DZ (a pseudonym) v Unison Housing Ltd
[2022] VSC 249
•19 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01095
| DZ (a pseudonym) | Applicant |
| v | |
| UNISON HOUSING LTD (ACN 076 581 112) | Respondent |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 & 29 April 2022 |
DATE OF JUDGMENT: | 19 May 2022 |
CASE MAY BE CITED AS: | DZ (a pseudonym) v Unison Housing Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 249 |
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RESIDENTIAL TENANCIES – Appeal from possession order and termination order made by VCAT – Finding by Senior Member that tenant had endangered the safety of landlord’s employee – Finding by Senior Member that possession and termination orders were reasonable and proportionate – COVID-19 legislation – Residential Tenancies Act 1997 ss 538, 548, 549.
ADMINISTRATIVE LAW – Administrative tribunals – Administrative decision – Judicial review – Decision involving an exercise of discretion – Error of law – Failure to take relevant consideration into account – House v R – Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms M Isobel | Lander & Rogers |
HIS HONOUR:
Unison Housing Ltd (Unison) is a registered housing association and charity which provides housing and housing related services to people on low incomes and those who are homeless or at risk of homelessness. DZ has lived at a property managed by Unison since May 2016 (the premises). DZ has been diagnosed with borderline personality disorder and suffers from a number of other serious medical conditions including episodes of extreme anxiety.
On 31 December 2020, the Victorian Civil and Administrative Tribunal (the Tribunal) made orders under the Residential Tenancies Act 1997 (the Act) requiring DZ to vacate the premises by 31 January 2021 and granting Unison a ‘termination order’ and a ‘possession order’.[1]
[1]DZ has not since vacated the premises. Following the Tribunal’s orders of 31 December 2020, Unison applied to the Tribunal for a warrant of possession in respect of the premises on 1 February 2021. After DZ sought leave to appeal the Tribunal’s decision to this Court, the Tribunal made further orders on 16 April 2021 and 25 May 2021 to the effect that a warrant of possession would not be issued without further order of the Court or the Tribunal.
On 13 April 2021, DZ filed a notice of appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) seeking leave to appeal against the orders made by the Tribunal on 31 December 2020.
For the reasons which follow, I will grant leave to appeal and allow the appeal. The orders of the Tribunal made on 31 December 2020 will be set aside.[2]
[2]DZ also sought, and I will grant, an extension of time in relation to the filing of his notice of appeal. It is unnecessary to examine the procedural background relevant to this issue as Unison’s opposition to the grant of an extension of time was limited to the contention that the appeal was devoid of merit and accordingly futile. That submission must be rejected for the reasons detailed below.
Background
The orders made by the Tribunal on 31 December 2020 concern events which occurred on 29 September 2020 at the building where the premises are located. The basis for Unison’s application for orders terminating DZ’s tenancy of the premises was that, on that day, DZ was alleged to have intimidated and assaulted one of its staff members. The particulars of this allegation are dealt with in the reasons issued by Senior Member Vassie on 16 December 2020 which I consider in detail below.[3] Before doing so, it is necessary to first examine the relevant provisions of the Act.
[3]Unison Housing Ltd v DZ (Residential Tenancies) [2020] VCAT 1382 (the Reasons).
Residential Tenancies Act 1997
In its application to the Tribunal, Unison sought termination and possession orders under ss 548 and 549(2) of the Act.
At the time of Unison’s application to the Tribunal, s 548(1) of the Act relevantly gave a right to a landlord under a tenancy agreement in respect of rented premises to apply to the Tribunal for an order terminating the tenancy agreement. Section 549 of the Act provided that the Tribunal may make an order terminating a tenancy agreement if satisfied of certain matters. The section relevantly provided as follows:
549 Tribunal may terminate tenancy agreement in certain circumstances
(1)On an application under section 548, the Tribunal may make an order terminating a tenancy agreement if satisfied—
(a)as to any of the matters set out in subsection (2); and
(b)that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make the order taking into account the interests of, and the impact on, each of the following in making the order—
(i)the landlord or mortgagee in respect of the rented premises;
(ii)the tenant;
(iii)any co-tenants or other residents;
(iv)any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(2)For the purposes of subsection (1), the matters are—
(a)that the tenant or the tenant’s visitor has, by act or omission, intentionally or recklessly caused serious damage to the premises, including to any safety equipment or to any common areas; or
(b)that the tenant or the tenant’s visitor by act or omission endangers[4] the safety of—
[4]The Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (the Regulations) modified the operation of some of the provisions of the Act. The phrase which appeared in s 549(2)(b), as enacted, was ‘has, by act or omission, endangered’. Regulation 42 of the Regulations provided that s 549(2)(b) operated as if ‘has, by act or omission, endangered’ were omitted and ’by act or omission endangers’ were substituted. Although an expiry date of 26 September 2020 was provided for the Regulations under r 62, this date was extended by operation of r 3 of the Residential Tenancies (COVID-19 Emergency Measures) Amendment Regulations 2020, which substituted the words "the day that Part 16 of [the Act] is repealed" for the expiry date of 26 September 2020. Section 10 of the COVID-19 Commercial and Residential Tenancies Legislation Amendment (Extension) Act 2020 in turn extended the operation of Part 16 of the Act to 28 March 2021.
(i)occupiers of neighbouring premises; or
(ii)the landlord or the landlord’s agent; or
(iii)a contractor or employee of a person referred to in subparagraph (ii); or
(c)that the tenant or any other person occupying or jointly occupying the rented premises has seriously threatened or intimidated—
(i)the landlord or the landlord’s agent; or
(ii)a contractor or employee of a person referred to in subparagraph (i); or
…
(3)If the Tribunal makes an order under subsection (1) and does not make a possession order under subsection (4)—
(a)the Tribunal must specify the date on which the tenancy agreement terminates; and
(b)the tenancy agreement terminates at the end of that day.
(4)If the Tribunal makes an order under subsection (1), the Tribunal may also make a possession order requiring a tenant to vacate rented premises if satisfied—
(a)that any resident who is entitled to a period of notice under section 289A has been given the required notice; and
(b)that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i)the landlord or mortgagee in respect of the rented premises;
(ii)the tenant;
(iii)any co-tenants or other residents;
(iv)any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(5)If a possession order is made under this section, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord.
…
The meaning of ‘reasonable and proportionate’ referred to in s 549(1)(b) was dealt with in s 538 of the Act, which provided as follows:
538 What is reasonable and proportionate?
For the purposes of determining whether it is reasonable and proportionate to make an order under section 549, 551, 559, 561, 569, 571, 582 or 584, the Tribunal must have regard to the following—
(a)the nature, frequency and duration of the conduct of the tenant, resident or site tenant
which led to the notice to vacate being given,[5] including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement;[5]Regulation 38 of the Regulations modified the operation of s 538 of the Act by providing that paragraph (a) operated as if the words emphasised ‘which led to the notice to vacate being given’ were omitted.
(b)whether the breach is trivial;
(c)whether the breach was caused by the conduct of any person other than the tenant, resident or site tenant;
(d)whether the tenant, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order and—
(i)if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and
(ii)if a notice or order was made, whether it included an exclusion condition; and
(iii)any other matter in relation to family violence or personal violence the Tribunal considers relevant;
(e)whether the breach has been remedied as far as is practicable;
(f)whether the tenant, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the tenancy agreement, residency right or site agreement, as the case requires;
(g)the effect of the conduct of the tenant, resident or site tenant on others as a tenant, resident or site tenant;
(h)whether any other order or course of action is reasonably available instead of making the order sought;
(i)as the case requires, the behaviour of the landlord, the landlord’s agent, the rooming house owner, the caravan park owner, the caravan owner or the site owner;
(j)any other matter the Tribunal considers relevant.
The Reasons
After referring to a number of preliminary matters and the procedural background, the Senior Member commenced the Reasons by setting out the background to Unison’s application as follows:
7.There are ventilation fans in the building where DZ’s rented premises are. For some time DZ has complained to Unison about the noise that he says the fans make. The noise, he says, makes it hard for him to sleep and aggravate [sic] his anxiety state. During what he describes as “significant anxiety episodes” he has self-harmed on occasions and has been treated in hospital. Unison claims that it has attended to all maintenance issues about the fans and that they do not make undue noise. DZ says that the noise has not been fixed and that whenever he complains about it Unison requires him to put his complaint in writing.
8.From time to time Unison needs to inspect the building to that [sic] the smoke alarms and fire doors are working correctly. To gain entry they give written notice to tenants of the day on which entry is sought. DZ has been unwilling to allow entry to the rented premises until Unison has fixed the fans. He has challenged at [the Tribunal] the validity of notices of entry, and some of the challenges have been successful.
9.On one occasion, which evidently was on 1 April 2020 because DZ gave that date in his email to Unison, DZ resisted entry of Unison’s employees to the rented premises, and police were called. The police handled DZ roughly. They forced him to the ground (so that his head struck the ground, he told me), handcuffed him, sedated him and took him to hospital. DZ was so traumatised by the incident that he attempted self-harm. He is in fear that any further occasion on which Unison attempts to act upon a notice of entry will lead to the police coming again and treating him in the same way. By his email to Unison about the events of 1 April 2020 he asked Unison to dismiss the employees involved.
10.DZ is getting expert medical and psychological assistance with his state of anxiety, depression and poor sleep. But he has remained agitated about what he regards as Unison’s failure to act upon his complains [sic] about the noise of the fans, and fearful about police being called to any confrontation between him and Unison officers at the building.
The Senior Member then dealt with the events of 29 September 2020. He outlined the immediate background to those events as follows:
11.Early in the afternoon of 29 September 2020, Haydn Smith, Unison’s facilities advisor, and Jesse Hodge, Unison’s place manager, attended the building that includes DZ’s rented premises, and were waiting for a contractor with whose assistance they were going to test the smoke alarms. They walked around the building and saw DZ sitting beside a wall and using his mobile telephone. Although Unison had given DZ a notice of entry to the rented premises, the notice had specified a later date. Mr Smith and Mr Hodge walked to the front of the building. The first of three separate incidents involving them and DZ occurred shortly afterwards.
The Senior Member then summarised the evidence about three incidents which occurred on 29 September 2020 as follows:
12.Mr Hodge’s evidence of the first incident is that DZ came around the corner of the building, walked towards him, demanding to know when Unison was going to fix the fans, and yelling and swearing “in a threatening manner and getting into my face.” He (Mr Hodge) asked DZ to keep 1.5 metres away from him. In his police statement, but not in his affidavit, he said that DZ was not wearing a mask, which was why he asked him to keep that distance away. Mr Smith’s evidence was that DZ came around the corner and started to abuse Mr Hodge, accusing him of having called the police; he was “very aggressive” and was not wearing a mask. Mr Hodge asked DZ to step back. Mr Smith said that if DZ did not step away and calm down he would call the police.
13.DZ’s version of the incident was that he did ask Mr Hodge when the fans were going to be fixed, and that Mr Hodge said that he was not there about that and asked him to put in writing any request to fix the fans. He denied that he was into Mr Hodge’s face or that he was aggressive. He said that before the incident occurred he had been telephoning somebody about Unison’s notice of entry.
14.At the end of the first incident DZ ran at a wall and struck it with his body. His evidence was that an “anxiety episode” had occurred and that he had hit his head against the wall to stop the anxiety. Mr Hodge in his affidavit referred to DZ having struck the wall with a hip and shoulder. Mr Smith in his affidavit does not mention the matter. Although DZ did not directly say so, I infer that it had been Mr Smith’s mention of calling the police that had brought on the episode.
15.In his affidavit and in his statement to the police Mr Hodge described a second incident when, he said, DZ lunged at him, he put up his arm to defend himself, and moved away from DZ into the street outside the building. Mr Smith also referred to Mr Hodge having put up his arm to defend himself. DZ’s version of the incident was that he was merely wanting to speak to Mr Hodge about the fans.
16.Mr Hodge described a third incident which occurred after he walked back from the street towards the building. He said that DZ again lunged at him, tried grabbing his mobile telephone and pushed him, then “lost his balance while trying to trip me over and has fallen over with me in toe [sic]”. In his affidavit Mr Smith said that DZ rushed at Mr Hodge and forced him to the ground.
17.DZ’s version of the third incident was that Mr Hodge thrust his telephone into his (DZ’s) face, that he reached out to push back the telephone, that Mr Hodge pulled him towards him and that he was trying to push Mr Hodge away. “There were six seconds of me not being able to cope. There was no assault. I was defending myself.”.
The Senior Member then concluded as follows:
18.The CCTV footage shows an incident of DZ rushing towards and pushing Mr Hodge. I have taken it to be footage of what I have described above as the third incident. I do not accept DZ’s version of it. I regard it as having been an assault by DZ upon Mr Hodge, although, on Mr Hodge’s version of it, there were mitigating circumstances in that DZ lost his balance with the result that both of them fell to the ground; DZ did not force Mr Hodge to the ground.
19.In the result, Mr Smith did call the police, DZ was arrested, and Unison filed its application to [the Tribunal] on the same day.
After setting out the relevant provisions of the Act, the Senior Member identified the following four questions as arising for determination:[6]
(i)Has Unison proved that on 29 September 2020 DZ, by his acts, was endangering the safety of its employee Jesse Hodge?
(ii)Has Unison proved that DZ has seriously threatened or intimidated Mr Hodge?
(iii)If yes to (i) or (ii) or to both, it is it reasonable and proportionate to make an order terminating the tenancy agreement?
(iv)If yes to (iii), is it also reasonable and proportionate to make a possession order?
[6]Reasons, [32].
As to the first question, the Senior Member concluded that, by his actions on 29 September 2020, DZ was endangering the safety of Unison’s employee, Mr Hodge. The Senior Member accordingly found that Unison had made out the ground in s 549(2)(b)(iii) of the Act. He reasoned as follows:
33.Mr Maloney pointed to the absence of any evidence that since 29 September 2020 DZ had done anything that might have endangered the safety of an employee or contractor of Unison. He submitted that to prove that DZ “endangers the safety” of such a person Unison had to establish that the danger existed at the date of the hearing. I reject that submission for the reason given in paragraph 24 above; adoption of the law on the analogous s 244(1) compels the conclusion that Unison must prove that DZ was endangering Mr Hodge’s safety on the day of the filing of the application before it makes good the claim that DZ “endangers” the safety of Mr Hodge within the meaning of s 549(2)(b). The absence of any evidence of endangerment since that day is relevant to the question of whether the making of a termination order and a possession order is reasonable and appropriate but does not mean that Unison cannot make out the ground identified in s 549(2)(b)(iii).
34.Neither Mr Hodge nor Mr Smith attended the videoconference so that the evidence in his affidavit could be tested by cross-examination. Mr Maloney submitted that for that reason I should not prefer their evidence to DZ’s evidence as to what occurred on 29 September 2020. That submission lost its force because of the availability of the CCTV footage. What it showed is contrary to DZ’s version of the third incident that I described in paragraphs 16, 17 and 18 above, and is consistent with Mr Hodge’s version. Mr Smith’s evidence in most respects was also consistent with Mr Hodge’s version, except that he said that during the third incident DZ forced Mr Hodge to the ground, whereas Mr Hodge said that DZ had fallen on him causing them both to fall to the ground. For those reasons, wherever Mr Hodge’s version of events on that day is different from DZ’s version I prefer Mr Hodge’s version. I find that DZ rushed forward and pushed Mr Hodge before falling on him and taking him to the ground. It amounted to an assault which put Mr Hodge in danger of injury, although fortunately he suffered no serious injury.
As to the second question identified in [13], the Senior Member concluded that Unison had not established that DZ had seriously threatened or intimidated its employee and accordingly had not made out the ground identified in s 549(2)(c)(ii).[7]
[7]Ibid, [37].
Having found that DZ had endangered the safety of one of Unison’s employees, the Senior Member then considered whether it was reasonable and proportionate to make a termination order and possession order, taking into account the interests of Unison, DZ and any co-tenants or other residents who may be, or have been, affected by his actions. After determining that the only persons whose interests he needed to consider, in the circumstances of the case, were those of Unison and DZ, the Senior Member correctly identified that he was required to take into account the matters listed in paragraphs (a) to (j) of s 538 of the Act for the purpose of determining whether it was reasonable and proportionate to make the orders sought by Unison. The Senior Member considered those matters as follows:
41.(a) Nature, frequency and duration of the tenant’s conduct. I have already dealt with the nature of the conduct when deciding that it was an assault om [sic] Mr Hodge which endangered his safety. There had been an earlier occasion when police were called because DZ resisted entry of Unison’s employees to the rented premises, and the police subdued him. It is true that there has been no evidence of DZ having been aggressive to or obstructive of anyone since the incidents on 20 September 2020.[8] However, in view of DZ’s mental condition, anxiety about noise from fans and anxiety brought about by fear of the police, one has to say that there is a risk that the giving to him of any notice for future entry to the rented premises, or any confrontation of DZ to Unison’s officers about fan noise, will lead in future to conduct similar to his conduct on 20 September 2020.
42.(a), (c), (e) and (f).[9] The “breach”, its cause and remedy. Mr Maloney submitted that Unison’s calling of the police to the scene on 1 April 2020 caused DZ’s anxiety state that led to DZ’s conduct on 20 September 2020. He is being treated regularly by doctors and is consulting a psychologist regularly. He is co-operating with them. That meant, submitted Mr Maloney, that DZ has the capacity to remedy his “breach” of obligations under the tenancy agreement. The treatment and DZ’s co-operation with it are relevant matters to consider in his favour but they do not relate to the matters identified in paragraphs (b), (c), (e) and (f) of s 538 because those paragraphs are predicated upon there having been a breach of obligations under a tenancy agreement. Unison did not allege, and did not attempt to prove, any such breach.
43.(g) The effect of the conduct upon others as tenants. There has been no evidence on what effect, if any, DZ’s conduct has had upon tenants of other rented premises in the building.
44.(h) Any other order or course of action. Whether Unison should or could re-house DZ in another building where there is no issue about fan noise is not something about which evidence was given at the hearing. Mr Maloney submitted that Unison could have given DZ, under Part 5 of [the Act], a breach of duty notice (s 283) and then could have applied for a compliance order (s 209) if the notice was not complied with. The difficulty with that submission is that DZ’s conduct on 20 September 2020 was not a breach of a duty imposed upon him by [the Act] so no effective breach of duty notice could have been given. The only courses of action available are either to make, or to refuse to make, the orders sought in this proceeding.
45.(i) The behaviour of the landlord. So far as the evidence went, there is nothing that Mr Hodge or Mr Smith or anyone else at Unison did on the day that contributed to the events which occurred on 20 September 2020. The calling of the police on 1 April 2020 helps to explain, but does not excuse, DZ’s conduct on 20 September 2020. Mr Maloney criticised Unison’s decision to apply immediately for termination and possession orders and submitted that I should find that Unison should not have made that decision. However, nothing in [the Act] confers any jurisdiction upon the Tribunal to undertake a review of the landlord’s administrative decision, so it is not open to me to make any such finding even if I were minded to do so, which I am not.
46.(j) Other relevant matters. DZ had filed a statement of financial circumstances which showed that he could not afford any housing other than public housing. So far as these particular rented premises are concerned, however, the landlord and tenant relationship between Unison and DZ has been broken beyond repair.
47.Mr Maloney made brief reference to the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”), to s 38(1) of the Charter that provides that it is unlawful for a public authority to act in a way that is incompatible with a human right and to s 7(2)(e) of the Charter that provides that a human right may be subject under law only to such reasonable limits and [sic] can be demonstrably justified, taking into account any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. The applicability of those provisions in the Charter to Unison depends upon its being a public authority as defined in s 4 of the Charter. Whether it is or is not a public authority was not explored during the hearing so I cannot decide that it is. Moreover the submission about the Charter was really only another way of inviting the Tribunal to undertake a review of Unison’s decision to begin and prosecute this proceeding which, for the reason given in the previous paragraph, the Tribunal cannot do.
[8]The Reasons in [41]-[45] include a number of references to the date 20 September 2020. I proceed on the basis that these references were in error and instead were intended to read 29 September 2020, being the date of the alleged incident.
[9]Presumably, given the subject matter of [42] of the Reasons, the reference to (a) at the beginning of the paragraph was a typographical error, and was instead supposed to read (b), (c), (e) and (f).
The Senior Member then concluded, without further elaboration, that it was reasonable and proportionate to make both a termination order and a possession order.[10]
[10]Ibid, [48].
Principles of law applicable to the appeal
The appeal, brought pursuant to s 148 of the VCAT Act, is limited to a question of law and, in the circumstances of this case, requires the leave of the Trial Division of this Court. As stated by McDonald J in Patsuris v Gippsland and Southern Rural Water Corporation,[11] citing the judgment of the High Court in Osland v Secretary to the Department of Justice (No 2):[12]
The jurisdiction conferred by s 148 of the [VCAT Act] is confined to appeals on a question of law. It is not the function of the court in exercising that jurisdiction to usurp the fact-finding function of the Tribunal. An appeal under s 148 is not an appeal by way of rehearing. Rather, the proceeding is in the nature of judicial review.
[11][2014] VSC 621, [9].
[12](2010) 241 CLR 320, 331-333 [18]-[20] (French CJ, Gummow and Bell JJ). See also Bell J in Republic of Turkey v Mackie Pty Ltd [2019] VSC 103, [19].
In Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd, Croft J observed that, in determining whether an error of law has occurred in the making of a decision by an administrative tribunal, it is important for the Court to ‘respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error’.[13] His Honour referred to Kirby J’s remarks in Roncevich v Repatriation Commission that:[14]
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[15] The focus of attention is on the substance of the decision and whether it has addressed the “real issue” presented by the contest between the parties.
I have borne these cautionary words steadily in mind in the present matter. As noted by Ginnane J in Gautham v Panwar, the Tribunal ‘hears thousands of residential tenancy cases a year and members are often required to hear a number of residential tenancy matters in a day, which can present a challenging task. Members cannot take the time to consider their decisions as is often available to a judge’.[16]
[13][2015] VSC 515, [10].
[14](2005) 222 CLR 115, 136 [64].
[15]Citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 348 [74].
[16][2021] VSC 157, [25].
As Unison submitted, the Tribunal has a broad discretion in determining whether to make a termination order under s 549 of the Act. The task encompasses an assessment as to whether it is ‘reasonable and proportionate’ to make an order terminating a tenancy agreement, taking into account all the circumstances of the particular case and the impacts on, amongst other persons, the tenant, the landlord and any other neighbours or co-tenants.
The types of error which may justify overturning a decision involving the exercise of a discretion are those identified in the following seminal statement by the High Court in House v R: [17]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Although review of an exercise of a discretionary power by an administrative tribunal under s 148 of the VCAT Act requires the exercise of original jurisdiction in proceedings which are in the nature of judicial review, those circumstances are considered analogous to an appeal against an exercise of judicial discretion; the principles set out in House v R have consistently been applied in that context.[18]
[17](1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[18]See, for example, Shearman v Owners Corporation No 1 417405Y [2016] VSC 551, [50] (Bell J).
Questions of law
DZ’s notice of appeal contained twenty asserted ‘questions of law’. For reasons which will become apparent, it is only necessary to consider in any detail the ninth asserted question of law (Question IX).
The notice of appeal contained the following paragraphs in relation to Question IX:
IX Section 538(a)
1 The Tribunal failed to take into consideration that:
(a) even if there was a [sic] assault, it was a single incident lasting no more that as [sic] few seconds against a background of a tenant of 8 years;
(b) there has been no re-occurrence of the claimed conduct;
(c) that the claimed conduct was not a breach of any of the tenancy obligations of DZ (this was acknowledged by the Tribunal);
(d) that the complainant followed DZ following the incident and ‘got into the face’ of DZ – the exact conduct that the complainant accused DZ of;
(e) that DZ had been subject to significant violence and mental harm at the hands of Unison over many years and that that conduct by Unison is the reason for the poor mental health of DZ.
2 Section 538(a) restricts the assessment of the Tribunal to ‘what led to’ the allegation and gives no capacity for the Tribunal to ‘crystal ball’ – which constitutes an irrelevant consideration.
3 The Tribunal chose to rely on the hearsay and speculative evidence of Unison as opposed to the written evidence of DZ – which Unison did not challenge by way of cross-examination – including that:
(i) Unison used armed police to force unlawful entry into their [sic] home of DZ;
(ii) that the notice of entry relied on by Unison to force entry was not a valid notice;
(iii) that even a valid notice does not give Unison or the police a right of entry;
(iv) that Unison had had four purported entry notices found to have been invalid by [the Tribunal];
(v) that the determination of the invalid notices was made upon an application to [the Tribunal] by Unison;
(vi) that there were (and still are) multiple maintenance issues that Unison are refusing to resolve – including refusing to enable DZ to lock his door.
4 DZ has a right to prohibit entry to his tenancy by those who do not have a legal right to enter – including the landlord and the police.
Although DZ did not advance any submissions at the hearing of the appeal in relation to this question of law (or any of the other posited questions),[19] bearing in mind that he was self-represented, I consider that the above paragraphs are sufficient to raise the question of whether the Senior Member erred in law in his approach to and consideration of s 538(a) of the Act.
[19]It is necessary and appropriate to recount the following aspects of how the hearing of the appeal in this matter proceeded. Soon after the commencement of the first day of the hearing of the appeal, DZ made an oral application for an adjournment which I refused for the reasons delivered orally that day. Although he was invited to do so, DZ did not then deliver any submissions in support of the appeal. I made orders which provided DZ with 3 weeks to file any written submissions in support of his appeal and adjourned the further hearing of the appeal for a period of 4 weeks. DZ did not then file any written submissions. When the hearing of the appeal resumed on the adjourned date, DZ made a further application for an adjournment which I refused for the reasons delivered orally that day. Counsel for Unison then delivered her submissions in opposition to DZ’s appeal. I then invited DZ to make any submissions in reply. He did not do so and become abusive and disruptive. It is a matter of great concern to note that DZ then attempted to harm himself while seated at the bar table. Fortunately, he was restrained by the quick action of a security officer. I then adjourned the hearing and reserved my judgment in the matter.
As set out in [8] above, s 538(a) of the Act relevantly provides that, for the purpose of determining whether it is ‘reasonable and proportionate’ to make an order under s 549 of the Act, ‘the Tribunal must have regard’ to:
the nature, frequency and duration of the conduct of the tenant, resident or site tenant, including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement…
In Gautham v Panwar, Ginnane J made the following observations about s 538 with which I respectfully agree:[20]
Section 538 contains mandatory considerations that the Member must consider when they are applicable to the facts of the proceeding. It will not always be the case that a failure to mention relevant considerations allows an inference to be drawn that a Tribunal has failed to have regard to them. The drawing of such an inference must always depend on a consideration of the reasons stated in the context of all the circumstances of the case. However, the Member must actively engage with the mandatory considerations, and that engagement must be evident in his or her reasoning.
[20][2021] VSC 157, [18].
The Senior Member addressed s 538(a) of the Act in [41] of the Reasons as follows:
(a)Nature, frequency and duration of the tenant’s conduct. I have already dealt with the nature of the conduct when deciding that it was an assault om [sic] Mr Hodge which endangered his safety. There had been an earlier occasion when police were called because DZ resisted entry of Unison’s employees to the rented premises, and the police subdued him. It is true that there has been no evidence of DZ having been aggressive to or obstructive of anyone since the incidents on 20 September 2020. However, in view of DZ’s mental condition, anxiety about noise from fans and anxiety brought about by fear of the police, one has to say that there is a risk that the giving to him of any notice for future entry to the rented premises, or any confrontation of DZ to Unison’s officers about fan noise, will lead in future to conduct similar to his conduct on 20 September 2020.
I have concluded that this paragraph of the Reasons discloses that the Senior Member committed two errors of law of the type described in House v R in considering Unison’s application for a termination order.
First, although it is clear from [41] of the Reasons that the Senior Member took into account the nature and frequency of DZ’s conduct in determining whether it was reasonable and proportionate to make a termination order, there is no indication in that paragraph, or elsewhere in the Reasons, that the Senior Member took into account the duration of the conduct in making that determination, as he was required to do by force of s 538(a) of the Act.
Unison submitted that, although the Senior Member did not explicitly refer to the issue of duration in the Reasons, he did in substance have regard to that matter by stating in [41] that he had ‘already dealt with the nature of the conduct when deciding that it was an assault on Mr Hodge which endangered his safety’. It was submitted that the Senior Member’s consideration of the evidence in relation to the three incidents which occurred on 29 September 2020 set out in [11]-[18] of the Reasons[21] indicated that he was well aware of and understood the duration of those incidents.
[21]See [11]-[12] above.
There are a number of difficulties with these submissions. While it is true that the earlier paragraphs of the Reasons referred to by Unison indicate that the Senior Member was aware of the temporal frame in which the incidents were alleged to have occurred, the critical issue is whether that awareness was brought to account in assessing whether the making of a termination order was reasonable and proportionate. There is no indication that the Senior Member actively engaged with that consideration at all in making that assessment. By the sentence in [41] referred to above and relied upon by Unison, the Senior Member may be taken to have actively engaged with the character or nature of DZ’s conduct; there is no indication that he did so in relation to its duration. I infer from the following matters that the Senior Member failed to have regard to the duration of DZ’s conduct.
Because the issue of the duration of DZ’s conduct was raised by him at the hearing at the Tribunal and was an issue of potential significance and complexity, it is reasonable to expect that consideration of this issue would be evident from the Reasons if in fact the Senior Member had taken the matter into account. In particular, that part of DZ’s conduct which the Senior Member characterised as being an assault on Mr Hodge was an apparently fleeting incident which involved DZ ‘rush[ing] forward and push[ing] Mr Hodge before falling on him and taking him to the ground’.[22] Considered in isolation, the self-evident brevity of this incident is a matter which would militate against a conclusion that a termination order was reasonable and proportionate. This was in substance raised by DZ in his evidence to the Tribunal that the incident was ‘six seconds of me not being able to cope’. In those circumstances, the absence of any reference at all in the Reasons to the duration of DZ’s conduct supports a conclusion that the Senior Member failed to have regard to it in assessing whether a termination order was reasonable and proportionate.
[22]Reasons, [34]. See [14] above.
Further, given the events of 29 September 2020, if the Senior Member had taken duration into account in the manner contended on behalf of Unison in assessing whether a termination order was reasonable and proportionate in the circumstances (that is, taking into account the duration of the series of incidents which occurred on that day), one would expect that he would have made findings about the first and second incidents. Instead, although the Senior Member stated that he preferred Mr Hodge’s version of events to DZ’s, the only finding he made was in relation to the third incident where DZ ‘rushed forward and pushed Mr Hodge before falling on him and taking him to the ground’. The absence of any express findings about the other incidents undercuts the suggestion that, by outlining the evidence given by the witnesses in relation to three incidents in [11]-[18] of the Reasons, the Senior Member has somehow actively engaged with a consideration of the duration of DZ’s conduct in assessing whether a termination order was reasonable and proportionate in the circumstances.
I am accordingly satisfied that the Senior Member erred in law by failing to take into account a consideration which he was required to take into account by operation of s 538(a) of the Act.
The second error of law evident in [41] of the Reasons concerns the Senior Member’s conclusion that, in light of DZ’s mental condition and anxiety, ‘there is a risk that the giving to him of any notice for future entry to the rented premises, or any confrontation of [DZ] to Unison’s officers about fan noise, will lead in future to conduct similar to his conduct on [29 September 2020]’. In dealing with this aspect of the Reasons, I raised with counsel for Unison whether, in the context of s 538(a) of the Act, consideration by the Senior Member of DZ’s mental condition and anxiety involved the Senior Member impermissibly taking into account irrelevant considerations. However, I accept the submissions advanced on behalf of Unison that, in the context of how the proceeding was conducted before the Tribunal, these matters were appropriately addressed by the Senior Member in the context of paragraph (a) of s 538 because, in substance, they were matters advanced by DZ as being the underlying causes for his conduct on 29 September 2020.
However, the fundamental problem with this part of [41] of the Reasons is that it demonstrates that the Senior Member has approached his consideration of paragraph (a) of s 538 of the Act as involving an assessment of the likelihood or risk that, in the future, DZ will engage in conduct similar to the conduct he engaged in on 29 September 2020. Although it was open for the Tribunal to make and consider such an assessment in accordance with paragraph (j) of s 538, it was not relevant to the considerations which fall for determination by the Tribunal under paragraph (a).
Consideration of the ‘nature, frequency and duration of the conduct of the tenant’ necessarily involves a consideration of what has occurred in the past, rather than predictions about what might occur in the future. That conclusion is underlined by the word ‘recurring’ in the remaining part of paragraph (a). The paragraph requires the Tribunal to take into account the conduct actually engaged in by the tenant and in particular its nature, frequency and duration; it is not directed at any prospective evaluation of the likelihood of the tenant engaging in conduct of a particular type in the future. By proceeding on an erroneous basis that the paragraph permitted such a forward-looking enquiry and assessment, the Senior Member’s purported consideration of the ‘nature, frequency and duration of the conduct of the tenant’ was fundamentally misdirected.
Counsel for Unison sought to resist this conclusion on the basis that, consistent with the principles in Director of Housing v Pavletic,[23] in the above part of the Reasons the Senior Member was properly satisfying himself that the endangerment which arose from DZ’s conduct was continuing. This task necessarily required some degree of prospective evaluation.
[23][2002] VSC 438.
This submission is misplaced. The issue of endangerment and the considerations of the type raised in Pavletic concern the assessment required under s 549(2)(b) of the Act. They do not bear upon the assessment of whether or not the making of a termination order is reasonable and proportionate and, in particular, by reference to the nature, frequency and duration of the conduct of the tenant. It is that matter to which the Senior Member was addressing himself in [41] of the Reasons.
The Senior Member has accordingly erred in law by acting upon a wrong principle in his consideration and application of paragraph (a) of s 538 of the Act.
Given that DZ has succeeded in relation to Question IX, it is unnecessary to consider in any detail the remaining posited questions of law contained in his notice of appeal. It is sufficient to record my conclusion that, principally for the reasons advance by counsel for Unison, none of those asserted questions of law warrant the grant of leave to appeal.
Disposition
Section 148(7) of the VCAT Act provides as follows:
148 Appeals from the Tribunal
…
(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a) an order affirming, varying or setting aside the order of the Tribunal;
(b) an order that the Tribunal could have made in the proceeding;
(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d) any other order the court thinks appropriate.
In his notice of appeal, DZ sought an order that Unison’s application for a termination order and possession order be dismissed. The Court has the power to make an order to that effect under paragraphs (b) and (d) of s 148(7). However, as stated by the High Court in Osland v Secretary to the Department of Justice (No 2), in the exercise of its jurisdiction under s 148, the Court may make substitutive orders:[24]
… where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained.
[24](2010) 241 CLR 320, 332-333 [20], citations omitted.
That is not this case. The errors of law committed by the Tribunal which I have identified are confined to its approach to and consideration of one of the mandatory considerations identified in s 538 of the Act. Given the broad discretion which is vested in the Tribunal under s 549 of the Act, it cannot be said that only one conclusion is open in respect of Unison’s application to the Tribunal if paragraph (a) of s 538 of the Act is construed in accordance with the law and applied to the facts as found by the Tribunal. The proceeding should be remitted to the Tribunal for rehearing by another Member.
Although DZ has succeeded on his appeal, no issue of costs arises as he was not legally represented.
I make the following orders:
1. An extension of time is granted in respect of the filing of the notice of appeal dated 7 April 2021 which was filed with the Court on 13 April 2021.
2. Leave to appeal is granted.
3. The appeal is allowed.
4. The orders of the Victorian Civil and Administrative Tribunal (the Tribunal) made on 31 December 2020 in proceeding [2020] VCAT 1382 are set aside.
5. The proceeding is remitted to the Tribunal for rehearing before a differently constituted Tribunal.
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