Burnell v Executors of the Estate of Peter Athol Jenson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 02510

LOUISE BURNELL	Applicant
v
EVA CHIN & BARBARA BELLIN (EXECUTORS OF THE ESTATE OF PETER ATHOL JENSON)	Respondents

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2024
DATE OF JUDGMENT:	29 August 2024
CASE MAY BE CITED AS:	Burnell v Executors of the Estate of Peter Athol Jenson
MEDIUM NEUTRAL CITATION:	[2024] VSC 505

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RESIDENTIAL TENANCIES – Notice to vacate residential premises – Payment plan ordered – Applicant did not comply – Applicant ordered to vacate premises and rental provider authorised to seek a warrant of possession – Orders made in the absence of the applicant and her solicitor – Applicant sought review – Applicant present for review – Review dismissed and orders relevantly confirmed – Application made out of time for leave to appeal on a question of law – Applicant claims denial of procedural fairness – Stays of warrant of possession initially granted, but later refused – Urgent relief sought, but declined – Warrant for possession executed – Applicant failed to comply with orders for the preparation of the proceeding for hearing – Applicant relied upon a sequence of filed and unfiled affidavits as well as oral statements made during the course of the hearing – Application for adjournment made, but refused – Applicant not a reliable historian – No real explanation for lapse of time – Proposed question of law does not arise and underlying proposed grounds of appeal devoid of any real merit – Appeal would also be a futility – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98, 99, 120 and 148 – Brandwill Holdings Pty Ltd v Jonson [2014] VSC 356 and Nathanson v Minister for Home Affairs (2022) 276 CLR 80 considered – Applications for extension of time and leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	PW Lithgow	KCL Law

HIS HONOUR:

A.Introduction

The applicant has a history of contentions and disputes going back at least 20 years. Among other things, she claims to have been a victim of family violence, a burglary, had her bank accounts wrongly frozen, been affected by breaches of court orders by a solicitor named Maria Barbayannis (now deceased) as well as the victim of wrongdoing by police. Since about 2002 or 2003 she seems variously to have been involved in family law proceedings as well as disputes relating to a business, her wages, the police, a trauma policy of insurance and certain inheritances. In that general connection, she claims to have suffered disabilities and injuries including hearing loss, trauma, spinal injury, haemorrhage, a ‘collapsed knee’ and, more recently, a torn ligament in her leg. She has consulted, or claims to have consulted, multiple solicitors. She also claims to have been affected by ‘cyberattack’ as well as ‘technical issues’ relating to her documents and data, including in respect of the Court’s electronic filing system, RedCrest.

The applicant addressed much of the above – and more – in a sequence of filed and unfiled affidavits, as well as orally during the course of the hearing. Much of that was not chronological or at all easy to follow, however the plaintiff plainly considered all of it to be relevant to her present applications for an extension of time and for leave to appeal from orders made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 5 April 2024. Those orders concerned her then possession of residential premises at Haydens Road, Beaumaris (‘premises’), from which the applicant was removed by execution of a warrant of possession on 10 July 2024.

It will become apparent that other relevant orders have been made at VCAT, particularly on 20 February 2024 and 2 May 2024, as well as in this Court, particularly by McCann JR on 19 June 2024.

Any appeal, if time is extended and leave to appeal is granted, is strictly on a question of law; not an appeal on the merits.[1]
[1]See Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) s 148(1); McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [4]-[6]; Patsuris v Gippsland and Southern Rural Water Corporation (2018) 218 LGERA 167, [41]-[46] and Anderson v Sharpe [2024] VSCA 166, [75]-[81].

I have later made some observations concerning the applicant’s reliability as a historian. I also formed the view that her garbled style is not wholly without design. In any event, I have done my best to assemble a rough sequence of more recent and evidently relevant events.

B. Some relevant events

On about 22 September 2021, the applicant entered into a 12-month lease relating to the premises. There does not seem to have been any problem with her paying rent during the term of the lease and until some point in 2023.

The applicant claims that in about 2021 and/or 2022 she was in discussions with the lessor, Mr Jenson, about purchasing the premises. Mr Jenson seems to have been seriously unwell for a period, and he passed away in July 2023. The present respondents are the executors of his estate, in respect of which probate was granted on 21 November 2023.

Notwithstanding the applicant’s claims concerning her dealings with Mr Jenson, a notice for her to vacate the premises was served within his lifetime, and he must subsequently have made an application to VCAT seeking an order for vacant possession.

On 25 July 2023, VCAT determined that the notice to vacate was not effective by reason of a technicality relating to the stated address.[2] The applicant asserts that the ‘invalid and defective notice’ caused her personal injury and loss, however the position is complicated, as the applicant seems to have prior claims of injury and disability. No proceedings for damages in respect of injury arising out of the ‘defective notice’ seem subsequently to have been commenced.
[2]Unsworn affidavit of Louise Burnell, filed 18 June 2024 at 1:58 pm (‘applicant’s third affidavit’), 23-25 [22]-[24].

In the present proceeding, the applicant complained that she later learned that Mr Jenson had passed away shortly prior to the hearing on 25 July 2023. However, the order made by Member Hubble on that occasion seems to have been to the applicant’s favour.

In about late 2023 the applicant seems to have come to the view that she could solve her problems in respect of rent and, indeed, purchase of the premises, by pursuing various purported claims for civil relief against the estate of Ms Barbayannis, who was by that point deceased, and also from the real estate agent relating to the premises, Stephen Maitland, as well as from the respondents themselves.

The notion that the applicant might have claims against Ms Barbayannis, in particular, seems to go back to sometime in at least 2003. At some point between 2003 and late 2023, Ms Barbayannis seems to have passed away.

On 10 November 2023, Patrick Said of Patrick & Phillip lawyers wrote to the executor of the estate of Ms Barbayannis explaining, among other things, that the firm acted for the applicant in a ‘professional negligence claim being made against the estate of Maria Barbayannis’. The letter referred in rather uninformative terms to allegations of ‘falsified accounting’ and ‘other unlawful and illegal actions’ said to have been undertaken by Ms Barbayannis and, in that connection, calculated and demanded payment of the sum of $7,710,847.35.[3] It is not apparent that any response was ever received.
[3]Unfiled affidavit of Louise Burnell dated 23 July 2024 and sworn or affirmed on 29 July 2024 (‘applicant’s seventh affidavit’), 8-10. I note that a follow up letter was sent by Patrick & Phillip dated 10 December 2023: 14-15.

On 28 November 2023, Mr Said sent another letter of demand, this time to Mr Maitland.[4] That letter referred to the letter sent earlier to the estate of Ms Barbayannis, but also advised –

… when your office served a Notice to Vacate in March 2023, as a result, our client was placed under unnecessary stress and trauma which subsequently interfered with her health, quiet and enjoyment [sic] and in turn she was hospitalized.

[4]Ibid 11-13.

The precise basis for the claimed liability was not further explained, however the letter purported to calculate and demand payment of the sum of $21,442.50. No substantive response seems subsequently to have been received.

It may be that a similar or other letter of demand was also sent to the respondents, although that document was not among the material exhibited to the applicant’s various filed and unfiled affidavits.

In that general context, at some point in late 2023 or early 2024, the respondents seem to have served a second notice to vacate, this time pursuant to s 91ZM of the Residential Tenancies Act 1997 (Vic) (‘Residential Tenancies Act’),[5] and thereafter to have made an application to VCAT seeking possession of the premises (proceeding R2024/2176/00).
[5]Section 91ZM of the Residential Tenancies Act 1997 (Vic) (‘Residential Tenancies Act’) concerns ‘non-payment of rent’. The earlier notice seems to have been issued with reference to s 91ZZB, which concerns sale of the subject premises.

That seems to have prompted the applicant to make her own application to VCAT (proceeding R2024/143/00). Her application seems relevantly to have stated –

[My] Solicitors have served a Letter of Demand upon the Respondents. They have not adhered to my solicitor’s demands. I want an order to prohibit Maitland from issuing any Notices. An order not to take the Bond. An Exparté Restraining Injunction to prohibit Maitland and/or their servant or agents from entering the property.

That application was heard by Member Gelev on 6 February 2024, who made the following relevant findings –

2.The applicant claims that as a result of trying to comply with a notice to vacate issued in March 2023, she suffered an injury. The residential rental provider lodged an application for possession based on the notice to vacate and the matter was struck out because of a technical deficiency in the notice (incorrect address of the premises) – proceeding R2023-16241.
3.The residential rental provider who issued the notice to vacate has passed away.
3.The residential rental provider’s agent told the Tribunal today that the render owes more than $7,000 in rent and an application has indeed been made under section 91ZM of the [Residential Tenancies] Act (rent arrears). The residential rental provider is entitled to make such an application. The residential rental provider is also entitled to enter the property as long as it is in accordance with the Act.
4.There is no basis on which to impose on the new residential rental provider an injunction or restraining order. The March 2023 notice to vacate was issued by the former residential rental provider, and in any event that application by the residential rental provider was not unmeritorious or vexatious. There is no evidence before me that the current residential rental provider has breached the Residential Tenancies Act 1997 or harassed the renter or engaged in any improper conduct.[6]

[6]I note that there are two paragraph ‘3’s in the above sequence of paragraphs appearing in the order of 6 February 2024.

Having heard that application – at which at least the applicant and Mr Maitland seemingly appeared – Member Gelev ordered, in substance, that it was misconceived and so should be dismissed.

The respondents’ application for possession (proceeding R2024/2176/00) came before Member Buljan on 20 February 2024. The order made on that occasion records relevantly as follows –

VCAT finds:

1. The residential rental provider gave the renter at least 14 days’ notice to vacate when the renter owed at least 14 days’ rent (excluding any amount owed under a previous VCAT ordered payment plan).

2. This is the first, second, third or fourth occasion of non-payment of rent within a twelve month period starting on the date the residential rental agreement commenced or the anniversary of that day.

3. The renter did not pay the full amount of rent owed on or before the termination date on the notice to vacate.

4. The rent is $3693.45 per calendar month and is currently paid to 06 December 2023 with $99.61 on account. The rent owed to today is $9103.99.

5. Having made an assessment under section 331 of the [Residential Tenancies] Act, satisfactory arrangements can be made to avoid financial loss to the residential rental provider.

VCAT orders:

1. The renter will pay the residential rental provider the following sums towards rent owed on or before the dates specified.

20 March 2024 $14795.69

2. The renter is to then pay the monthly rent in advance in accordance with the terms of the residential rental agreement.

Adjournment

3. The application is adjourned to 05 April 2024 at 11:30am to be heard by Member D.Buljan of VCAT. Allow 30 minutes for the hearing. If the renter fails to follow the payment plan, the parties are on notice that the Tribunal will proceed to consider whether it is reasonable and proportionate to make a possession order at the resumed hearing.

It seemed presently to be implicit that the applicant appeared at that hearing. Indeed, in some respects the outcome seems to have been to her favour.

On 19 March 2024, Dallas Sather of Quinn & Quinn lawyers wrote to VCAT stating that his involvement in the applicant’s case was ‘recent’ and seeking ‘a two-week extension to respond on her behalf’. That letter referred to proceeding R2024/2176/00 and seems to have been treated as an application for an adjournment, which was refused by order made by Member Sharkie on 21 March 2024.[7]
[7]Applicant’s third affidavit (n 2), 9-11 [5]-[10].

As foreshadowed in the orders made on 20 February 2024, the application for possession resumed before Member Buljan on 5 April 2024. The orders made on that occasion record that a hearing notice had been sent to the applicant on 22 February 2024, but that she had not appeared at the hearing on 5 April 2024.[8] Relevantly, the orders state further that –
[8]Cf VCAT Act (n 1) s 99.

VCAT finds:

1. The renter has not followed the payment plan as ordered in VCAT order dated 20 February 2024 and the renter has continued to accrue arrears of rent since the order was made.

2. The rent is $3693.45 per calendar month and is currently paid to 06 December 2023 with $99.61 on account. The rent owed today is $14553.69.

3. The date of application to VCAT was 22 January 2024 and the rent owed to that date was greater than the bond of $3693.45.

4. Having regard to the matters in section 330A of the [Residential Tenancies] Act, it is reasonable and proportionate to make a possession order.

5. The residential rental provider is entitled to a possession order in the terms set out below.

VCAT orders and directs:

1. The renter must vacate the rented premises by 21 April 2024.

2. On termination of the residential rental agreement the Residential Tenancies Bond Authority will pay the residential rental provider $3693.45 in respect of the rent owing to the date of application.

3. The renter must now pay the residential rental provider the balance of the rent owed of $10860.04.

4. At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 21 April 2024 and no later than 05 October 2024.

The order otherwise warned that upon the carrying out of any warrant of possession the renter might be forcibly removed from the premises.

The applicant deposes that her solicitor had not received notice of the hearing on 5 April 2024 and that she had not been able to obtain remote access to the hearing owing to a ‘technical issue’.[9]
[9]Affidavit of Louise Burnell filed on 22 May 2024 at 9:50 am (‘applicant’s first affidavit’), [2].

The applicant also deposes, briefly, to her solicitor, Mr Sather, subsequently making an application for review of the orders made on 5 April 2024.[10]
[10]Ibid. Cf., VCAT Act (n 1) s 120.

That application was heard by a different member of VCAT on 2 May 2024. The applicant appeared at that hearing, seemingly by telephone. Her solicitor, Mr Sather, was not present. The applicant’s assertions concerning the events on that occasion will later be referred to in a little more detail.

The orders made by Senior Member Treble on 2 May 2024 record, relevantly, as follows –

VCAT finds:
1.The renter seeks review of the VCAT order dated 05 April 2024. The renter did not appear at the hearing when the order was made, nor were they represented at the hearing.

2. It is not appropriate to hear and determine the application because:
the renter does not have a reasonable case to argue in relation to the subject matter of the order; and
to rehear and determine the application would cause prejudice to the rental provider, as the renter now owes $18,367.64.

VCAT orders:
1.The application for review is dismissed.
2.The VCAT order dated 05 April 2023 is confirmed, however the issue of the warrant of possession that has already been requested is to be delayed for 7 days.

It is plain from the form of the order that the Senior Member was not satisfied of the second limb of the two stage statutory test, namely that it was appropriate to hear and determine the application for review.[11] In particular, the Senior Member found, positively, that the applicant did not have ‘a reasonable case to argue in relation to the subject matter of the order’ sought to be reviewed.[12]
[11]VCAT Act (n 1) s 120(4)(a)(ii) and (4A).
[12]Ibid s 120(4A)(a).

The applicant said that she sought advice from Mr Sather on 6 May 2024. In the course of the present hearing, she said that she had asked him to send a letter to the Principal Registrar of VCAT, which he had allegedly failed to do. She emphasised a letter sent by Mr Sather to Mr Maitland dated 27 May 2024.[13]
[13]Applicant’s seventh affidavit (n 3), 16.

In any event, the applicant said, in substance, that on 6 May 2024 she had been advised not to challenge the order made on 2 May 2024 and to seek a stay of execution of any warrant of possession.[14]
[14]Transcript, 2 August 2024 (‘T’), T17.

A warrant of possession was issued on 14 May 2024 and the applicant subsequently applied to VCAT for a stay of execution pending lodgement of an application for leave to appeal in the Supreme Court. Her application was heard by Senior Member Campana on 22 May 2024, and a stay was granted until 4:00 pm on 5 June 2024.

Notwithstanding the basis upon which that order seems to have been obtained, at 8:32 am the same day the applicant seems to have filed a notice of appeal and associated summons in the Supreme Court. At 9:50 am that day, the applicant also filed a document titled ‘affidavit’ dated 21 May 2024 (‘applicant’s first affidavit’). All of those documents are sealed, meaning that they were received onto RedCrest at the time and date marked.

In her notice of appeal, the applicant refers to the orders made at VCAT on 5 April 2024 and seeks an extension of time of two weeks as well as leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). In that general connection, the notice states -

STATE WHETHER THE PROPOSED APPEAL IS FROM THE WHOLE OR PART ONLY OF THE ORDER, AND IF SO, WHAT PART
The whole of the order as the Applicant was not at the hearing due to a technical issue. The Applicants legal representative was also not in attendance at the hearing due to a technical issue.

QUESTION OF LAW:
1.Does VCAT have the power to make an order in a Residential Tenancies Tribunal matter when the landlord does not live in Victoria ?

THE PROPOSED GROUNDS RELIED UPON ARE:
1. The order was made in the Appellants absence due to a technical issue.
2.The Applicants legal representative was not in attendance at the hearing.
3. On that basis the Appellants were denied procedural fairness or natural justice.

ORDER SOUGHT:
1. An urgent order for a ‘Stay on’ the Warrant of Possession 22 May, 2024.
2.An order for permission from this Honourable Court to be granted leave.
3.An order for Sergeant Travis ELLAMS to take a statement on the matter to say Police are at fault and have directed the Applicant to claim all Medical, Hospital, Rental, and Associated Costs from Police.

The applicant’s summons was returned before McCann JR on 5 June 2024. In that connection, the applicant seems to have sought and obtained leave to appear ‘remotely’ at an ‘in-person directions hearing’.

At that hearing, the applicant was granted leave to file and serve an amended notice of appeal by 12 June 2024. McCann JR was also persuaded to list the applicant’s proceeding for hearing with expedition on 2 August 2024 and to grant a stay on any execution of the warrant of possession until 17 June 2024.[15] To that end, appropriate timetabling orders were made with a view to preparing the proceeding for hearing on the appointed date.
[15]By further orders made on 7 June 2024, McCann JR slightly extended the period of the stay to 5:00 pm on 19 June 2024 and so adjourned the further hearing of the summons to 10:00 am that day.

Prior to the further return of the matter, the applicant filed affidavits on 14 June 2024 (‘applicant’s second affidavit’) and 18 June 2024 (‘applicant’s third affidavit’). Both state that they are prepared by the applicant, but filed on behalf of Quinn & Quinn. The applicant’s third affidavit is lengthy (and not easy to follow). It also extracts various documents or parts of documents. Both affidavits were filed on RedCrest, albeit that the applicant’s second affidavit states that filing on RedCrest was effected with the assistance of a Court officer.

The affidavits broadly seek to advance the applicant’s complaint that she was not present on 5 April 2024 and otherwise essay her extensive and rather jumbled underlying narrative which, in her mind, evidently surrounds and is therefore relevant to her present complaint. For example, the applicant’s third affidavit deposes, essentially in partial summary, that –

From the start there is a serious defect in the decision-making by Maria Barbayannis, and there is a fundamental defect that goes to the root of a trial that implicates her having serious misled the Court into Judicial error. The solicitor died after “breaching” orders, and causing Personal Injury to the Plaintiff. From the date of the signing of the Lease Agreement, there is a defect in the Lease Agreement. The rental provider died on or around 21 July, 2023, leaving his “Contract of Sale” in the hands of his Proposed purchaser. The “Contract of Sale” has a defect. The rental provider’s intention is to sell the property to his occupants in possession on the basis of his decision when he had capacity of mind. The VCAT made a decision on 5 April, 2024 in the Plaintiff’s absence and in the Plaintiff’s solicitor’s absence, and therefore on that basis there is a defect. The Estate of Maria Barbayannis is “wholly liable” to pay most of the costs and all of the rental for 3/44 Hayden’s Road, Beaumaris VIC 3193. Police have also accepted fault and directed the Plaintiff to claim my medical, hospital, Rental from Police. Police are being asked to ‘pay up’ all the arrears.[16]

[16]Applicant’s third affidavit (n 2), 37 [15] (emphasis in original).

In any event, both affidavits state that the applicant was seeking a ‘permanent stay’ upon execution of the warrant. Neither affidavit seems to include any discernible reference to the review application determined by VCAT on 2 May 2024.

For their part, on 13 June 2024 the respondents had filed an outline of written submissions that appended the grant of probate as well as several of the orders made at VCAT, including the orders made by Senior Member Treble on 2 May 2024. The outline of submissions makes the point that the application for review – heard at VCAT on 2 May 2024 – had been dismissed.

The matter came back before McCann JR on 19 June 2024. The applicant again appeared remotely (by telephone). The transcript (of 49 pages in length) (’19 June 2024 transcript’) does not suggest that the fact that the applicant appeared remotely was any substantial impediment to her, or to McCann JR and counsel for the respondents.

It is evident that McCann JR had received and read the affidavits to which I have referred and, correctly, asked the applicant about matters relating to her prospects on appeal. In response, the applicant launched into an account involving shifting components of her underlying narrative.

The Judicial Registrar sought to bring the applicant back to her notice of appeal and the applicant said that it needed to be amended and that she was ‘in the process of seeking legal advice to amend [it]’.[17] From that point, the applicant delved back into an explanation of underlying events, including in respect of the letter of demand sent to Mr Maitland, and said that there was a question of law as to whether ‘the lease [relating to the premises] would be binding’.[18]
[17]Transcript, 19 June 2024 (19 June transcript), 11.
[18]19 June transcript (n 17) 12.

In response, counsel for the respondents referred to various features of the history of the matter, including that –

(a) the rental provider had been seeking possession of the premises for more than a year;

(b) the order for possession had been reviewed and confirmed by VCAT (on 2 May 2024);

(c) the respondents required vacant possession in order that the premises could be sold; and

(d) the arrears of rent were ‘now some $25,000’.[19]

[19]19 June transcript (n 17) 24-25. Counsel later confirmed that the arrears of rent were, in fact, $27,754.54: 27.

The applicant then advanced various further claims, including that –

(a) the rental provider had not made full disclosure when the lease was ‘first drafted’ and had not disclosed ‘the true address details of the property’;[20]
[20]Ibid 28.

(b) she had a claim against the rental provider for damages ‘that is pursuing in VCAT at the moment’;[21]
[21]Ibid 29.

(c) that claim related, at least in part, to an ‘earthquake on 21 September 2021’ in which the premises were said to have suffered ‘structural damage’;[22]

(d) if she was not in the premises she would be ‘separated from all the evidence’ and would not have access to any of her documents;[23] and

(e) if she had been at the hearing on 5 April 2024 her argument would have been that ‘Mr Maitland hadn’t done what the solicitor had asked [ie, pay in response to the letter of demand]’ and, consequently, the rent had not been paid and things had been ‘delayed’.[24]

[22]Ibid 31.

[23]Ibid 32.

[24]19 June transcript (n 17) 36. See also 38.

The applicant was ultimately directed to the issue of the review undertaken by VCAT on 2 May 2024. Counsel for the respondents said he was instructed that the applicant had been there. The applicant responded that her solicitor should have been there, and that she ‘had COVID’ and ‘couldn’t hear properly’.[25] The applicant explained further that –

… I sent a medical certificate to the court and explaining that I had COVID. And I had to try and attend and to battle through while I had a severe case of COVID and I couldn’t hear. So that was injustice as well. And I would be amending … my notice of appeal to say that the decision of VCAT was not reasonable and proportionate, because the solicitor and myself weren’t at the hearing. I was at that hearing, but I had COVID, but my solicitor wasn’t. Because he wasn’t attached into the hearing notices. To get the documents. Telling how to get into the hearing – you know, the date of the hearing.[26]

[25]Ibid 39-40.

[26]Ibid 40.

McCann JR stood the matter down and later the same day delivered ex tempore reasons for her decision to refuse a further stay on execution of the warrant of possession. In respect of the applicant’s prospects of success, the Judicial Registrar stated –

For Ms Burnell’s appeal to be successful, she will need to identify an issue or question of law. Although [in her notice of appeal] she asks the question ‘Can VCAT make orders in relation to a rental agreement when the landlord is not in Victoria?’ This clearly has no bearing on the application of the Residential Tenancies Act or the jurisdiction of VCAT. There is nothing further in the material filed that addresses this question. There is no arguable appeal on this point.

The issue of the identification of the property in the lease as far as it was argued as a potential ground, also lacks merit. It is clear that the property has two alternatives to identifying street numbers. They are pleaded in VCAT documentation as alternatives. That is, the VCAT decisions that I have read, identify 3/44 Haydens Road, also known as 44B Haydens Road, Beaumaris, 3093.

The court was not informed of the way in which this impugned the decision of the tribunal member or a legal question that arises.

The procedural fairness point referred to in her written grounds and developed in the hearing, arises from her failure to attend the hearing on 5 April 2024. Ms Burnell was given ample opportunity to attend the hearing and that decision itself was reviewed when she was in attendance on 2 May 2024. That review was unsuccessful. She raised no arguable legal point in respect of the review. I cannot find on the material filed that there is a substantial prospect that Ms Burnell would succeed on her appeal.

After delivering her reasons, McCann JR observed that the applicant had about three weeks ahead of her and should ‘look at taking practical steps to move out of the property’.[27]
[27]19 June transcript (n 17) 55.

That seems not to have occurred, because on the evening of 9 July 2024 the applicant contacted the Practice Court co-ordinator seeking a further stay on execution of the warrant and proffering a proposed summons as well as a lengthy proposed notice of appeal directed to the orders made by McCann JR on 19 June 2024. Among other things, those documents pick up on various aspects of the applicant’s underlying narrative. The associated email exchange indicates that execution of the warrant was scheduled to occur at 12:00 midday on 10 July 2024.

By email sent on 10 July 2024 at 10:49 am, the applicant asserted that –

(a) her iPad had ‘stopped working’;

(b) she could not access any Court material ‘for some reason’; and

(c) it was not possible for her to access RedCrest.

In that connection, the applicant sought ‘an immediate stay on the Warrant’.

By email sent on 10 July 2024 at 11:49 am, the Practice Court co-ordinator informed the applicant, among other things, that –

The Judge in the Practice Court has considered your proposed applications and has declined to hear them on an urgent basis this morning.

It is not evident that the documents concerned were ever received onto RedCrest or otherwise further progressed. It also seems that execution of the warrant proceeded on 10 July 2024 at 12.00 midday, as scheduled.

In that overall context, the applicant’s applications for extension of time and leave to appeal came on for trial, before me, on 2 August 2024.

The applicant had not prepared an amended notice of appeal, Court Book or written submissions as had variously been ordered by McCann JR on 5 June 2024. However, in the days leading up to the hearing she filed or sought otherwise to provide to the Court a flurry of further affidavits, namely –

(a) unsworn affidavit dated 24 July 2024 and filed on RedCrest on 24 July 2024 at 9:28 pm (‘applicant’s fourth affidavit’);

(b) affidavit dated 24 July 2024, sworn or affirmed on 26 July 2024, and filed on RedCrest on 30 July 2024 at 9:14 am (‘applicant’s fifth affidavit’);[28]
[28]‘Applicant’s fifth affidavit’. This affidavit is largely a sworn or affirmed duplicate of (a). Further, an unsworn version of this affidavit dated 24 July 2024 was filed on RedCrest on 26 July 2024 at 8:46 pm.

(c) affidavit dated 26 July 2024, sworn or affirmed on 26 July 2024, and filed on RedCrest on 30 July 2024 at 8:48 am (‘applicant’s sixth affidavit’);[29]
[29]‘Applicant’s sixth affidavit’.

(d) unfiled affidavit dated 23 July 2024 and sworn or affirmed on 29 July 2024 (‘applicant’s seventh affidavit’);

(e) unsworn affidavit dated 26 July 2024 and filed on RedCrest on 29 July 2024 at 6:46 pm (‘applicant’s eighth affidavit’);[30]

(f) affidavit dated 26 July 2024, sworn or affirmed on 29 July 2024, and filed on RedCrest on 30 July 2024 at 6:00 pm (‘applicant’s ninth affidavit’);[31] and

(g) affidavit dated 26 July 2024, sworn on 30 July 2024, and filed on RedCrest on 30 July 2024 at 6:06 pm (‘applicant’s tenth affidavit’).[32]

[30]‘Applicant’s eighth affidavit’.

[31]An unfiled version of this affidavit was also provided to the Court. This affidavit is essentially a sworn version of the applicant’s eighth affidavit (n 30), except that the applicant’s eighth affidavit contains three extra pages within the exhibit.

[32]‘Applicant’s tenth affidavit’. An unfiled version of this affidavit was also provided to the Court.

The applicant broadly claims to have had difficulties using RedCrest, so the documents identified as ‘unfiled’ were provided to the Court by email. It follows that it is not easy to work out the order in which the various documents were filed or otherwise provided to the Court.

In any event, the applicant’s documents refer variously to the fact that she was not present at VCAT on 5 April 2024, her difficulties relating to documents and data, the execution of the warrant of possession and various parts of her underlying narrative. The material is, of course, disparate, in some respects repetitive, non-chronological and not at all easy to follow.

Notwithstanding the number of different documents, and the overall volume in the material produced, there is little in the way of any account of –

(a) the hearing at VCAT on 2 May 2024;

(b) the hearing before McCann JR on 19 June 2024; or

(c) the applicant’s approaches to the Practice Court on 9 and 10 July 2024.[33]

[33]That said, the hearing at VCAT on 2 May 2024 was referred to in brief terms in applicant’s first affidavit (n 9) (at [5]) and the fact that the applicant had approached the Practice Court was referred to in elliptical terms in the applicant’s seventh affidavit (n 3) at [14].

The material does, however, refer to the applicant’s dealings with different solicitors at different times, as well as an application seemingly made recently to Victoria Legal Aid (‘VLA’).

In that connection, in the applicant’s ninth affidavit, she deposes, relevantly, as follows –

1. I hereby confirm that I have applied to be granted legal representation with Victoria Legal Aid.

2. On 26 July 2024, Victoria Legal Aid Grants Team sent email correspondence to my iPhone, advising that they want copies of orders that are “breached” by solicitor’s, [sic] (Maria Barbayannis) in order for them to assess my eligibility for a Grant of Legal Aid. The negligent solicitor has negligently “frozen” my Workplace and Bank, and deprived me of my Liberty and deprived me of my Family and Family Inheritance, as well as Income Protection and Trauma Cover that covers me in the event I am unable for unforeseen reasons to work.

…

7. On Friday, 26 July 2024, Victoria Legal Aid Grants Team have asked in writing for access to the requested information by 11 August 2024.

8. In order to comply with Victoria Legal Aid’s request in writing I want to get an urgent order from the Supreme Court of Victoria to be immediately returned to 3/44 Hayden’s Road, Beaumaris, VIC 3193 where the evidence is located for the Trial, and evidence is located for Victoria Legal Aid, as I am required to provide information to Victoria Legal Aid for them to be able to assess my eligibility for a Grant of Legal Aid, for the Supreme Court of Victoria Trial, with a Call-over date listed for 2 August, 2024.

…

Victoria Legal Aid Grants Team

35. Victoria Legal Aid have requested on 26 July, 2024 to have a copy of the freezing orders extracted by Maria Barbayannis, (in my absence and without my knowledge or consent) the freezing orders that contain a serious “defect”.

36. The subject solicitor (Maria Barbayannis) was allegedly Acting under a “Conflict of Interest” and is a “breach” of the solicitor’s fiduciary duty and the Solicitor’s Rules. The consequences can be significant and has resulted in a substantial claim being made against the solicitor’s Deceased Estate and the Plaintiffs solicitor’s (Patrick and Philip Lawyers) have served the substantial claim against the Estate of Maria Barbayannis on 10 November, 2023 and served a Final Notice on 16 December, 2023 seeking all the monies owed, and is to include full replacement of all the Property and Assets the negligent solicitor has allegedly “misappropriated” and seriously interfered with and mishandled.

37. The Plaintiff has taken steps to locate new replacement premises for carrying on the Trusts Business (“the Trusts Business”) and has related that information onto solicitor’s to keep them adequately informed. It has come to the stage where we must demand full replacement of Property and Vehicles, due to the fact that the crisis accomodation [sic] can only be extended until the 6 August, 2024, as Launch Housing cannot fund any housing to accomodate [sic] the Plaintiffs Trial at the Supreme Court.

38. The “defect” in the order has lead to a claim for enormous damages against the Estate of Maria Barbayannis, with solicitor’s having served upon the Estate Representatives Letters of Demand demanding a substantial sum of monies owning to their client (Louise Burnell), and includes all the rental costs incurred on 3/44 Hayden’s Road Beaumaris, VIC 3193 and full replacement of all the Property the negligent solicitor has allegedly misappropriated and allegedly amount to Fraudulent conduct.

Further, in the applicant’s tenth affidavit, she states briefly –

Victoria Legal Aid are in the process of assessing the Plaintiffs [sic] eligibility to be awarded a Grant of Legal representation, with the requested information needing to be in by 11 August 2024.

None of the documents to which I have referred exhibits a copy of the applicant’s application to VLA or the ‘email correspondence’ dated 26 July 2024. As later explained, however, shortly after the conclusion of the hearing on 2 August 2024 the applicant supplied a copy of that correspondence to the Court.

For completeness, I should note that the applicant’s material includes reference to her being hearing-impaired (for which she claims to be seeking ‘substantial damages’, as well as in respect of other injuries and disabilities)[34] and includes a request for her to be excused from attending Court ‘in person’ owing to various claimed disabilities and health conditions.[35]
[34]See, eg, applicant’s sixth affidavit (n 29) [13].
[35]See applicant’s tenth affidavit (n 32) [1]; which document exhibits a letter to the Principal Registrar dated 26 July 2024.

In that connection, on 31 July 2024, shortly after being advised by email of my allocation to hear the matter, the applicant took up her request to be excused from attending Court in a sequence of emails to the Court, together with various claims relating to difficulties with her ‘communication systems’, iPhone and iPad as well as the assertion that the information requested by VLA was ‘locked up in the home’ (that is to say, the premises) and that she would need to be ‘returned home so I can Re-connect to my services to participate in a Trial’.[36]
[36]Emails from applicant to Court dated 31 July 2024, sent at 12:09 pm and 2:43 pm.

In the circumstances, the parties were advised that the proceeding would be listed to be heard via Zoom. However, the applicant responded with further emails in which, among other things, she asserted that –

(a) ‘Maria Barbayannis has locked all my specialist equipment that I need access to in order to participate’;

(b) she was ‘not able to access a Computer, and Camera, for the Zoom Hearing’;

(c) she was not able to access RedCrest;

(d) she wanted to be returned to the premises to ‘follow Victoria Legal Aid directions and look at my paperwork and send them what they want’; and

(e) due to a ‘Technical issue’, she was unable to complete ‘Court Forms’ as a solicitor’s ‘breach’ had ‘seriously interfered with our Computers and equipment’.[37]

[37]Emails from applicant to Court dated 31 July 2024, sent at 4:13 pm and 8:54 pm.

In the circumstances, on the morning of 1 August 2024, the Court emailed to advise that computer and related facilities would be made available to the applicant on the Court premises in order that she could participate in the hearing remotely.[38]
[38]Email Court to parties dated 1 August 2024, sent at 10:12 am.

That said, earlier that morning the applicant had sent another email taking up many of her complaints, perceived impediments and other matters the subject of her earlier emails (and other documentary material);[39] and, later the same day, emailed further, including as follows –

For your information I have applied for Legal Aid to represent me and to re-draft the Notice of Appeal, and any court papers that are necessary for the case. Victoria Legal Aid have given me a date of 11 August, 2024, to comply with their written request. As such I am not ready to proceed, as I will need Victoria Legal Aid to act in this matter.
I currently have Injuries and I am yet to be given access to my own transport (Vehicles) for transporting me to your Court (due to orders being breached) by solicitors.
The support people (Victoria Legal Aid) have been asked to provide me with support. Police ostracised me from my support team on 10 July, 2024, which has exacerbated my medical condition. …[40]

[39]Email from applicant to Court dated 1 August 2024, sent at 8:31 am.

[40]Email from applicant to Court dated 1 August 2024, sent at 1:12 pm.

For completeness, I should say that on the afternoon of 1 August 2024 the Court emailed the parties to confirm the identity of the various documents filed or otherwise put before the Court in connection with the matter as well as to confirm and provide copies of the following –

(a) the transcript of the hearing before McCann JR on 19 June 2024 (including ruling); and

(b) the proposed summons and proposed notice of appeal provided by the applicant to the Practice Court co-ordinator on about 9 July 2024.[41]

[41]Email from Court to parties dated 1 August 2024, sent at 4:14 pm.

At the commencement of the hearing on 2 August 2024, the applicant sought to advance her application for an adjournment by reference to various assertions, including that –

(a) her iPad had broken down and had been withheld by a technician overnight and so she only had her iPhone;[42]
[42]T1-2.

(b) she was not prepared for the hearing because she had applied for legal aid but would need to have access to ‘the home’ [sic: the premises] in order to respond to the request of VLA for copies of orders that had been breached;[43]
[43]T3-4.

(c) she had applied for VLA to represent her ‘in this appeal’ and said that they were not representing her ‘in any other case’;[44]
[44]T4.

(d) she said that she wanted VLA to redraft her notice of appeal to say that she was not at the hearing on 5 April 2024 and, when I pointed out that it already said that, said that she wanted it ‘done correctly and precisely, so I can be successful in my appeal’;[45]
[45]T5.

(e) she was happy to file a copy of a ‘confidential’ letter from VLA ‘once I get my iPad returned’ which, she explained, ‘would probably be … tomorrow’;[46]
[46]T3-6.

(f) she had endured problems with her equipment, and Optus, since a ‘severe thunderstorm’ in Beaumaris on 7 November 2023;[47]
[47]T6.

(g) she was separated from her legal papers and could not refer to ‘any of the court documents’ unless she had access to the ‘home’;[48]
[48]T9-10.

(h) she also needed to be back in the premises in order to undergo a medical procedure;[49]
[49]T10.

(i) she wanted the Court to ‘set aside and stay’ the orders made by McCann JR on 19 June 2024 and ‘make another order, for me to go back into the house, and … schedule a date where I can then properly prepare for the trial today’;[50]

(j) she could not recall applying to the Practice Court in respect of the orders of McCann JR because she did not have ‘my order in front of me’ and had not been able to ‘download it’;[51] and

(k) she was ‘just having to try and muddle my way through as just a lay person, without any expertise’, and VLA had not yet come to her aid.[52]

[50]T11.

[51]T12.

[52]T14.

In response, counsel for the respondents said that the application was opposed. In particular, he said that there were ‘no good grounds of appeal’ and referred to the fact that the applicant had sought and been present upon a review of the matter at VCAT on 2 May 2024.[53]
[53]T15.

At that point, the applicant interrupted counsel and said –

I’d like to say something. On the date of the review I had COVID and I was extremely unwell. I couldn’t hear properly and I sent in a medical certificate. And despite having sent the medical certificate that I’ve got COVID, they proceeded with the review and my solicitor who I’d engaged to represent me at the review, he wasn’t there because he didn’t receive a copy of the notice to attend.
… So the fact that they had the review while I’ve got COVID – I was extremely disadvantaged. I tried to muddle my way through it. Had no equipment – headset, so I couldn’t properly hear – couldn’t follow the proceedings.
And they made a decision … to proceed with the review when really the review should’ve proceeded to hear the fact that my solicitor wasn’t at the hearing after paying him money, and I had COVID and I couldn’t hear and I couldn’t … properly argue my case being so unwell. I had extreme temperature – I was very, very unwell and I had a medical certificate ... and they ignored it. So I just felt totally disadvantaged.[54]

[54]T15-16.

As to legal advice said to have been received shortly after her application for review was dismissed by VCAT on 2 May 2024, the applicant said –

… I discussed that with my solicitor and – about me getting that reviewed, but he said it was best – he gave me other advice to proceed with … getting a stay order. So that’s basically what we did and then we achieved a stay.[55]

[55]T17.

The application for an adjournment was refused for reasons delivered ex tempore and the hearing of the applicant’s substantive applications thereafter proceeded.

In that context, many of the arguments to which I have already referred came to be redeployed, sometimes in combination with other arguments linked to the applicant’s underlying narrative.

In particular, the applicant emphasised that orders had been made by VCAT in her absence on 5 April 2024[56] and submitted, in effect, that if she had been present on that occasion she could have advanced argument relevant to whether it was ‘reasonable and proportionate’ to make an order for possession.[57]
[56]T27.
[57]T28. Cf., Residential Tenancies Act (n 5) ss 330 & 330A.

In that connection, among other things, the applicant said that –

(a) part of her application to the Practice Court had involved seeking to claim damages against the ‘rental provider’ in the Supreme Court;[58]
[58]T29. See also T33.

(b) on 19 March 2024 she had given a letter from her surgeon to her solicitor, Mr Sather, but there had been a delay ‘of March to July’;[59]
[59]T31.

(c) albeit that the warrant of possession had been executed, she wanted the Court to make ‘another order to override the warrant if possible’;[60]
[60]Ibid.

(d) in respect of the accumulated rent relating to her occupation of the premises –

I’m aggrieved with being pushed out of the home. I understand that the rental provider needs the rent. I fully understand that. I’ve made arrangements with solicitors to have the rent paid, because I can’t get into my bank account.
I paid money to solicitors to try and get all that properly in place and structured. And due to Mr Maitland not answering documents [ie, a letter of demand], there’s been huge delays.[61]
[61]T35.

(e) she had also discussed with her solicitor that ‘the estate of Barbayannis now must take over the rent, because she owes me money’ arising out of misappropriation between ‘2003 and 2010’;[62]
[62]T38. See also T44-46. The applicant later said that she had been affected by ‘freezing orders’ for ’20 years’: T71.

(f) she has been injured and has had to ‘funnel monies into all my medical expenses… [which has] drained up the money that … I would have had available …’;[63]
[63]T46-47.

(g) she had asked solicitors to file a statement of claim against Ms Barbayannis in April 2021;[64]
[64]T48.

(h) if she had been present at VCAT on 5 April 2024, she would have said that she had not been told about the death of the rental provider until December 2023 and so had been delayed in ‘being able to put our argument to the Court’; and had also been getting advice from solicitors about filing a claim for damages against the rental provider;[65]

(i) she would also have said that there was a question whether the notice to vacate was invalid because she had not received it (although her solicitor had);[66] and

(j) she had paid solicitors [Patrick & Phillip] to draft and send the letters of demand, to which Mr Maitland had not replied.[67]

[65]T52-53.

[66]T56-57.

[67]T55.

In response, counsel for the respondents again referred to the review heard at VCAT on 2 May 2024, and said that the applicant had had her opportunity to have the matter, in effect, reheard, and VCAT had not made any change to its previous determination. In that regard, counsel said that his clients did not know anything about whether the applicant had been affected by COVID on that occasion, and that she had not appeared to have not been able to advance her arguments.[68]
[68]T60-61.

At that point, the applicant again interrupted counsel and sought to reiterate her version of the events which unfolded at VCAT on 2 May 2024. In particular, she said that –

(a) she was ‘extremely unwell’ and the member ‘didn’t provide an adjournment’;[69]
[69]T61.

(b) she had had a medical certificate to the effect that she had COVID, but the member had ‘just proceeded’;[70]
[70]T62.

(c) the member had just proceeded even though there was a letter from her solicitor saying that he needed a two week extension;[71]
[71]T62.

(d) during the hearing, she was ‘at home unwell’ and ‘couldn’t hear’ on the telephone and so ‘couldn’t properly participate’;[72]
[72]T64.

(e) she ‘wasn’t able to argue anything’ because she was ‘just so terribly unwell’ and ‘couldn’t get out of bed’;[73]
[73]T65.

(f) further –

I stood there in the hearing room but I wasn’t able to present … my case at all and the decision of the day should have been set aside because I was just too unwell. And that’s evident in the medical certificate.
…
… I think I just muddled my way though it feeling very unwell and not being able to hear properly and I was just concerned that I had to try and do the best I could while being unwell, because they … decided to proceed. I couldn’t hear what the other side was saying because I was so blocked up.
…
So it was very hard to argue anything because you can’t hear what they’re saying.[74]

(g) after the hearing on 2 May 2024, the applicant went to Mr Sather at Quinn & Quinn and asked him to urgently write a letter to Mr Maitland , by no later than 6 May 2024, requesting that they hold off on obtaining a warrant of possession, and make a copy of that letter available to the Registrar at VCAT. However, Mr Sather did not send a letter to Mr Maitland until 27 May 2024 and, in the intervening period, the rental provider had obtained a warrant of possession;[75] and

(h) all of her goods were inside the premises and she did not have the funds to move them out.[76]

[74]T65-66.

[75]T68-69. It is not apparent that any such letter, whether addressed to Mr Maitland or the Registrar at VCAT, was ever sent to the latter.

[76]T75.

During the last phase of the hearing, the applicant offered to provide the Court with a copy of the letter from VLA dated 26 July 2024 once she got her iPad back which, she said, should be ‘today or tomorrow’. I ultimately indicated that she should not provide a copy of the letter and should take up any need for advice with VLA.[77]
[77]T79-80.

Notably, shortly after the proceeding was adjourned, the applicant emailed the Court attaching a copy of the letter from VLA dated 26 July 2024. Approximately 20 minutes after that, the applicant emailed the Court forwarding a copy of an email from [email protected] together with the same letter dated 26 July 2024. The letter states, relevantly, as follows –

Dear Mrs Burnell

Your legal aid application – more information

We need more information to make a decision about your application.

Please provide:

· All court orders that any property is restrained and/or should be transferred to you. Or if this is unavailable to you, then confirm whether this was restrained under the Confiscation Act 1997 (Vic) or the Proceeds of Crime Act 2002 (Cth), which items of property were restrained and the value, and confirm the address of the property that is yet to be transferred to you and any other property you may have an interest in, including through your business involvement.

· Confirmation of your business name, ABN and ACN, and whether you consent to us requesting documents about your business (such as tax returns, trust documents, bank statements, etc) from any officer involved with the business or any relevant public sector body (such as the ATO, ASIC, courts, etc).

· Clarification of what you would like a lawyer to do for you, if funding is approved.

You need to send us this information by 11 August 2024. If we do not receive it in time, we may refuse legal assistance.[78]

[78]The applicant’s email was not copied to the representatives for the respondents. By email in response, later the same afternoon, the Court advised the applicant that her email should have been copied to the respondents’ representatives, that no further documents should be provided to the Court and that the parties would be advised when judgment was to be delivered. Nonetheless, by email sent without leave of the Court on 19 August 2024, the applicant purported to provide two further documents to the Court. One pre-dated the hearing and the other related to a combination of matters and seemed to suggest that the applicant had or would be commencing another proceeding in the Supreme Court in which she would seek to ‘come back on the premises to run the cases for Damages’. The covering email referred to ‘the evidence that Victoria Legal Aid is requesting to see’, but neither of the documents accompanying that email referred to the applicant’s application to VLA.

C. Reliability

I have earlier referred to the applicant’s garbled narrative style, as well as my considered view that it is not wholly without design. I do not mean to say that she is an out and out liar. However, I gained the impression that she is not wholly unfamiliar with court and other forensic processes and is rather apt to pursue her objectives with great conviction and little concern as to whether, by act or omission, what she is saying might be exaggerated or not strictly correct. In that regard, the applicant’s various combinations of contentions tended to raise more questions than they answered, and also tended to be affected by elements of error, confusion and exaggeration that, to my mind, must render any presently controversial parts of those contentions unreliable.

In that connection, for example, the applicant commenced her oral submissions by referring to a ‘broken down’ iPad, holding up documents to the camera and stating that she could not participate because her iPad had been withheld by a technician and that other ‘equipment’ and relevant documents had been locked up in the premises. She also claimed to have had difficulties accessing RedCrest. The implication in much of that – at least in tone, and initially – seemed to be that she had come to be affected by such difficulties relatively recently.

As I have noted, however, the applicant claims to have been affected by ‘Cybercrime hacking offences’ going back many years.[79] Further, her problems with ‘equipment’ seem to go back to a period well before her removal from the premises on 10 July 2024. In particular –
[79]Applicant’s fifth affidavit (n 28) [10]-[11].

(a) she claims that Ms Barbayannis’ conduct included ‘withholding of the Plaintiffs [sic] powerful Computers, Commercial Printers, Scanners, light writer, hearing aids, and hearing instruments’ – which, presumably, goes back to the period 2003 to 2010;[80]

(b) in argument, she later referred to a ‘severe thunderstorm’ in Beaumaris on 7 November 2023 in which Optus had ‘collapsed’ and following which she had experienced ‘an issue with my equipment’;[81] and

(c) in June 2024 she was claiming that her ‘specialised equipment’ had been withheld and that she could not access RedCrest via her iPad.[82]

[80]Applicant’s third affidavit (n 2), 32 [22]. See also applicant’s eighth affidavit (n 30) [19].

[81]T6.

[82]Applicant’s unsworn affidavit filed 14 June 2024 at 1:50 pm (‘Applicant’s second affidavit’), 4 [14] and 7.

I should add that claims of this general kind – including, specifically, in respect to repairs needing to be effected to her iPad – seem to have continued after the applicant’s removal from the premises and prior to the hearing on 2 August 2024.[83]
[83]See applicant’s fifth affidavit (n 28) [14]-[21]; applicant’s sixth affidavit (n 29) [16].

Nonetheless, I have earlier referred to various filed and unfiled affidavits that the applicant seems to have been able to prepare after her removal from the premises. Some of those affidavits were ultimately filed onto RedCrest and several of them exhibit or otherwise extract correspondence and other documents evidently considered by the applicant to be relevant to her claims.

Further, while the applicant claimed that her iPad had been withheld by a technician and, consequently, that she was unable to provide a copy of the letter of VLA dated 26 July 2024 until ‘probably … tomorrow’,[84] the applicant in fact provided a copy of that letter to the Court within roughly an hour of judgment being reserved.
[84]T6. In note that the applicant later said that she should be able to get her iPad back ‘either today or tomorrow’: T80. However at that point she was on the Court premises and there seemed to be no sense that she would be able to produce the letter imminently. It was for that reason, among others, that I said to the applicant that she would not need to produce it.

In the circumstances, while the applicant might have experienced problems with accessing RedCrest, and may well also have left equipment and documents in the premises, I doubt that any of that affected her significantly in preparing for the hearing in the manner she chose.

Similarly, I have noted that in the applicant’s tenth affidavit, she referred to a letter ‘drafted’ to the Principal Registrar of the Court seeking that she be excused from ‘In-Court’ appearances.[85] That letter, which is exhibited, refers to a range of claimed medical conditions and other complaints. However, neither the affidavit nor the exhibited letter includes any mention of a hearing disability, nor any suggestion that the applicant would be unable to appear remotely. Indeed, a reasonable reading of that letter would suggest that that was exactly what was being sought.
[85]Applicant’s tenth affidavit (n 32) [1].

As I have noted, the applicant appeared before McCann JR on 19 June 2024 via telephone and the transcript of that hearing does not suggest that she was hampered in any significant way by doing so.

However, in connection with the present hearing, when the applicant was advised that, in effect, her request for a remote hearing had succeeded and that the hearing would proceed via Zoom, the applicant responded by referring to her lack of access to equipment, to which I have already referred, and also referring to a need for a ‘hearing loop’ and ‘headphones’ in order to hear anything said. In effect, the applicant was claiming that she would not be able to do the very thing that a reasonable reading of her earlier affidavit and letter would suggest had been sought.

After the Court then advised that it would make a computer and headphones available for her use on the Court premises, the applicant availed herself of the offer. However, during the hearing, when seeking to avoid or diminish any suggestion that she had evidently participated satisfactorily in various hearings before VCAT, the applicant stated –

… all the hearings at the tribunal … the tribunal knew at the time that I’m a person that’s hearing impaired. And no services were provided to me, like what you’ve provided today, so that I can properly participate in the hearing and hear exactly what is being said so I can address the issues.[86]

[86]T43.

Similarly, when seeking to explain the events at VCAT on 2 May 2024 (to which I will later come in more detail), one of the applicant’s complaints was that she had been ‘on the phone’ and that she had ‘no headset’. At that point, of course, she was still in the premises and so still had her equipment.[87]
[87]T64.

In my view, while I would be prepared to accept that the applicant has had some hearing condition diagnosed at some point, I tend to think that when it has suited her she has sought to exaggerate the extent to which she might consequently have been at any disadvantage, particularly in various hearings at VCAT.

I have earlier noted the applicant’s alleged claims against various persons or entities, including the estate of Ms Barbayannis, Mr Maitland, the Police and the rental provider.

Suggestions to that general effect appear in several of the applicant’s unfiled and filed affidavits. In particular, among other things –

(a) in 2003, she claims to have requested (unnamed) solicitors to prepare a statement of claim in respect of her claims against Ms Barbayannis;[88]
[88]Applicant’s third affidavit (n 2) 7 [21].

(b) in early 2015, the applicant was directed (seemingly, it is suggested, by police) to claim against Victoria Police in respect of medical, hospital and rental expenses;[89]
[89]Applicant’s third affidavit (n 2) 5 [17]-[18].

(c) in September 2020, she was advised by accountants, Greenberg & Co, to claim against Ms Barbayannis in order to recover various rent and other expenses;[90]
[90]Ibid 6 [19] and 7 [20]. See also applicant’s fifth affidavit (n 28) 16.

(d) in 2022, she instructed Elise Steegstra of Cogent Legal to bring a claim against the estate of Ms Barbayannis;[91]
[91]Applicant’s third affidavit (n 2) 12 [17].

(e) in late 2023, Patrick & Phillip sent letters of demand to the estate of Ms Barbayannis and Mr Maitland;[92]
[92]Ibid; applicant’s seventh affidavit (n 3) 8-15.

(f) in January 2024, Patrick & Phillip advised her to retain ‘civil litigation lawyers’ in order to initiate proceedings against the estate of Ms Barbayannis;[93]
[93]Applicant’s third affidavit (n 2) 3 [13].

(g) in March 2024, she seemingly retained Quinn & Quinn, provided them with copies of the letters of demand and sent emails instructing Mr Quinn to act urgently in order to access ‘the monies owed’;[94]
[94]Applicant’s second affidavit (n 82) [3].

(h) as at 26 July 2024 it seems that no relevant proceedings had been commenced, as the applicant purported to seek from the Court ‘an order and permission … to file a Statement of Claim claiming all the Costs incurred’;[95]
[95]Applicant’s fifth affidavit (n 28) 4-5 (emphasis omitted).

(i) in that regard, in a separate affidavit sworn the same day, the applicant sought ‘to be returned home’ in order to ‘prepare for Trial’ and ‘to proceed with the substantial claims for damages’;[96] and
[96]Applicant’s sixth affidavit (n 29) 3. See also applicant’s seventh affidavit (n 3) [10].

(j) later, on 29 July 2024, she deposed as follows –

The Plaintiff should be allowed to proceed with the damages claims to give me ample resources to purchase 3/44 Hayden’s Road, Beaumaris VIC 3193 which is the original intent of the rental provider Mr Jenson, and therefore those claims should “hold off” a warrant of possession.[97]

[97]Applicant’s seventh affidavit (n 3) [19].

In contrast with the above, it seems that at some point the applicant commenced proceedings against the rental provider at VCAT in respect of claimed structural damage to the premises occasioned by an earthquake in September 2021.[98] That said, any such proceeding might at some point have been struck out, as it seems to have been reinstated by order of Registrar Dixon made on 3 June 2024.[99]
[98]19 June transcript (n 17) 31-32.
[99]Applicant’s second affidavit (n 82) [19].

In any event, contrary to the general import of many of the submissions sought to be advanced by the applicant at the hearing and, implicitly, at VCAT, there is nothing about the circumstances outlined above that would suggest that any of the claims described, including those involving claims of injury and disability, are either well founded legally or imminently likely to be pursued to resolution.

Further, when asked at the hearing about her approach to the Practice Court in early July 2024, the applicant acknowledged that there had been an email from the Court and said –

… what I understood from the email was that I asked for an urgent application and they put it in the urgent area for urgent applications and the person that was deciding the application decided that it wasn’t urgent and … what I believed then was that it would be in some sort of list where they would hear it at some other date, but not under an urgent application and I’m still waiting to hear from them, to see whether my application – because I’m actually seeking damages. That’s where I’m seeking the damages. I haven’t heard back from them yet as to what sort of listing I will be under.[100]

[100]T33. See also T28-29.

In that connection, the applicant sought to suggest that her documents had been referred ‘back to the common law division’ in order that she could pursue her claim for damages.[101]
[101]Ibid.

Nothing about the email from the Practice Court co-ordinator supports that suggestion and, of course, neither of the documents provided to the Practice Court was a statement of claim.

Indeed, if it were the case that on about 10 July 2024 the applicant had been told that her documents would, in effect, be referred to the Common Law Division in order that she could, at some later point, pursue a claim for damages, it is not at all clear why it would be the case that, without any reference to those earlier alleged events, the applicant would subsequently be deposing to the need for an order to file a statement of claim in order to pursue such claims.

In my view, all of the above tends to underline the potential for there to be significant potential for confusion in the claims made by the applicant as well as a significant potential for disparity between what has actually happened, not happened or is ever likely to happen, and the applicant’s subsequently expressed beliefs concerning such matters.

Similarly, in the course of the hearing, the applicant sought to suggest that if she had been at the hearing at VCAT on 5 April 2024 she would have said that there was a question whether the underlying notice to vacate was invalid because she had ‘never received it’. She said that her (unnamed) solicitor had received it, but that ‘[h]e went on leave … on the 20^th of December [2023]’.[102]
[102]T56-57.

As I have earlier noted, however, the applicant commenced proceedings at VCAT in early 2024 in which she sought orders, among other things, to prevent the issue of ‘any Notices [to vacate]’.

At the hearing of that application, on 6 February 2024, at which it is implicit that the applicant appeared, Member Gelev recorded findings that –

(a) an application for possession had been made by the residential rental provider under s 91ZM of the Residential Tenancies Act;

(b) the residential rental provider was entitled to make such an application; and

(c) there was no evidence that the residential rental provider had harassed the applicant or engaged in any improper conduct.

As earlier noted, Member Gelev ordered, in substance, that the application be dismissed as misconceived.

It must follow from the circumstances and findings to which I have referred that, contrary to her present suggestion, the applicant had properly been on notice of the respondents’ application for possession.

Further, as also noted earlier, the respondents’ application for possession came before Member Buljan a short time later, on 20 February 2024, and the applicant was ‘there’.[103] At that hearing, Member Buljan found that the respondents had given the applicant ‘at least 14 days’ notice to vacate’ and that she had not paid the rent owing ‘on or before the termination date on the notice to vacate’.[104] In short, the applicant had been given notice to vacate and did not pay the rent that would have avoided its effect.
[103]19 June transcript (n 17) 38.
[104]T59. See also order of VCAT dated 5 April 2024, annexed to the respondent’s outline of submissions filed on 13 June 2024.

It follows from all of the above that, contrary to her present suggestion, it cannot be accepted that there could be any good argument that the notice to vacate was invalid by reason of the applicant not having received it.

A further issue, in some ways related to both of the points just made, concerns the combined matter of –

(a) the applicant’s legal representation;

(b) the preparation of the applicant’s material in respect of the present applications – particularly, her notice of appeal;

(c) any need for the applicant to amend her notice of appeal; and

(d) the applicant’s recent application to VLA.

It is apparent that in recent times the applicant has been represented by, and sought representation from, several different solicitors.

The precise sequence of events is not clear, however it seems that in late 2023 the applicant was represented by Mr Said of Patrick & Phillip lawyers. Precisely how that came about is not apparent; in 2011 and 2022 the applicant appears to have been represented by Elise Steegstra of Cogent Legal,[105] and in the present hearing she intimated that she had paid ‘in excess of $10,000 in legal fees’ to (unnamed) lawyers in respect of the first notice to vacate that was the subject of orders made at VCAT on 23 July 2023.[106]
[105]Applicant’s third affidavit (n 2), 12 [17] & 16-19 [20]-[23].
[106]T46. See also T50.

In any event, in late 2023 Mr Said sent the letters of demand to at least the estate of Ms Barbayannis and Mr Maitland. However, it seems that Patrick & Phillip also advised the applicant ‘to retain litigators’.[107] How, precisely, Patrick & Phillip could have been in a position to advise the applicant about any potential claims and to prepare and send the letters of demand, yet not consider themselves to be in a position to further pursue those claims, is not wholly clear. In any event, the applicant said that she paid Patrick & Phillip for the letters of demand and, presumably, their advice.[108]
[107]T50.
[108]T55.

That advice seems to have led the applicant to approach and retain Quinn & Quinn in about March 2024.[109] Geoffrey Quinn of Quinn & Quinn had acted for the applicant in respect of different claims in 2015.
[109]T45.

Although the applicant approached Mr Quinn, she seems ultimately to have been dealing with Mr Sather of the same firm. As earlier noted, Mr Sather wrote to VCAT on 19 March 2024 seeking ‘a two-week extension to respond on her behalf’ in respect of the respondents’ application for possession. That letter was treated as an application for adjournment, which came to be refused by Member Sharkie on 21 March 2024.[110]
[110]Applicant’s third affidavit (n 2), 9 [5]-[7].

In the present context, the applicant claimed that VCAT had not given Mr Sather notice of the hearing on 5 April 2024 which, it was said, ‘shows the lack of procedural fairness’.[111] I cannot accept that Mr Sather did not know of the hearing scheduled to occur on 5 April 2024. In that regard –
[111]Ibid 10 [8].

(a) Mr Sather’s letter sought an adjournment of the hearing of the application for possession – implicitly from that very date;

(b) indeed, his letter must have been prompted by the earlier orders of 20 February 2024 which, specifically, adjourned the further hearing of the matter to ‘05 April 2024’; and

(c) before McCann JR on 19 June 2024, the applicant said that she had paid Mr Sather to attend that hearing.[112]

[112]19 June transcript (n 17) 43.

Further, it is implicit that the applicant sought advice from Mr Sather after learning of the orders made at VCAT on 5 April 2024. In that regard, she essentially acknowledged that Quinn & Quinn had prepared and filed her application for review that came to be heard on 2 May 2024.[113]
[113]T16-17.

The applicant also said that Mr Sather did not attend the review hearing on 2 May 2024, because he did not receive a copy of the notice to attend that hearing either.[114] I am no more able to accept that claim –
[114]T16.

(a) as I have noted, Mr Sather seems to have prepared and filed the material in respect of the application for review, and, in the ordinary course, that would lead to the solicitor concerned being advised of the return date for it;[115]
[115]I note that a copy of the application for review was not among the various documents and partial documents extracted within or exhibited to the applicant’s various filed and unfiled affidavits.

(b) further, having prepared and filed the material seeking a review, it is inconceivable that Mr Sather did not seek to discern what the return date for it might be;

(c) the applicant herself seems to have known of the date of the review, and to have appeared on that occasion; and

(d) the subsequent correspondence of Mr Sather to Mr Maitland includes no suggestion of a mix up of the kind now claimed.[116]

[116]Applicant’s seventh affidavit (n 3), 16.

In any event, it seems that Mr Sather was acting for the applicant at that time, and subsequently, as –

(a) the applicant said that on 6 May 2024 he had advised her, in substance, not to seek a review of the orders made on 2 May 2024 and to get ‘a stay order’;[117]
[117]T17.

(b) it seems that on 21 May 2024, at the time at which she was seeking to commence the present proceedings, the applicant was in contact with ‘the legal firm’ seeking that the notice of appeal be filed ‘urgently to put ‘a stay on’ the Warrant of Possession made on 5 April, 2024 in our absence’;[118]
[118]Applicant’s first affidavit (n 9) [10].

(c) as I have noted, on 27 May 2024 Mr Sather sent a letter to Mr Maitland noting that the respondents had ‘an order for possession’ and requesting that ‘any enforcement action’ be stayed;[119]

(d) the applicant’s second and third affidavits (filed on 14 June and 18 June 2024, respectively) were each said to be prepared by the applicant but filed on behalf of ‘Quinn and Quinn’; and

(e) in the course of her oral submissions, the applicant referred to Mr Sather as ‘my solicitor’ and said that he had failed to respond leading to ‘a delay of March to July [2024]’.[120]

[119]Applicant’s seventh affidavit (n 3), 16.

[120]T31.

Peculiarly, however –

(a) Mr Sather’s letter of 27 May 2024 includes no mention of the present proceedings – which the applicant had commenced five days earlier; and

(b) albeit that Mr Sather there said that he acted for the applicant, she had earlier commenced the present proceedings under her own name.

Notwithstanding the peculiarity of these various circumstances, the applicant seems to have done that which she says that she was, in substance, advised by Mr Sather to do: that is, not challenge the orders of 2 May 2024 and seek (and obtain) a stay order. That said, she sought and initially obtained stays with reference to the present proceeding in which, of course, she has only ever formally sought to appeal the orders of 5 April 2024.

In that context, it was not made clear in oral argument (or otherwise) that Mr Sather had ever formally ceased acting for the applicant. However, the applicant claimed generally not to have had sufficient financial resources, seems variously to have appeared without representation, and as I have noted, came to lodge some form of application with VLA.

In that regard, the applicant appeared before McCann JR on 5 June 2024 and, among other things, obtained an order for an expedited hearing as well as leave to file and serve an amended notice of appeal. Having sought and obtained such an order, she must have known why it was that she wanted to amend her notice of appeal, but did not subsequently take advantage of the leave granted.

Later, in the course of argument before McCann JR on 19 June 2024, the applicant sought to implicate one of the self-represented litigant co-ordinators in respect of the need to amend her notice of appeal.[121] However, as I have noted, she seems to have been represented at the time at which she apparently drew and filed her summons and notice of appeal and those documents seem generally to have been directed towards achieving the outcome earlier suggested by Mr Sather.
[121]19 June transcript (n 17) 10. See also, T34.

In the hearing before McCann JR, the applicant also said that she was ‘in the process of seeking legal advice to amend the notice of appeal’.[122] However, it is unclear from whom that advice was being sought.
[122]19 June transcript (n 17) 11.

It is unlikely that it could have been VLA, as in the present instance the applicant said that she had not approached VLA until a couple of weeks after the hearing before McCann JR on 19 June 2024. It is, perhaps, possible that it was from a Rhys Roberts, solicitor, whom the applicant claimed would be filing papers for her and prosecuting ‘for the rent’.[123] However, in the present instance the applicant referred to both Mr Roberts and another solicitor, Gary Goldsmith, and it seemed that neither had acted for her because both had sought that money be paid into their trust accounts.[124] In light of the circumstances to which I have already referred, it is most likely that the applicant was referring to Mr Sather.
[123]Ibid 21-22.
[124]T50, T55 and T57-58.

In that general connection, the applicant lamented having earlier paid $10,000 in legal fees in order ‘to fight off an illegal eviction’.[125] However, it is not at all clear how that statement – as well as other statements to the effect that she had been paying other amounts at other times, including rent relating to the premises until some point late in 2023 – is capable of being reconciled with her other assertions to the effect that her affairs had been ‘frozen for 20 years’[126] and that she had been unable to pay the rent because ‘I can’t get into my bank account’.[127]
[125]T50.
[126]T71.
[127]T35-36.

In any event, at the hearing before McCann JR on 19 June 2024, the applicant also sought to suggest that she had been impeded by not having a transcript of the hearing on 5 April 2024 or the reasons given by Member Buljan for making orders.[128] However, neither point seems to have been a remotely substantial one –
[128]19 June transcript (n 17) 35-36.

(a) as McCann JR pointed out, the findings of Member Buljan are recorded in the order made;[129]
[129]Ibid 37.

(b) the fact that the applicant did not have the transcript of the hearing on 5 April 2024 had not prevented her from perceiving that she had been denied procedural fairness on account of the orders of 5 April 2024 having been made in her absence;

(c) that point was already made in her notice of appeal filed on 22 May 2024; and

(d) it is not evident that the applicant has ever obtained a transcript of the hearing on 5 April 2024 and that may not have revealed any other question of law anyway.

Finally, in the course of argument before McCann JR, the applicant referred to a purported question of law ‘as to whether the lease would be binding’.[130] However, as I have noted, she did not ever seek to amend to pursue that question, even though she sought and obtained the leave that would have allowed her to do so.
[130]Ibid 12.

In the present context, of course, the applicant sought an adjournment in order to pursue her application made to VLA sometime after the hearing before McCann JR on 19 June 2024. In that regard, she said that she had ‘asked Legal Aid to represent me in this particular appeal’ and that she wanted VLA to draft her notice of appeal correctly ‘so I can be successful in my appeal’.[131] That said, however –
[131]T4-5.

(a) as I have noted, the applicant did not provide a copy of her application to VLA;

(b) to the extent that the application made to VLA is referred to in her affidavits, it is not there said that it was made specifically in respect of representation ‘in this particular appeal’;

(c) indeed, a fair reading of that material tends to suggest that she made contact with VLA primarily with a view to pursuing her claims against the estate of Ms Barbayannis;

(d) the response from VLA dated 26 July 2024 appears to be no more than pro forma in nature – and includes no specific mention of either the present applications or the notice of appeal; and

(e) indeed, that letter states that ‘more information’ is required in order to make a decision about the application made and, in that regard, requests clarification as to what it is that the applicant would ‘like a lawyer to do for you, if funding is approved’ – all of which suggests that the applicant had not earlier informed VLA of either the present proceeding or any specific need for assistance in amending her notice of appeal.

In short, the applicant’s claims about her legal representation and any capacity to retain and pay lawyers are confused, seemingly incomplete and, I tend to think, unreliable. In particular, I cannot accept that the applicant applied to VLA specifically for the purposes of this case and in order to obtain advice with a view to amending her notice of appeal.

That brings me, finally, to the issue of the review hearing before Senior Member Treble on 2 May 2024.

That hearing was referred to in very brief terms in the applicant’s first ‘affidavit’ dated 22 May 2024. In that regard, the applicant deposed that –

Mr Sather was instructed to make an Application for an Urgent Injunction and order to restrain the rental providers Agents [sic]. Instead he filed an Application to reopen an order, however he was not at the hearing and the Appellant contracted Covid and obtained two Medical Certificates in support.[132]

[132]Applicant’s first affidavit (n 9) [5].

The applicant filed two further affidavits prior to the hearing before McCann JR on 19 June 2024 (applicant’s second and third affidavits) – including the lengthy affidavit dated 13 June 2024 and filed on 18 June 2024 at 1:58 pm (applicant’s third affidavit). Neither of those affidavits referred to the hearing and orders made on 2 May 2024.

The respondents relied upon the events of 2 May 2024 at the hearing before McCann JR on 19 June 2024. In that regard, I have earlier extracted the applicant’s response; in which she advanced assertions to the effect that she had ‘a severe case of COVID’ and ‘couldn’t hear’.

It is implicit from the terms of the ruling of McCann JR on that occasion that she did not accept those assertions. In any event, from that point it should have been plain to the applicant that the events of 2 May 2024 were of considerable present importance. Nonetheless, none of the applicant’s subsequent filed and unfiled affidavits makes any clear mention of those events.

I have also earlier referred to the applicant’s versions of the events of 2 May 2024, as recounted in the present hearing. In particular, the applicant asserted that she had –

(a) not been able to ‘hear’ and had sent in a medical certificate, but ‘they’ ‘ignored it’ and ‘proceeded with the review’; [133]
[133]T15-16.

(b) tried to ‘muddle [her] way through’, but ‘couldn’t follow the proceedings’ and ‘couldn’t properly argue my case being so unwell’;[134]
[134]T15-16.

(c) asked for an adjournment, but had been forced to continue and ‘wasn’t able to argue anything’;[135]

(d) ‘stood there in the hearing room’ but ‘wasn’t able to present my case … at all’ and the decision ‘should have been set aside because I was just too unwell’;[136] and

(e) not been able to get out of bed.[137]

[135]T64-65.

[136]T65.

[137]Ibid.

There are several points of significant tension in that overall account. In particular –

(a) it is not obvious how it could be that the applicant could have ‘stood there’ in the hearing room when she appeared at the hearing ‘by phone’;

(b) in either event, it is not obvious how she could have so appeared if, as she said, she was unable to get out of bed;

(c) if, as the applicant claims, her medical certificate was ignored, it is not clear how she could have known that when she was unable to ‘hear’; and

(d) albeit that she also said that she could not hear ‘properly’, it is not clear how great an impediment that could really have been when she was nonetheless able to apply for an adjournment (which was rejected) and thereafter to ‘muddle through’.

In connection with the latter of the above points –

(a) counsel for the respondents said that whether or not the applicant had COVID, on 2 May 2024, she did not appear to have been unable to advance her arguments; and

(b) in light of how the applicant presented in the hearing before me, I am simply unable to believe that if she was able to apply for an adjournment at the hearing on 2 May 2024, later on the very same occasion she had been unable to ‘argue anything’ in respect of whether VCAT should hear and determine her application for review.

Further, I note that in her first affidavit the applicant deposed as follows –

The solicitor’s [sic] on record as acting were not in attendance at the hearing when the possession order was made, and the Appellant had a Medical Certificate to excuse me from the hearing on the basis the Appellant contracted Covid, and is therefore unwell.[138]

[138]Applicant’s first affidavit (n 9) [7].

It is perhaps debateable whether the applicant was there referring to the hearing on 5 April 2004 or the hearing on 2 May 2024. In that regard, the possession order was made on 5 April 2024, but confirmed on 2 May 2024; and the applicant’s solicitor was not in attendance on either occasion.

In any event, the form of the order made by Senior Member Treble on 2 May 2024 includes no mention of any application for adjournment, but does suggest that the Senior Member gave consideration to and determined the critically relevant issue, namely whether it was ‘appropriate to hear and determine the application’ and, specifically, whether the applicant had ‘a reasonable case to argue’. It is not possible to believe that the Senior Member could have felt that she was in a position to make such a positive finding if the applicant had been unable to follow the proceedings and ‘wasn’t able to argue anything’.

I should, perhaps, add that if the applicant advanced argument before the Senior Member that was anything like the arguments advanced before McCann JR on 19 June 2024 or before me on 2 August 2024, I can quite understand how it could have been that the Senior Member would have come to conclude that the applicant did not have a reasonable case to argue in relation to the subject matter of the order made on 5 April 2024. In particular, none of that dealt in any way with, and, indeed, seemed to be calculated to distract attention from, the fact that the applicant had ceased to pay rent at some point in 2023 and thereafter accumulated very considerable arrears.

In addition, any prospect – whether at that time or subsequently – that the applicant would be able to discharge the arrears in any timely way seems to be quite contrary to events as they have unfolded over a very considerable period and, consequently, to be more in the realms of the apparently fanciful.

For completeness, I have already referred to the fact that the applicant said that she sought advice from Mr Sather very shortly after the hearing on 2 May 2024, and that, in substance, he advised her not to seek a review of those orders and to get ‘a stay order’. In that regard, if the events at VCAT on 2 May 2024 were as inflamed as the applicant would now seek to assert, it is impossible to imagine that Mr Sather would have given such advice (or, for that matter, that the applicant would thereafter have wholly failed to refer to that version of events in her lengthy sequence of filed and unfiled affidavits).

In short, the ‘inflamed’ version of events advanced by the applicant at the hearing cannot be accepted. While I would accept that the applicant might have had COVID on 2 May 2024, I do not consider that it impeded her from presenting her arguments or otherwise from participating in the hearing as she saw fit.

In light of all of the above, as I indicated at the outset, significant parts of the applicant’s various assertions cannot be accepted and, indeed, any contentious parts of her overall account must be treated as unreliable.

D. Applications

That brings me to the notice of appeal, particularly the applications for an extension of time as well as leave to appeal.

In respect of the former, the notice of appeal is premised in a concession that the applicant requires ‘an extension of time of two weeks outside of the timeframe specified [in the VCAT Act]’.

Section 148(5) of the VCAT Act confers upon the Court a discretion to extend time. The discretion must be exercised having regard to the relevant circumstances. The authorities identify a range of factors, including the length and reason for the delay, the extent of any prejudice to the respondents and whether the proposed appeal is devoid of merit.[139]
[139]See, eg, Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, [13].

That said, an extension would not ordinarily be granted unless the applicant explains the delay and provides the Court with a good reason for excusing it.[140] In that regard, in Brandwill Holdings Pty Ltd v Jonson & Ors, Emerton J (as her Honour then was) stated –

… whatever the merits of the proposed appeal and the public interest in it being heard and determined, the applicant must still provide a good explanation for the delay. This … has to do with the requirement to do justice between the parties. The legislature has decided that the period in which an appeal may be brought from a Tribunal decision is limited. … In this case, the legislature has created only a small window in which to bring an appeal from the Tribunal. This no doubt has to do with the nature of the Tribunal’s jurisdiction and as well as the more general need for finality in litigation. The parties to the Tribunal proceeding are entitled to the measure of certainty that this constraint provides. A good reason for the delay therefore remains a very important consideration for the exercise of the Court’s discretion to extend time.[141]

[140]Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd (2013) 46 VR 447 [15]; Brandwill Holdings Pty Ltd v Jonson [2014] VSC 356, [12]-[15] (‘Brandwill Holdings’); Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500, [42].

[141]Brandwill Holdings (n 140) [15].

In the present instance, it may be accepted that the applicant’s delay is short; however, it is also essentially unexplained.

It is possible that the applicant intended that her various references to seeking the transcript of the hearing on 5 April 2024 and reasons of Member Buljan amount to some form of explanation.[142] However, it will be apparent from what I have already said that in the present case those points are essentially insubstantial.
[142]Applicant’s second affidavit (n 82) [9]-[12], [18] and [20]-[21]. I note that the applicant did not refer specifically to s 148(4) of the VCAT Act (n 1). On the other hand, it is not clear that Member Buljan gave ‘oral reasons’ on 5 April 2024 and, as was essentially identified by McCann JR in the course of argument on 19 June 2024, the order of 5 April 2024 specifically states the findings made and so identified and stated the reasons for which those orders were made.

In the end, there is really no coherent or substantial explanation proffered by the applicant for why it is that she failed to file her notice of appeal within time. She had a simple point which it is apparent that she appreciated almost immediately – that is, that orders had been made on 5 April 2024 in her absence.[143] It is not apparent why, if she could prepare and file a notice of appeal that makes that simple point, as she ultimately did, she could not have done that within time. On that basis alone, her application for an extension of time should be refused.
[143]See applicant’s first affidavit (n 9) [4] and [7] and applicant’s second affidavit (n 82) [8].

That said, the correctness of the refusal of the application for an extension of time may be taken to be fortified by the lack of any real merit in the underlying points sought to be pursued; which brings me to the application for leave to appeal.

I have earlier extracted the only ‘question of law’ stated in the notice of appeal, as well as the three proposed grounds of appeal.

The stated ‘question of law’ does not relate to the proposed grounds and, in any event, was essentially abandoned in the course of argument before McCann JR on 19 June 2024.[144] No different position was taken in argument before me on 2 August 2024.
[144]19 June transcript (n 17) 10-11.

That leaves the three proposed grounds of appeal, all of which, one way or another, essentially amount to a complaint that the applicant was denied procedural fairness on 5 April 2024 when VCAT made orders in her absence. A denial of procedural fairness, of course, can give rise to a question of law.[145]
[145]Luck v Renton [2005] VSCA 210, [17]; Spilkin v Rosenberg [2011] VSCA 128, [43]; GLS v PLP [2013] VSCA 127, [7].

It may be accepted that the applicant was not present at the hearing at VCAT on 5 April 2024 – so much is plain from the terms of the order made.

Further, by ss 97 and 98 of the VCAT Act, VCAT ‘must act fairly and according to the substantial merits of the case in all proceedings’ and is ‘bound by the rules of natural justice’.

It does not follow, however, that any orders made in the absence of a party must necessarily amount to a failure by VCAT to abide the hearing rule.

In that regard, of course, natural justice does not require the inflexible application of a fixed body of rules; rather, the content of natural justice varies with the circumstances,[146] and is concerned with avoiding ‘practical injustice’.[147]
[146]Herald & Weekly Times Ltd v Victorian Civil and Administrative Tribunal & Ors [2006] VSCA 7, [41].
[147]Roberts v Harkness (2018) 57 VR 334, [47] (‘Roberts’).

In that connection, any evaluation of the relevant circumstances, as well as whether VCAT should be taken to have complied with ss 97 and 98 of the VCAT Act, should plainly be considered by reference to other applicable provisions of the legislation.[148]
[148]Cf., Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]-[70].

In particular, s 99(2) of the VCAT Act provides that –

If a person, including a party, to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person.

It follows that the statute contemplates circumstances in which VCAT will be specifically authorised to hear and determine a matter in the absence of a party – namely, when the party has been given proper notice of the hearing. In those circumstances, it may well be arguable that the fact that the party has been given proper notice should be taken to amount to the affording of a reasonable opportunity to that party to present their case,[149] and therefore not amount to a denial of procedural fairness.
[149]Roberts (n 147) [48]-[49].

As I have earlier noted, the applicant seems to have been given proper notice of the hearing on 5 April 2024 – so much is recorded in the order made on that occasion. That said, the applicant says she was prevented from appearing on 5 April 2024 as a consequence of ‘technical issue’.

Again, it seems to me that the provisions of the VCAT Act bear relevantly upon whether the applicant should ultimately be taken to have been denied procedural fairness.

In particular, s 120(1) of the VCAT Act provides that –

A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

The sub-ss of s 120 that follow specify the circumstances in which such an application may be made, heard and determined.

In particular, pursuant to sub-s 120(4), VCAT may hear and determine an application for review if it is satisfied that, among other things, it is ‘appropriate to hear and determine’ it. In that regard, it is required to have regard, relevantly, to ‘whether the applicant has a reasonable case to argue in relation to the subject-matter of the order’.

It follows that the provisions of the VCAT Act must be taken to contemplate circumstances of the present kind and, to some extent, affect the circumstances in which the making of orders in the absence of a party should be taken to amount to a denial of procedural fairness.

That is, the provisions of the VCAT Act contemplate that orders will in some instances be made in the absence of a party, but afford to such a person a specific procedural route that may thereafter be followed, namely the making of an application for review pursuant to s 120.

In that regard, however, it does not follow from the fact that such a party ‘did not appear and was not represented’ that he or she will necessarily have the right to such a review. That will depend upon whether VCAT is satisfied that it is ‘appropriate’ to hear and determine it. In that connection, as I have noted, VCAT must specifically consider, among other things, ‘whether the applicant has a reasonable case to argue’.

In those circumstances, it seems to me that it would be apt to lead to potential conflict between different provisions of the statute if the fact that a party was absent from a hearing should lead to that party necessarily being granted leave to appeal pursuant to s 148 of the VCAT Act on the basis that he or she was denied procedural fairness. Plainly, for the reasons which I have sought to outline, in some cases, at least, that must be affected by circumstances, including whether the party concerned had and sought to take advantage of the avenue for review provided by s 120.

It seems to me that the present case is one of those cases, particularly because –

(a) the applicant applied for a review pursuant to s 120;

(b) that application was heard by Senior Member Treble on 2 May 2024;

(c) the applicant appeared and, in my view, was afforded a reasonable opportunity to present her case;

(d) having heard such argument as was advanced, the Senior Member determined, as a fact, that it was not appropriate to hear and determine that application for review because, among other things, the applicant did not have a ‘reasonable case’;

(e) consequently, the order made on 5 April 2024 was confirmed;

(f) no timely application for leave to appeal was sought to be brought from those orders; and

(g) indeed, the applicant seems to have accepted and acted upon advice given by Mr Sather to the effect that no such application should be made.

In short, I do not consider that the applicant has been denied procedural fairness. Specifically, she has availed herself of the procedure which the VCAT Act provides and, in that, been afforded a reasonable opportunity to address VCAT concerning whether she had a ‘reasonable case to argue’. It does not follow from the fact that she did so unsuccessfully that there is any error of law that should lead to the order of 5 April 2024 being set aside. In my view, the substance of the position is very much to the contrary.

I should add that even if, contrary to the above, the applicant was denied procedural fairness, in my view that did not deny her of any realistic possibility of a successful outcome.

In that regard, in Nathanson v Minister for Home Affairs, Kiefel CJ, Keane and Gleeson JJ stated, relevantly –

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. … To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, but doing so, the party could achieve a favourable outcome.[150]

[150]Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [33] (References omitted). See also LPDT v Minister for Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [12]-[16].

In so stating, however, their Honours were plainly contemplating a process of rational decision making. The stated standard is one of reasonable conjecture. Albeit that the standard is an ‘undemanding’ one, it should not be taken to be satisfied merely because the person concerned ‘had something to say’, no matter how fanciful that something might have been. Similarly, that such a person might have enjoyed a remote risk of bamboozling a tribunal into error does not mean that the standard of reasonable conjecture should be taken to be satisfied.

In the present instance, in the hearing before McCann JR on 19 June 2024, the applicant said that if she had been present at VCAT on 5 April 2024 she would have tendered the letter of demand drawn by Patrick & Phillip and submitted that ‘it is not proportionate or reasonable to make a possession order, because Mr Maitland is delayed and that’s unfairness’.[151]
[151]19 June transcript (n 17) 38. See also 36.

As I have earlier noted, McCann JR was plainly, and in my view correctly, not persuaded that there was any ‘substantial prospect’ that the applicant would succeed on her appeal.

In any event, as I have also noted, nothing about the circumstances relating to the applicant’s purported claims against others – including Mr Maitland – suggests that there could have been any realistic prospect that she would be in a position to satisfy the accumulated arrears of rent within a reasonable time. Indeed, events had shown that when a payment plan was ordered on 20 February 2024, apparently by reference to a contention of exactly that kind, that had led only to the further accumulation of significant sums of unpaid rent.

Before me, the applicant said that if she had been present on 5 April 2024 she would have told the Member that she had not been told about the death of Mr Jenson[152] and that there was a ‘question as to whether the notice to vacate is invalid, ‘cause I never received it’.[153]
[152]T52-53.
[153]T56.

It will be evident from what I have earlier said, however, that such arguments could not be regarded as any more likely to have persuaded a rational tribunal than the argument which the applicant identified before McCann JR.

It follows, in my view, that there is no realistic possibility that the orders made on 5 April 2024 could have been different if the applicant had been present and advanced any of the arguments which she has variously said that she would have pursued, or any other part of her underlying narrative.

For completeness, I should address one further combination of matters relevant to the argument advanced by the applicant at the hearing on 2 August 2024 and her application for leave to appeal. That is, her various submissions that –

(a) the orders of McCann JR should be set aside;[154]

(b) the warrant of execution should be overridden;[155] and

(c) the applicant should be returned to the premises.[156]

[154]T10.

[155]T31.

[156]T68.

The short answer to all of the above, of course, is that none of it would follow from any grant of relief in respect of the orders of VCAT on 5 April 2024 – which is, strictly, the only subject matter of her present appeal, if leave were granted.

In any event –

(a) the orders made by McCann JR on 19 June 2024 have not been shown to have been made incorrectly – indeed, in my view, those orders were correctly made;

(b) the warrant of possession has, in fact, subsequently been executed;

(c) accordingly, the applicant has been removed from the premises; and

(d) the applicant identified no legal right which would now entitle her to possession of the premises.

It follows that in addition to her proposed appeal being devoid of any real merit, it has ultimately resolved into a futility. If the applicant has any entitlement to relief of the kind that she came to float in various ways during the hearing, it is not in this proceeding.

E. Conclusion

It light of the above, the applicant’s applications must be refused.

I will hear from the parties in respect to the form of final orders and costs.

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[2024] VSC 505

29 August 2024