing legal effect after VCAT has made the possession order, the more logical approach is to take into account the susceptibility of the VCAT decision to being quashed, other than as a corollary of the notice being quashed.

For these reasons I reject the plaintiffs’ third argument on the threshold question.

Director’s decisions as ‘steps in a process’ that remains unperformed?

In [77]-[78] above I briefly foreshadowed what was the plaintiffs’ fourth and final argument, which drew together legal strands from a number of different sources. As I followed it, the argument may be summarised in this way:

(a) first, an administrative decision made without jurisdiction lacks any legal foundation, is in law no decision at all and, therefore, the duty to make it remains unperformed: Minister for Immigration v Bhardwaj.[45]
[45](2002) 209 CLR 597, 616 [53] per Gaudron and Gummow JJ (‘Bhardwaj’).

(b) secondly, a decision that has an apparent legal effect upon rights may be one that is either an ‘ultimate decision’ in the decision-making process that affects or alters rights, or a ‘preliminary’ or ‘recommendatory’ decision that, nonetheless, is a pre-condition to the exercise of power that affects rights or a step in the process capable of altering rights and liabilities: Hot Holdings.[46]

(c) thirdly, the correct analysis of each of the two decisions made by the Director in this case is that they were only preliminary to the ultimate decision which was to issue the warrant, the legal effect of which remains unperformed.

(d) fourthly, it follows from the principles in Bhardwaj, Hot Holdings and Wingfoot, that the apparent legal effect of the Director’s notice decision and warrant application decision remain in force and that, therefore, those decisions remain amenable to the remedy of certiorari.

[46]Hot Holdings (1996) 185 CLR 149, 159-162.

It is not entirely clear how the principle drawn from Bhardwaj is intended to be woven into the same analysis that uses the principles from Hot Holdings. If anything, an argument proceeding from Bhardwaj would seem to stand as an alternative argument to one based upon the distinction between ‘ultimate’ and ‘preliminary’ decisions, each of which must nonetheless sufficiently affect or alter rights if they are to be susceptible to the remedy of certiorari. In fact, Bhardwaj spoke of a decision that was no decision at all and, presumably, of no legal effect. If the plaintiffs contend that the Director’s decision lacked any legal effect because it amounted to being no decision at all, how does that overcome the Wingfoot threshold point? I will treat the reference to the principle in Bhardwaj as a ‘stand alone’ argument.

In Bhardwaj, the question was whether the Immigration Refugee Tribunal, whose decision was amenable to judicial review for jurisdictional error, could recognise for itself that it made such an error, reconsider its decision and then make a second decision. By majority, the High Court held that the tribunal could do so. In the course of their joint judgment reaching that conclusion, Gaudron and Gummow JJ made the statements summarised in the first ‘strand’ above at [107(a)]. On the other hand, Hayne J was careful to avoid adopting any ‘theory of absolute nullity’[47] but to stress the need to construe the statute in question to determine the extent to which a failure in process when making a decision will result in invalidity and, if so, for what purposes.
[47]Bhardwaj (2002) 209 CLR 597, 646 [152].

In Sudi, as already noted above,[48] the Chief Justice found on the construction of the VCAT Act and the RTA that VCAT was to treat relevant purported administrative decisions as valid unless and until set aside by a court of competent jurisdiction.[49] So, having then exercised its jurisdiction validly, a resulting order made by VCAT requiring a tenant to give possession of premises to a landlord would then take effect according to the terms of the RTA. There is nothing in the RTA to suggest that the legal effect of that order is to be constrained by any arguable invalidity in the Director’s antecedent decision.
[48]Above [56]
[49]Sudi (2011) 33 VR 559 [43].

In my view, Bhardwaj is of no assistance in the current case. Adapting what Maxwell P said in Sudi,[50] what was said in Bhardwaj about the ability of a tribunal to disregard its own invalid decision, sheds no light on the question of the ability of a court to quash an invalid administrative decision (supposing it was) that gave rise to a validly made tribunal decision.
[50]Ibid [88].

I then turn to the remaining strands of the plaintiffs’ fourth argument which, essentially, proceed from the distinctions drawn in Hot Holdings and Ainsworth.

It is important to understand the facts of Hot Holdings. A particular regime of decision making for the grant of mining licences in Western Australia was established under the Mining Act 1978. Relevantly, the regime provided for the following steps:

(a) The mining warden received applications for exploration and mining licences and made a recommendation to the Minister.

(b) After receiving the warden’s recommendation, the Minister ‘may’, grant a licence.

(c) If the mining warden received numerous compliant applications for a licence for the same tenement, the applicant who first complied with the requirements for an application had ‘right in priority … to have [the tenement] granted to him’.

(d) If two or more compliant applications were received at the same time, priority was then to be ‘determined by ballot’.

(e) There was no right of appeal against a warden’s decision to make a recommendation.

The facts were that the mining warden had received numerous applications held in respect of the same tenement at the same time. He decided to hold a ballot. After the warden’s decision to hold a ballot but before the ballot was held (or any recommendation made), several of the applicants commenced proceedings in the Western Australian Supreme Court to quash the mining warden’s decision to hold a ballot. The Supreme Court declined to quash the decision.

On appeal to the High Court, the question was whether the warden’s decision to conduct a ballot, for the purpose of determining which applicant was entitled to priority, had sufficient legal effect upon rights to attract the remedy of certiorari. By majority, the High Court held that it did. In doing so, the majority said:

The present case is, as we have sought to explain, of a different nature to either Ainsworth or ACTU-Solo Enterprises. There is no issue taken with the proposition that the granting or refusal of a mining tenement by the Minister under the Act affects legal rights in the relevant sense. Rather, the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J, one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation “as a precondition or as a bar to a course of action” or “as a step in a process capable of altering rights, interests or liabilities”. . [51]

[51]Hot Holdings (1996) 185 CLR 149, 162 (Brennan CJ, Gaudron J and Gummow J) (citations omitted).

The majority observed that a preliminary decision or recommendation, if it is one to which regard must be paid by the final decision maker, will have the requisite legal effect upon rights to attract certiorari.[52] Although the Mining Act did not expressly state that the Minister was bound to take into account the mining warden’s recommendation, the majority found that the subject matter, scope and purpose of the Act indicated that such a finding was necessarily implied by the statute. That conclusion was implied because:

The Minister may not exercise the discretion to grant or refuse applications until the warden’s recommendation and report, expressing as it must the warden’s decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the “right in priority”, the warden’s decision has a discernible legal effect upon the Minister’s exercise of discretion.[53]

[52]Hot Holdings (1996) 185 CLR 149, 165.

[53]Hot Holdings (1996) 185 CLR 149, 174.

The reasoning in Hot Holdings may very well support an argument that the Director’s notice decision, or even his warrant application decision, might themselves have a sufficiently discernible effect on legal rights to render them amenable to the remedy of certiorari.[54] That, it may be argued, may follow because each of those decisions might be viewed as a condition precedent to the exercise of power which will affect legal rights (eg VCAT making a possession order or issuing a warrant). Alternatively, they may be viewed as a precondition to a course of action or a step in a process capable of altering rights, interests or liabilities.
[54]For the purpose of this case, the Director conceded that had an application for judicial review been made before VCAT made its possession order, his decision to issue the notices to vacate would have been amenable to the remedy of certiorari as an anterior step of the kind discussed in Hot Holdings.

But the immediate question here is not whether either of those two decisions might have been the subject of judicial review at some point in time. The question is whether, of themselves, they now have any ongoing legal effect after VCAT has made each of its relevant decisions.

Notably, in Hot Holdings the judicial review challenge was taken before any recommendation was sent to the Minister – indeed, before the mining warden even held the ballot. So there was no question in that case whether the mining warden’s decision to hold a ballot had become spent or rendered moot by any subsequent decision of the Minister to grant a licence upon the resulting recommendation. Hot Holdings simply did not deal with that scenario.

So, it would be wrong in my view to extrapolate from what was said in Hot Holdings to a principle that, so long as the final step in the process which will ultimately alter rights (or some rights) remains unperformed, all preliminary steps towards that process necessarily remain amenable to certiorari. As always, it is necessary to examine the statute closely and look at the particular regime which it provides.

As I have foreshadowed already, the plaintiffs argued that the proper analysis of the statute shows that there were, in this case, three preliminary ‘decisions’ leading to one ultimate legal effect. Those three preliminary ‘decisions’ were first, the Director’s notice decision, secondly, VCAT’s possession order made upon the finding that the Director was entitled to issue the notice and, thirdly, the Director’s warrant application decision which, because of the VCAT possession order and the terms of the statute, compelled the result that a warrant would be issued.

But, the plaintiffs argued, none of these steps ultimately altered rights: the only step that altered rights was the formal execution of the warrant and the yielding up of possession by the tenant. As s 334(1) provides, only that step has the effect of terminating the tenancy. Because that step has not taken place, and because all of the relevant decisions were merely preliminary steps towards the ultimate step which alters rights, so the argument continued, the ongoing legal effect of each preliminary step remains in force. And because their legal effect remains extant, the decisions remain amenable to certiorari.

In my view, this analysis is not to be accepted.

The better analysis, for the purpose of this exercise, is that there are two distinct pairs of decisions, or perhaps more accurately, steps. Each, relevantly, alters legal rights and each terminates in a distinct legal result. The first is the notice decision which (upon an application being made) leads to a decision of VCAT, exercising its statutory power conditioned upon the existence of the notice, to either make or not make a possession order. The second is the warrant application decision which, if supported by payment of the requisite fee, must result in (and is ‘paired with’) the issue of a warrant of possession.

Notice to vacate and possession order

In my view it is false to regard the possession order made by VCAT as, essentially, just a precondition to or step in the process towards the execution of a warrant which will terminate the tenancy. First, as the emphasised words in the previous paragraph illustrate, the legal effect of the issue of a notice to vacate may be a determination that the Director is not entitled to possession of the premises or, put another way, that the tenant is entitled to remain in possession. This suggests that the relevant legal effect of the issue of a notice to vacate is to confer a power on VCAT to decide whether the Director is entitled to possession.

Secondly, if made, a possession order of itself creates its own set of rights and obligations. It is an original decision made by VCAT upon certain findings of fact. It may be the subject of an appeal for error of law under s 148 of the VCAT Act. It may be the subject of a judicial review. Critically, it creates a legal obligation on the part of the tenant to vacate the premises and a corresponding entitlement in the Director to possess the premises. And it creates an obligation for the issue of a warrant if one is requested. This new collection of legal rights is an outcome that the notice was ‘spent’ to achieve.

Further, if a possession order is made, a tenant may (and presumably in many cases tenants do) yield up possession of the premises in obedience to the order. That is in fact what the order directs the tenant to do. And although s 334 says that once a possession order is made the tenancy agreement terminates the day before the rented premises are actually delivered up, it says nothing about how those premises may be yielded up.

So the step of requesting a warrant may never be required. It is a discrete, supplementary process that may be deployed if the tenant does not vacate after the order is made and if the Director chooses to enforce the order.

On my analysis, the legal effect of the Director’s notice decision was spent when the possession order was made. It would equally have been spent if VCAT had refused to make the possession order.

Accordingly, in my view the threshold point raised by the Director in relation to his notice decision is a good one. But, as I will now explain, that same analysis does not apply in relation to the warrant application decision.

Application for and issue of the warrant of possession

The Director did not have to request a warrant of possession after obtaining the possession order at VCAT. But he was entitled to do so once a possession order had been obtained.[55]
[55]RTA s 351.

There may be occasions when, despite obtaining a possession order, the Director chooses not to enforce the order. He may give time to allow the tenant to vacate. Alternatively, there may be further negotiations, or payment of rent, or late remedy of some breach, or even an assurance of the cessation of offending conduct so that the tenant is allowed to remain. In fact, in Ms Burgess’s own case the Director had obtained a number of possession orders against her in the past but had not enforced them. Presumably they were obtained for matters such as the non-payment of rent.

In the end, it seems to me that Ms Burgess did coincidentally, receive some opportunity to be heard on most matters but did not manage to address some fundamental issues of relevance to the Director – in particular, the impact of eviction on the health of Ms Burgess and on the rights of Ms Burgess and Carlton under the Charter. The reason for that failure was, in my view, a lack of clarity on the part of the Director’s staff in explaining to Ms Burgess or to Ms Villenuava that a further notice to vacate was in prospect, that she could make submission as to why that notice ought not to be issued, and what were the policy factors that the Director would take into account.

In my view, therefore, the Director failed to afford Ms Burgess an effective right to be heard before making the notice decision.

Did the Director fail to take into account a matter he was bound to consider?

The next question is whether the Director did fail to consider matters he was bound to take into account.

Balance between negative impact of eviction on tenant and Director’s policy aim

I have already concluded that the Director was bound to consider the existence and content of the manual when making the notice decision. The manual directed him to justify any decision to issue a notice by balancing the extent of the negative impact of eviction on the tenant and the tenant’s household, against the aims of ensuring that public housing is a safe and secure environment that supports the health and wellbeing of tenants in residence.[71] It also recommended that the Director consider factors such as: what other accommodation is available to the tenant if evicted; their family situation; health issues; and, importantly, the Charter rights of the tenant and other household members.
[71]See [169] above.

Even without the benefit of the Director’s manual, as a matter of inference the subject matter, scope and purpose of the RTA leads to the same conclusion.

I cannot be satisfied that the Director considered the balance between the negative impact on Ms Burgess and the Director’s policy aim. Still less can I be satisfied that the Director considered, in so far as he was aware of them, the more particular factors I have just listed. I cannot be satisfied for the simple reason that the Director was unable to say what matters he considered at all. I am not prepared to draw inferences based on what is usually supposed to happen or what the Director’s staff assume must have happened. No specific submissions were made to me about the burden of proof. Doubtless Ms Burgess bears the legal burden to show that the Director failed to consider matters he was bound to consider. But, after the issue was squarely raised, the evidentiary burden fell to the Director to identify who made the decision and what was considered. He could not or chose not do so.

In my view, a proper consideration of the balancing exercise, along with the specific factors I listed, could have materially affected the Director’s decision. Although it would, of course, be for the Director to attach what weight he considered those factors should bear, to fail to consider them at all constitutes jurisdictional error.

So much is sufficient to establish that, were the Director’s notice decision amenable to the remedy of certiorari (which, as I have explained, it is not) I would have quashed the decision.

Charter rights

Before leaving this topic I should, however, also briefly mention my views on the Charter grounds put forward by Ms Burgess.

The main purpose of the Charter is to protect and promote human rights. It does that, amongst other things, by setting out the human rights that Parliament specifically seeks to protect and promote and by imposing an obligation on all public authorities to act in a way that is compatible with those human rights: s 1(2)(a), (c). The Director is, for the purpose of the Charter, a public authority.

Part 2 of the Charter (ss 7 to 27) sets out the human rights that Parliament ‘specifically seeks to protect and promote’ (s 7(1)). In a moment I will return to the relevant human rights that are said to be engaged.

Division 4 of Part 3 concerns obligations on public authorities. Sections 38 and 39 are relevant:

38 Conduct of public authorities
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
…

39 Legal proceedings
(1)If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2)This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a)to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b)to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

In R v Debono[72] Kyrou J collected the recent statements by this Court on the operation of s 39 of the Charter. From those statements, and the text of the statute itself, it can, I believe be taken that:

·s 39 operates on the condition that a person is able to seek, independently of the Charter, relief or remedy in respect of a decision of a public authority on the ground it was unlawful;
·if that condition is satisfied, s 39 enables the person to obtain relief on the supplementary ground of Charter unlawfulness; and
·although the Charter does not itself create any new remedy, the scope and reach of the Charter provisions can influence the outcome of pre-existing forms of action by being invoked to supply new and broader bases of unlawfulness.

[72][2013] VSC 407, [77] – [81] (‘Debono’).

As Kyrou J observed, ‘section 39 does not depend upon a successful exercise of that right [ie to seek relief or remedy in respect of an act or decision of a public authority] on the non-Charter ground’.[73]
[73]Ibid [82].

Ms Burgess and Carlton sought the remedy of certiorari in respect of the Director’s notice decision on the ground that it was unlawful. They did so by way of judicial review, ‘otherwise than because of [the] Charter’, brought under Order 56 of the Rules. It follows that s 39 of the Charter enables them also to seek that remedy on the ground of unlawfulness arising under the Charter.

One of the grounds of Charter unlawfulness upon which Ms Burgess and Carlton relied is that the Director failed to give proper consideration to her human rights, and those of Carlton’s, contrary to s 38(1). One of the human rights they say was engaged on the facts of this case was the right not to have their family or home ‘unlawfully or arbitrarily interfered with’, a right protected by s 13 of the Charter. The others that they relied on are those protected by s 17 which provides:

(1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2)Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

I am at least satisfied that the rights set out in s 17 for the protection of families and children, for both Ms Burgess and Carlton, are engaged on the facts of this case. I am also satisfied they were not properly considered by the Director ‑ at least, I am not satisfied that they were. If the Director was not aware that Carlton was a member of Ms Burgess’s household at the time of the notice decision, that can fairly be attributed to his own failure. That is, it was a consequence of the Director failing to follow his own recommended process to analyse the tenancy history, obtain informed responses from the tenant after advising what matters are relevant, and specifically ascertaining whether any Charter rights might be relevant – an obvious one being the rights of any children in the household.

That conclusion is enough to establish unlawfulness under s 38 as a supplementary ground for the remedy of certiorari as provided under s 39.

It is unnecessary for me to decide whether the rights set out in s 13 are also engaged. I note that the interference with a person’s family or home has to be unlawful or arbitrary in order to infringe the right. It is not enough, it appears, that it is unlawful only because of s 38 ‑ that is, it has to be unlawful independently of the Charter.

Perhaps that quality of unlawfulness could be independently supplied because, in making it, the Director failed to accord natural justice or failed to take into account considerations he was bound to consider over and above the human rights themselves. Perhaps the quality of arbitrariness could be supplied because the Director gave inadequate consideration to factors he ought to have considered. But little or no argument was directed to these matters. It is not appropriate at this point of the analysis that I venture any conclusions on those questions.

Summary and conclusion

I conclude that, when making the notice decision, the Director was obliged by law to consider,

(a) the extent of the negative impact of eviction on Ms Burgess, and her household, balanced against the aims of ensuring that public housing is a safe and secure environment that supports the health and wellbeing of tenants in residence, and

(b) the rights of Ms Burgess and her household to the protection of their family group, and the best interests of any child affected by the decision, as sanctioned by s 17 of the Charter.

I am not satisfied he did either. His failure to consider the first matter amounts to jurisdictional error; his failure to consider the second rendered his decision unlawful by reason of s 38 of the Charter. Each failure would have lead me to quash the decision had an application been made for judicial review prior to VCAT making the order for possession or if, contrary to my view on the threshold question, it remained amenable to that remedy despite the possession order.

Having concluded my analysis of the notice decision I turn to the warrant application decision.

Warrant application decision

The plaintiffs’ grounds for reviewing the warrant application decision were more confined than for those in respect of the notice decision. They did not rely upon the ground of failure to accord natural justice. Rather, they relied upon a failure to take into account relevant matters. They also relied upon Charter unlawfulness on the basis that the Director acted incompatibly with their human rights or did not give proper consideration to them. Again, in that regard, they relied upon those rights specified in ss 13 and 17 of the Charter.

Did the Director fail to take account of a matter he was bound to consider?

The matters which Ms Burgess and Carlton say the Director failed to take — but should have taken — into account when making the warrant application decision were, essentially, twofold. The first matter was the change in their personal circumstances since the Director made the notice decision, which made it no longer proportionate or justifiable to obtain possession of the premises in order to achieve the Director’s policy aim. The second matter was the protection of the human rights that had been engaged in the events that had occurred.

If the Director was obliged to give consideration to any new or changed circumstance before making the warrant application decision, then it is tolerably clear that no such consideration was given. As already mentioned, on the same day and very soon after Ms Campbell (for the Director) received the possession order from VCAT, she dispatched the request for the warrant of possession. No attempt was made by the Director to suggest that any consideration was given at that stage to whether the warrant should be issued. In particular, it was not suggested that the Director considered whether he possessed any updated information concerning the personal circumstances of Ms Burgess, since the making of his notice decision, which might bear upon the balancing factors relevant to decide whether to proceed to evict her. I find that no such consideration was given.

The question then arises whether the Director was obliged to give any consideration at all to such matters when making the warrant application decision.

In my view, the subject matter, scope and purpose of the RTA,[74] imply that, at the point of making a warrant application decision, the Director should at least take into account any relevant information that has come to his attention since making the notice decision that was not taken into account when making it or when deciding to apply for the possession order. Such relevant information would include information about the personal circumstances of the tenant and his or her household that bore upon any negative consequence to them by reason of the proposed eviction.
[74]See the principles at [150] above.

The particular aspects of the RTA that lead me to that conclusion are these:

(a) the Director may, not must, apply for a warrant of possession (s 351(2)) — so a discretion is involved;

(b) but, once made, the decision to apply for the warrant will, aside from any court intervention, lead to the termination of the tenancy;

(c) the decision to issue a notice of vacate, and thus to initiate the process to achieve eviction, was attended by an obligation to consider the personal circumstances of the tenant in the balancing exercise described above;

(d) the choice to apply for the warrant would always involve a gap in time since that initiating decision — possibly many months — and so a realistic potential exists for a change in the mix of factors that were first seen to justify that decision to issue a notice to vacate; and

(e) the significance of terminating the tenancy, and the realistic potential for a change in the justification for pursuing it, implies that the Director would at least enquire whether he had, and if so have regard to, information about such change.

It is not necessary that I resort again to the manual, and the principles in Gray, to reach this conclusion. But my conclusion is strengthened by what the Director recommended should occur before a warrant of possession is requested. The manual provides that after obtaining a possession order and before deciding to apply for a warrant the Director should send a letter to the tenant. The letter should warn that a warrant of possession may be obtained and advise the tenant of his or her right to seek independent legal advice (para 10.5.6). Significantly, the manual goes on to say that the Director

… will need to consider whether there are any changed circumstances which may change the original decision by the Director … to issue a Notice to Vacate, i.e. whether the changed circumstances mean that the Department no longer intends to obtain possession by an eviction.
Note: The Department will no longer proceed with an eviction where the tenant’s personal circumstances have changed to the extent that it is considered no longer proportionate or justifiable to seek possession to achieve the policy aim and/or a reasonable alternative option other than eviction now exists to achieve the policy objective. The [Director’s delegate] will specifically need to turn his or her mind to whether or not there are any changed circumstances.

To decide this case it is not necessary that I consider whether a letter ought to have been sent to the tenant in order to comply with natural justice requirements, or to obtain any other information which the Director might have been bound to consider. But it may be that what the manual recommends in that respect is over and above what the law would itself require, particularly having regard to the limited timeframes within which a warrant of possession may be obtained.

‘Changed’ circumstance information not considered

So, having reached this point, the question arises whether there was any information that had come to the attention of the Director about relevant personal circumstances of Ms Burgess or Carlton that he had not taken into account when making the notice decision or when deciding to apply for the possession order?

In my view there was relevant information in the possession of the Director at the point of making the warrant application decision that he had not previously considered. It must be remembered that I could not be satisfied what particular information was taken into account by the Director when he made the notice decision. So, it follows, I cannot be satisfied that he took into account any information about the personal circumstances of Ms Burgess or Carlton. If that is so, any consideration of Ms Burgess’s or Carlton’s personal circumstances after making the notice decision would necessarily involve the Director considering ‘new’ circumstances compared to those that I can be satisfied he considered before making the notice decision.

But, even if I am wrong about that, the case for Ms Burgess is made out by reference to the ‘April letters’ I have previously alluded to.[75] I now need to describe those letters a little more fully.
[75]See [48] above.

On 9 April 2013 the Director applied (by two applications) to VCAT for a possession order based upon the s 250 and s 250A notices he had issued on 22 March 2013. On 11 April PILCH wrote a three page letter addressed to Ms Campbell at the Frankston office. The letter concluded with an appeal to the Director to reconsider the applications he had filed and to entertain further discussions with Ms Burgess. The letter incorporated the following points:

·Eviction will force Ms Burgess into homelessness.
·Eviction will make it difficult for Ms Burgess to comply with her parole conditions.
·Ms Burgess will not be able to care for Carlton who resides with her at the rented premises every weekend.
·Ms Burgess has long-standing community and family connections in the Mornington area.
·Ms Burgess suffers anxiety and depression with a history of heroin addiction.
·Ms Burgess had completed the intensive stage of her parole by maintaining stable accommodation, providing weekly urine samples and attending all drug treatment and parole reporting appointments.
·Ms Burgess was about to undergo group therapy counselling.
·Ms Burgess had, at her own expense, cleaned and restored the premises (when trauma funding was not obtained) and had taken steps towards operating a dog walking business in the neighbourhood.
·Ms Burgess maintained positive relationships with all her neighbours in the area.

PILCH specifically referred to the Director’s obligation to act compatibly with, and to consider, Ms Burgess’s and Carlton’s human rights under ss 13 and 17 of the Charter, and suggested that the notice decision was unlawful.

Further, copies of letters from a forensic drug and alcohol clinician and the coordinator of Forensic Services at the Peninsula Drug and Alcohol Program were sent to the Director several days later. In summary, those letters indicated that the maintenance of stable housing in Mornington was necessary for Ms Burgess to stay drug free and recover from her addiction; that Ms Burgess was motivated to make positive changes to her life; and that Ms Burgess was attending regular appointments and was then stable on an appropriate pharmacotherapy program.

On 19 April, the Director responded (via the Director of Legal Services at the Department of Human Services) pointing out that there was no availability for the collateral review of his decision at VCAT, citing Sudi. I have already set out (at [49] above) the Director’s further response – in essence, he was not prepared to engage with the issues raised in PILCH’s letters at that stage.

He said he intended to proceed with the application.

Of course, the Director was entitled to take that stance. His allusion to ‘the correct forum’ was, doubtless, an allusion to judicial review in this Court. As I have already explained, Ms Burgess’s failure to take that action was fatal to her ability to now obtain certiorari in respect of the notice decision.

It is to be remembered that the Director denies having been told, in January 2013, about the fact that Carlton was living at the premises. Further he had not been told much of the other detail relating to Ms Burgess’s health and the importance to her wellbeing of the premises that was contained in the April letters. It must follow that the information contained in those letters amounted to a ‘change’ to the circumstances which the Director had considered when he first made the notice decision.

Charter rights not considered

Indeed, the Director conceded that had he been aware of Carlton’s residence at the premises before making the notice decision, he would have been bound by the Charter to take into account the protection of Carlton’s best interests as a human right specified in s 13. The Director further conceded that he did not consider Carlton when making his notice decision, although he denied that he could have been expected to know that Carlton’s human rights were engaged. Even if that is so, because of the April letters, the Director undoubtedly did know about Carlton’s residence status when making the warrant application decision. He should have considered the protection of Carlton’s best interests at that point, but he did not do so.

Summary and conclusion

In summary, it follows that, when making the warrant application decision, the Director was obliged by law to consider:

(a) the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing, as set out in the April letters, being matters which were not known to or considered by him when making the notice decision; and

(b) at the least, the human rights of Ms Burgess and Carlton identified in s 17 of the Charter the relevance of which he did not appreciate at the time of making his notice decision.

His failure to take into account the former constituted jurisdictional error and his failure to take into account the latter made his decision unlawful under s 38 of the Charter.

If either of the Director’s two decisions were invalidly made, what relief should be granted?
Summary of conclusions

Before finally considering what relief, if any, should be granted, I will summarise the conclusions that I have reached thus far, albeit in a somewhat different order from the order in which I have discussed them above. They are as follows:

(a) Notice decision:

(i) in making the notice decision the Director failed to observe the rules of natural justice and failed to take into account certain matters he was bound to consider, including rights protected under s 17 of the Charter;

(ii) accordingly, the notice decision was affected by jurisdictional error and was unlawful within the meaning of s 38 of the Charter;

(iii) nevertheless, the Director’s notice decision ceased to have any ongoing legal effect on rights once VCAT made its possession order dated 13 May 2013 so that, on the principles set out in Wingfoot, the notice decision is not amenable to the remedy of certiorari.

(b) Warrant application decision:

(iv)in making the warrant application decision the Director failed to take into account certain matters he was bound to consider, including rights protected under s 17 of the Charter;

(v) accordingly, the warrant application decision was affected by jurisdictional error and was unlawful within the meaning of s 38 of the Charter;

(vi)but, unlike the notice decision, the warrant application decision continues to have ongoing legal affect despite VCAT issuing the warrant of possession, so that, notwithstanding the principles set out in Wingfoot, that decision is amenable to the remedy of certiorari.

Orders

The question that now remains is what orders, if any, the court should make upon these findings. No particular submissions were made addressing the particular outcome that has been reached although the plaintiffs, generally, sought remedies of certiorari and/or declarations of invalidity.

What is the appropriate remedy has to be considered in the light of my conclusions and the following further context:

(a) the stay that was ordered by Almond J, extended by Ginnane J, operated in respect of the particular warrant of possession that was issued;

(b) when extending the order staying the execution of the warrant, Ginnane J expressly noted that the stay:

… operates only upon the warrant for possession issued by VCAT on 18 June 2013.
The stay granted by these orders is not intended to restrict the Director of Housing from making any application for possession of the premises at 18 Iluka Place, Mornington that is otherwise lawfully available to the Director.

(c) according to the terms of the possession order itself, a warrant had to be executed within 30 days of the date of issue and, by s 356(2), a warrant lapses if not executed within the time required by the possession order or within any time as extended by the tribunal;

(d) by s 357, the person to whom a warrant is addressed must return it to the Principal Registrar no later than 60 days after it is issued; and

(e) by s 356(1), the possession order itself is discharged if the applicant does not, within six months of the possession order, apply for the issue of a warrant.

On the conclusions I have reached, I consider it is appropriate that I at least declare that the warrant application decision was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter. Given that the warrant of possession obtained by the particular warrant application decision in question has probably lapsed, there may be no purpose served by making any additional order quashing the warrant application decision. Nor, it seems to me, for the same reasons, would there be any utility in quashing the warrant itself or making any declaration with respect to it.

Of course, I have no intention of setting aside or otherwise making any orders specifically in respect of the possession order. Even had I thought the notice decision remained amenable to certiorari, and had quashed it, it is highly unlikely I would have been persuaded that that result should or could lead to the quashing of the possession order.

But, before I proceed to make final orders, I will allow the parties to make submissions as to whether there are any other orders the Court should make to give effect to these findings, as well as in relation to the question of costs.

[2014] VSC 648

17 December 2014