Fauth v Director of Housing
[2015] VSC 320
•14 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 01377
| PAUL FAUTH | Plaintiff |
| v | |
| THE DIRECTOR OF HOUSING | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2015 |
DATE OF JUDGMENT: | 14 July 2015 |
CASE MAY BE CITED AS: | Fauth v Director of Housing |
MEDIUM NEUTRAL CITATION: | [2015] VSC 320 |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Application for leave to appeal to the Supreme Court – Whether questions of law – Challenges to findings of fact – Whether real or significant argument that VCAT fell into error – No real or significant argument on a question of law on appeal – Victorian Civil and Administrative Tribunal Act1998, s 148(1)(b).
LANDLORD AND TENANT – Notice to vacate – Tenant endangers the safety of other occupiers – Residential Tenancies Act1997, ss 244, 319 and 322.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Ms K M Evans | Legal Services Branch, Department of Health and Human Services |
HIS HONOUR:
Introduction
The plaintiff, who is now 66 years of age, and is retired, signed a Residential Tenancy Agreement with the Director of Housing (‘Director’) to live at 163/1 Holmes Street in Northcote (‘the property’) in August 2013. Number 1 Holmes Street, Northcote is a large residential building consisting of about 200 flats. He has lived in the property since entering into possession in August 2013.
On 25 March 2015 the Victorian Civil and Administrative Tribunal (‘VCAT’) proceeded to rehear an application by the Director for a possession order and on that day confirmed the original order made on 9 February 2015. The Tribunal ordered that:
(a) the order of the Tribunal dated 9 February 2015 is confirmed;
(b) the time for execution of the warrant of possession issued by the Principal Registrar on 12 February 2015 is extended so that it is to be executed no later than 24 April 2015;
(c) the Principal Registrar shall send a copy of this order by facsimile transmission to the police identified in the warrant.
On 27 March 2015, the plaintiff filed an originating motion in which he sought leave pursuant to s 148(1)(b) of the VCAT Act 1998 to appeal to the Supreme Court from the order made on 25 March 2015. The plaintiff’s summons on the Originating Motion was issued on 24 April 2015 and returned on 29 May 2015.[1] On that day the plaintiff was unable to appear and, by arrangement between the parties, the application for leave was adjourned to 13 July 2015. On that adjourned date there was no appearance by the plaintiff and no explanation for the non-appearance. The Counsel for the defendant tendered a copy of a letter addressed to the plaintiff at his address for service notifying him of the adjourned date of the hearing of his application. The Court, in the usual course, would also have sent him a copy of the order made adjourning the hearing.
[1]The summons did not seek the appropriate orders, but the defendant did not make anything of this defect in the circumstance that the plaintiff was self-represented.
In the absence of the plaintiff, the defendant sought to proceed to have the application for leave to appeal dealt with and, if his extensive written submissions were accepted, refused. This I determined was the correct course to adopt in the circumstances and, having considered the submissions and the material filed by the plaintiff in support of his application for leave to appeal, I indicated I would refuse leave to appeal. These are the reasons for refusing leave.
Background
By notice to vacate given on 22 January 2015, pursuant to s 244(1) of the Residential Tenancies Act 1997 (‘RTA’), the Director required the plaintiff to vacate the property on 28 January 2015. The reason for the notice to vacate given is as follows:
You or your visitor have endangered the safety of neighbours. On January 13, 2015 police attended a serious incident between yourself and a neighbour during which you allegedly stabbed your neighbour and caused injury to him. It is further alleged that you made verbal threats to your neighbour at this time.
At the time of the receipt of the notice to vacate, the plaintiff also received a letter from the Director notifying him of the intention to apply to VCAT for a possession order. That letter stated that the plaintiff did not have to leave the property by the termination date in the notice to vacate. It said that the notice to vacate is a legal requirement under the RTA, where it is the landlord’s intention to ask VCAT for possession of the rental property for a specific reason under the Act. The letter went on:
Once the Department has made its application to VCAT, the Tribunal will send you information about a hearing, including the date, time and place. It is very important that you come to the hearing. VCAT will decide whether to grant a possession order to the Department, based on the facts given at the hearing. You may be required to vacate the property if a possession order is made.
On 6 February 2015, the plaintiff received a notice of hearing from VCAT and had, before that, no contact with anyone from the Department.[2] The notice informed the plaintiff that the Director had applied for a possession order pursuant to s 322(1) and s 244 of the RTA. The hearing was to take place on 9 February 2015 at 11.30am at the law courts, Jika Street, Heidelberg.
[2]Affidavit of Paul Fauth affirmed 2 April 2015, para 7.
The plaintiff was unable to attend the hearing on 9 February 2015. He contacted VCAT on that day and advised that he could not attend the hearing because he was unwell. The hearing nevertheless proceeded in his absence and a possession order was made. On 12 February 2015 VCAT issued a warrant for possession of the property. On 16 February 2015 the plaintiff made application to VCAT to re-open the order of 9 February 2015 on substantive grounds. His application was heard and granted on 25 March 2015, at which time VCAT proceeded to rehear the Director’s application for the possession order and confirmed that order. The plaintiff sought written reasons for the order and they were given on or about dated 1 April 2015.[3]
[3]The reasons of 1 April 2015 of Member J. Good were exhibited to an affidavit of Vivienne Jane Temple, Tenancy and Property Officer, Collingwood Housing Office, Residential Client Services, North-East Melbourne area, Department of Health and Human Services. The affidavit was affirmed on 22 May 2015.
On 30 March 2015 the plaintiff obtained an order from VCAT staying the execution of the warrant for possession until his application for leave to appeal had been heard and determined.[4]
[4]Exhibit PF-7 to the affidavit of Paul Fauth affirmed 2 April 2015.
The Questions of Law and Grounds of Appeal
The draft notice of appeal identifies two questions of law, as follows:
(a) Did the Tribunal err in law by failing to properly follow Smith v Director of Housing [2005] VSC 46 in finding that the notice to vacate contained sufficient particulars to be valid?
(b) Did the Tribunal err in law by failing to properly follow Director of Housing v Pavletic [2002] VSC 438 in finding that the application for possession was valid without continuing danger at the time that the notice was issued?
The grounds of appeal were as follows:
(a) The Tribunal did not have jurisdiction because the reasons in the notice to vacate were not valid; and
(b) The Tribunal was not entitled to make the possession order because the danger was not continuing at the time that the notice to vacate was issued.
The Residential Tenancies Act Provisions
The notice to vacate was given under s 244 of the RTA, which, so far as relevant provides:
Danger
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant or the tenant’s visitor by act or omission endangers the safety of occupiers of neighbouring premises.
(2)The notice may specify a termination date that is the date on which the notice is given or a later date.
In Smith v Director of Housing,[5] Bongiorno J described the procedure for the giving of a notice to vacate under s 244 as designed to protect the quiet enjoyment of neighbour’s properties by permitting a rapid eviction to occur in appropriate circumstances. By the combination of service of a notice under s 244 and application for possession under s 322(1), an order for possession in favour of a landlord can be effective almost immediately. Smith J in Director of Housing v Pavletic,[6] described the procedure as being ‘blunt and speedy’. But for it to be effective, strict requirements are laid down for the notice to vacate.
[5][2005] VSC 46 at [12]–[23].
[6][2002] VSC 438 at [19].
Section 319 of the RTA provides that a notice to vacate given under Part 6 (and s 244 is in that Part) is not valid unless five statutory criteria are satisfied. The notice must be in the relevant prescribed form, it must be addressed to the tenant, it must be signed by the person giving the notice or his agent and, relevantly to the present circumstances, by s 319(d), it must specify the reason or reasons for giving the notice. It must also specify the date by which compliance is required, that is the termination date.
Section 319(d), which prescribes that the notice must specify the reasons for giving the notice, is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable the tenant to understand the facts alleged as the basis for terminating the tenancy. It requires no technical expression or any particular verbal formula, and no particular legal knowledge is required to answer the question ‘Why is this notice being given?’[7]
[7]See the observations of Bongiorno J in Smith v Director of Housing, [2005] VSC 46 at [17].
For the notice to comply with s 319(d) it must set out the facts upon which the assertion that the tenant or the tenant’s visitor has endangered or is endangering the safety of occupiers of neighbouring premises and must do so with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict him or her and to contest those facts if he or she wishes.[8]
[8]Ibid at [18].
Section 322 of the RTA empowers the landlord of rented premises to apply to the Tribunal for a possession order for the premises if the landlord has given the tenant a notice to vacate. In the case of a notice to vacate under s 244, it is not necessary that the tenant has not delivered up vacant possession of the premises.
In Director of Housing v Pavletic[9] Smith J had before him an appeal by the Director from an order of VCAT dismissing an application under s 322(1) of the RTA for a possession order in relation to premises of which the respondent was the tenant. In seeking the possession order, the Director had relied upon a notice to vacate served on the respondent under s 244(1) of the RTA. The question at issue was primarily the meaning of ‘endangers’ where it appears in s 244(1). His Honour concluded that ‘endangers’ in s 244(1) means ‘is endangering’. He said:
It is one thing to empower a landlord with the power to give the notice and provide a blunt and speedy procedure where, at the time of the notice, acts or omissions of the tenant’s visitor are endangering the safety of occupiers of neighbouring premises. It is another to give such a power and procedure where there is no such present endangerment but there was in the past.
For the foregoing reasons, I am satisfied that ‘endangers’ means ‘is endangering’. …[10]
[9][2002] VSC 438.
[10][2002] VSC 438 at [19]–[20].
The Reasons of the Tribunal
The Tribunal gave comprehensive reasons for its decision to make the orders of 25 March 2015. Member J. Good set out the background up to that time, as set out above, described the notice to vacate and the reasons contained in it, referred to the evidence called on behalf of the Director, and by the plaintiff, and the submissions by both parties.
Relevantly for present purposes, the Member referred to the submission made by Ms S. Rose of Victoria Legal Aid on behalf of the plaintiff that the notice to vacate was invalid on the ground that it failed to give sufficient particulars of the alleged incident or danger at the time; that it was an isolated incident that was unlikely to reoccur, and that there was no continuing risk to the neighbours. It was also submitted that the notice was issued too long after the event to which it referred. The tenant had continued to live at the property without any further incidents. She also submitted that the tenant had acted in self-defence and that he had his own significant health issues that ought to be taken into account.
The Member specifically considered whether or not the notice to vacate contained sufficient particulars in accordance with s 319(d) of the RTA. She did not accept the argument that the particulars were insufficient:[11]
Although the information provided in the notice could have been more detailed… in my view the details provided were sufficient to advise the tenant of the conduct that was said to endanger the safety of one of his neighbours. It set out the date of the incident and described what was alleged to have happened i.e. that on 13 January 2015 police had attended an incident during which the tenant had stabbed and injured a neighbour and made verbal threats to him. I was satisfied that the information set out in the notice was sufficient to enable the tenant to be aware of the incident and the allegations upon which the notice was based.
[11]Fauth v Director of Housing, unreported 1 April 2015, VCAT, exhibit BB-1 to the affidavit of Ms Temple affirmed 22 May 2015 (‘Reasons of Member J. Good’).
In relation to the second question of law, which concerns the existence of a continuing danger, at the hearing oral evidence was given by a senior constable of the Victoria Police about a number of incidents involving the plaintiff and other residents, including Mr Michael Jones who had been assaulted on 13 January 2015 as set out in the notice to vacate. The evidence referred to incidents at or around the Northcote housing property in recent months.[12] Evidence was also given of an interim intervention order that the plaintiff had obtained against Michael Jones requiring him to stay away from the plaintiff and that the plaintiff had contacted the police shortly after obtaining the intervention order alleging that it had been breached. Evidence was also given that on 13 January 2015, the police were called to attend the stabbing incident outside Michael Jones’ apartment and statements were taken from Michael Jones and his neighbour, Mr Quinn, who was present and witnessed the event. The police officer gave evidence that the plaintiff was arrested and taken to the Northcote Police Station where he was later charged with assault and released on bail to appear at court on 5 May 2015. The reasons also refer to evidence given by Mr Michael Jones and a number of statutory declarations and sworn and unsworn statements that were provided.[13]
[12]Reasons of Member J. Good at [11].
[13]Reasons of Member J. Good at [7].
In the course of the hearing the plaintiff contested the allegations made by the Director claiming that he acted in self-defence after Mr Jones physically attacked him. He gave an account of an earlier incident, after service of the intervention order on Mr Jones, when Mr Jones approached the plaintiff in the street and verbally abused him (in breach of the order) and that Mr Jones took a swing at him and threatened to kill him and his dog. The plaintiff had reported this incident to the police.[14]
[14]Reasons of Member J. Good at [25].
The plaintiff also gave evidence of his version of what occurred at the time and shortly before the incident referred to in the notice to vacate. It is not necessary to give a full account of this evidence, although it appears in the reasons of the Member.
The significant matter that emerges from the evidence given by the plaintiff is that he had no difficulty whatever in answering the reasons given in the notice to vacate.
Leave to Appeal – Applicable Principles
The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[15] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria.[16] That summary is as follows:
[15][1999] 3 VR 331.
[16](2007) 18 VR 48 at [28].
Whether leave is granted or not must always depend upon the justice of the particular case;
(b)if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
(c)the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d)although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e)once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f)where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
[footnotes omitted]
The Chief Justice also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:[17]
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
[emphasis added]
[17](2007) 18 VR 48 at [29].
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.
Submissions and Consideration
Plaintiff
The plaintiff submitted that the Tribunal failed properly to follow the decision of Bongiorno J in Smith v Director of Housing because the particulars were limited to the one event on 13 January 2015 and that was insufficient to give notice to the plaintiff of the range of evidence in fact adduced which, as reference to the reasons of the Tribunal referred to above shows, ranged widely over the event of that day, other events on that day, or shortly beforehand and more generally to other events.
In relation to the second ground of appeal and the second question of law, it was submitted that the Tribunal either did not apply the ruling of Smith J in Director of Housing v Pavletic, or did not apply it correctly to the facts because there was no evidence that the danger was continuing at the time that the notice to vacate was given.
Defendant
The Director submitted that leave to appeal should be refused because there is not sufficient doubt about whether the Tribunal erred in law to justify the granting of leave to appeal on either question of law. In relation to the first question of law advanced by the plaintiff the Director submitted:
(a) The principles contained in the judgment of Bongiorno J in Smith v Director of Housing are not part of the ratio of the decision, although they are helpful observations on how a landlord can comply with the requirement imposed by s 319(d) of the RTA; and
(b) Having regard to these principles, the Tribunal did not misapply s 319(d) of the RTA. Rather, VCAT was satisfied that the information contained in the notice to vacate was sufficient to enable the tenant to be aware of the incident and the allegations upon which the notice was based, and to advise the tenant of the conduct that was said to endanger the safety of one of his neighbours.
In relation to the second question of law advanced, the Director submitted that:
(a) The Tribunal did not misapply a proper construction of the expression ‘endangers the safety of occupiers’ in s 244(1). Rather VCAT was not satisfied that the danger was not continuing;
(b) There was substantial evidence before VCAT that the applicant was ‘endangering the safety of occupiers’ at the time the notice to vacate was given; and
(c) The plaintiff has no entitlement to seek a merits review of the Tribunal’s finding at [40] that there was a risk of continuing endangerment.
Consideration
The reasons of the Tribunal show that the Member considered and rejected an argument that the notice to vacate was defective because it did not provide enough particulars.[18] The Member said:[19]
Although the information provided in the notice could have been more detailed … in my view the details provided were sufficient to advise the tenant of the conduct that was said to endanger the safety of one of his neighbours. It set out the date of the incident and described what was alleged to have happened … I was satisfied that the information set out in the notice was sufficient to enable the tenant to be aware of the incident and the allegations upon which the notice was based.
[18]Reasons of Member J. Good at [29]–[31].
[19]At [31].
I observe that the notice to vacate cites the relevant provision of the RTA (s 244(1)), alleges that the plaintiff endangered the safety of a neighbour, gives a date of the incident and particulars of the incident, describing briefly what is alleged to have occurred.
At the hearing evidence was given by Senior Constable Fabris about a number of incidents involving the plaintiff and other residents, including Mr Michael Jones, at or around the Northcote housing property in question in recent months. Evidence was also given as I have said,[20] of other material facts.
[20]See paragraph [22] above.
It seems to me that despite the fact that the evidence went considerably further than the particulars stated in the notice, the plaintiff was under no misapprehension and could not have been in any doubt as to why the notice had been given. As Bongiorno J observed in Smith v Director of Housing at [17]:
It requires no technical expression, no particular form or verbal formula and no particular legal knowledge to answer the question ‘why is this notice being given?’ a basic facility for communication in plain English is enough.
The answer, for the notice to comply with s 319(d), requires the setting out of the facts upon which the assertion that the tenant or her visitor has endangered or is endangering the safety of relevant neighbours with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes.
In my view the notice gave sufficient particulars.
In relation to the second question of law and the second ground, it is clear that the Tribunal did follow the ratio of the decision in Director of Housing v Pavletic. The Tribunal said:[21]
Even with an intervention order in place, the potential for conflict appeared to escalate rather than reduce or disappear and hence I am not satisfied that it was a ‘one off’ event or that the danger was not continuing. It is also important to note, that the tenant’s bail conditions prevent him from approaching or being within a certain distance of Mr Jones or his premises, that in the event that he again becomes intoxicated, it is quite possible that all reason and common sense will evaporate.
[21]At [40].
Although the decision in Director of Housing v Pavletic is not cited in the reasons, it is clear from this passage that the Tribunal followed the interpretation of the expression ‘endangers’ in s 244(1) of the RTA that was determined in that decision.
It is common ground that it is not open to an applicant for leave to appeal to challenge in the appeal findings of fact made by the Tribunal. The real attack made by the plaintiff on the decision of the Tribunal under the second ground was as to the finding by the Tribunal that the endangerment continued. This is not a valid ground of appeal.
Conclusion
For these reasons I am satisfied that there is no real or significant argument that the Tribunal fell into error in its application of the law to the matter. Accordingly, the application for leave to appeal is refused, with costs to be paid by the plaintiff to the defendant.
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