Burgess v Director of Housing
[2013] VSC 626
•25 June 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 03334 of 2013
| EBONY BURGESS | Applicant |
| v | |
| DIRECTOR OF HOUSING | Respondent |
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JUDGE: | GINNANE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Burgess v Director of Housing | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 626 | |
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JUDICIAL REVIEW – Public housing – Decisions of Director of Housing to issue notice to vacate and to apply for possession order – Possession order issued by VCAT – Warrant of possession - Application for stay order - Arguable failure of Director to follow departmental procedures – Procedural fairness – Balance of convenience – Residential Tenancies Act 1997 ss‑250, 250A, 330, 351 – Charter of Human Rights and Responsibilities Act 2006 ss 13(a), s 17(1)
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr DV Aghion | Public Interest Law Clearing House |
| For the Respondent | Mr R Mc Innes | Victorian Government Solicitor |
HIS HONOUR:
Before the court is an application for the extension of an order made on 21 June 2013 by Almond J, that the execution of the warrant of possession for a property at Mornington (“the property”), issued under s 351 of the Residential Tenancies Act 1997 (“the Act”) by the Victorian Civil and Administrative Tribunal, be stayed until 4 pm today.
No Court proceeding has yet been issued but an application for judicial review is foreshadowed.
In the course of argument, the applicant sought an extension of the order until further order, on the basis that she undertook to file an originating motion or other court proceedings within 14 days and that the proceeding will be progressed with all due expedition.
The decisions sought to be reviewed are: the decision of the Director of Housing, who is the respondent, made on or about 22 March 2013 to issue notices to vacate the property pursuant to ss 250 and 250A of the Act, and the decision of the Director made between 10 and 25 June 2013 to apply to VCAT for a possession order. By order of 13 May 2013, VCAT made a possession order in favour of the Director and authorised the Registrar to issue a warrant of possession. A warrant of possession was issued on 18 June 2013.
The first ground relied on by the applicant is that she was not afforded procedural fairness, because she was not interviewed in accordance with the procedure set out in the Tenancy Management Manual (“the Manual”), or by other procedure, to obtain her account in respect of the allegations against her and establish how her personal circumstances may be affected by an order for eviction. The Manual is a publication of the Department of Human Services.
The allegations made against the applicant were that she engaged in drug offences, including trafficking in heroin, for which she was convicted and gaoled.
The applicant’s second ground is that the Director failed to afford the applicant procedural fairness, by failing to inform her of the Department's internal appeal processes available to her.
The applicant’s third ground is that the Director failed to afford her procedural fairness, by failing to consider, prior to obtaining the warrant for possession, whether her personal circumstances had changed such that it was no longer proportionate or justifiable to seek possession of the property.
The applicant’s fourth ground is that the respondent failed to take into account her individual circumstances and those of other household members, including their rights under the Charter of Human Rights and Responsibilities Act 2006 and whether those rights would be limited by evicting them.
The Charter rights relied on include the rights of the applicant’s son not to have his family and home arbitrarily interfered with[1] and his right to have his family protected by the State.[2]
[1]Section 13 (a) of the Charter of Human Rights and Responsibilities Act 2006
[2]Section 17 (1) of the Charter of Human Rights and Responsibilities Act 2006
The history of the matter, as set out in the supporting affidavit and in the decision of VCAT, is as follows. The applicant is single, 34 years old and has a teenage son. She has a history of drug use but there have been periods when it appears that she has not taken drugs. In late 2011, she was charged with offences, including trafficking in heroin. It appears that she was held on remand for at least ten months. She subsequently pleaded guilty and was sentenced to a lengthy term of imprisonment. She appealed that sentence to the County Court. She was released on parole on 18 December 2012 and that parole expires in October this year.
A condition of the parole was that the applicant undergo regular and intensive screening for drug use. It appears that she has done this and there has been no detection of ongoing drug use. She has continued to attend counselling.
On 22 March 2013, the respondent re‑issued two notices to vacate the property in reliance on the grounds contained in ss 250 and 250A of the Act. Those sections provide the Director with a discretionary power to give a tenant a notice to vacate rented premises if the tenant has, on the rented premises or in a common area, illegally trafficked or attempted to traffic a drug of dependence.
It is not disputed that the applicant’s conduct falls within the events described in s 250A.
On 9 April 2013, the Director applied to VCAT for a possession order pursuant to the two notices. The proceeding was adjourned following the application of the respondent.
On 11 April 2013, the applicant's solicitor wrote to the Director contending that the applicant should be permitted to continue to reside in the house because of her personal circumstances, the medical conditions from which she suffers, family proximity and that she had nowhere else to live. It was contended that she had returned to the residence after imprisonment and cleaned it to make it habitable again, that she enjoys a positive relationship with her neighbours, and has recommenced paying rent to the Director and committed to repaying arrears of rent.
There was a dispute between the parties by assertion and counter-assertion as to whether the applicant had reached an arrangement with the Director about repayment of arrears of rent. It is not possible to resolve that dispute in this interlocutory application on the material before the Court.
As previously stated, the applicant alleges that the Director did not follow the procedures contained in the Manual. As counsel for the Director noted, that document does not have the force of statute. However, it does appear to contain procedures intended to provide guidance to departmental staff in circumstances in which certain drug‑related, illegal activity is believed to have occurred in public housing. The procedures enable staff to assess the circumstances of tenants and their families and the impact of eviction upon them, and to ensure that any action taken is proportionate to the Director's objectives.
Chapter 10 of the Manual is entitled “Illegal Drug Activity in Public Housing”.
The procedures that the applicant alleges were not followed are, firstly, those set out in chapter 10.3.7, which establishes three steps to enable determination as to whether a notice to vacate should be issued. They include consideration of the individual circumstances of the tenant and other household members — which, in this case includes her teenage son, at least during weekends — their rights under the Charter of Human Rights and Responsibilities Act 2006 and whether those rights would be limited by evicting them.
Secondly, if Charter rights are limited, whether the limitation is reasonable and justified.
Thirdly, whether there are any less restrictive means than eviction available whereby the respondent may ensure the safety and security of tenants and residents.
The applicant also relies on paragraph 10.4.7 of the Manual which is headed 'Interview aims'. That provision envisages that an interview with the particular tenant will occur — presumably before it is decided whether to apply for a possession order, so as to give the tenant an opportunity to respond to the matters concerning drug involvement that are relied on — to seek information about the tenant and the household's personal circumstances, and to seek information about whether there is any less restrictive option reasonably available to achieve the respondent’s policy objective.
The applicant also relies on paragraph 10.5.6 of the Manual, which deals with procedural matters in circumstances where a possession order is granted and consideration is being given to whether to apply for a warrant of possession. That sub‑paragraph states in part:
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 HSM [who I gather is an officer involved in this process] will specifically need to turn his or her mind to whether or not there are any changed circumstances.
The applicant alleges that the three steps referred to above were not followed and that therefore relevant considerations were not taken into account and a regime required to ensure procedural fairness for the tenant was not followed.
The applicant relies on the terms of a letter from the Department of 19 April 2013, which states in part:
The Director does not admit the allegations made in your correspondence relating to decisions made by the Director relating to your client. However, 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.
That letter also referred to the fact that the Victorian Court of Appeal decision in Director of Housing v Sudi[3] held that VCAT does not have jurisdiction to determine whether the Director has complied with the Charter of Human Rights and Responsibilities.
[3](2011) 33 VR 559
The applicant contends that the Court of Appeal envisaged that the question of the lawfulness of the Director's decision to make an application for possession be the subject of a judicial review application under Order 56.
The VCAT decision stated that counsel for the present applicant:
... has conceded that there are no issues raised on behalf of the tenant about the format and service of the notices. Additionally, he does not raise any concerns pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic).
However, counsel agree that the second sentence of this passage in VCAT’s decision does not reveal whether the reason for the decision not to raise Charter concerns was because of the effect of the decision in Sudi or for some other reason.
An initial issue was whether the applicant should be granted an extension of time to review the Director’s decision, dated 22 March 2013, to issue notices to vacate.
Under Order 56, a 60‑day limit applies in relation to the commencement of a judicial review application. Order 56.02(1) states:
A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
Order 56.02(3) states:
The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
Whilst ‘special circumstances’ is a wide term, the applicant bears the onus of justifying an extension of time. The circumstances relied upon have to be out of the ordinary: in most circumstances, usual delay will not suffice. ‘Special’ means something unusual, uncommon, exceptional or extraordinary, see Civil Procedure: Victoria, vol 1 pps 5237-5238.
There is no affidavit before the court concerning special circumstances, however the chronology shows that the applicant spent a considerable part of the 60 days in proceedings in VCAT, culminating in the hearing on 13 May 2013.
The effect of the judgment in Sudi is that the applicant could not have engaged in any collateral attack on the Director's decision in VCAT but only by proceedings in this Court. The applicant contested the Director's decision in VCAT but not on grounds going to the lawfulness of the application.
I consider that the applicant has established the existence of special circumstances so as to justify an extension of time being granted to her. The applicant’s actions, in contesting the Director’s proceedings in VCAT and not deciding until after the VCAT decision whether to contest by judicial review the Director's authority to apply to VCAT for a possession order, provide special circumstances that fall within rule 56.02(3). The alternatives open to the applicant were to commence proceedings in this Court first or to fight two proceedings at the same time.
I also take into account that the applicant is within time to judicially review the Director’s second decision, namely, the decision to apply to VCAT for a possession order. Therefore, in any event, the applicant’s proposed proceeding could progress in respect of the second decision. If the lawfulness of both decisions could not be considered, the Court’s ability to determine the real issues in the proceeding would be restricted.
I propose to extend the time in which the applicant may seek judicial review of the Director's decision, made on or about 22 March 2013, to issue notices to vacate.
Having extended the time, the question then is whether the applicant has identified a serious question to be tried or a prima facie case and then, secondly, where the balance of convenience lies or, as the applicant contended, who would suffer the greater injustice if the order sought were made or not made.
I obviously make no final findings of fact in deciding these questions.
I consider that the applicant has established a serious question to be tried or prima facie case for relief in respect of the four grounds upon which she relies. Those grounds identify arguable questions about whether the Director followed a process which in the circumstances of this case he was obliged to follow, the manner in which the applicant was to be provided procedural fairness and the matters that the Director was required to take into account.
In some circumstances an argument that procedural fairness was denied cannot be made once the aggrieved party has had an opportunity of a de novo hearing.[4] But this case arguably falls outside that principle because the procedural steps that the Manual envisages were steps that only the Director could take, before making the decision to apply for a possession order. Arguably, VCAT was not in the same position as the Director in that regard.
[4]Calvin v Carr [1980] AC 574
Further, the ground of failure to take into account relevant considerations depends on identifying the matters set out in the Manual, which have been referred to previously and which the Director has identified as having potential relevance to the decisions that he may make.
It is true that the Director may, in an appropriate case, not follow the procedures contained in the Manual and he does have the discretion conferred by s 250A. However, I have only to decide whether the applicant has established that there is a serious question to be tried or a prima facie case on the grounds that she has identified. I consider that she has done so.
There is also the question whether there is any utility in the relief sought. The decisions sought to be reviewed do not involve the operation of the warrant itself as it has been issued by VCAT. It stands and has effect unless it is stayed or set aside. The applicant’s case is not so much an attack on VCAT's decision, but on the steps taken by the Director leading to the application being made to VCAT.
However, I consider that it is arguable that, if the Court should be satisfied that the Director had invalidly issued a notice to vacate and invalidly sought a warrant for possession, it might, as part of the relief that it granted, quash the Director’s decisions and stay the further operation of the warrant of possession. So I cannot conclude that the relief sought lacks utility.
The case then becomes one as to balance of convenience or who suffers the greater injustice.
I have taken into account the respondent's affidavit which points to the waiting list of people seeking the scarce resource of public housing in the Frankston/Mornington area. The affidavit also refers to the substantial amount of rent owed by the applicant of about $2,500, which must represent many months of arrears. That outstanding rent may be for periods when the applicant was in gaol.
The order I propose to make will not restrict the Director from seeking an order for possession because of non-payment of rent, if he so decides. The Director appears not to have taken steps to obtain possession because of non-payment of rent.
I am informed that the applicant has lived at the premises since 2006, save for the period in which she was imprisoned, and her son visits at weekends.
While I have given close consideration to the matters relied on by the respondent, the balance of convenience favours the making of the order that the applicant seeks.
I therefore propose, subject to any further discussion and subject to undertakings being given, to extend the order made by Almond J until the hearing and determination of the proceeding which is to be issued within 14 days from today’s date or until further order.
I will reserve costs. I reserve liberty to apply, and order that the form of order be drawn up by the lawyers for the applicant and signed by a Judge pursuant to rule 60.02(2).
I again state that the order is not intended to restrict the Director from taking such action as he may be advised on the ground of non-payment of rent or any other matter additional to the grounds on which he relied to obtain the warrant of possession that has already been issued.
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