Burgess v Director of Housing

The case of Burgess v Director of Housing involved two plaintiffs, who were residents of public housing, challenging the decisions of the Director of Housing (Director) and the Victorian Civil and Administrative Tribunal (VCAT) that would result in their eviction. The first plaintiff was alleged to have trafficked heroin from the premises, which was the basis for the Director's decision to issue notices to vacate and apply for a warrant of possession. VCAT subsequently granted a possession order and issued a warrant for possession, with a stay on the execution of the warrant pending the determination of the proceeding. The plaintiffs sought certiorari to quash the decisions of the Director.

The central legal issue before the court was whether the decisions of the Director were amenable to certiorari. The court considered the continuing legal effect of the Director's decisions and whether the Director failed to observe any requirements of natural justice in making these decisions. The court also examined whether the Director failed to take into account relevant considerations and whether the decisions were unlawful under section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court found that both decisions of the Director were invalidly made, but only the decision to apply for a warrant was amenable to certiorari.

The court concluded that the decision to apply for a warrant was invalid because it was made without proper consideration of the Director's own policy manual and relevant statutory provisions. The court further found that the Director had failed to observe the requirements of natural justice by not providing the plaintiffs with an opportunity to respond to the allegations against them. The court granted the plaintiffs' application for certiorari, quashing the decision to apply for a warrant of possession, and ordered that the matter be remitted to the Director for reconsideration in accordance with the court's directions. The court also noted that the decision to issue notices to vacate was not amenable to certiorari, but it could be challenged by way of an application for judicial review.