Burgess v Director of Housing and the Victorian Civil and Administrative Tribunal (No 2)
[2015] VSC 70
•4 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 03510
| EBONY BURGESS AND CARLTON GODWIN | Plaintiffs |
| v | |
| DIRECTOR OF HOUSING & THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Defendants |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2015 |
DATE OF RULING: | 4 March 2015 |
CASE MAY BE CITED AS: | Burgess & Anor v Director of Housing & The Victorian Civil and Administrative Tribunal (No 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 70 |
ADMINISTRATIVE LAW – Burgess & Anor v Director of Housing & Anor [2014] VSC 648 Ruling – Final orders and declarations – Whether to make declarations of invalidity and unlawfulness in respect of the Director’s notice to a tenant of residential premises – Whether to make an order that the Director place a copy of orders on its database – No remaining legal effect attached to notice to vacate - Whether declarations sought necessary to protect first plaintiff’s exposure to reputational damage – Speculative reputational damage - Declaration carries risk of confusion – Orders made without the relevant declarations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | 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' |
HIS HONOUR:
Introduction and summary
On 17 December 2014 I published my reasons for decision in this proceeding (‘principal reasons’). Following the publication of my principal reasons I permitted the parties to make further written submissions with respect to the final orders to be made to give effect to my findings and decisions. These further reasons, to be read in conjunction with my principal reasons, explain my decision on the final orders.
In my principal reasons I summarised my conclusions [245]:
(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[1];
[1]Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘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:
(i)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;
(ii)accordingly, the warrant application decision was affected by jurisdictional error and was unlawful within the meaning of s 38 of the Charter;
(iii)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,[2] that decision is amenable to the remedy of certiorari.
[2]Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
I stated that I did not intend to set aside or make any order in respect of the VCAT possession order [249]. Upon delivering my principal reasons, I announced that I thought it was at least appropriate that I should declare that the decision of the first defendant to apply to the second defendant for a warrant of possession was and is invalid and of no legal force or effect. Beyond that I sought the parties’ submissions.
Since then, the plaintiffs filed a proposed form of orders, the Director filed outlines of submissions in response and proposed form of orders, and the plaintiffs filed submissions in reply with a revised proposed form of order. From those submissions, it is evident that the dispute has narrowed to whether or not I should make any declaration concerning the lawfulness of the Director’s notice decision and any direction that a copy of my order be placed on a database maintained by the Director.
The orders agreed upon are as follows:[3]
[3]The Director also sought an order that the ‘proceeding is otherwise dismissed’. This order was not the subject of any express agreement and, in any event, I consider it superfluous.
1.The decision of the First Defendant to apply to the Second Defendant on 18 June 2013 for a warrant of possession (warrant application decision) was and is invalid and of no legal force or effect.
2.The warrant application decision was unlawful by reason of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
3.The warrant of possession issued by the Victorian Civil and Administrative Tribunal in proceeding number R2013/15316 on or about 18 June 2013 in relation to 18 Iluka Place Mornington be quashed.
4.Order 1 of the Orders of the Honourable Justice Almond dated 21 June 2013, and Order 2 of the Orders of the Honourable Justice Ginnane dated 25 June 2013, are vacated.
5.The First Defendant pay the Plaintiffs’ costs of the proceeding, limited to disbursements (including the fees of counsel) incurred by the Plaintiffs’ solicitors on the Plaintiffs’ behalf.
6. Certify for the appearance of two counsel on behalf of the Plaintiffs.
The additional orders that Ms Burgess seeks, and the Director opposes, are the following:
(1)The Court declares that the decision of the first defendant to issue a notice to the first plaintiff on 22 March 2013 to vacate the rented premises leased to her by the first defendant (notice decision) was and is invalid and of no legal force or effect.
(2)The Court further declares that the notice decision was unlawful by reason of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
(3)The first defendant place a copy of this order on the first plaintiff’s record in the first defendant’s tenancy database. If it is not technically feasible to place a copy of this order in the database whether by electronic attachment or otherwise, then it will be sufficient to compliance with this order for the first defendant to record an entry in the database that comprises the text of these orders.
In short, I reject the submissions of the Ms Burgess. That is, I will not make a declaration that the notice decision was and is invalid and of no legal force or effect or was unlawful by reason of s 38(1) of the Charter. Nor will I make any direction that a notation be placed on the Director’s database. But, as now agreed by the parties, I will order that the warrant of possession issued by VCAT on or about 18 June 2013 in relation to the rented premises be quashed.[4]
[4]ie, agreed order number 3 in [5] above.
My reason for rejecting the additional orders sought by Ms Burgess substantially reflect the arguments set out in the Director’s written outline of submissions on relief. I will not repeat the arguments in detail but will merely identify the points that I found persuasive. In my opinion, it is inappropriate to make any declarations in respect of the notice decision because:
(a) as explained in my principal reasons, there is no remaining legal effect attached to the notice decision in any event, so it is unnecessary, for the purpose of determining a legal controversy,[5] to now make any declaration as to its unlawfulness;
[5]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’); Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437-438.
(b) there is no utility to making the declaration because my conclusion as to the lawfulness of the notice decision is amply explained in my principal reasons;
(c) there is no foreseeable consequence flowing from making the declaration;[6]
(d) doing so would have the potential to create confusion given that the VCAT possession order, obtained as a consequence of the notice decision, remains valid and lawful; and
(e) a declaration is not necessary in the circumstances to avoid any or any significant reputational damage.
[6]Ainsworth (1992) 175 CLR 564, 582.
I only wish to expand upon the final point concerning alleged reputational damage.
Reputational damage
In their reply submissions, the plaintiffs accepted that declarations with respect to the notice decision would have no practical legal effect. However, they argued that the declarations sought were necessary to protect the first plaintiff (Ebony Burgess) from exposure to reputational damage. Their submission referred to the evidence given at trial that the Director’s housing tenancy database (HiiP database) currently records the notice decision against Ebony Burgess’s name.
It was further argued that although the principal reasons set out why the notice decision was affected by jurisdictional error, those reasons alone do not have the effect of ‘expunging the database entry or otherwise correcting its misleading effect’. Further, it was argued that it was appropriate to make the declarations and give the database direction, ‘having regard to the role that the HiiP database serves as a source of information for the first defendant’s officers in respect of the tenancy’. So, it was argued that declarations of invalidity and unlawfulness with respect to the notice decision ‘will ensure that the first plaintiff’s reputation as a tenant entitled to security of tenure is not “blackened” by the record that currently sits against her name’.
It was never seriously in dispute at trial that Ms Burgess’s rights and interest would be so affected by the notice decision as to attract the requirement to afford her procedural fairness when making the notice decision.[7] But the right or interest relied upon was the tenancy itself and her right to possession of the rented house. No emphasis at all was laid upon any potential for ‘reputational damage’ inherent in the making of the notice decision per se.
[7]Principal reasons [155]-[157].
By contrast, in Ainsworth v Criminal Justice Commission[8] − the case relied upon by both parties − the very interest which warranted the application of the procedural fairness obligation was the appellant’s reputational interest which was potentially harmed by the decision to table an adverse Criminal Justice Commission report in the Queensland Parliament. In Ainsworth, the harmful consequence which may have been avoided by the application of the rules of natural justice – the reputational damage − had already occurred. In those circumstances, the High Court considered that, although certiorari would be inutile, a declaration of the invalidity of the decision was capable of serving a purpose of addressing ‘some of the harm done’.[9]
[8](1992) 175 CLR 564.
[9]Ainsworth (1992) 175 CLR 564, 582.
In this case, Ms Burgess has, so far, avoided the harmful consequence that she identified she would suffer if the notice decision stood. That consequence was the loss of the tenancy and possession of her house. Consistently with my principal reasons, that protection is not to be achieved by any restraint imposed on the operation of the notice decision. Rather, she will be protected from any immediate loss of her tenancy and possessory interest by orders I will make declaring the warrant decision invalid and quashing the warrant.
To justify the need for a declaration, Ms Burgess now identifies a different ‘harm’ flowing from the notice decision to the potential harm that she identified to attract the operation of the rules of natural justice in the making of the decision. Although that is not necessarily a problem of itself, I am not persuaded that the different harm that she has identified supplies a proper basis to warrant making the declarations.
The claimed need to protect her reputational interest begs a question: reputation with whom? It is not some general reputation in the eyes of the public that she seeks to protect. In any event, to the extent that the public’s perception is concerned, my principal reasons contain an adequate public statement of the invalidity of the notice decision and the grounds of that invalidity to address that perception. And to put it bluntly, any general reputational injury from having received a notice to vacate is insignificant in the context of her admitted conviction and imprisonment for trafficking drugs of dependence.
Further, Ms Burgess does not assert a reputational risk on the basis that the decision was founded on any dubious or contestable assertion she had trafficked drugs from her premises. After all, she pleaded guilty to having trafficked drugs, admitted at VCAT that she had trafficked drugs from the rented premises,[10] and served a term of imprisonment for doing so. Instead, Ms Burgess asserts a more speculative reputational loss because the Director’s database will record that she was issued with a notice to vacate. (Presumably it will also record that she remains in the premises which is likely to ameliorate any disparaging effect from the record of the notice itself.) It is difficult to envisage — and certainly no evidence was given to this effect — that an entry in the database that she was once served with a notice to vacate simpliciter will have a relevant, detrimental effect on her further tenancy prospects.
[10]Principal reasons [52].
What she clearly wishes to avoid is a reference in the database to the fact that she was once issued with a notice premised on her having trafficked drugs from the rented property. That premise was established as a matter of fact and she does not dispute it. The established error the Director made was not taking into account other facts which, notwithstanding that she had trafficked drugs from the property, might have counterbalanced that adverse fact and led him to decide not to issue the notice. So understood, her legitimate interest lies not in the concealment from the Director’s staff that she had trafficked drugs from rented property, but to have any appropriate counterbalancing factors taken into account before her tenancy is terminated. No declaration of the kind sought will now facilitate that purpose. Nor will any notation on the database. And, as I have already accepted, any such declaration will carry the risk of confusion.
In my view, the overall considerations of justice do not warrant the making of a declaration or any direction about a notice being placed upon the Director’s database.
Other matters
Turning from that issue, although it is not controversial between the parties, I agree with the Director’s submission that it is necessary and appropriate that I quash the warrant decision. For the reasons set out in the Director’s written submission, it appears that the ongoing legal effect of the warrant of possession was preserved by the several stay orders made by their Honours Almond and Ginnane JJ (as the parties themselves conceded in this proceeding). At the very least, if there is any risk that the warrant of possession may remain in force and effect it should be quashed. The uncertainty which initially led me to consider that the warrant might have ceased to have legal effect, notwithstanding the stay, is largely dispelled by what was said by the Court of Appeal (England and Wales) in R v Secretary of State for Education and Science, ex parte Avons County Council:[11]
[11][1991] 1 All ER 282. 286-7 (Glidewell LJ).
The effect of a stay would not be to nullify the various statutory provisions. It would be to defer the date for the implementation of the proposals until the judicial review proceedings were concluded. If the Secretary of State's decision were not quashed, the various statutory provisions would then take effect.
There is nothing unusual about a challenge to a ministerial decision being accompanied by a deferment of the date when the decision will take effect. Some statutes provide for this expressly…The Education Reform Act 1988 contains no specific provisions by which decisions of the Secretary of State on matters which, under the Act, fall to him to decide may be challenged. Nevertheless, it is accepted that such a decision, or rather the method by which it was made, is open to challenge by judicial review. There is no impropriety, or challenge to parliamentary sovereignty, implicit in the court having power to defer the date at which such a decision takes effect. Such a deferment, pending the court's final decision, would be the effect of a stay.
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