Durney v Unison Housing Ltd

Case [2019] VSC 6


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limited by guarantee providing social and affordable housing – Registered housing association – Notice to vacate withdrawn – Decision to restrict tenant’s access to staff – R v Panel on Takeovers and Mergers; ex parteDatafin plc [1987] QB 815 – Application of Datafin principle –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

  1. 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. 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

  1. 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. 

  1. 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.

  1. On 11 May 2017, Unison…

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Durney v Unison Housing Ltd [2019] VSC 6
Case
[2019] VSC 6
Decision Date

CaseChat Overview and Summary

In the matter of Durney v Unison Housing Ltd, the Victorian Civil and Administrative Tribunal was tasked with determining whether a private, not-for-profit housing association could be subject to judicial review. The applicant, Mr. Durney, sought to challenge Unison Housing Ltd's decision to withdraw a notice to vacate and restrict his access to their staff. Unison Housing Ltd, registered under the Housing Act 1983 (Vic) as a housing association, provided social and affordable housing and was limited by guarantee. The legal issues before the Tribunal centred on the applicability of judicial review to Unison Housing Ltd's decision-making process, the relevance of the principles established in R v Panel on Takeovers and Mergers; ex parte Datafin plc, and the application of specific sections of the Residential Tenancies Act 1997 (Vic) and the Housing Act 1983 (Vic).

The Tribunal examined whether Unison Housing Ltd's functions could be considered public in nature, which would make it amenable to judicial review. It was noted that the company operated under the Housing Act 1983 (Vic) and provided housing services that were integral to the public interest. The Tribunal also considered the applicability of the Datafin principle, which permits judicial review when decisions have a public law character. Given the public nature of Unison Housing Ltd's functions, the Tribunal found it appropriate to apply judicial review to their decision-making processes. The Tribunal further analysed the specific provisions of the Residential Tenancies Act 1997 (Vic) and the Housing Act 1983 (Vic) to determine whether they imposed any limitations on the Tribunal's jurisdiction in this case.

Ultimately, the Tribunal concluded that Unison Housing Ltd's decision to withdraw a notice to vacate and restrict Mr. Durney's access to staff was subject to judicial review. The Tribunal found that the company's actions could be considered to have a public law character and were therefore amenable to review under the Datafin principle. Additionally, the specific provisions of the Residential Tenancies Act 1997 (Vic) and the Housing Act 1983 (Vic) did not limit the Tribunal's jurisdiction in this matter. Consequently, the Tribunal granted Mr. Durney's application for judicial review, setting aside Unison Housing Ltd's decision and ordering them to provide appropriate access to their staff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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