Dodson v Cityview Property Investments Pty Ltd
[2018] VSC 56
•15 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 3476
| WENDY DODSON | Plaintiff |
| v | |
| CITYVIEW PROPERTY INVESTMENTS PTY LTD (ACN 166 639 023) | Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2018 |
DATE OF JUDGMENT: | 15 February 2018 |
CASE MAY BE CITED AS: | Dodson v Cityview Property Investments Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 56 |
PRACTICE AND PROCEDURE – Application for leave to appeal orders of the Victorian Civil and Administrative Tribunal – Leave to appeal listed for hearing with the appeal if leave is granted – Defendant applies for summary dismissal prior to the grant of leave – Interrelationship of Civil Procedure Act 2010 ss 62, 63 and 64 and the test for leave to appeal articulated in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
APPEAL FROM VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Application for leave to appeal an order for possession and orders striking out two other proceedings – Applicant has no real prospect of success in establishing a ground for leave to appeal – Proceeding summarily dismissed – Residential Tenancies Act 1997 ss 259 and 330.
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APPEARANCES: | Counsel | Solicitors |
| No appearance for or on behalf of the plaintiff | ||
| For the defendant | Mr R G Squirrell | GE Law Services |
TABLE OF CONTENTS
Proceeding in the absence of the plaintiff..................................................................................... 1
Legal principles.................................................................................................................................. 2
Avenues of review sought........................................................................................................... 2
Nature of an application for leave to appeal............................................................................ 4
Nature of a possession order made pursuant to s 259 of the Residential Tenancies Act1997..... 5
Test for summary dismissal........................................................................................................ 6
Summary dismissal prior to the grant of leave to appeal...................................................... 9
Plaintiff’s grievances........................................................................................................................ 10
No power to order possession given earlier finding............................................................ 10
Failure to take into account various matters.......................................................................... 11
Strike out of Ms Dodson’s proceedings................................................................................... 12
Inadequate reasons..................................................................................................................... 13
Further grounds in Submissions in Opposition of Summary Judgment........................... 14
Bias.... 14
Decision unreasonable...................................................................................................... 14
Application for leave to appeal dated 24 January 2018........................................................ 14
Conclusion......................................................................................................................................... 15
Orders................................................................................................................................................. 15
HER HONOUR:
Ms Dodson is the tenant of a property owned by the defendant, Cityview Property Investments Pty Ltd. On 31 July 2017 the defendant obtained from the Victorian Civil and Administrative Tribunal (Tribunal) an order for possession of the property on the basis of a notice to vacate citing an intention to sell the property. The plaintiff also had two applications which came before the Tribunal constituted by Member Campana on that day. The Member struck out each of the plaintiff’s applications.
The plaintiff filed an originating motion seeking leave to appeal each of these three orders of the Tribunal on 29 August 2017. At a directions hearing on 11 October 2017, the application for leave to appeal, and appeal if leave is granted, were listed for hearing on 28 June 2018. Subsequently, the defendant filed an application for summary dismissal of the proceeding. That application was listed before me for hearing on 7 February 2018. The plaintiff did not attend. The defendant sought to proceed, and I considered that appropriate. At the conclusion of the hearing I was satisfied that the plaintiff’s application for leave to appeal has no real prospect of success, and pronounced orders dismissing it pursuant to s 63 of the Civil Procedure Act 2010. I now set out my reasons.
Proceeding in the absence of the plaintiff
The plaintiff contacted my associate on the afternoon before the hearing and again on the morning of the hearing indicating that she may not attend. My associate informed her on each occasion that if she did not attend the defendant’s application may proceed in her absence. The hearing was listed to commence at 10.30am, however, I commenced the hearing at 10.50am, allowing the plaintiff a further 20 minutes to attend should she wish to do so. She did not attend when the application was called at that time.
After the hearing concluded it was drawn to my attention that a person claiming to be a disability advocate for Ms Dodson, Ms Kate Carroll, sought an adjournment by an email to my associate noted as sent at 10.45am. My associate informs me that this email was not in fact received until some time after that.
In any event, the hearing was listed to commence at 10.30am. Ms Dodson was plainly aware of the hearing date. She has provided voluminous documentation in support of her case, and in opposition to the defendant’s application. She was informed that the application may proceed even if she did not attend. In this Court an application for adjournment of a hearing, if it is not by consent, cannot be made by email. Nor can it be made by a person who is not either the party herself, or a legal representative for that party, however well intentioned. If an application for adjournment is made on medical grounds it should be supported by medical evidence. No such medical evidence was attached to Ms Carroll’s email, and none had been provided by the plaintiff herself.
The disputes between the plaintiff and the defendant in relation to the plaintiff’s tenancy are of long standing, and have already resulted in multiple applications and proceedings in the Tribunal. There have also been related proceedings in other courts. The only ground the plaintiff herself put forward for adjournment was that she is scared of Mr Gary Richen, the director of the defendant, and had no support person to accompany her to the hearing. The defendant is legally represented, and so the plaintiff would not have been required to directly address Mr Richen, even if present at the hearing (and he was not).
Above all, as I set out below, none of the plaintiff’s grievances amount to an alleged error of law with any real prospect of success of obtaining leave to appeal. In my view, adjournment of the defendant’s application in all these circumstances would cause only further delay and cost before an inevitable result. It is for these reasons that it was in my view appropriate to proceed in the absence of the plaintiff.
Legal principles
Avenues of review sought
The documents filed by Ms Dodson seek to invoke a number of different aspects of this Court’s jurisdiction to review the determinations of tribunals and courts below it in the court hierarchy. This is misconceived. There are different rules that govern the different forms of review, as to when they are available, the grounds on which they may be brought, and the procedures to adopt. Ms Dodson was legally represented before the Tribunal, but she is not in this proceeding, and so in the interests of fairness I will assess her claims as to their substance, whether or not their form is correct.
In her Amended Originating Motion filed by leave on 6 November 2017 Ms Dodson seeks to invoke the jurisdiction of this Court in the following avenues of review:
·Leave to appeal, and appeal if leave is granted, against the orders of the Tribunal made 31 July 2017, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act);
·Judicial review pursuant to the Administrative Law Act1978 or O 56 of the Supreme Court (General Civil Procedure) Rules2015 (the Rules) against ‘the judgments and orders made by a protected person’. No judicial body or orders are identified. The following text refers family violence and personal safety intervention orders;
·Appeal on a question of law from a final order of the Magistrates’ Court pursuant to either s 109 of the Magistrates’ Court Act 1989 or s 272 of the Criminal Procedure Act 2009. No particular orders are identified in this portion of the Amended Originating Motion. The following text repeats the references to family violence and personal safety intervention orders.
Only the first of these avenues of review is available to Ms Dodson in this proceeding. As a matter of form, it is not possible to seek review of an order by a tribunal or court unless that order is specifically identified, and that is only the case in respect of the orders made by the Tribunal on 31 July 2017. In terms of substance, the parties to the review proceeding must have been parties to the order sought to be reviewed; that order must be of a character that is reviewable; and the application must be brought within time. None of that is shown to be the case except in relation to the orders made by the Tribunal on 31 July 2017. In particular, it appears from the documents that Ms Dodson has filed that she has been a complainant in various applications for family violence or personal safety intervention orders. She may have grievances in relation to the determination of those applications. It does not appear, however, that the defendant was a party to any of those proceedings (although Mr Richen, the director of the defendant, his stepson and Ms Dodson’s former partner Mr Featherstone, or Mr Featherstone’s mother may have been parties).
Accordingly, I will treat Ms Dodson’s proceeding as one for leave to appeal the orders made by the Tribunal on 31 July 2017.
Nature of an application for leave to appeal
The second misconception that is apparent in the documents filed by Ms Dodson is that the Court has the power to engage in a wide ranging review of all that has happened as between her and the defendant in relation to the tenancy. Some of her documents also seek that this Court rule on orders made between her and other persons, or make orders regulating their behaviour in future. The Court does not have these powers in this proceeding.
An application for leave to appeal, and appeal if leave is granted, pursuant to s 148 of the VCAT Act is confined to an examination of the making of the order the subject of the application for leave to appeal. The Court does not have the power to enquire into the circumstances of other orders made, even if between the same parties and in relation to the same subject matter, unless those other orders are relevant to the order the subject of the appeal. Even if the Court finds there was an error of law in the order of the Tribunal, the Court will not usually make fresh orders regulating the behaviour of the parties unless these orders were sought in the Tribunal.
Ms Dodson has set out detailed accounts of other proceedings between her and the defendant in the Tribunal in relation to the tenancy. Further, the first of her grounds of appeal asserts that the Tribunal could not make an order for possession against her in substance because such an order had been refused in an earlier application by the defendant. As I will set out in detail in a moment, her apparent assumption that what occurred in other proceedings was relevant to the making of the possession order is incorrect.
I also note that an appeal under s 148 is not an avenue for challenging the correctness of the findings of facts made by the Tribunal in the course of making the order. An application for leave to appeal, and appeal if leave is granted, under s 148 is limited to errors of law. An incorrect finding of fact will usually not be an error of law. Exceptions are where the finding was so unreasonable that no reasonable Tribunal could have arrived at it on the evidence, or where there was no evidence to support it.
Nature of a possession order made pursuant to s 259 of the Residential Tenancies Act1997
The Residential Tenancies Act 1997 (RTA) provides that a landlord may give a notice to a tenant to vacate on various grounds. The requirements for the notice and the powers of the Tribunal on an application for possession (i.e. eviction) based on the notice differ as between some grounds. For example, if the notice to vacate is given for non -payment of rent the Tribunal is not obliged to make an order for possession, even if the arrears for the necessary period are proved - s 246 and s 331. The ground relied on by the defendant in the notice that came before the Tribunal on 31 July 2017 was impending sale of the property with vacant possession - s 259. This in turn confers power on the Tribunal pursuant to s 330 to make an order for possession if the tenant does not vacate. Sections 259 and 330 of the RTA relevantly provide as follows:
259 Premises to be sold
(1)A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be sold or offered for sale with vacant possession.
(2)If a landlord has entered into a contract of sale of the rented premises and the contract of sale is subject to one or more conditions which, if not satisfied, entitle a party to the contract to terminate the contract, the landlord may, within 14 days after the last of those conditions is satisfied, give a tenant a notice to vacate the rented premises.
(2A)If a landlord has entered into a contract of sale of the rented premises which is not a contract of sale of the kind referred to in subsection (2), the landlord may, within 14 days after the contract of sale is entered into, give a tenant a notice to vacate the rented premises.
(3)A notice under this section must specify a termination date that is not less than 60 days after the date on which the notice is given.
330 Order of Tribunal
(1)The Tribunal must make a possession order requiring a tenant, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied—
(a)in the case of an application where notice to vacate has been given, that—
(i)the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee was entitled to give the notice; and
(ii)the notice has not been withdrawn; and
(b)(not here relevant) ; and
(c)that the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and
(d)that the tenant, resident or site tenant is still in possession of the rented premises, room, building, site or caravan after the termination date specified in the notice to vacate or notice of intention to vacate; and
(e)(not here relevant) .
(2)(not here relevant) .
As can be seen, where the notice to vacate is given because the landlord is going to sell the property with vacant possession then the Tribunal must make the order for possession provided the facts required by s 259, including service of the application pursuant to s 72, are established. The Tribunal does not have the power to refuse the order, or postpone the application, because of any discretionary factors such as earlier proceedings between the parties, or hardship of the tenant.
Test for summary dismissal
The defendant seeks summary dismissal of the plaintiff’s proceeding pursuant to s 62 of the Civil Procedure Act 2010 (CPA) or alternatively pursuant to O 23.01 of the Rules. Section 62 provides as follows:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
Rule 23.01 of the Rules provides as follows:
23.01 Stay or judgment in proceeding
(1)Where a proceeding generally or any claim in a proceeding—
(a)is scandalous, frivolous or vexatious; or
(b)is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
(2)Where the defence to any claim in a proceeding is scandalous, frivolous or vexatious, the Court may give judgment in the proceeding generally or in relation to any claim.
(3)In this Rule—
(a)a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and
(b)a defence includes a defence to a counterclaim and a defence to a claim by third party notice.
Although both these avenues empower the Court to grant summary judgment in favour of a defendant, their focus is different. The power in the CPA is focused on the merits of the claim that is the subject of the application for summary dismissal. If the Court is satisfied that the claim has no real prospect of success, then it is empowered by the following section, s 63, to dismiss the claim summarily. Section 64 confers a discretion on the Court to refuse summary judgment in certain circumstances. These sections provide:
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a)it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The focus of r 23.01 is on whether the claim is scandalous, frivolous or vexatious (in the legal sense) or an abuse of process. I do not consider it necessary to consider this basis for summary dismissal here, as the plaintiff’s application for leave to appeal has no real prospect of success on the merits, even if the manner of its formulation could be regularised.
The test for summary dismissal is as determined by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[1] The majority of the Court of Appeal, Warren CJ and Nettle JA, stated the test as follows:
Upon the present state of authority:
a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[2]
[1][2013] VSCA 158.
[2]Ibid [35].
Summary dismissal prior to the grant of leave to appeal
The defendant seeks summary dismissal of the proceeding prior to the grant of leave to appeal. Leave to appeal is a threshold requirement for appeal from an order of the Tribunal, although increasingly as a matter of efficiency the Court lists the question of leave to appeal to be heard with the appeal, if leave is granted, rather than as a separate and initial hearing.
The test for leave to appeal a decision of the Tribunal is as set out in Myers v Medical Practitioners’ Board of Victoria[3] (Myers), which adopted the test as previously determined by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls (Hulls).[4] I set out below the well-known passage of the judgment of Phillips JA in Hulls, also cited in Myers:
When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[5]
[3][2007] VSCA 163
[4][1999] 3 VR 331
[5]Ibid at 337
Importantly, an applicant for leave to appeal need not affirmatively establish at that stage that the Tribunal has erred in law - only that there is a ‘real or significant argument to be put’ that there was an error. It follows that for an application for summary dismissal of an application for leave to appeal to succeed the defendant must show that there is no real prospect of the plaintiff even being able to mount a real argument as to the possibility of legal error.
Plaintiff’s grievances
I now turn to consideration of the plaintiff’s grievances, in the light of these principles. Strictly, the plaintiff was required to identify a proposed error of law and succinctly identify the grounds on which she relies in her Amended Originating Motion, and draft notice of appeal. As she is not legally represented, I have also reviewed her affidavits to ascertain her grievances, and to consider whether she has any real prospect of success in establishing a real or significant argument that any of the stated grievances is based on an error of law by the Tribunal in respect of any of the three orders the subject of this proceeding.
No power to order possession given earlier finding
Ms Dodson relies on orders made in her favour by Member Bates on 25 January 2017 in an earlier application by the defendant to evict her. In that proceeding, R 2017/819, the defendant relied on a notice to vacate contained in a letter from its solicitors. The defendant contended in that application that there was no tenancy with Ms Dodson - that the tenancy had been with Ms Dodson’s former partner, Mr Featherstone, and after he left the property the tenancy terminated and Ms Dodson became a squatter. Ms Dodson was legally represented at that hearing. She contended that she was a tenant, and the notice was invalid as it did not comply with the provisions of the RTA. Ms Dodson was successful in that application. The Member held that she was a tenant, and so the notice, which did not comply with the requirements for notice to a tenant, was not valid.
Ms Dodson now alleges that the Tribunal constituted by Member Campana in the later proceeding, R 2017/24988/00 was bound by this earlier order, and could not order her eviction.
I do not consider that there is any real prospect that Ms Dodson will be successful in establishing a real or significant argument that this was an error of law. Member Bates’ finding that Ms Dodson was a tenant binds the same parties in subsequent proceedings, unless overturned on appeal, but her finding that the notice to vacate that was before her in R 2017/819 was invalid was confined to that particular notice. The orders made in R 2017/819 did not prevent the defendant making a further application for possession, based on a new notice, and, if that new notice was valid, succeeding in obtaining an order for possession.
Failure to take into account various matters
Ms Dodson appears to allege that the Tribunal erred in failing to take into account the prior history of tenancy proceedings between the parties, and alleged breach of orders by the defendant made in earlier tenancy proceedings. She recites what occurred in these earlier proceedings at length.
If the Tribunal had had a discretion whether or not to grant the possession order, once the essential matters were proved, then it may have been arguable that prior breach by the defendant (if proved) was relevant to whether or not the possession order should be made. As I set out earlier, however, under s 330 the Tribunal had no discretion to refuse possession if the evidence proved that the defendant was ‘entitled to give the notice’; the notice had not been withdrawn; the application had been served; and the tenant was still in possession.
Ms Hussein’s affidavit describes the course of the hearing before the Tribunal and the evidence that was given to establish that the defendant intended to sell the property with vacant possession, and that the notice to vacate had been duly served. According to Ms Hussein, Ms Dodson did not dispute these matters at the hearing, and she does not in her evidence in this proceeding. The Member found that the landlord had proved the grounds for giving the notice, and that it was a valid notice under s 259. It followed that the Member had no choice but to order possession in favour of the defendant. The only discretion that the Tribunal had was in relation to whether or not to grant a stay on the issue of a warrant, and the length of that stay. I am informed by counsel for the defendant, who also appeared for the defendant at the hearing before the Tribunal, that there was argument on these matters and the Tribunal granted Ms Dodson a four week stay before a warrant could issue.
Ms Dodson also recites many matters relating to family violence intervention orders and proceedings between her and Mr Featherstone, and her and Mr Richen and others. The Tribunal could not take these matters into account in deciding whether or not to make the possession order, and so the failure to do so cannot be an error of law.
Strike out of Ms Dodson’s proceedings
Ms Dodson had filed two proceedings which were also before Member Campana on 31 July 2017. In proceeding R 2017/25402 Ms Dodson sought an order that she be made a tenant under a new tenancy, following the breakdown of her relationship with Mr Featherstone, and a family violence intervention order made excluding him from the property. The application relied on s 233A of the RTA. Ms Dodson also sought orders under s 233C of that Act. Member Campana struck this proceeding out, for the stated reasons that ‘the Tribunal has already determined that Ms Dodson is a tenant and Mr Featherstone is no longer a tenant at the rented premises’.
Ms Dodson has no real prospect of success in establishing any real or significant argument that this order was affected by any error of law. It was plainly correct. On the basis of the finding of Member Bates, Ms Dodson was already a tenant, and so s 233A of the RTA could have no operation.
The other proceeding brought by Ms Dodson, C 4355/2017, purportedly relies on alleged breaches by the defendant of the Australian Consumer Law and the Fair Trading Act 2012 by reason of failure to repair the property and a promise of a lifetime tenancy, and/or a contract to purchase the property. Member Campana struck out this proceeding on the stated (in the order) basis of failure to pay the hearing fee. Ms Dodson appears in some of her documents to dispute whether or not the hearing fee was, or could be, paid. She also submits in her Submissions in Opposition of Summary Judgment that the Member failed to listen and failed to read the Family Law Act before dismissing the proceeding.
In my view, Ms Dodson has no real prospect of success in establishing an arguable basis for overturning the order striking out this proceeding. Even if there was some error in striking out the proceeding merely because of lack of payment of a fee, I do not consider that Ms Dodson has any real prospect of success in establishing a real argument that it is an error that should result in the order being set aside. This is because the application does not sufficiently identify a jurisdictional or factual basis for the Tribunal to act. Even if the defendant could be considered a provider of services to the plaintiff as a consumer to ground a proceeding for breach of the Australian Consumer Law, it seems that the real grievance Ms Dodson sought to agitate by this proceeding was her belief that she has a contract to purchase the property. Ms Hussein deposes that Ms Dodson gave evidence that she had a contract that entitled her to buy the property, and counsel who appears on the summary judgment application and also appeared at the Tribunal informs me that the Member told Ms Dodson at the hearing that if this was the real basis of the application then payment of the hearing fee would not avail her, as the Tribunal has no jurisdiction to determine a claim for an interest in land based on such an alleged contract.
It is correct that the Tribunal has no such jurisdiction. Given this, there was no requirement for the Member to listen in detail to the application or to read the Family Law Act. Any factual or legal information to support the claim of an interest in the land was simply irrelevant, as the Tribunal could not hear it. I note that Ms Dodson made the same allegation of an entitlement to purchase in the earlier eviction proceeding before Member Bates, and that Member also informed her in written reasons that ‘(t)he Tribunal does not have jurisdiction in relation to the proposed purchase of the rented premises’.
Inadequate reasons
Ms Dodson alleges that the reasons given by the Tribunal were inadequate. It is not clear to what order this complaint is directed. Certainly the reasons for each order are succinctly stated in the body of the order, but in my view Ms Dodson has no real prospect of success in establishing any real argument that this was not sufficient. The Tribunal had no discretion not to grant possession once the necessary requirements had been met, and the order includes these essential findings. In the case of the other two orders, a sufficient reason is given in the order.
Further grounds in Submissions in Opposition of Summary Judgment
Bias
In her Submissions in Opposition of Summary Judgment (although not in the Amended Originating Motion) Ms Dodson raises two new grounds. The first is that the conduct of the hearing gave rise to an apprehension of bias. She does not particularise this allegation, or support it by any evidence, such as the transcript of the hearing. I do not consider that it has any real prospect of success. She was legally represented at the hearing before the Tribunal and I am informed by counsel who appeared for the defendant at that hearing, and appears in this application, that Ms Dodson’s representative made no complaint of bias or lack of procedural fairness at that time.
Decision unreasonable
The second new ground is that ‘the decision’ (Ms Dodson does not identify which order is the subject of this ground) was so unreasonable that no reasonable decision maker could have reached it. Ms Dodson does not identify in what respects she says any of the orders fell into this category. On the basis of my earlier analysis of them, I do not consider that she has any real prospect of success in establishing a real argument for this ground in respect of any of the three orders.
Application for leave to appeal dated 24 January 2018
Ms Dodson served the defendant with a document entitled Application for Leave to Appeal (in the form used in the Court of Appeal) dated 24 January 2018 together with her Submissions in Opposition and affidavit of that date. She did not file this Application, but in the interests of completeness I obtained a copy from the defendant’s legal representatives so that I could consider it as well as her filed documents.
The Application appears to be a compilation of grounds that may give rise to appeal, drawn from texts but without application to the facts of this particular proceeding. The only specific information is a recitation of the three proceedings before Member Campana, and a reference to a magistrate and other proceedings, perhaps in the Magistrates’ Court. The document adds nothing to the plaintiff’s case.
Conclusion
None of the many documents filed by the plaintiff show any grievance that may amount to an error of law in the determination by Member Campana of the three proceedings before her in the Tribunal on 31 July 2017. I accept the submission by the defendant that Ms Dodson has no real prospect of success in her application for leave to appeal, let alone appeal.
The Court has a discretion pursuant to s 64 of the CPA not to grant summary dismissal, even where the basis for it is shown, in limited circumstances. These circumstances are that it is not in the interests of justice to summarily dismiss the proceeding, or that the dispute is of such a nature that only a full hearing on the merits is appropriate. A reason for exercising this discretion can arise, for example, where more fact finding before trial may substantiate a party’s case. This reason does not arise here. This proceeding is an application for leave to appeal, which is confined to the facts already determined in the Tribunal and an examination of arguable legal error. Detailed information has already been supplied by both parties in relation to the conduct of the proceeding in the Tribunal, and both parties have made detailed submissions. It would not be in the interests of justice to prolong the proceeding.
Orders
I will dismiss the proceeding pursuant to s 63 of the CPA.
The defendant seeks its costs of the proceeding on the standard basis. In this Court, unlike the Tribunal, the unsuccessful party is usually required to pay the legal costs of the successful party. There is nothing before me to suggest that any other course is appropriate, and I will make that order.
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