Cosic v Director of Housing
[2007] VSC 486
•7 December 2007
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5066 of 2007
| BRANKICA COSIC | Appellant |
| v | |
| DIRECTOR OF HOUSING | First Respondent |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2007 | |
DATE OF JUDGMENT: | 7 December 2007 | |
CASE MAY BE CITED AS: | Cosic v. Director of Housing | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 486 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A. Richards SC and Mr R. Sorensen | Tenants Union of Victoria |
| For the Respondent | Ms D. Mortimer SC and Ms R. Orr | Legal Services Branch, Department of Human Services |
HIS HONOUR:
A Victorian Civil and Administrative Tribunal (“the Tribunal”)[1], constituted by a member, made an order pursuant to the Residential Tenancies Act (“the Act”) requiring the appellant to vacate premises which had previously been tenanted by her brother pursuant to a tenancy agreement with the first respondent, the Director of Housing (“the Director”).
[1]The tribunal is established under the Victorian Civil and Administrative Tribunal Act 1998.
Under s 232 of the Act, the appellant was entitled to apply to the Tribunal for the creation of a tenancy agreement in the event that the Director sought possession of the premises. The question that arises on this appeal is whether, in refusing to make such an order pursuant to s 233 of the Act, the Tribunal erred in law; in particular, there is an issue as to the Tribunal’s application of the provisions of s 233 in determining whether to make an order requiring the Director to enter into a tenancy agreement with the appellant.
Factual background
On 24 January 1994, the Director, as landlord of a two bedroom unit located at 156/12 Sutton Street, North Melbourne (“the premises”), entered into a tenancy agreement in respect of the premises with Mr Valentino Cosic (“Cosic”), the appellant’s brother.[2]
[2]Exhibit BC4 to the appellant’s affidavit, p.1.
In May 2006, Cosic attended for an interview at the North Melbourne Housing Office. He sought that his tenancy of the premises be transferred to the appellant, whom he said was not presently residing at the premises. At that time, the appellant was not listed as a resident at the premises and was not residing at the premises.[3] As part of the Director’s Office of Housing policy for residency rights to be transferred to the appellant, it was necessary that the appellant have 12 months continuous residency at the premises – which she did not have.
[3]Exhibit BC4 to the appellant’s affidavit, p.3.
The appellant had, however, on previous occasions over the past four years, resided at the premises.[4] On this occasion the appellant commenced residing at the premises with Cosic on 20 May 2006.[5] Immediately prior to that time, she had lived in private premises in Footscray.
[4]Appellant’s affidavit, [2].
[5]Exhibit BC4 to the appellant’s affidavit, p.2, line 16. The appellant claims to have also resided at the premises for various other periods prior to this time, which she has estimated total approximately four years: see Exhibit BC5 to the appellant’s affidavit, [1] and the appellant’s affidavit, [2].
In August 2006, Cosic advised the Director’s North Melbourne Housing Office that he would be going overseas for a couple of weeks. He completed a “temporary absence form” and advised the office that the appellant would be looking after the premises while he was away.[6] Cosic and the appellant were notified that the appellant did not have tenancy rights to the premises; if Cosic vacated the premises, the appellant would be required to leave as well.[7] This was confirmed in a letter from the North Melbourne Housing Office to the appellant dated 18 August 2006.[8]
[6]Exhibit BC4 to the appellant’s affidavit, p.3.
[7]Exhibit BC4 to the appellant’s affidavit, p.3.
[8]Exhibit BC1 to the appellant’s affidavit.
The appellant states that some time in August, Cosic told her that he did not intend to return to the premises.[9]
[9]Appellant’s affidavit, [2].
On 23 January 2007, the Director applied to the Tribunal for an order for possession of the premises based on rent arrears.[10]
[10]Exhibit BC2 to the appellant’s affidavit.
On 7 February 2007, the appellant applied to the Tribunal for the creation of a tenancy agreement in respect of the premises. In the application, the appellant stated that her brother was the current tenant of the premises, but had not resided there for many months and would not be returning. The appellant stated that she wished to remain in the premises “as a tenant in her own right”.[11]
[11]Exhibit BC3 to the appellant’s affidavit.
On 12 February 2007, both applications (the application for possession by the Director and the application for a tenancy agreement by the appellant) were heard by the Tribunal constituted by a Member of the Tribunal.[12] Oral submissions were made in support of each application, and a written submission drawn on the appellant’s behalf was also provided to the Tribunal.[13] The hearing was transcribed and the Tribunal provided oral reasons for its decision. Although there was a suggestion in argument before me that written reasons had been requested, there was no evidence of a request for written reasons.
[12]A transcript of the Tribunal hearing is Exhibit BC4 to the appellant’s affidavit.
[13]A copy of the written submission is Exhibit BC5 to the appellant’s affidavit.
The Tribunal granted the Director’s application for a possession order in respect of the premises. It ordered Cosic to vacate the premises by 12 February 2007 and to pay the Director arrears of rent of $995.80. The Tribunal also directed that the Principal Registrar, at the request of the Director, to issue a warrant of possession to be executed within 30 days after the date of issue.[14]
[14]Exhibit BC6 to the appellant’s affidavit.
The Tribunal refused the appellant’s application for the creation of a tenancy agreement on the basis that it was –
“not satisfied that the applicant would suffer severe hardship if compelled to leave the premises, nor that any hardship to the applicant would be greater than the hardship to the landlord, who is responsible for the orderly and lawful maintenance of a waiting list of persons in need of public housing”.[15]
[15]Exhibit BC7 to the appellant’s affidavit.
The nature of the appeal and the principles relevant to its disposition
The appellant’s submissions were premised on the basis that this hearing was one of judicial review. It is not and the question of jurisdictional error does not arise.[16]
[16]See Waters v PTC (1991) 173 CLR 349 at 414-415; Roy Morgan v State Revenue (2001) 207 CLR 72 at para 15.
Section 148(1) of the Victorian Civil and Administrative Tribunal Act (“VCAT Act”) only permits an appeal on a question of law. It does not permit an appellant to agitate findings of fact made by the Tribunal unless it can be established that the particular finding was not open on the evidence.[17]
[17]S v Crimes Compensation Tribunal (1998) 1 VR 83 at 89, Myers v Medical Practitioners’ Board of Victoria (2007) VSCA 163 at para 47 and para 52, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
In Collector of Customs v Pozzolanic[18], the Full Federal Court said of appeals on a question of law from the Commonwealth Administrative Appeals Tribunal:
“The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to admit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie.”
[18](1993) 43 FCR 280 at 286, citations omitted.
It follows, as I have said, that the appellant must establish that there is a true error of law and not merely launch an attack on an adverse finding of fact made by the Tribunal.
In Pozzolanic the Court then went on to consider the adequacy of reasons provided by the Tribunal. The following passage was cited with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[19]:
“The Court will not be concerned with looseness in the language of the Tribunal, nor with unhappy phrasing of the Tribunal’s thoughts. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”[20]
[19](1996) 185 CLR 259 at 272.
[20]Collector of Customs v Pozzolanic, supra, at 287.
In Wu Shan Liang the High Court itself said as follows:[21]
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any Court reviewing the decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
[21]supra at 272.
Although this hearing is not concerned with judicial review, the cautionary warning as to the manner in which a Court conducts an examination of reasons in an effort to extricate an error of law is relevant to this case.
Further, identification by the appellant of a possible slip or error is not enough. As Cavanough J said, in XYZ v State Trustees Ltd, of a challenge to the decision of the Tribunal under s 148 of the VCAT Act:
“Allegations of the present kind must often be determined as a matter of impression, albeit by reference to the proceedings in question as a whole, including the whole of the decision-maker’s reasons. It is not enough to show the decision-maker’s reasons are so expressed as to suggest the possibility that the decision-maker proceeded on a wrong view of the law. The Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.”[22]
[22][2006] VSC 444. See also the cases cited at footnotes 31 and 32 of that judgment.
The possibility of error is insufficient – the Court must be affirmatively satisfied that such error has occurred and that it is material to the ultimate outcome: Australian Broadcasting Tribunal v Bond[23].
[23](1990) 170 CLR 321 at 384
The questions of law
Master Daly, on 13 April 2007, granted leave to appeal. The following questions of law were identified:
(a) Does s 233(1)(c) of the Residential Tenancies Act 1997 (Vic) (“RTA”) confer jurisdiction on the Tribunal to take into account in determining “the hardship that the landlord would suffer”, the effect of such an order on persons on the Respondent’s Waiting List for Public Housing and/or the effect of such order on the due administration of the Respondent’s Waiting List?
(b) Did the Tribunal exceed its jurisdiction in its interpretation of s 233(1) of the RTA in determining the hardship likely to be suffered by the appellant by failing to take into account each of the matters set out in paragraphs 5, 7, 9, 13, 14, 25 and 27 to 30 inclusive of the appellant’s written submissions before the Tribunal, and in particular, the appellant’s state of mental health?
(c) Did the Tribunal exceed its jurisdiction in its interpretation of s 233 in finding that in s 232 applications where the subject premises belong to the respondent that a high threshold test applies as distinct from s 232 applications where the subject premises are not respondent’s premises?
(d) Does s 233 of the RTA confer jurisdiction on the Tribunal to take into account a matter not provided for under s 233, namely, the purported agreement as to conditional tenancy as referred to in the respondent’s submissions to the Tribunal and letter to the appellant dated 18 August 2006 produced by the respondent to the Tribunal?
Although the questions were framed as though this application was a judicial review of the Tribunal’s decision, it is clear that each of the questions was directed to the appellant demonstrating an error of law as required by s 148 of the VCAT Act. It is open to the appellant to argue that a failure by the Tribunal to take into account relevant matters, or taking into account irrelevant matters, may constitute an error of law.[24]
[24]Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255; Gevah Constructions Pty Ltd v GRN Australia [2006] VSC 266.
Relevant provisions of the Residential Tenancies Act
Section 322(1) permits a landlord to apply to the Tribunal for a possession order of rented premises. The landlord must give the tenant notice to vacate the premises. This was complied with by the Director.
Section 232 of the Act enables a person who has been residing in rented premises to make an application requiring the landlord to enter into a tenancy agreement with that person where an application of possession has been made such as the application made under s 322 by the Director.
Section 233(1) provides as follows:
“The Tribunal may make an order requiring the landlord to enter into a tenancy agreement with the applicant under s.232 if the Tribunal is satisfied that –
(a) the applicant could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which this Act applies; and
(b) the applicant would be likely to suffer severe hardship if he or she were compelled to leave the premises; and
(c) the hardship suffered by the applicant will be greater than the hardship that the landlord would suffer if the order were made.” (My emphasis).
Ms Richards SC, who appeared with Mr Sorensen for the appellant, initially contended that once the conditions of three sub-sections of s 233(1) were satisfied then the Tribunal was required to order that a landlord enter into a tenancy agreement. Ms Mortimer SC, who appeared with Ms Orr for the respondent, correctly submitted that such an interpretation was inconsistent with s 45 of the Interpretation of Legislation Act which requires that the power which is conferred by use of the word “may” to be expressed “at discretion”. The contradistinction between the use of the discretionary “may” in s 233(1) and the mandatory “must” in s 233(2)[25] reinforces the clear legislative intent to give the Tribunal a residual discretion.
[25]S.233(2) reads in part as follows: “The tenancy agreement must – (a) be entered into before the end of the time stated in the order …”. (My emphasis).
The requirements of s 233 are cumulative, so that an applicant must satisfy each of the provisions before the discretion given to the Tribunal is enlivened. Accordingly, where an applicant satisfies the three conditions, s 233(1)(a)-(c), there is still a residual discretion vested in the Tribunal as to whether it ought or ought not make the order requiring the landlord to enter into the tenancy agreement.
The reasons and the decision of the Tribunal
The Residential Tenancies List is the busiest list within VCAT[26]. In 2007 it handled over 65,000 claims. According to the 2007 Annual Report, the typical number of cases resolved per day per Member is 22. Generally (and as was the case in this hearing), the Member constituting the Tribunal is experienced in dealing with residential tenancy disputes and experienced in relation to the provisions of the Act.
[26]VCAT 2006-2007 Annual Report. It was provided to me in the course of the hearing. The list is set up pursuant to clause 7 of the VCAT Rules.
Generally, s 117 of the VCAT Act requires a Tribunal to give reasons for final orders. It is implicit that a Tribunal may give oral reasons, however a party within 14 days of the provision of such reasons may request the Tribunal to provide written reasons: s 117(2). Where the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact: s 117(5). This requirement is modified by cl.76 of Schedule 1 of the VCAT Act which provides that in an application under the Act the Tribunal is not obliged to give written reasons for an order unless a request was made for such reasons before or at the time of the giving or notification of the Tribunal’s decision.
The Tribunal is not bound by the rules of evidence[27] and may inform itself as it thinks fit.[28]
[27]VCAT Act: s 98(1)(b).
[28]VCAT Act: s 98(1)(c).
The proceedings were transcribed[29]. Ms Connell of the Tenants Union appeared on behalf of the appellant and Ms Shepherd appeared on behalf of the Director. A written submission was provided to the Tribunal on behalf of the appellant. The appellant gave evidence and confirmed that the contents of the written submission were true and correct. It provided considerable information as to the appellant’s personal circumstances relevant to the application. The hearing was short and involved little evidence being given by the appellant. There was a discussion between the respective representatives and then the Tribunal provided its reasons orally.[30]
[29]Exhibit BC4 to the appellant’s affidavit.
[30]Exhibit BC5, pages 8-10.
There is one other aspect of the evidence that needs to be mentioned and that relates to the Director’s waiting list. The Tribunal was told by Ms Shepherd that there was an indefinite waiting list and that the premises could be allocated “within a day”.[31] Ms Connell for the appellant did not dispute this proposition and commented that there was a “very long wait for public housing”.[32]
[31]Exhibit BC4, to the appellant’s affidavit, page 4.
[32]Exhibit BC4, to the appellant’s affidavit, page 5; also see Exhibit BC5 to the appellant’s affidavit, para 25.
The following is a summary of the Tribunal’s reasons for refusing to make the order:
· The threshold test is fairly high when an applicant is applying to remain in a Director of Housing premises when the named tenant is no longer there.
· The Director of Housing was “very, very careful” in advising the appellant’s brother that it was quite clear that there would be no tenancy rights as a result of the appellant moving in to look after her brother’s possessions.
· Although it may be illogical that the Director of Housing would suffer hardship, the Tribunal has to take into account that many hundreds, if not thousands of people on the Director of Housing’s waiting list would be affected by what could be perceived as “queue jumping”.
· There would be enormous hardship for the system as a whole, not to mention the people on the waiting list.
· The appellant is a single person on her own, receiving unemployment benefits.
· The Tribunal was not satisfied that her hardship was greater than the combined hardship of the maladministration of the waiting list and the hardship for all those people on the waiting list.
· A single person is able to share a tenancy with a partner or with other young people with similar interests.
· The appellant was not doomed to homelessness because she had to move out of the flat.
· The appellant was in no worse position than other people of her age on unemployment benefits.
· There was no unique hardship suffered by the appellant which would satisfy the Tribunal under s 232.
The Tribunal then concluded that it was not satisfied that the appellant would suffer severe hardship if compelled to leave the premises, nor that any hardship to the appellant would be greater than the hardship to the landlord who was responsible for the lawful maintenance of the waiting list of persons in need of public housing. In other words, neither the second nor third limbs of s 233(1) were made out.
The order made by the Tribunal was in the following terms:
“The application was made under s 232 of the Act for creation of a tenancy agreement but the Tribunal is not satisfied that the applicant would suffer severe hardship if compelled to leave the premises nor that any hardship to the applicant would be greater than the hardship to the landlord who is responsible for the orderly and lawfull (sic) maintenance of a waiting list of persons in need of public housing.”[33]
The first question of law:Interpretation of s 233(1)(c) – comparative hardship and its application to the facts
[33]Exhibit BC7 to the appellant’s affidavit.
Section 233 is a powerful provision within the armoury of the Tribunal. It permits the Tribunal, inevitably against the wishes of the landlord, to compel a landlord to enter into a tenancy agreement with a tenant. It deliberately frustrates the landlord’s desired use of the premises provided the Tribunal is satisfied that the three conditions are met and that it ought, in the circumstances, exercise its discretion to require the landlord to enter into the agreement.
Ms Richards attacked the decision of the Tribunal on the basis that there was no statutory warrant for the Tribunal to take into account hardship other than financial suffered by the landlord where the landlord was the Director. She contended that the juxtaposition of the words “hardship” and “suffered”, construed in their ordinary meaning, meant that the hardship to a corporate landlord such as the Director could only be financial and no more. She relied upon dictionary definitions of the words “hardship” and “suffered”. She contended that, given their ordinary meaning, such words denoted personal deprivation and did not extend to corporate inconvenience or administration, nor to consideration of those who may be on a waiting list held by the Director.
Ms Mortimer contended that the expression “hardship” should be read broadly and was of sufficient compass to include specific detriment such as that relevant to the Director’s administration of the Office of Housing and, in particular, of the waiting list. She submitted that there was no basis to read the word “personal” into the sub-section and submitted that the legislature had deliberately chosen to leave the expression unqualified so as to enable a Tribunal to have regard to a wide range of matters which might constitute hardship as between landlord and tenant.
Howsoever the expression “hardship” might be defined, it is clear that it is a hardship experienced by the tenant and by the landlord respectively, not anyone else. At this level (i.e. satisfying the pre-conditions laid down by s 233(1)(a), (b) and (c)), the Tribunal is bound to look solely at those individual hardships. So it follows that, just as a Tribunal cannot have regard to any vicarious hardship suffered by persons other than the applicant, it cannot have regard to hardship suffered by those on the Director’s waiting list. That is not to say that in a case involving the Director where an applicant enlivens the discretion by satisfying sub-sections (a) to (c) of s 233, that the issue of those who had waited their turn for months, perhaps years, on a waiting list, would not be a valid consideration in terms of whether to exercise the discretion.
I do not accept that hardship is to be construed in the narrow way urged by the appellant. Namely, that the primary consideration should be “personal” hardship such as pain, distress or injury and that the only relevant consideration for a corporation is whether it will suffer financial hardship. I say this for the following reasons.
The Director of Housing is appointed by the Governor in Council and is designated as a body corporate under s 9 of the Housing Act. Section 14(1)(g) and (h) of the Housing Act provides that the Director may, subject to the Act, let or sublet premises to any person over 15 years of age or to any body corporate on such terms and conditions as the Director thinks fit. Whilst there is no reference in the Housing Act to the waiting list, it is clear that a core function of the Director is to administer such a list so as to fairly and equitably allocate the scarce housing resources at its disposal.
The role of the Director as a landlord of rented premises is recognised in a number of provisions of the Residential Tenancies Act: s 19(3), s 57(1), s 83[34], s 404, s 407, s 410A, s 411A, s 413, s 413A, s 416, s 421, s 427. The expression “hardship” insofar as it affects the Director therefore needs to be viewed in the context of the Act and particularly in the context of an Act that recognises the role of the Director of Housing.
[34]s 83 is a section which makes specific reference to the waiting list – in the context of assignment or sub-letting.
My initial reaction was that the concept of hardship ought to be confined, as Ms Richards argued, to personal hardship, such as physical, emotional, psychological or the like. Upon reflection, however, it seems clear to me that this does not take into account the fact that many landlords and, for that matter, tenants will be corporate entities. In such situations, the expression “hardship” must have a protean application; it covers more than mere financial considerations. There may be other aspects of hardship experienced by a corporate body. One obvious example is that pointed to in the present case, namely, disruption of the orderly administration of the Director’s waiting list.
There is no statutory definition of the expression “hardship” within the Act. However, in many different contexts courts have, from time to time, expressed views as to the meaning of the word. In cases involving the application of the Family Law Act, “hardship” has been described as being “akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment”.[35] In Re Kabalan[36], a case involving the construction of the word in the context of the Bankruptcy Act and whether a filing fee was to be payable, Gummow J held that the expression was not to be limited to financial hardship, but included any condition which pressed upon a person with particular asperity.[37]
[35]In The Marriage of Whitford 24 ALR 424 at 430.
[36](1993) 113 ALR 330.
[37]Supra at 332.
Of more relevance to the instant case, however, are decisions in which the word has been considered in the context of the landlord and tenant relationship. In Fenton v. Adams[38], the Victorian Full Court was concerned with the construction of the expression in the context of the National Security (Landlord and Tenant) Regulations. The Court held[39] that the matter of financial loss could not be excluded in determining hardship within the meaning of the relevant regulations. It also held that it was a question of weight to be attributed by the tribunal of fact to a number of considerations in determining whether hardship is or is not made out. Fenton was relied upon by Asprey J in F.G. O’Brien Ltd v. Elliott.[40] In that case, the Court was concerned with determining a tenant’s hardship. His Honour said as follows (omitting citations):
“There is no definition of ‘hardship’ in the Act. In its context I would be of the opinion that ‘hardship’ would comprehend any matter of appreciable detriment whether financial, personal, or otherwise. Each case must depend upon its own particular facts.”[41]
[38](1948) VLR 12.
[39]Supra at p.14.
[40](1965) NSWLR 1473.
[41]Supra at 1475, cited with approval in Re Kabalan, at 333.
In my view, the approach adopted in O’Brien is correct in determining the existence of hardship and that in determining whether there is hardship any appreciable detriment is relevant. I think, therefore, that such detriment includes consideration of the administration of the waiting list and any adverse effect upon it.
The broad approach is, in my view, consistent with the statutory purpose underlying s 233 which, as I have said, has far-reaching consequences for the landlord; to limit the construction of s 233(1)(c) as argued by Ms Richards would, in my view, run contrary to the purpose of the sub-section which requires a balance to be struck as between the broad interests of the applicant and those of the landlord.
It follows that insofar as the Tribunal considered that the Director would suffer detriment by reason of the effect that the granting of the application would have upon the management of the waiting list, it was entitled to do so, as this fell within the meaning of “hardship” as it pertained to the landlord.
However, at the pre-condition level it was not entitled to take into account the individual considerations of those on the waiting list. In the course of the Tribunal’s reasons there is reference to those on the waiting list and hardship that may be occasioned to them.[42] There is also reference to the administration of the waiting list. Ms Richards argued that those references should satisfy me that the Tribunal took into account irrelevant considerations and therefore an error in law was established.
[42]Exhibit BC4 to the appellant’s affidavit, page 8.
Having regard to the statements of principle set out at paras 14 – 17 of these reasons, I think that the better view of the Tribunal’s reasons is that the Member was dealing in the course of delivery of brief oral reasons with the overall administration of the waiting list and not the individual considerations applicable to each prospective tenant. This, in my view, is borne out by the order made by the Tribunal, which identified the hardship of the landlord in the terms of “the orderly and lawful maintenance of a waiting list of persons in need of public housing”.
I also reject the proposition that the Tribunal took judicial notice of the state of the waiting list. The Tribunal was sitting as part of the Residential Tenancies List of VCAT, which has an expertise in landlord/tenant disputes. It is entitled to inform itself as it sees fit and it had before it evidence from Ms Connell and Ms Shepherd as to the state of the waiting list.
If I am wrong in my analysis of s 233(1)(c) and the Tribunal’s application of the section to the facts, then I do not think that it affects the end result. I say this for two reasons. Firstly, as I will discuss subsequently, there was no error of law involved in the Tribunal’s determination of the issues relevant to s 233(1)(b) and therefore the application could not, in any event, succeed – regardless of a favourable finding under s 233(1)(c) – as each of the pre-conditions had to be met.
Secondly, if consideration of the waiting list was not relevant under s 233(1)(c), it was clearly relevant to the general exercise of the discretion under s 233. In Australian Broadcasting Tribunal v. Bond, the High Court said:[43]
“For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond.”[44]
[43]Supra at 384.
[44]See also Samad v District Court (NSW) (2002) 209 CLR 140 at para 44; Wilson v County Court (2006) 14 VR 461 at paras 36 – 50.
I am not satisfied that the decision of the Tribunal may have been any different even if s 233(1)(c) had been satisfied by the appellant.
I am not satisfied that there was any error of law on this issue.
The second question of law:Failure to consider particular aspects of the appellant’s submissions and in particular the appellant’s state of mental health
Section 233(1)(b) requires the Tribunal to be satisfied that there is likely to be “severe hardship” to an applicant if he or she is to be evicted. Accordingly, the Tribunal was required to consider the personal circumstances of the appellant and any adverse consequences she may suffer if an order was not made. A failure to do so would be an error of law.
The sub-section necessitates that the Tribunal analyse the facts and then make a determination as to whether those facts amount to severe hardship. It is necessarily a fact, degree and value judgment that cannot be easily reasoned out. A Tribunal, whilst bound to take into account all the relevant facts presented to it, ultimately has to form a judgment (in some part impressionistic) as to whether the consequences to the particular applicant satisfy the “severe hardship” test. Because of the nature of the exercise, it does not necessarily admit to voluminous reasons, particularly in the context of a hearing in the Residential Tenancies Division.
The appellant contends that there was a failure by the Tribunal to consider salient parts of the written submissions of the appellant; in particular she identifies a failure to consider the very fact that she would be evicted, the effect of such eviction on her mental state and her general circumstances.
The appellant’s written submissions were handed to the Member and a careful reading of the transcript indicates that she read the reasons and was conscious of the matters contained in the submission. Although there is no specific reference in the reasons to a number of individual matters pertaining to the appellant, including her mental health, I am not prepared to infer that they were not taken into account. In Kentucky Fried Chicken v. Gantidis[45], Barwick CJ described the failure to advert to a material circumstance in written reasons as a “very unsure guide” in determining whether in fact there had been such a failure.
[45](1979) 140 CLR 675 at 679-680, see also State Trustees Ltd v Transport Accident Commission [2002] 6 VR 359 at 369-370.
Further, an examination of the transcript makes it clear from several references within the transcript that the Tribunal must have read the submissions.[46] I am not prepared to infer that it ignored the material in reaching its decision. In particular, I reject the suggestion by the appellant that the Tribunal did not take into account the fact that the appellant would be evicted. It was patently aware of this fact and referred specifically to the fact that the appellant would have to move out of the flat but would not be doomed to homelessness.
[46]Exhibit BC4 to the appellant’s affidavit – p.1, p.2, p.7.
Moreover, the context in which this determination was made needs to be considered. This is a busy list, dealing with many applications on one day, and there is a limited opportunity to deliver comprehensive oral reasons. It is clear from the reasons and the order that the Tribunal directed itself to the question of whether the applicant had sustained “severe hardship”. It is inconceivable, in my view, that it would have ignored the submissions which dealt directly with an issue it was required to consider and which had just been handed up. Just because a matter is not mentioned does not and cannot mean in the context of the way this Tribunal conducts its business that it was not considered.
Although not covered by a specific question of law, the appellant’s grounds of appeal attack the factual findings made by the Tribunal as being “contrary to the evidence”.[47] It is convenient to deal with those arguments now. In paragraphs 14-17 of these reasons I have set out the general principles applicable to an appeal on a question of law. Those principles have been applied time and time again in cases involving Tribunals established under the VCAT Act or other similar administrative tribunal regimes in this State: e.g. S v. Crimes Compensation Tribunal[48], Myers v Medical Practitioners’ Board[49].
[47]Respondent’s outline of submissions, para 3.
[48][1998] 1 VR 83.
[49](2007) VSCA 163, at paras 51 – 54.
Grounds 6, 8, 9 and 10 are simply attacks on findings of fact in the context of a determination of the issue of “severe hardship”:
“6. In finding that there was no “specific” hardship to the appellant against the weight of the whole of the evidence and submissions placed before it.
8. In finding that if the appellant could pay cost rental then the appellant could rent anywhere in the open market contrary to the evidence that the tenant could not afford to pay such a rental and that the appellant had applied for a rent review for Commonwealth rent assistance in circumstances where the respondent had informed the appellant that it would not consider an application by the appellant to the respondent for a rent rebate on the subject premises.
9. In finding contrary to all of the evidence that the appellant would be able to sustain a tenancy in the open market.
10. In finding that the appellant was, in effect, “queue jumping” with respect to the respondent’s waiting list when there was absent (sic) any evidence in support of such a finding; further, that there was evidence before the Tribunal that the appellant may have been entitled to priority on the respondent’s waiting list.”
It is not sufficient to argue that a tribunal has acted against the weight of the evidence. Tribunals are given the power to determine factual issues and not only to go right, but also to go wrong.[50] A Tribunal’s decision will only be interfered with if it is shown that it was not open to it on the evidence or, to use other language in this context, if the finding is unreasonable or perverse: Catch the Fire Ministries Inc v Islamic Council of Victoria Inc[51]. So in this case the appellant, rather than attacking individual findings of fact (or the alleged lack of them), must show that there was no factual basis for concluding that the appellant would not satisfy the “severe hardship” test laid down by s 233 (1)(b) if required to leave the premises.
[50]Supra at 356, Returned Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor (1999) 2 VR 203 at 211.
[51](2006) 15 VR 207 at [163].
I am not persuaded that the conclusion that the appellant would not suffer “severe hardship” was not open to the Tribunal. In my view it was clearly open, given the appellant’s circumstances which were considered by the Tribunal. The use of the word “severe” meant a high level of hardship needed to be established[52].
[52]See Mobilio v Balliotis [1998] 3 VR 833 at 846 for a discussion as to the meaning of the word “severe” under s 93 of the Transport Accident Act.
The following matters were, in my view, germane to the Tribunal’s decision in rejecting the proposition that the appellant would suffer severe hardship if required to vacate the premises:
(a) The appellant was single and did not have any dependents.
(b) The appellant had only lived in the premises, on this occasion, since May 2006.
(c) The appellant was in receipt of Commonwealth benefits of $195 per week.
(d) The likely ability of the appellant to obtain accommodation by sharing or subletting accommodation.
(e) The appellant had previously lived in private accommodation.
Each of the matters referred to in grounds 6, 8, 9 and 10 are merely a re-agitation of factual matters and do not raise a question of law.
The appellant carries the onus of persuasion[53]; I am not satisfied that the Tribunal did not take into account the personal circumstances of the appellant and particularly her mental condition. I am not satisfied that the decision of the Tribunal in relation to the requirements of s 233(1)(b) was not open on the evidence.
[53]XYZ v State Trustees Ltd & Anor (supra)
The appellant has not established that there was an error of law in respect of the Tribunal’s finding in respect of s 233(1)(b).
The third question:“The high threshold test in relation to premises belonging to the respondent as opposed to other landlords”
In the course of the oral reasons, the Tribunal said:
“Well, these are difficult applications because I think the threshold test is fairly high when somebody is applying to remain in Director of Housing premises, when the named tenant is no longer there and it’s usually a family situation”.[54]
[54]Exhibit BC4 to appellant’s affidavit, p.8.
This was said to be an error of law in the application of s 233(1) of the Act. I do not accept that there was such an error. The reference to the high threshold test, in my view, was a reference to the different considerations which affect a determination under s 233 in respect of the Director’s premises.
I have already concluded that it was relevant to take into account, in an application concerning the Director’s premises, the proper administration of the Department and, in particular, the waiting list. There was nothing wrong in law in the Tribunal taking into account the specific position of the Director as opposed to other landlords. Nor was it wrong to conclude that there was a high threshold test. Indeed, almost any application brought under s 233 does, in my view, involve a high threshold test given the necessity to comply with s 233(1)(a), (b) and (c). It is also relevant that earlier, in the course of discussion, the Tribunal commented that the Act gave “no greater rights to the Director of Housing as landlord and its clients as tenants than to all other landlords and tenants in the State of Victoria”.[55] The Tribunal was not, in my view, applying a different test for the Director’s premises as opposed to other landlords.
[55]Exhibit BC4 to the appellant’s affidavit, pp.6-7.
I repeat my earlier comments concerning the analysis of the Tribunal’s reasons; it must be carried out with regard to the whole of the transcript and reasons and should not be subject to minute examination, nor should any looseness of language necessarily lead to a conclusion that an error of law has occurred. I think that the Tribunal was well aware of the requirements of s 232 and s 233 and I am not satisfied that it applied an incorrect test on account of the premises being the property of the Director.
In the result I do not think that there was any error of law on the part of the Tribunal in this regard.
The final question:Was the Tribunal entitled to take into account a letter written on behalf of the Director and submissions made to the Tribunal?
The question of law is framed both incorrectly and argumentatively. The Director’s letter did not vary the terms of the tenancy agreement. Cosic remained the tenant. All it did, as will be seen, was to permit him to claim a rebate for the appellant’s residency and put him on notice that his sister did not have tenancy rights – which was the fact.
In truth, this question solely raises the appropriateness of the Tribunal taking into account a letter written on behalf of the Director’s delegate to the appellant’s brother, the tenant. The letter was written by Ms Shepherd, who appeared before the Tribunal. It read as follows:
“I write in reference to your request to include your sister, Brankica Cosic, on your rebate as a resident. Approval has been given subject to the following condition:
(1) Your sister, Brankica Cosic, does not have tenancy rights to the property. Should you leave the property, your sister will have to vacate as well.
(2) Any changes must immediately be reported to our office.”[56]
[56]Letter dated 18 August 2006, Exhibit BC1 to the appellant’s affidavit.
Although the letter was directed to the appellant’s brother, it was not suggested in the course of the hearing by the appellant that she was not aware of its contents.
In my view, it was open to the Tribunal to have regard to this piece of correspondence. The letter itself was relevant to both the pre-conditions contained within s 233(1) as well as the residual discretion in the event that the conditions were satisfied.
It was relevant to the following considerations by the Tribunal of the application of s 233(1):
(a) In terms of the appellant’s own hardship, to be considered under s 233(1)(b) and (c), the fact that she was on notice from the Director was relevant to her level of expectation as to occupancy and any assessment of her personal distress and inconvenience as a result of the Director’s actions.
(b) In respect of s 233(1)(c) the overall consideration of the Director’s position in terms of the proper administration of the Department and the waiting list. The Director was entitled to bring to the attention of the Tribunal that it had endeavoured to make it clear to both the appellant and her brother that in the context of administering the waiting list, the appellant, by reason of her residency, would receive no preferential treatment. This was a proper consideration to be taken into account, just as, if the Director had assured a person in the appellant’s position that she could continue as a tenant. In that situation, one could readily assume that any effect on the administration of the Department and the waiting list could properly be regarded as minimal.
In any event, it was proper for the Tribunal in exercising its residual discretion to have regard to such correspondence in determining whether to make an order under s 232.
There is no error of law in taking this letter into account.
Resolution of the appeal
None of the grounds of appeal have been made out. In my view, the appeal must be dismissed.
Orders
I propose to make the following orders, subject to any submissions made by counsel:
(1) That the second respondent cease to be a party to the proceeding.[57]
(2) That the appeal be dismissed.
[57]Supreme Court Rules, r 9.06.
I will consider any application the parties wish to make concerning costs.
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