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limited by guarantee providing social and affordable housing – Registered housing association – Notice to vacate withdrawn – Decision to restrict tenant’s access to staff – R v Panel on Takeovers and Mergers; ex parteDatafin plc [1987] QB 815 – Application of Datafin principle –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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Durney v Unison Housing Ltd

Details

AGLC: Durney v Unison Housing Ltd [2019] VSC 6
Case: [2019] VSC 6
Decision Date: 8 February 2019

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