Durney v Unison Housing Ltd
[2019] VSC 6
•8 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02703
| PAUL DURNEY | Plaintiff |
| v | |
| UNISON HOUSING LTD (ACN 076 581 112) | First Defendant |
| and | |
| MICHAEL PERUSCO | Second Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 September 2018 |
DATE OF JUDGMENT: | 8 February 2019 |
CASE MAY BE CITED AS: | Durney v Unison Housing Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 6 |
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JUDICIAL REVIEW – Whether private body amenable to judicial review - Not for profit company – Company limited by guarantee providing social and affordable housing – Registered housing association – Notice to vacate withdrawn – Decision to restrict tenant’s access to staff – R v Panel on Takeovers and Mergers; ex parteDatafin plc [1987] QB 815 – Application of Datafin principle – Residential Tenancies Act 1997 (Vic) s 263, s 330(1) – Housing Act 1983 (Vic) ss 97–100.
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APPEARANCES: | Counsel | Solicitors |
| The plaintiff appeared in person | ||
| For the First and Second Defendants | Ms K Evans | MinterEllison |
HIS HONOUR:
Introduction
Mr Paul Durney, the plaintiff, is a familiar litigant in person. He has conducted, or been a party to, proceedings in the Supreme Court, the County Court, the Magistrates’ Court and the Victorian Civil and Administrative Tribunal (‘Tribunal’) for at least 15 years.[1] Previous proceedings in this Court predominantly relate to his exclusion from universities, where he undertook studies in law for a number of years. He is well educated, holding degrees in environmental design and architecture from the University of Tasmania.
[1]Durney v Royal Melbourne Institute of Technology [2002] VSC 425; Durney v Victoria University & Ors [2013] VSC 280; Durney v Victoria University & Anor [2014] VSC 161; Durney v Deakin University & Ors [2014] VSC 577; Durney v Victoria University & Ors [2016] VSC 418; Durney v Yarra Community Housing (Residential Tenancies) [2015] VCAT 2063; Yarra Community Housing v Durney (Residential Tenancies) [2016] VCAT 493.
The plaintiff has been diagnosed with borderline personality disorder. He is prone to risky behaviour to himself and others. He has great difficulty in establishing or maintaining relationships, resorting to litigation to maintain normal activities such as attending universities or living in rented accommodation. He ordinarily suffers from high levels of stress, which is exacerbated by court hearings. He has been imprisoned following convictions for criminal offences involving harm to others.
Background
The plaintiff is a tenant of Unison Housing Limited (‘Unison’), the first defendant, under a residential tenancy agreement made on 16 May 2016 (‘the tenancy agreement’). He occupies a unit on the second level of a four level apartment building.
The tenancy agreement is in the prescribed form. Both parties agree to comply with the provisions of the Residential Tenancies Act 1997 (Vic) (‘RT Act’). Section 263 of the RT Act permits a landlord to give a notice to vacate without specifying a reason for the giving of the notice.
On 11 May 2017, Unison gave the plaintiff a 120-day notice to vacate (‘the notice to vacate decision’). The notice to vacate was accompanied by a letter signed by the second defendant who is the Chief Executive Officer of the first defendant. The letter referred to what it described as ‘ongoing unacceptable behaviour’ by the plaintiff. Mr Perusco advised the plaintiff that all communication with Unison was to be in the form of email only. He was not to contact any of the Unison offices by telephone or in person (‘the contact decision’).
On 11 August 2017, Unison withdrew the notice to vacate. It has not subsequently served any further notices on the plaintiff. The contact decision has not been withdrawn.
The plaintiff seeks declarations that the notice to vacate decision and the contact decision are invalid. He seeks to restrain Unison from issuing any further notices to vacate, or restricting his contact with Unison staff in relation to tenancy matters. He also claims that Unison is in breach of its obligation to him of quiet enjoyment and seeks orders in the nature of mandamus, compensation and damages.
The plaintiff proceeds by way of judicial review under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
The course of the proceeding
In July and August 2017, the plaintiff filed an originating motion and three supporting affidavits. On 14 August 2017, a judge made orders for judicial mediation. A further order was made that service by the defendants on the plaintiff was deemed effective if undertaken by ordinary post to the address stated in the tenancy agreement, and by email to the plaintiff’s email address.
Later that month, the Court extended the time for mediation as the plaintiff had not provided details of the lawyer who would represent him at the mediation. Further extensions of the time for mediation were granted, but the plaintiff did not retain or provide details of legal representation. No mediation occurred.
On 13 September 2017, the proceeding came before Clayton JR for directions. In her order, Clayton JR recorded that the plaintiff expressed views about the solicitors representing the defendants, that made it clear that a requirement for him to consult with the defendants to prepare a court book was unlikely to be productive. She also recorded that the plaintiff attended the directions hearing, but departed before orders were made.
Nonetheless Clayton JR gave directions for the plaintiff to file and serve any further affidavits on which he intended to rely, and a written outline of submissions and list of authorities by 14 December 2017. The trial was fixed for 13 April 2018 on an estimate of one day. The plaintiff did not comply with this order, and did not file any material.
On 13 November 2017, Clayton JR vacated the trial date, refixing it for 18 May 2018. She extended the time to 15 January 2018 for the plaintiff to file and serve any further material on which he intended to rely. The plaintiff did not comply with this order, and again did not file any material.
On 2 May 2018, the proceeding again came before Clayton JR for directions. The plaintiff attended the directions hearing for a period of time, but departed from the Court before the hearing was concluded.
Clayton JR again vacated the trial date, refixing it for 18 September 2018. The plaintiff was again directed to file and serve any further affidavits, a written outline of submissions and a list of authorities by 13 June 2018. He was also ordered to take all steps necessary to ensure that he was able to send and receive email communications from the defendants’ solicitors, including by ‘unblocking’ that firm from his email server. The plaintiff did not file any material.
Under the same orders, the defendants were to file and serve any affidavits, a written outline of submissions and a list of authorities by 25 July 2018 with the plaintiff to file submissions in reply by 29 August 2018. The defendants sought an extension of time for their material to be filed and served. By order of Clayton JR on 31 August 2018, the time was extended to 7 August 2018. The time for the plaintiff to file any submissions in reply was also extended to 12 September 2018. Neither party sought any postponement of the trial date which had been fixed for 18 September 2018 since 2 May 2018.
On 6 August 2018, the defendants filed submissions and their list of authorities. The plaintiff did not file any material.
The trial
The trial came on for hearing on 18 September 2018 and was listed before me. The plaintiff appeared in person. For safety reasons, counsel appeared for the defendants by videolink.
During the hearing, the plaintiff voiced his views and complaints about the conduct of the proceeding by the defendants’ solicitors. In response to a question from the Court as to whether he was seeking to have the matter adjourned or stood down, he said that he was informed yesterday that the defendants were seeking to have the matter adjourned.
The defendants stated that they opposed any adjournment. The proceeding had been listed for trial since 2 May 2018. They submitted that the first trial date of 13 April 2018 had been vacated on the application of the plaintiff. The second trial date of 18 May 2018 had also been vacated following non-receipt of any material from the plaintiff. The plaintiff had not filed any material in support of his claims, apart from the affidavits filed at the time the proceeding was commenced.
The defendants submitted that there had already been considerable latitude granted to the plaintiff to have the time by which he was to file material extended. The resolution of the proceeding would not be advanced by an adjournment of the trial.
In reply, the plaintiff said that he suffered from mental health issues. He stated that the affidavit of Mr Holmes was served on him a day late on 8 August 2018, and disputed having received the affidavits of Mr Coates of 23 April and 9 August 2018.
The defendants submitted that their affidavits had been served on the plaintiff, relying on three affidavits of service. The first affidavit of service showed that the affidavit of Mr Holmes, Unison’s Director of Corporate Services sworn on 3 August 2018, together with the defendants’ outline of submissions and list of authorities, had been posted by express post to the plaintiff on 7 August 2018. The second affidavit of service showed the summons seeking extension of time and an affidavit of Mr Coats, Unison’s solicitor, dealing with interlocutory matters were served on 15 August 2018. The third affidavit of service showed that a sealed version of the same outline of submissions had been posted on 20 August 2018.
The defendants stated that the only affidavit that they relied on by way of evidence at the trial was the affidavit of Mr Holmes. The plaintiff had had this affidavit since 8 August 2018 together with the defendants’ outline of submissions and list of authorities. This was a period of almost six weeks.
In the circumstances, I decided that the trial should proceed on the basis that the Court would provide the plaintiff with an opportunity for later written submissions. It was noted that:
(a) The proceeding had been listed for trial for a lengthy period;
(b) The plaintiff had had ample notice of the hearing and the benefit of all of the material;
(c) There was no affidavit, medical evidence or other material supporting an adjournment;
(d) The application for an adjournment was made orally on the day of the hearing;
(e) The plaintiff had had a substantial period of time to be ready for the hearing. It was his proceeding and it had been on foot since 2017; and
(f) No benefit would be derived from an adjournment.
The trial proceeded, and the plaintiff again vented abuse and criticism towards the defendants’ solicitors. He was unresponsive when asked by the Court to direct himself to the proceeding, and why it should be upheld. He elected not to address the merits of the case. In the event, all of the affidavits and exhibits filed by him in the proceeding were received into evidence without objection. The affidavit and exhibits of Mr Holmes were also received as the sole evidence relied on by the defendants.
Following the tender of affidavits, the plaintiff departed from the Court. He did not return. For their part, the defendants elected to rely on their written submissions. They did not lead any further evidence or orally address the Court.
The Court ordered that the plaintiff have a further opportunity of providing written submissions by 18 October 2018. The trial then concluded.
Given the very high stress level experienced by the plaintiff while attending hearings conducted under an adversary system, and his behaviour at hearings, the Court’s intent was to give him another opportunity of advancing his case in writing.
Further opportunities to file submissions
On 15 October 2018, the plaintiff communicated by email to the Court, requesting an extension of time to file his submissions. After hearing from the defendants, the Court gave him an extension of time until 7 November 2018 to file and serve any further submissions or material. The Court arranged for its self-represented litigant co-ordinator to be available to assist the plaintiff generally, and in relation to any material on the Court file.
In an email on 5 November 2018, the plaintiff sought a further extension of time to file and serve submissions and material. The plaintiff attached to this email a medical certificate dated 24 April 2018 from Dr Michael Nolan, a general practitioner, and a report dated 19 June 2018 from Ms Jennifer Hall, a mental health clinician. The Court had not been provided with medical reports before.
In his report, Dr Nolan described the plaintiff as having a complex psychiatric history which includes chronic depression and anxiety. He had a diagnosis of borderline personality disorder. He suffered from chronic insomnia and was struggling to have the energy to prepare for two court cases. Dr Nolan noted that the plaintiff had spent time in custody.
In her report, Ms Hall stated that the plaintiff suffered from high levels of stress, and had often engaged in risky behaviour, and public acts of self-harm in an effort to manage his own feelings of distress. The plaintiff was seen as capable of controlling his own behaviour, notwithstanding the diagnosis of borderline personality disorder.
On the basis of the material provided, the Court granted a further extension to 4 December 2018 for the plaintiff to file and serve any further submissions.
On 2 December 2018, the plaintiff sent an email to the Court, stating that he will contact the Court to seek further orders.
On 10 December 2018, the plaintiff sent another email to the Court, requesting a further extension of time until ‘late next week’. On 11 December 2018, my Associate indicated in an email to the plaintiff that the Court had started to consider and write the decision and that the plaintiff’s submissions should be filed and served as soon as possible.
On 12 December 2018, the plaintiff sent an email to my Associate, stating among other things that the court was biased and he was denied a fair hearing. This was followed by a phone call on 14 December 2018, to the same effect.
In an email to the plaintiff, my Associate advised that judgment would not be handed down until after the Christmas holidays.
On 29 January 2019, the plaintiff emailed the Court advising that he would file an affidavit no later than Friday 1 February 2019. However, he did not do so. On 4 February 2019, the parties were advised that the proceeding had been listed for judgment at 10am on Friday 8 February 2019.
On 5 February 2019, the plaintiff phoned and requested a trial date and another extension to file submissions. He was asked to email his request, copying in all parties. The plaintiff said he did not have access to his email as he was unable to leave his apartment due to his health issues. He was distressed and made a threat.
On 7 February 2019, a submission in the form of a lengthy email was received from the plaintiff. The submission has been read and fully taken into account. The submission in part requests the Court not to give judgment, but to recuse itself. The Court does not propose to do so. There is no reason for recusal, and the Court has a duty to decide the case.
Ultimately, all that a court can do is provide a litigant with sufficient opportunity to present his or her case, and respond to the opposing case. While suffering from mental health issues, the plaintiff has had many more opportunities to present his case than are afforded to most litigants. It is now fair and just for the Court to proceed to the determination of the plaintiff’s claims. Fairness to the defendants demands that it do so. They have incurred considerable cost in this proceeding, and have presented their case at trial.
The position of self-represented litigants
Under s 7(1) of the Civil Procedure Act 2010 (Cth) (‘Civil Procedure Act’), the Court has the overarching obligation to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The focus is on the just, quick and cheap resolution of the real issues in dispute, although not at all costs.[2] The duties of a court under the Civil Procedure Act apply to civil proceedings of all types, including proceedings initiated by self-represented litigants. The Court is also guided by principles of procedural fairness, which must be afforded to all parties.
[2]Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303, 323 [56], [57].
In Roberts v Harkness (‘Harkness’),[3] the Court of Appeal considered the scope and content of procedural fairness in the context of proceedings involving unrepresented litigants. The Court held that the framework of analysis as to what will constitute procedural fairness does not change ‘in any significant respect’ where one of the parties is unrepresented.[4] Procedural fairness requires, fundamentally, that each party is offered a reasonable opportunity to advance his or her case, and to be informed of and respond to the case put against them.[5]
[3][2018] VSCA 215 (Maxwell P, Beach and Niall JJA) (‘Harkness’).
[4]Ibid [53].
[5]Ibid. See also Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 338–339 [39]–[44] (Kiefel, Bell and Keane JJ).
The key difference between the Court’s treatment of represented and self-represented litigants, is that the Court must make an assessment as to the capability of the self-represented litigant and, if necessary, assist him or her in articulating any underlying ‘arguable legal point‘.[6]
[6]Ibid [54]–[56].
Procedural fairness therefore requires that a self-represented litigant not be disadvantaged merely because they are unfamiliar with the formalities of the Court or legal argumentation. The Court however also held that:
[t]he management of cases involving unrepresented litigants is a source of continuing difficulty for judicial officers. They are required to balance the interests of justice in the particular case with the competing public interest in the efficient use of public resources and in access to justice for other litigants waiting to have their cases heard. What is required is a combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing – so that the unrepresented litigant’s case can be fairly presented – and those where the interests of justice call for expeditious disposal.[7]
[7]Ibid [66].
As I have said, it is now fair and just for the Court to proceed to the determination of the plaintiff’s claims. He has been given every opportunity to present and supplement his case, and to respond to Unison’s case.
RT Act
Section 263 of the RT Act provides that:
(1)A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice.
(2)The notice must specify a termination date that is not less than 120 days after the date on which the notice is given.
Section 322(2) of the RT Act provides for a landlord to apply to the Tribunal for a possession order for rented premises where the landlord has given the tenant a notice to vacate the premises and the tenant has not delivered up vacant possession of the premises.
The Tribunal is empowered to make possession orders under s 330(1) of the RT Act if it is satisfied amongst other requirements:
(a)in the case of an application where notice to vacate has been given, that—
(i)the landlord…was entitled to give the notice; and
(ii) the notice has not been withdrawn;
…
Unison’s position
Unison is a not-for-profit public company limited by guarantee, and a registered housing association under Part VIII of the Housing Act 1983 (Vic) (‘Housing Act’). It is a provider of social and affordable housing. Unison was formerly known as Yarra Community Housing.
The residents’ manual forming part of the tenancy agreement describes Unison as one of the larger non-profit community housing organisations in Victoria. The manual describes Unison as operating within a highly regulated environment and operations are closely monitored by the State Government. Registration also means that Unison has access to capital funds through the Director of Housing to develop further affordable housing units.
The former Yarra Community Housing web page stated that the principal source of funding for a project development comes from the state and federal governments with periodic access to grants from other sources, such as the Victorian property fund, and donations or grants for project-specific purposes. For most projects, there is a shortfall between external funding and local project requirements. In these instances, Unison depends on its cash reserves, or borrows on the market to secure the balance of funding. It appears that almost all of the funding for the apartment building in which the plaintiff resides was provided by the federal or state governments.
Is Unison amenable to judicial review?
The proceeding raises a significant threshold issue as to whether the challenged decisions are amenable to judicial review under ord 56 of the Rules.
As Unison is not a public body, the question arises whether its decisions to give a notice to vacate, and to restrict the means of contact by the plaintiff with its staff are amenable to judicial review under ord 56.
In R v Panel on Take-overs & Mergers; ex parte Datafin plc (‘Datafin’),[8] the English Court of Appeal decided that a decision of a private body which was not made in the exercise of a statutory power, may be amenable to judicial review if the decision is in a practical sense, made in the performance of a ‘public duty’ or in the exercise of a power which has a ‘public element’.[9] It was significant , in the context of that case, that the private body in question exercised ‘immense power’ and had ‘enormously wide discretion’.[10]
[8][1987] QB 815 (‘Datafin’).
[9]Ibid 838, 847.
[10]Ibid 826–827 (Lord Donaldson MR).
Datafin has been considered in numerous cases in Australia, although its application has never been conclusively decided. In NEAT Domestic Trading Pty Ltd v AWB Ltd,[11] the High Court elected not to determine, on the facts of that case, the ‘question whether public law remedies may be granted against private bodes’.[12]
[11](2003) 216 CLR 277.
[12]Ibid 297 [49]–[50] (McHugh, Hayne and Callinan JJ).
In CECA Institute Pty Ltd v Australian Council for Private Education and Training (‘CECA’),[13] Kyrou J noted a number of Australian cases where Datafin had been referred to with apparent approval.[14] His Honour however noted that the majority of those cases, with one exception, approved of Datafin in obiter rather than in direct application.[15] His Honour ultimately found, as in the cases that he had referred to, that the Datafin question was unnecessary to decide on the facts before him.[16] His Honour stated in obiter that ‘in the absence of High Court authority to the contrary, Master Builders is sufficient authority for the applicability of the Datafin principle in Victoria’.[17]
[13](2010) 30 VR 555 (‘CECA’).
[14]Ibid 570–571 [79]. See for example Norths Ltd v McCaughan Dyson Capel Cure Ltd (1988) 12 ACLR 739, 745–6; MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120, 147 [220]; Whitehead v Griffith University [2003] 1 Qd R 220, 223–5 [12]–[15]; McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759, 779–80 [81], 790–1 [115]–[117]; Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, 385 [7].
[15]Ibid 576 [98]; referring to Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) (2004) 50 ACSR 554.
[16]Ibid 577 [107].
[17]Ibid 576 [100]; referring to Victoria v Master Builders' Association of Victoria [1995] 2 VR 121.
The current state of the law in Victoria concerning the Datafin principle was stated by the Court of Appeal in Mickovski v Financial Ombudsman Service Ltd (‘Mickovski’):
…In face of increasing privatisation of governmental functions in Australia, there is a need for the availability of judicial review in relation to a wider range of public and administrative functions. The Datafin principle offers a logical, if still to be perfected, approach towards the satisfaction of that requirement. There have also been a number of first instance decisions in which it has been held or suggested that the Datafin principle does apply in Australia, and indeed in the past there has been some limited recognition given to the principle in this court.
That said, however, the clear implication of the High Court’s decision in NEAT Domestic Trading Pty Ltd v AWB Ltd and of the observations of Gummow and Kirby JJ in Gould v Magarey is that we should avoid making a decision about the application of Datafin unless and until it is necessary to do so…[18]
[18](2012) 36 VR 456, 466 [31]–[32] (citations omitted) (‘Mickovski’).
In view of this statement of principle, it is necessary to turn to the question of the nature of the decision made by Unison in this case. If, as in Mickovski, Unison was not exercising a ‘public duty or a function involving a public element’, the Datafin principle will not apply.
Helpful insights into the character of Unison’s decisions are found in the Court of Appeal decision of Director of Housing v Sudi.[19]In that decision, Mr Sudi sought to challenge a decision of the Director of Housing, a body corporate and public authority under s 9 of the Housing Act to apply for a possession order in relation to public housing occupied by Mr Sudi and his son. The challenge was undertaken by a proceeding in the Tribunal. In upholding the appeal, Warren CJ, Maxwell P and Weinberg JA agreed that the Tribunal did not have power to collaterally review the lawfulness of the Director’s decision to apply for a possession order under the RT Act.[20]
[19](2011) 33 VR 559.
[20]Ibid 569 [43].
After setting out the relevant provisions of the RT Act, Maxwell P said:
In short, the Director was not here acting in exercise of a power conferred upon her in her statutory capacity as such. Rather, she had standing to apply for a possession order under s 344(1) because she was ‘a person who claims to be entitled’ to possession. Her eligibility to apply for such an order was no different from that of any other person claiming a similar entitlement. The statutory scheme thus operates in exactly the same way for the Director, as a public landlord, as it does for private landlords.
...
This circumstance points very strongly to the exclusion of collateral review. In a statutory scheme which applies without differentiation to public and private landlords, it would be quite anomalous if the Tribunal were empowered – in cases where application was made by the Director as public landlord – to enquire into the lawfulness of the Director’s decision to seek possession. There is simply no basis for implying into the jurisdiction-conferring provisions a power in the Tribunal to conduct such a collateral review.[21]
[21]Ibid 575 [73]–[75] (citations omitted).
In the above passage, Maxwell P highlights the significance of ss 344 and 345 of the RT Act. The Director’s rights and obligations under the RT Act in relation to a residential lease are the same as any other landlord. The Director’s claim is not based on the exercise of a power conferred by statutory capacity as such. Rather, the right to take proceedings is conditioned by the existence of a right to possession of land whether the premises are in public or private ownership.
Moreover, the Director of Housing is a public authority acting under statutory powers contained in the Housing Act, whereas Unison is a private body registered as a rental housing agency. If the Director of Housing acts in consequence of property rights rather than statutory authority in seeking to recover possession, Unison as a private landlord can only be in a like position as with other private landlords generally. The rights of landlords (whether public or private) and tenants are subject to the same provisions and statutory scheme contained in the RT Act.
I am of the view that Unison’s decisions to give the plaintiff a notice to vacate and to restrict his contact with Unison staff to communications by way of email were not decisions amenable to judicial review for the following reasons:
(a)Unison is a private body, and was not acting under any statutory power;
(b)Neither decision was made in the performance of a public duty, or in the exercise of a power that had a public element or public law consequences;
(c)The decision to serve a notice to vacate under the RT Act is a decision to take the first step towards the recovery of possession of rented premises under the RT Act;
(d)A right to obtain possession of premises under the RT Act is a private property right, arising from the tenancy agreement; and
(e)Likewise, a decision to restrict the manner in which the plaintiff can contact Unison staff for security and safety reasons, is a private decision by an employer in the discharge of its duty to provide a safe workplace.
For these reasons, I conclude that the decisions of Unison challenged by the plaintiff are not amenable to judicial review. If I am wrong in concluding that judicial review does not apply to the decisions in question, the proceeding fails for the following additional reasons that I will now set out.
Notice to vacate decision
The notice to vacate was given under s 263 of the RT Act on 11 May 2017. It directed the plaintiff to vacate by 15 September 2017. It was withdrawn on 11 August 2017 before it could take effect. The plaintiff continued in possession of his apartment at all times. Given the circumstances, the withdrawn notice to vacate has no legal effect.
In Burgess v Director of Housing, Macaulay J set out the relevant authorities in relation to the granting of a writ of certiorari:
The function of certiorari is to quash the legal effect or the legal consequence of the decision or order made under review. As Brennan J said in Ainsworth v Criminal Justice Commission:
‘Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.’
In Hot Holdings v Creasy, Brennan CJ, Gaudron and Gummow JJ reasoned (at 159) that:
‘... for certiorari to issue, it must be possible to identify a decision which has a discernible legal effect upon rights. It is that legal effect which may be removed for quashing.’
Extending that reasoning further, in Wingfoot the High Court (French CJ, Crennan, Bell, Gaegelar and Keane JJ) explained:
‘Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported effect of which is moot or spent. An order in the nature of certiorari in these circumstances would not be simply inutile, it would be unavailable.’
So, in Wingfoot, in reliance upon that principle, the High Court held that an order in the nature of certiorari was not available to quash the opinion of a medical panel given under the Accident Compensation Act 1985 (Vic) (‘ACA’) in the particular circumstances that existed. That was because, so the court held, the opinion of the medical panel ‘had no continuing legal consequences’; its ‘legal effect was spent’.[22]
[22][2014] VSC 648, [16]–[19] (citations omitted).
In my view, no order in the nature of certiorari can be issued in relation to the notice to vacate because the exercise or purported exercise of power in giving a notice to vacate is moot or spent as a consequence of its withdrawal. The grant of the remedy would be futile. For this reason, and in the circumstances of this case, I would also decline in the exercise of my discretion to grant such a remedy.
Future notices to vacate
The plaintiff seeks to have the Court restrain Unison from issuing a notice to vacate on a future date. This would mean that Unison could never serve a notice to vacate on the plaintiff.
In my view, no such order could or should be made. Unison is the landlord under a tenancy agreement with the plaintiff. Both parties have rights and obligations as stated in the RT Act. It would be arbitrary, unfair and unjust to restrain one party or the other from the right to take steps, give notices and issue proceedings under the RT Act.
Contact decision
There is a significant factual background to the contact decision. In this regard, I accept the evidence of Mr Holmes contained in his affidavit. Without seeking to describe all of the complaints and events which have occurred, I accept that the following incidents took place:
(a)On 16 March 2016, the plaintiff conducted a ‘sit in’ for approximately five hours outside Unison’s city office, obstructing the back door. Police were called to remove him;
(b)On 17 November 2016, the plaintiff climbed down from the balcony of his unit entering the unit below, and demanded that the tenant in that unit turn off his light and fan. The tenant opened his door to show the plaintiff that his fan was not turned on. The plaintiff apologised to the tenant for his conduct;
(c)On 18 November 2016, the plaintiff attended Unison’s Collingwood office. He became agitated, screaming into the front desk glass and using abusive language. He continued to do so after being requested to stop. He attempted to barge his way into the office using his body weight, and attempted to get through the glass into the interview room. He removed a chair from the waiting room, walking outside onto the road with the chair over his head. Police attended the incident;
(d)On 24 November 2016, the team leader of Unison responsible for the premises, obtained an interim Personal Safety Intervention Order (‘IVO’) from the Magistrates’ Court in relation to aggressive and abusive behaviour by the plaintiff towards her and other staff. She stated that she was very scared for herself and her staff;
(e)On 15 December 2016, the plaintiff posted copies of the annotated IVO application in public areas around the apartment building and in tenants’ letterboxes. The annotations accuse the staff member of obtaining the IVO to ‘stop tenants complaining’, ‘avoid doing her job’, ‘wasting the money you pay in rent’ and ‘pissing…away [sic] on lawyers to avoid doing her job’;
(f)On or around 1 May 2017, the plaintiff called Unison approximately seven times using threatening and aggressive language to staff. He also made numerous threats of suicide to Unison staff, and attempted to act on his threats of suicide by hanging himself on the balcony of his unit;
(g)On 3 May 2017, Unison issued a breach notice to the plaintiff in relation to his behaviour on 1 May 2017, particularly with respect to his interference with the peace, comfort and privacy of other tenants in the building;
(h)Over the period from 2–9 May 2017, the plaintiff made daily telephone calls of an abusive and aggressive nature towards Unison employees;
(i)On 10 May 2017, the Magistrates’ Court issued an IVO against the plaintiff, including in relation to Unison’s premises at three locations. The plaintiff appealed the IVO to the County Court;
(j)On 11 May 2017, the notice to vacate was given and the contact decision made;
(k)On 23 June 2017, an employee of Unison attempted to access the plaintiff’s apartment to undertake maintenance to the fire alarm. The plaintiff refused to allow entry until his fan issue had been fixed; and
(l)On 23 July 2018, the plaintiff called Unison’s after hours maintenance line a total of 51 times between 2.18am and 8.19am. He spoke to a Unison employee in an abusive manner, complaining about the noise from fans in his neighbours’ units.
The plaintiff continues to contravene the contact decision by regularly telephoning Unison and its employees. This can be as much as four or five times a week.
I accept that the contact decision was made by Unison for the safety and security of it staff, and for their personal protection. It is the responsibility of employers generally to provide a safe workplace and protect their staff from physical threats, harassment and abuse. The action taken by Unison to restrict access by the plaintiff to its staff was appropriate in the circumstances.
I accept Unison’s submission that the contact decision was reasonable, rational and justifiable having regard to the plaintiff’s conduct. It was not arbitrary, made for an improper purpose or in bad faith.
Does procedural fairness apply to the contact decision?
The authorities establish that procedural fairness must be observed in the making of a decision where that decision involves ‘any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests’.[23] Although the concept of ‘interests’ extends beyond strictly legal rights, the requirement that those rights or interests be ‘affected’ also precludes the granting of relief in the present case.[24]
[23]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 622 [367] (Gageler J).
[24]Kioa v West (1985) 159 CLR 550, 616–617 (Brennan J).
The contact decision does not affect any ‘right or interest’ of the plaintiff, who has not suffered any ‘practical injustice’ arising from that decision. [25] He retains all of his rights to make complaints under the Housing Act, and all of his rights under the RT Act and the tenancy agreement.
[25]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [38] (Gleeson CJ).
Complaint procedure
Part VIII of the Housing Act provides a complaints procedure for tenants of premises owned by rental housing agencies. Tenants have comprehensive rights of complaint under this part.
Complaints may be made by tenants to registered agencies on matters related to rental housing.[26] Registered agencies must take all reasonable steps to resolve a complaint within 30 days.[27] They must maintain a register of complaints.[28] If a complaint is not resolved within 30 days after it is made, it can be referred to the Registrar of Housing Agencies for investigation and decision.[29] The Registrar can direct registered agencies to remedy the matter complained of, or take other action to reduce the likelihood of future complaints.[30] Subject to a right of review, a registered agency must comply with a decision of the Registrar.[31]
[26]Housing Act s 97(1).
[27]Ibid s 97(2).
[28]Ibid s 97(3).
[29]Ibid ss 98, 99.
[30]Ibid s 100(1).
[31]Ibid ss 100(3), 101.
Despite the existence of a comprehensive complaints process, the plaintiff has not sought to engage it.
For the reasons that I have given, there is no basis for an order of certiorari in relation to the contact decision. I would in any event decline to exercise my discretion to grant judicial review having regard to the plaintiff’s conduct relating to Unison staff.
Claims for breach of the Charter and other human rights legislation
In the originating motion, the plaintiff claims that the defendants have breached their obligations under human rights legislation, including the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Equal Opportunity Act 2010 (Vic), the Disability Discrimination Act 1992 (Cth), the United Nations Universal Declaration of Human Rights and the Occupational Health and Safety Act 2004 (Vic).
These references do not assist the plaintiff. He does not articulate how these references are relevant or bear on the issues in dispute in this proceeding. There is no issue involving statutory interpretation in this proceeding. For these reasons this claim fails.
Claims for breach of obligation of quiet enjoyment, damages and compensation
In his affidavits, the plaintiff made a wide variety of claims for breach of the obligation of quiet enjoyment arising under the tenancy agreement. These claims are not pleaded or particularised. It is difficult to discern what is claimed and what is not.
The plaintiff has also claimed that Unison is negligent, but has not alleged that Unison owes a duty of care or that he suffered any compensable loss.
Determination of these claims on an originating motion without proper pleading and particulars is not possible. These claims raise disputed questions of fact for determination by the Court. The originating motion procedure is not a suitable process when facts are contested.[32] Claims of this nature when brought in the Supreme Court are commenced by way of writ and require pleadings. The process is time consuming and can be expensive. There is the risk of an adverse order as to costs at the Supreme Court level if the proceeding is unsuccessful. The plaintiff should give serious consideration as to whether there is value in persisting with these claims.
[32]DL Bailey and JK Arthur, Civil Procedure Victoria (LexisNexis Butterworths) vol 239, I 4.04.10.
Even if the plaintiff does wish to proceed with his claims, he should carefully consider choice of jurisdiction. The Tribunal has jurisdiction and is the usual and appropriate forum for their resolution. The Tribunal is able to deal with claims for breach of tenancy agreements much more quickly and inexpensively than this Court. Pleadings are not required in the Tribunal.
Given the failure of the principal claims for judicial review, it is appropriate for the proceeding to be dismissed on the basis that any further claims other than those for judicial review have not been adjudicated, and are not subject to any issue estoppel or res judicata.
Conclusion
For the reasons that I have given, the proceeding will be dismissed. The challenges to the notice to vacate decision, and the contact decision fail. The other claims are not properly brought by way of originating motion and must also be dismissed.
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