Goode v Common Equity Housing Ltd
[2019] VSC 841
•19 December 2019 (Revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 01719
| LOUISE GOODE | Appellant |
| v | |
| COMMON EQUITY HOUSING LTD | First Respondent |
| – and – | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May, 25 June, 5 August and 3 October 2019 |
DATE OF JUDGMENT: | 19 December 2019 (Revised) |
CASE MAY BE CITED AS: | Goode v Common Equity Housing Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 841 |
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RESIDENTIAL TENANCIES – Possession order – Appeal from order of Associate Justice refusing leave to appeal from VCAT order and dismissing judicial review challenge to order – Finding of failure to pay rent to the landlord – Victorian Civil and Administrative Tribunal Act 1998 s 148.
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedural fairness – Whether refusal of adjournment a denial of procedural fairness.
PRACTICE AND PROCEDURE – Appeals from VCAT on questions of law – Failure to identify questions of law – Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the First Respondent | Ms M Isobel | Russell Kennedy |
HIS HONOUR:
The appellant, Ms Louise Goode, appeals against orders made by an Associate Justice on 25 November 2016 refusing leave to appeal against orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made on 3 May 2016 granting the first respondent, Common Equity Housing Ltd (‘CEHL’), possession of a property in Thornbury (‘the property’) at which Ms Goode, as a tenant, has lived for more than 25 years and dismissing her originating motion.
This is an unusual and unfortunate case where there is an impasse that has resisted all attempts to solve it. The tenant of a co-operative housing body will not and does not consider that she can or should pay the rent to the entity that VCAT has found to be the landlord, CEHL. For the last 5 years, she has been paying the rent into another entity’s bank account where it remains, now totalling in excess of $35,000.
In late March 2019, I was allocated this proceeding to hear and determine.
At the initial hearing, I sought to discover if there was some way of resolving the impasse between the parties, and requested that representatives of Access Common Equity Rental Cooperative Ltd (‘Access CERC’), being the entity to whom Ms Goode is paying rent, an authorised representative of the Director of Department of Health and Human Services and an Area Manager from that Department attend at Court on 25 June 2019, to assist in ascertaining whether the underlying issues in the proceeding could be resolved without formal hearing.
Access CERC wrote in response:
Access Common Equity Rental Co-operative Limited respectfully decline to send an authorised representative to appear at the next hearing set down for Tuesday, 25th June, 2019.
Access CERC Limited is a small, not-for-profit, member based housing Co-operative, run entirely by volunteers. Dealing with Ms Goode’s correspondence and unsolicited deposits into our account, has created unnecessary work and more complexity in the Co-operative’s operation. It has put a strain on our group.
All requests to Ms. Goode to cease making inappropriate deposits have failed and all attempts to return these deposits to her have been refused.
We do not consent to acting as an intermediary between Ms Goode and Common Equity Housing Limited and we have no legal relationship with Ms Goode, which has been previously clarified at VCAT. Access CERC simply wishes Ms Goode to desist contacting us and depositing unsolicited monies into the Co-operative’s account.
The proceeding did not resolve.
CEHL is a not-for-profit corporation that provides or oversees the leasing of social housing, especially to people with a low income. It is the registered proprietor of a housing portfolio that includes the property. Some of this portfolio is managed by housing co–operatives, and it directly leases some housing stock to tenants. Its shareholders include all CERCs, including Access CERC, who each hold one ordinary redeemable share in CEHL.
In the first of three VCAT hearings, VCAT declared that CEHL was Ms Goode’s landlord and was entitled to an order of possession. A further two VCAT hearings were attempts by Ms Goode to review that finding and have the matter adjourned.
An Associate Justice refused Ms Goode leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) and summarily dismissed any additional claims that she made in her originating motions as, at least prior to amendment, it also included a judicial review claim.
Background
Grounds of appeal
The appeal from the Associate Justice’s order is by way of rehearing, which ordinarily requires the appellant to show error by the Associate Justice before this Court can allow the appeal.[1] Ms Goode’s proposed grounds of appeal omitting particulars, which are listed below, are:
1. In determining whether the Appellant’s appeal pursuant to s 148 of the VCAT Act was competent, the primary judge failed to apply the correct legal test.
2. The primary judge erred in finding that the Appellant’s Originate Motion dated 24 November 2016 failed to disclose a question of law.
3. The primary judge erred in concluding that the Appellant had not established a prima facie case that the Tribunal had failed to afford the Appellant procedural fairness.
[1]Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015; Oswal v Carson [2013] VSC 355 [11] (Ferguson J).
In particulars to her proposed grounds of appeal, Ms Goode contends that her originating motion raised the following questions of law:
1. Whether the Appellant had been denied procedural fairness.
2.Whether, in forming its opinion that ‘satisfactory arrangements’ were not in place to avoid financial loss to the landlord under s 331(1)(b) of the Residential Tenancies Act 1997 (‘the RTA’), the Tribunal had:
(a) misconstrued the test prescribed by s 331(1)(b) of the RTA;
(b) misdirected itself as to the relevant fact;
(c) acted unreasonably.
3.Whether, in making its decision, the Tribunal had failed to comply with s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) and/or had failed to afford the appellant a fair hearing as required by s 24 of the Charter.
4.The primary Judge erred in concluding that the appellant had not established a prima facie case that the Tribunal had failed to afford the appellant procedural fairness.
The Associate Justice’s decision
The Associate Justice ordered that the proceeding be conducted, and be taken to have been commenced, on the basis that it was both an application for leave to appeal on a question of law under s 148 of the VCAT Act, and an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. His Honour ordered that the amended originating motion, for which he gave leave to file and serve, contain separate parts dealing with these two procedures.
On 25 November 2016, after four days’ hearing, conducted at various dates, and orders permitting Ms Goode to amend her originating motion, the Associate Justice ordered that the application for leave to appeal the VCAT decision of 3 May 2016 be refused and that the originating motion be dismissed. His Honour also ordered that:
… to the extent that the second amended originating motion seeks a relief or remedy not under s 148 of the VCAT Act, but is somehow referable to the VCAT order which is the subject of the leave to appeal application under s 148, that claim is summarily dismissed under s 63 of the Civil Procedure Act.
In his statement of reasons for the order, his Honour stated:
After multiple opportunities, the latest iteration of her originating motion, dated 24 November 2016, simply does not overcome the manifest defects of all of the versions that preceded it. I am firmly of the view that, making all allowances for Ms Goode’s condition, she is simply incapable of articulating in any sensible way the basis upon which she would seek leave to appeal on a question of law from the Tribunal’s decision. I think the situation has been reached where it is simply unfair now on the defendant to have to proceed with this application because it simply cannot discern, nor can I, the case to be met. I think this will truly embarrass or prejudice a fair trial of this application.
Further, his Honour stated that he had read and re–read the transcript of the 3 May 2016 VCAT hearing and that:
A reading of that transcript shows that on that day the Tribunal Member was called on to decide an application for an adjournment by Ms Goode of an application by Ms Goode for a re–hearing of a previous order made at which she did not appear. If the basis for seeking leave to appeal is the decision to refuse an adjournment was the denial of procedural fairness (which is what I distil from the papers) I am firmly of the view that even accepting a denial of procedural fairness as a question of law, there is no arguable basis for saying that the refusal of the adjournment was attended with sufficient doubt. The decision, I think, was plainly correct. Ms Goode was not denied a hearing. She was not denied the opportunity, through a representative on the day, to make her case for an adjournment. There was no practical injustice.
His Honour described the history of the proceeding in the Tribunal as follows:
The insurmountable problems she faced, and one which she still will not face, is that an order had previously been made on 7 March 2016 that she was to vacate the tenanted premises on that day, and pay arrears of rent of $9,461. Ms Goode did not appear that day but a friend of hers attended and asked for an adjournment which was refused.
Then, on 21 March 2016 Ms Goode obtained a stay of the possession and payment order pending her application for a re–hearing, but the stay was granted on condition that she pay the arrears of rent to the first defendant. That is, the rehearing was adjourned to enable her to pay the outstanding rent. The injustice in this case is that she ceased paying rent in December 2014 and since then, the first defendant, which is a not–for–profit registered housing provider, has been deprived of the rent on which it is so heavily dependent.
Ms Goode did not pay the outstanding rent. It is for that reason that on 3 May 2016 the Tribunal, constituted by Member Harvey, affirmed the possession order. On that day and throughout this protracted dispute she has contended, without any legal justification, that the first defendant is not the landlord. The fact is, the Tribunal has made findings that the first defendant is the landlord and she is bound to pay the rent to the first defendant. It is not for Ms Goode to asseverate who [is] the landlord or contend that it is her choice to whom she is bound to pay rent.
The terms of the amended notice of appeal require me to decide whether the Associate Justice was correct in determining that Ms Goode’s amended notice of appeal was not competent because it did not disclose a question of law and whether his Honour erred in deciding that Ms Goode’s originating motion of 24 November 2016 failed to disclose a question of law.
To understand the grounds contained in the amended notice of appeal, a description of CEHL’s application in VCAT application against Ms Goode is required.
The VCAT application
The VCAT application was for possession of the Thornbury property leased by Ms Goode for non-payment of rent. In 2014, for reasons discussed later, Ms Goode ceased paying rent to CEHL, the owner of the property, but paid it instead to Access CERC. However, Access CERC said that it was not the landlord and had had no legal relationship with Ms Goode about the property since November 2008. It does not want to receive Ms Goode’s rent payments and has unsuccessfully attempted to return them to her.
7 March 2016
On 7 March 2016, a Tribunal member ordered that CEHL was entitled to a possession order and that Ms Goode had to vacate the rented premises and pay the landlord rent owed of $9,461.10, plus reimbursement of the application fee of $59.80; a total amount of $9,520.90. Ms Goode did not attend this hearing. The order recited that:
The application by the tenant in writing and through a representative who attended on the day for an adjournment is refused. The Tribunal is of the view, given the extent of the arrears and without an implication of when the tenant may be able to attend a hearing, it is not appropriate to adjourn the matter for any period of time. The representative for the tenant only attended for the adjournment application. The tenant did otherwise not appear at the substantive matter.
21 March 2016
On 21 March 2016, the Tribunal heard an application by Ms Goode for review of the order of 7 March 2016 and, if granted, to have the matter ‘immediately re-opened’ pursuant to s 120 of the VCAT Act, by reason of her non–appearance on 7 March 2016. The Member granted a stay of the possession order until further order, in effect on condition that Ms Goode pay the arrears of the rent to CEHL. Ms Goode’s application for re–hearing was adjourned to enable her to pay that outstanding rent. The order stated:
The Tribunal finds that:
1.The landlord Common Equity Housing Ltd gave the tenant Louise Goode not less than 14 days’ notice to vacate when the tenant owed at least 14 days’ rent.
2.The tenant suffers from a medical condition and requests an adjournment of 6 weeks.
3.The tenant is present at the hearing and has put forward her submissions that she does not believe she should pay rent to Common Equity Housing Ltd and should pay rent to Access CERC Ltd.
4.The landlord of the rented premises is Common Equity Housing Limited, not Access CERC Ltd.
5.Tenant is required to pay rent to the landlord Common Equity Housing Ltd not to Access CERC Ltd.
6.The Tribunal has been provided with a letter from Access CERC Ltd dated 20 May 2015 which states that it has had no legal relationship with Ms Goode with regard to the rented premises since 29 November 2008.
7.Access CERC Ltd has received unsolicited payments from Ms Goode which it does not want and has endeavoured to return to her. Access CERC Ltd does not want to receive any money from Ms Goode and has no legal right to receive rent from her.
8.Ms Goode has continued to pay money to Access CERC Ltd since the letter from Access CERC Ltd dated 20 May 2015.
9.Ms Goode believes that the amount of money which she has paid to Access CERC would equate to the value of her rent.
10.Ms Goode has resided at the premises for 25 years.
11.Ms Goode currently owes the landlord Common Equity Housing Ltd $9,783,10.
12.The landlord requests the Tribunal to confirm the possession order made by the Tribunal on 7 March 2016.
The Tribunal orders and directs that:
1.The tenant Ms Goode shall pay the landlord Common Equity Housing Ltd rent in the sum of $322.00 per fortnight commencing no later than 31 March 2016 to the following Westpac Bank account… or by cheque made payable to Common Equity Housing Ltd at Level 1, 112 Balmain St Richmond 3121.
2.The possession order made by the Tribunal on 7 March 2016 is stayed until further [order] of the Tribunal.
3.The further hearing of the application for a possession order is adjourned to a date and time to be fixed by the principal registrar to be listed at Melbourne to be heard by any member of the Tribunal.
4.The principal registrar shall allow 2 hours for the hearing.
5.The proceeding is adjourned to provide Ms Goode with the opportunity to obtain all moneys currently held by Access CERC Ltd in her name so that she can pay outstanding rent due and owing to Common Equity Housing Ltd before the next hearing.
6.Ms Goode is directed to send to the Tribunal and Common Equity Housing Ltd a statement in support of any submissions she wishes to make at the next hearing.
The Tribunal notes that Ms Goode has been informed by it that if she does not comply with the terms of this order in making rent payments to Common Equity Housing Ltd she would be at risk of being evicted from the premises.
3 May 2016
On 3 May 2016, a VCAT member again heard VCAT’s possession order application. Ms Goode had not paid the arrears of rent as ordered on 21 March 2016. The Tribunal member affirmed and upheld the possession order and made an order which stated:
The Tribunal finds that:
1.The rent, which is $161.00 per week, is paid to 20 January 2015 and the rent owed to today is $10,787.00.
The Tribunal orders and directs that:
1.The application for an adjournment made by the tenant, Ms Goode is refused for the following reasons:
The Tribunal previously granted an adjournment to Ms Goode on 21 March 2016 so that she could make arrangements to pay outstanding rent owed to the landlord.
Ms Goode has breached paragraph one of the order which directed her to pay rent to the landlord pending the further hearing. The arrears have continued to accrue following the order of 21 March 2016.
Ms Goode has continued to pay an entity which is not entitled to receive rent amounts equivalent to rent.
Ms Goode has had 6 weeks in which to arrange to make rent payments to the landlord and address the issues of concern to her and she has not done so.
The Tribunal has been informed through Ms Goode’s advocate that she cannot pay her rent to this landlord.
The Tribunal is not satisfied that Ms Goode has an intention to pay rent to the landlord in the event an adjournment was granted. This would result in further losses to the landlord taking into account that the rent is now 15 months in arrears.
The Tribunal is satisfied that the landlord has already investigated and attempted to take reasonable steps to assist Ms Goode with her request that the ownership of the rented premises be transferred from the landlord to another entity which is the primary basis for the adjournment request today.
The proposal with respect to transfer of ownership of the rented premises has been abandoned because the tenant’s requirements could not be fulfilled.
2.The possession order made by the Tribunal on 7 March 2016 is affirmed and remains in force.
Ms Goode was not present when the 3 May 2016 hearing commenced, but a friend was. When Ms Goode arrived at the hearing, she requested, and was granted, time to speak to a duty lawyer. After that adjournment, a Victoria Legal Aid (‘VLA’) representative appeared, and stated that: she had been unable to receive full instructions, it would be inappropriate for the Tribunal to make the possession order given the medical evidence before it, Ms Goode was continuing to pay rent to Access CERC, and that if a possession order were made, Ms Goode would ‘essentially be out on the street with very little assistance and I do emphasis that, because there are no other options for Ms Goode if she is forced to vacate her property.’ The VLA representative said that she would like to explore alternative arrangements before a possession order was made, including the transfer of the property to a different landlord, as Ms Goode had no options of alternative housing.
The CEHL representative opposed the adjournment because they had ‘been down this path before’. He stated that they were ‘happy to try to negotiate for a transfer’, but that they needed the possession order to be in place otherwise there was a risk the matter would ‘have no end date’. He mentioned previous transfer options, which he said had failed due to Ms Goode’s demands which had been impossible to meet. The VLA representative stated that the matter was far from straightforward, particularly with issues of mental injury, and that Ms Goode was willing to allow an independent person to attend the property and inspect it. The VLA representative noted that it was unclear whether Ms Goode had received any assistance in the negotiations with CEHL and that, if an adjournment was granted, VLA would engage with her to assist her to seek a resolution.
A detailed account of the events on that day are described by the Associate Justice in the following passage:
(a)before the hearing, Ms Goode had sent the Tribunal some medical certificates, one of which was from her treating psychiatrist, Dr Byron Rigby;
(b)the Tribunal member was willing to treat medical certificates as an application for an adjournment even though Ms Goode did not attend the Tribunal to seek one;
(c)the Member asked, and was told by the landlord’s representatives that Ms Goode had not complied with the Tribunal’s orders requiring her to make payment of the rent, and indeed, Ms Goode was still insisting on paying rent to Access Common Entity Rental Housing Cooperative Limited (CERC);
(d)the fact is the Tribunal had already made a finding that the landlord was not CERC but was the first defendant and that Ms Goode’s obligation was to pay rent to the first defendant;
(e)the rent owing as at that date was $10,772.10, on a notice to vacate which had been dated as long ago as 19 January 2016;
(f)the landlord opposed the adjournment on the grounds that there was a long history to the case where she had refused to pay rent and she had not complied with the Tribunal’s orders. (In that regard, it is to be understood that the first defendant is a not for profit organisation and is dependent on rental payments);
(g)although Ms Goode was not present on that day, her friend, Helen Dawson, was. Ms Dawson said that Ms Goode was ‘… in a very terrible state at the moment’;
(h)the Tribunal member decided to proceed to hear the application for the adjournment and commenced by reciting that the notice to vacate was validly given, the landlord was the correct landlord named in the application, the correct address was given for the premises and rent was in arrears for at least 14 days;
(i)the Tribunal went on to recognise under the Residential Tenancies Act that a possession order cannot be made[2] unless satisfied that a satisfactory arrangement was in place to avoid financial loss to the landlord, and it was with that in mind, that the Tribunal had on earlier occasions adjourned the possession order application to give her another opportunity to pay the rent;
(j)then, Ms Goode appeared in the Tribunal room just as the Member was about to dispose of the case, saying she was here against doctor’s orders, and asked to speak to a duty lawyer;
(k)the matter was stood down by the Member to enable Ms Goode to speak to a duty lawyer;
(l)a duty lawyer [then] appeared, Ms Liz Landmark, who understandably said, ‘Look, I’m having some difficulty getting my head around the history of this matter and getting appropriate instructions on that’;
(m)the Legal Aid representative then asked for an adjournment to explore the possibility of coming to an alternative arrangement, saying that Ms Goode wished to remain in the current home and wished to have ownership of the home transferred to her;
(n)the landlord maintained its objection to an adjournment, stating that the Tribunal’s orders were clear that Ms Goode was required to pay the rent to the first defendant and that she had not done so, and had had sufficient time to do so;
(o)moreover, the landlord explained that the parties had been ‘down this path before’; that is, looking to negotiate some basis to appease Ms Goode but that her demands were unworkable, and that what prevailed was the fact that she was in default under the lease and the landlord had waited long enough, and there was no real prospect of alternative arrangements because she simply refused to pay the landlord.
[2]The word ‘cannot be made’ may have been intended to read ‘must be made’.
The Member stated that she had granted the adjournment on 21 March 2016 because Ms Goode was a longstanding tenant and because the risk of homelessness was of ‘great concern’ to her. She accepted that CEHL had already investigated and taken reasonable steps to assist Ms Goode with her request to in effect have the property transferred to another landlord.
Summary of the parties’ cases
It is convenient to set out, in summary, what the essence of each parties’ case is. CEHL’s claim is that Ms Goode has not paid it rent since 22 December 2014, although she had between 2009 and 2014. Ms Goode’s case is that that since 22 December 2014 she has paid the rent to Access CERC. But Access CERC will not accept it. CEHL contends that Ms Goode resigned from Access CERC on condition that she become a direct tenant of CEHL. Her contention is that the document that she signed to that effect was signed under duress. CEHL’s case is that, since 2008, Access CERC has had no responsibility for, or involvement in, the tenancy between CEHL and the plaintiff, as the transfer of the property occurred on 1 December 2008. As the rental premises are not one of those allocated to Access CERC, no company rent is payable upon it.
Ms Goode maintained that Access CERC is her landlord, not CEHL, which holds title to the property. On other occasions, she described CEHL and Access CERC as co-landlords, and claimed that Access CERC can receive CEHL’s rental income, and it can advise Access CERC to forward the rent to it. Another part of her case was that she is unable to pay her rent to CEHL without incurring injury and relapse of her post–traumatic symptoms. She says that she in an impossible position because in order to protect her health she must remain in her home, but to remain in her home she must pay rent and to pay her rent she must sustain injury to her health.
Because on Ms Goode’s case she is not behind in her rent, she argued that CEHL’s Notice to Vacate upon which it obtained the possession order from VCAT was invalid.
Ms Goode’s description of the background to the dispute
Ms Goode’s grounds in her amended Notice of Appeal against the Associate Justice’s order included whether the Member’s refusal of an adjournment on 3 May 2016 denied her procedural fairness. That issue requires some understanding of the dispute between Ms Goode and CEHL and so, I will set out features of it.
Ms Goode made many affidavits in this proceeding, principally about the dispute, and CEHL also filed submissions. A short summary of the dispute is contained in Ms Goode’s submissions drawn by counsel and filed in this proceeding on 28 March 2017. I will set out in (a)-(d) the parts of those submissions that appear to remain undisputed:
(a) In around 2008, a dispute arose between Ms Goode and the shareholders of Access CERC, resulting in Ms Goode’s resignation from that collective [co-operative].
(b) Thereafter, Ms Goode paid rent into the relevant CEHL bank account.
(c) In December 2014, Ms Goode ceased paying rent to CEHL and commenced paying her rent to Access CERC.
(d) Ms Goode has, however, continued to pay her rent punctually, albeit to Access CERC.
Events of and after 5 November 2008
Ms Goode stated that she was a founding member of Access CERC and that on 1 November 1998, the Thornbury property was allocated to Access CERC. Ms Goode’s view that she is not required to pay rent directly to CEHL is, in part, due to events that occurred on 5 November 2008. She said that on that day, she was obliged under duress to resign from Access CERC under threat of expulsion and eviction from the property, and that CEHL agreed to surrender the property to its VicWide division which would offer her an ongoing tenancy on the same terms and conditions she enjoyed with Access CERC.
It appears that the Thornbury property was transferred from Access CERC to CEHL on 1 December 2008.
The events of 5 November 2008 led her to commence seeing a psychologist. She contends that since 2008, she has had to defend herself against constant attempts by CEHL management to forcibly transfer her tenancy from a housing co–operative to a non–participatory ‘shell’ subsidiary within the same organisation. That subsidiary is VicWide, the unit in CEHL which administers the payment of rent for properties leased by it.
Ms Goode commenced an application in VCAT in 2013 alleging that CEHL had unlawfully discriminated against her and acted in breach of her human rights.[3] That application was ultimately unsuccessful.
[3]See Goode v Common Equity Housing Ltd [2014] VSC 585.
Ms Goode said that since early 2016, she has repeatedly authorised Access CERC to transfer her rent payments to CEHL, their beneficial owner. Two occasions she mentioned were in November 2016 and February 2018. She explained that she was unable to comply with VCAT’s order of 21 March 2016 to pay rent to CEHL because to do so would cause her serious harm.
Ms Goode contended that, in 2008, she had been seriously harmed by the decisions and actions of CEHL and its shareholder Access CERC, resulting in her, a woman on a disability pension, having to find the capacity to withstand an abusive social housing relationship. She said that being forced to be a VicWide tenant is an ongoing psychological assault, with the central issue being what occurred on 5 November 2008.
Ms Goode’s medical evidence
Ms Goode also presented a great deal of evidence about her medical condition, principally from Dr B Rigby, her psychiatrist. This evidence is relevant both to the issue of her adjournment request on 3 May 2016 and her capacity to pay rent to CEHL, or VicWide. Ms Goode contends that, given her medical condition, it was unreasonable for the Associate Justice to expect her to amend the originating motion and that, further, the VCAT members were in receipt of medical evidence stating that she was unfit to attend the hearings of 7 and 21 March and 3 May 2016.
Ms Goode provided VCAT with Dr Rigby’s letters of 17 March 2016 and 29 March 2016 and a letter from her general practitioner, Dr Flower, dated 29 April 2016, and the Tribunal Member had stated that she read that material. Ms Goode’s friend, Ms H Dawson, attended the hearing on 3 May 2016 and advised the Member that Ms Goode was ‘in a very terrible state at the moment.’
In Dr Rigby’s reports that were before the VCAT Member on 3 May 2016, he stated that Ms Goode was not medically capable of attending, representing herself or adequately instructing representation of her matters at the hearing on 7 March 2016 and had continued to be seriously incapacitated since that time. Ms Goode’s condition of Complex Post-Traumatic Stress Injury meant that the impact of the judicial process and any complications in its conduct recreated extremely severe symptoms that made it impossible for her to deal with appearances in proceedings or attempt to consider, discuss or matters that they involved. He said that the present hearing and its impact were particularly disruptive, as it involved Ms Goode’s tenure in her home in which she has lived as a member of a cooperative for over 20 years. The prospect of forced repossession of her home duplicated the impact of the most serious and damaging of her experiences of overwhelming abuse that she had suffered earlier in her life.
Dr Rigby stated that Ms Goode’s original injury resulted from her coerced resignation from Access CERC and the non-consensual transfer of her lease to VicWide. He considered that the ‘harmful nexus’ between CEHL and Ms Goode needed to be eliminated. He described Ms Goode as one of the ‘forgotten Australians’ and said that she experienced extreme sensitivity to institutions, personnel, administrative issues and other triggers that reignite the post–traumatic state, specifically interacting with CEHL.
In medical reports, Dr Rigby stated that Ms Goode has a Complex Post-Traumatic Stress Injury occasioned by intense and prolonged duress over many years relating to her housing, ‘superimposed on extremely serious former injuries that had previously been in abeyance’.[4] All aspects of her contact with CEHL, particularly with personnel involved in previous events, had a severe effect on her. She paid rent to Access CERC in order ‘to prevent that psychiatric injury and intense personal suffering’.
[4]Plaintiff’s amended originating motion filed 5 July 2016, 15.
Dr Rigby addressed the Associate Justice at the penultimate hearing day of 11 October 2016 and agreed that the mere fact of Ms Goode being required to send a cheque to her tormentor, i.e. to CEHL, had a highly adverse impact on her. She could not pay the rent because she would be injured by the degree of pain and injury that followed.[5] She believed that she was paying ‘her tormentor’, and that caused massive difficulties for her. The mere mention of CEHL could cause a massive reaction for her. He stated that if the tenancy could be transferred to some entity, not associated with CEHL as a replacement landlord, it would make a massive difference.[6]
[5]Transcript of hearing on 11 October 2016, 46.
[6]Transcript of hearing on 11 October 2016, 45.
The Tribunal also had a medical certificate from Dr M. Flower, who appears to have been Ms Goode’s general practitioner, stating that she had a medical condition, being a PTSD injury, and was currently unfit to effectively represent herself at a VCAT hearing listed for 3 May 2016.
CEHL’s case
Mr S Nash, the Managing Director of CEHL, made an affidavit stating that all of Ms Goode’s authorisation for the transfer rent by Access CERC to CEHL, required Access CERC’s acceptance that Ms Goode’s payments to Access CERC were the payment of rent due Access CERC. Access CERC was unwilling to receive payment on those terms. A stalemate has arisen because Ms Goode has continued to assert that her relationship with Access CERC remains on foot, despite her resignation in 2008. Access CERC maintains that there is no relationship between them, that it is unwilling to act as an intermediary, and has refused to accept Ms Goode’s conditions about the return of funds wrongly paid to it.
Mr Nash stated that, on 5 November 2008, Ms Goode became a direct tenant of CEHL, whereas formerly she had been a tenant of Access CERC, and that she did not have any legal relationship with Access CERC. The rented premises were transferred from it to CEHL. Ms Goode has not paid rent to CEHL since 22 December 2014.
It is relevant in this regard to mention that, on 20 May 2015, a director of Access CERC signed a letter addressed ‘To Whom It May Concern’, stating that:
This is to inform you that Access Cerc has no legal relationship with Ms. Louise Goode nor with regard to the [property] since 29th November, 2008.
Access Cerc has received unsolicited payments into our bank account, to the value of $5,360.00 from Ms Goode since 8/4/2014. Letters asking Ms Goode to cease making payments to our account and cheques refunding all monies paid have been sent to her. The first cheque for $2,500, dated 8/4/2014, was presented on the 10/04/2014. The second cheque, dated 17/12/2014, for $300.00 was returned by Ms Goode. The most recent cheque dated 16/4/2015 for $2,860 has yet to be presented at the bank.
Since then, two (2) further payments, each for $320.00, have been received from Ms. Goode. A cheque for $640.00, dated 20/5/2015, has been written to return these payments to Ms Goode.
Attempts to resolve the dispute
Also relevant to the consideration of the Tribunal Member’s refusal to grant Ms Goode a further adjournment on 3 May 2016 is the evidence of the unsuccessful attempts to resolve the impasse about the payment of rent described above.
Mr Lloyd, the solicitor for CEHL, in his principal affidavit set out his account of its attempts to resolve the matter. He said that CEHL was willing to consider any reasonable proposal that enabled it to maintain its responsibilities and rights as the landlord in respect of the Thornbury property. It had raised options with Ms Goode to minimise her interaction with CEHL. These included arranging for a consenting third party to forward rent to CEHL’s account on her behalf; arranging for a third party to be present at any landlord’s inspection of the property with or without Ms Goode in attendance; appointing a guardian or administrator to manage her tenancy obligations and the consideration of a proposal to transfer the tenancy to any other registered non–profit housing company.
After VCAT’s order of 3 May 2016, CEHL informed Ms Goode that Access CERC could not accept rent payments and that CEHL could not legally require it to do so. It stated that if she agreed to one of the options set out, or proposed an acceptable alternative, then all legal action would stop.
Access CERC stated its willingness to make a one-off transfer of payments that Ms Goode had paid into its bank account, but only on her signing an authorisation form in the terms required. Ms Goode did not sign that authorisation.
CEHL’s stated position, including before the Associate Justice, was that it does not want to take possession of the Thornbury property. But the tenancy had been transferred and the new landlord, CEHL, had obligations not just to receive the rent but also to manage the tenancy more broadly.[7] Access CERC does not want to be involved.
[7]Transcript of hearing on 22 July 2016, 9.
Ms Goode explained that she objected to paying rent to CEHL because it was then transferred internally, that is within CEHL, to VicWide, and that because it received the rent it, was then deemed the landlord. She objected to VicWide being the landlord because of the incident of 5 November 2008 and the bullying of her that escalated and victimised her. She had been endeavouring to reverse this abusive aspect of the relationship.[8]
[8]Transcript of hearing on 22 July 2016, 20-21.
Ms Goode said that Access CERC had continued to ignore her authorisations. She could not sign CEHL’s version of an authorisation, sent by Ms Foxworthy, as it was a repeat of the critical incident of 5 November 2008 when her signature was obtained unlawfully. She stated that a transfer of the landlord’s title was ‘off the table… unless a transfer offers an equivalent or better co–operative agency over her housing affairs.’ Having her housing under the control of the Department of Health and Human Services would be ‘generational violence’ and all her freedom of choice would go.
The extent of the impasse about the payment of rent was highlighted in the following statements in the hearing before the Associate Justice on 11 October 2016. The Associate Justice stated to Ms Goode:
… And what’s happened since, it’s become near farcical. They don’t want to boot you out, you want to stay, you’ve been there for 25 years. All they want is their rent. You won’t pay to them, you insist on paying it to someone else. That’s legally incompetent. And there lies the impasse.[9]
[9]Transcript of hearing on 11 October 2016, 39.
When Ms Goode stated that she had paid the rent to the landlord, the Associate Justice stated:
No, no you haven’t, you’ve paid someone you wished to be the landlord but is not the landlord. Because your mindset is, if you pay the true landlord it’s going to involve a revisitation to past injuries.[10]
[10]Transcript of hearing on 11 October 2016, 39.
When asked about the impediments preventing the transfer of the lease to another registered housing proprietor, Ms Goode said it was not feasible because it perpetuated the injury.[11] At the hearing on 25 November 2016, Ms Goode said she was medically unable to pay rent to VicWide.[12]
[11]Transcript of hearing on 11 October 2016, 51.
[12]Transcript of hearing on 25 November 2016, 23.
The hearing of Ms Goode’s originating motions by the Associate Justice
Ms Goode’s first originating motion, dated 9 May 2016, challenged the VCAT order of 3 May 2016 and appeared to seek primarily judicial review of that order. On 8 June 2016, the Associate Justice ordered that the proceeding should be conducted, and be taken to have been commenced, as both an application for leave to appeal on a question of law under s 148 of the VCAT Act and an application for judicial review and ordered that Ms Goode file an amended originating motion. In accompanying reasons, he described the originating motion as being an unsatisfactory document which did not make clear the difference between the application for leave to appeal and the application for judicial review. He indicated that he understood from the discussion in court that Ms Goode’s grievance seemed to be one of procedural fairness.
On 5 August 2016, Ms Goode filed an amended originating motion. It was 81 pages, which included a number of attached reports from Dr Rigby. It sought leave to appeal on questions of law and judicial review remedies. It contained a number of allegations about procedural fairness and about the application of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
The matter came before the Associate Justice again on 11 October 2016, when his Honour struck out the endorsement on the amended originating motion and gave Ms Goode time to file another amended originating motion.
The proposed second originating motion was filed on 25 November 2016, and was 41 pages in length. It attached statements from Dr Rigby and included a number of matters that were really submissions. In the final sections of the document, under the heading ‘Grounds upon which relief is sought’, it largely repeated the grounds from the original originating motion. These were:
Jurisdictional Error
1. On its proper construction, Section 24 and 25 of the Residential Tenancy Act requires the First Defendant (CEHL) to have regard to and act compatibly with the human rights of a tenant. The First Defendant did not have regard to these matters.
Particulars
The First Defendant (CEHL) failed to take, or take into account, or give proper, genuine and realistic consideration to the fact that the Plaintiff is a person with a protected attribute and is suffering from psychiatric injury.
2. On its proper construction, Section 24 and 25 of the Residential Tenancy Act requires the Second Defendant (VCAT) to have regard to and act compatibly with the Human Rights of a tenant. The Second Defendant did not have regard to these matters.
Particulars
The Second Defendant (VCAT) failed to take, or take into account, or give proper, genuine and realistic consideration to the fact that the Plaintiff is a person with a protected attribute and is suffering from psychiatric injury.
3. On its proper construction, the Cooperative Act 1996 and the National Cooperative Application Law 2013, mandates that a Public Authority such as the First Defendant (CEHL) refrain from making decisions for the Co-operative (Access CERC) or exerting undue influence over the Co-operative (Access CERC). The First Defendant did not so refrain.
Particulars
The First Defendant (CEHL) breached the independence required between itself and the Co-operative (Access CERC).
4.There is no basis in law for the First Defendant (CEHL) to issue or enforce a possession order and seek to evict the Plaintiff from her residence.
Particulars
The Plaintiff has paid rent to the First Defendant (CEHL) and has done so for 25 years. In refusing to accept the rental payments from Access CERC, and using such refusal as a basis to evict the Plaintiff, the First Defendant (CEHL) has acted in excess of their authority and power.
Relevant Consideration
5.The First Defendant (CEHL) failed to take into account matters which it was bound by law to take into account, namely the Human Rights and Responsibilities Act 2006 Vic (“the Charter”).
Particulars
The First Defendant failed to take, or take into account, or give proper, genuine and realistic consideration to the Charter.
6.The First Defendant (CEHL) failed to take into account matters which it was bound by law to take into account, namely the Plaintiff’s medical condition and status as a person with a protected attribute.
Particulars
The First Defendant (CEHL) failed to take, or take into account, or give proper, genuine and realistic consideration to the fact that the Plaintiff is a person with a protected attribute and is suffering from a psychiatric injury.
7.The First Defendant (CEHL) failed to take into account matter which it was bound by law to take into account, namely the Plaintiff’s membership status with Access CERC and lawful status as landlord.
Particulars
The First Defendant (CEHL) failed to take, or take into account, or give proper, genuine and realistic consideration to the Plaintiff’s history and status as a member of Access CERC (which the First Defendant purported to end unlawfully through a resignation obtained under duress) and declaration as to who the lawful landlord is.
8.The First Defendant (CEHL) failed to take into account matters which it was bound by law to take into account.
Particulars
The First Defendant (CEHL) failed to take, or take into account, or give proper, genuine and realistic consideration to its own Grievance Procedure and Bullying Procedure that states natural justice must apply and that no person will be disadvantaged for raising concerns about bullying harassment and discrimination.
9. The Second Defendant (VCAT) failed to take into account matters which it was bound by law to take into account, namely the Human Rights and Responsibilities Act 2006 Vic (“the Charter”) section 75.
Particulars
The Second Defendant (VCAT) failed to take, or take into account, or give proper, genuine and realistic consideration to the Charter under section 24 & 25 of the RTA.
10.The Second Defendant (VCAT) failed to take into account matters which it was bound by law to take into account, namely the Plaintiff’s medical condition and status as a person with a protected attribute.
Particulars
The Second Defendant (VCAT) failed to take, or take into account, or give proper, genuine and realistic consideration to the fact that the Plaintiff is a person with a protected attribute and is suffering from a psychiatric injury.
Reasons
11.The defendants had a statutory obligation to provide reasons for its decision pursuant to Sections 8 and 10 of the Administrative Law Act 1978. The Defendants’ Reasons are inadequate to satisfy the statutory obligation.
Particulars
The Reasons do not explain why the Defendants did not take, or take into account, or give proper, genuine and realistic consideration to the matters raised at paragraphs 5 to 10 above.
Procedural Fairness
12. In seeking its Order, the First Defendant (CEHL) failed to accord the plaintiff procedural fairness. See attached affidavits and exhibits.
Particulars
(a)The Second Defendant (VCAT) failed to give the plaintiff a reasonable opportunity to be heard as to the First Defendant’s conclusion that:
i. VicWide is the landlord of the premises; and
ii. The Plaintiff is no longer a member of Access CERC; and
iii.The Plaintiff is not lawfully entitled to reside at the premises.
The Associate Justice’s reasons
In his statement of reasons, the Associate Justice referred to the indulgences that the Court had given to Ms Goode. He referred to the insurmountable problems she faced, including an order made on 7 March 2016 that she vacate the premises and pay arrears of rent. He referred to the proposed amended originating motion, which had been filed at midnight the night before the hearing and out of time, as ‘just as bad as previous versions’. He stated that:
…the court is now, more firmly than ever, of the view that it does not disclose a question of law, is very difficult to understand, and will prejudice the fair hearing of the application, and truly does not enable the landlord, the defendant or the Court to understand the case to be met.
He then stated:
It was for those reasons I formed the view that there was no point letting this matter proceed to trial in February next year. Therefore, I rescinded previous orders, have refused the application for leave to appeal and dismissed the originating motion.
As I would emphasise, apart from the unacceptable state of the plaintiff’s materials, I would in any event, for myself, form the view that the transcript of the proceeding on 3 May 2016 at the Tribunal does not reveal any denial of procedural fairness and the decision was based wholly on plain facts concerning the tenant’s defaults.
The Associate Justice was of the view that Ms Goode had been afforded procedural fairness on 3 May 2016. The refusal of the adjournment was inevitable in light of the true fact that she had not paid her rent.[13]
[13]Transcript of hearing on 25 November 2016, 29.
I must consider whether the amended grounds of appeal[14] as argued reveal that the Associate Justice erred in refusing Ms Goode leave to appeal the order of VCAT on 3 May 2016 and summarily dismissing any remaining parts of her originating motion.
[14]Pursuant to leave granted by order of 28 March 2017.
Analysis
Ground one
The appellant’s first ground was that, in determining whether her appeal pursuant to s 148 of the VCAT Act was competent, the primary judge failed to apply the correct legal test.
Analysis of Ground one
To grant Ms Goode leave to appeal, the Associate Justice had to be satisfied that she had identified a question of law arising out of VCAT’s decision and that there is a ‘real or significant argument to be put that error exists’ and that it is just to grant leave, or that the VCAT decision was attended with sufficient doubt to justify the grant of leave to appeal[15], or now that the ground has ‘real prospects of success’[16].
[15]Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335-6.
[16]Victorian Civil and Administrative Tribunal Act 1998 s 148(2A).
But the real issue raised by ground one is the Associate Justice’s requirement that the Originating Motion disclose questions of law. That requirement is foundational to an application for leave to appeal under s 148 of the VCAT Act.[17] The Associate Justice correctly applied this test by deciding that no question of law had been identified in the originating motion. Far from failing to apply the correct test, he applied it. He did however consider, although he did not accept, the procedural fairness ground arising from the Tribunal’s refusal of an adjournment on 3 May 2016.
[17]Fraser v Sperling [2017] VSCA 53.
I have taken into account that Ms Goode was self-represented and her medical evidence. These matters are more relevant to ground two of the amended notice of appeal, which I next consider.
His Honour also dismissed any other application by Ms Goode contained in the originating motion using the summary dismissal power found in s 63 of the Civil Procedure Act 2010. This probably reflected the presence of judicial review claims in versions of the originating motion. But the grounds in support of the judicial review application, in most instances, did not contain any legal ground of challenge to VCAT’s decision. Ground one contains no allegation of error in approach by the Associate Justice in that respect.
Ground two
Ground two of the amended notice of appeal is that the primary judge erred in finding that the Appellant’s Originating Motion dated 24 November 2016 failed to disclose a question of law. The particulars to ground two contend that appellant’s originating motion before the Associate Justice raised the following questions of law:
(a) Whether the Appellant had been denied procedural fairness.
(b) Whether, in forming its opinion that ‘satisfactory arrangements’ were not in place to avoid financial loss to the landlord under s 331(1)(b) of the Residential Tenancies Act 1997 (the RTA), the Tribunal had:
(i) misconstrued the test prescribed by s 331(1) of the RTA;
(ii) misdirected itself as to the relevant facts;
(iii) acted unreasonably.
(c) Whether, in making its decision, the Tribunal had failed to comply with s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and/or had failed to afford the appellant a fair hearing as required by s 24 of the Charter.
Obligation to identify a question of law
As previously stated, an applicant for leave to appeal under s 148 of the VCAT Act must identify an error of law involved in the VCAT decision and that there is a significant argument that error exists in respect of it. The Associate Justice considered that no such question of law had been identified, save perhaps for the grounds of procedural fairness which he considered. I will deal first with that ground which is contained in different forms in particulars 1 and 3 of Ground 2 and in Ground 3.
Ground 3 states:
The primary judge erred in concluding that the Appellant had not established a prima facie case that the Tribunal had failed to afford the Appellant procedural fairness.
Submissions about procedural fairness grounds
Ms Goode’s submissions
Ms Goode submitted that the VCAT Member’s decision to refuse her an adjournment to allow Legal Aid to take more formal instructions from her because she did not pay her rent into VicWide’s bank account was unreasonable.
The initial submissions filed on behalf of Ms Goode emphasised the obligations of the Court where faced with an unrepresented litigant and relied on the Court of Appeal decision in Loftus v Australia and New Zealand Banking Group Ltd (No 2)[18] that the Court’s overriding duty was to ensure a fair trial, which included ensuring that an unrepresented litigant understood and was therefore able to vindicate, their rights. The submissions contended that in a case involving an unrepresented litigant, the Court when considering whether a notice of appeal contained a question of law, should read it as a whole and fairly. The submissions referred to the judgment of Mortimer J in Avetmiss Easy Pty Ltd v Australian Schools Qualification Society,[19] which stated in respect of unrepresented litigants and questions of law:
For example, if a denial of procedural fairness is alleged, reading the words of the notice in isolation from any admissible evidence about the process adopted by a tribunal may not be a fair reading of the notice. On the other hand, a fair reading does not involve the creation by the Court of a contention which is not present in the terms of a notice of appeal, read in its context. Nor does it involve the redrafting of a notice.[20]
[18][2016] VSCA 308.
[19][2014] FCA 314 at [76]–[77].
[20]Ibid [77].
To similar effect was the statement of the Court of Appeal in Fraser v Sperling[21] that:
The existence of a question of law both founds the jurisdiction of the Court and constitutes the subject matter of the appeal itself. For that reason, the question or questions of law that are raised must be clearly stated, and not merely ascertained by reference to the grounds of appeal.
It does not follow, however, that a question of law articulated in a notice of appeal under s 148(1) is to be construed strictly or literally. Fairness dictates to the contrary. Accordingly, the Court will not read a notice of appeal narrowly, and will address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances.
[21][2017] VSCA 53 at [55]–[56] (Maxwell P, Santamaria and McLeish JJA).
Ms Goode has been unrepresented and there is copious evidence about her medical condition. The process of attempting to comply with the Associate Justice’s requirements caused her condition to deteriorate further.
CEHL’S submission
CEHL submitted that the Associate Justice decided that, in accepting a denial of procedural fairness as a question of law, there was no arguable basis for the claim.
Prior to making its order of 3 May 2016, the Tribunal had adjourned the matter for six weeks to enable Ms Goode to pay the outstanding rent to CEHL, but she did not do so. The Tribunal heard evidence from CEHL and submissions from her representatives, and was satisfied that she would not pay the landlord. The Tribunal was not obliged to repeatedly and indefinitely adjourn CEHL’s application for a possession order, when it was satisfied that Ms Goode would not pay rent to CEHL, the landlord. The exercise of the Tribunal’s discretion to refuse an adjournment had an intelligible basis and did not involve any legal error.
Analysis of procedural fairness grounds
The Associate Justice stated:
that the Tribunal formed the view, correctly, I think, that an adjournment had to be refused because the tenant simply had not complied with the Tribunal’s order for payment and appeared to be still unwilling to do so.[22]
[22]Statement of Reasons of Associate Justice, 8 December 2016, [14].
In my opinion, the Associate Justice did not err by deciding that there was no question of law raised by the originating motion justifying the grant of leave to appeal that the Tribunal had denied Ms Goode procedural fairness. Many instances like that before the Tribunal on 3 May 2016 would have required the grant of an adjournment to ensure that a person such as Ms Goode, as an unrepresented person with a significant medical condition, received a fair hearing. A legal aid representative was offering her assistance. But the decision of whether to grant an adjournment is the exercise of a discretion in which all parties’ interests must be considered. CEHL had not been paid rent for two years. Each case must be considered on its facts and while the loss of possible legal representation is a significant matter,[23] Ms Goode was unwilling to pay the rent to CEHL.[24] Attempts to reach a solution and an adjournment of six weeks had been unsuccessful. The impasse remains to this day. While Ms Goode did not receive the opportunity to present her case through a legal representative, her case had been, and has remained, that she will not pay rent to CEHL and wishes to pay it to Access CERC. No legal basis had been presented before the VCAT hearing, or since been presented, to support the conclusion that Ms Goode can satisfy her obligation to pay rent to CEHL by paying it to Access CERC. But that remains her contention. It is often unwise with hindsight to conclude that a person has not lost an opportunity to present their case by the refusal of adjournment because of reasoning that the refusal made no difference to an inevitable outcome, as the person would have lost the substantive proceeding in any event. But, in my opinion, this is such a case, as is confirmed by Ms Goode’s fixed position without legal basis, maintained over a long period, about how she will pay rent. There is no suggestion that any adjournment, had VCAT granted one on 3 May 2016, would have altered her position.
[23]See generally, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed 2017) 618-623.
[24]There was no issue raised about the landlord’s right to require that Ms Goode pay the rent to it under the lease agreement (see Residential Tenancies Act 1997 s 42). The dispute was about how that payment should be made.
Nor do I consider that Ms Goode lost a realistic opportunity, with legal assistance, of resolving the dispute with CEHL. That had proved impossible in the years prior to the VCAT hearing, including during the six week adjournment VCAT had granted, and in the years since, including the time that the proceeding has been before this Court.
I do not consider that Ms Goode has established that there is any real or significant risk that the Associate Justice erred in rejecting Ms Goode’s grounds that the Tribunal had denied her procedural fairness in refusing the adjournment on 3 May 2016 or that the decision on that issue was attended with sufficient doubt to have required him to have granted leave to appeal. The procedural fairness grounds did not raise a question of law as required by the VCAT Act. Therefore, the grounds of appeal against the Associate Justice’s decision do not succeed.
Ground two particular 2 – s 331 of the RT Act
The second ground was whether the Tribunal had misconstrued the matters prescribed by s 331(1) of the Residential Tenancies Act 1997 (‘the RT Act’) and had misdirected itself as to the relevant facts or acted unreasonably. It is not clear that this argument was put to the Associate Justice, but I will consider it as it appears in submissions that have been filed on behalf of Ms Goode.
Submissions about Ground two particular 2
Ms Goode’s written submissions filed 28 March 2017, which had been drawn by counsel in connection with her second originating motion, raised the issue of whether the Tribunal had misdirected itself in respect of the nature of the rental payments made to Access CERC and the relationship between Access CERC and CEHL. The submissions contended that Ms Goode had satisfied the requirement of s 331(1) of the RT Act as satisfactory arrangements had been made, or could be made, to avoid financial loss to the landlord, CEHL. The terms of s 331 are as follows:
Orders to be dismissed or adjourned in certain circumstances
(1)The Tribunal may dismiss or adjourn an application for a possession order if –
…
(b)the Tribunal considers that satisfactory arrangements have been or can be made to avoid financial loss to the landlord, rooming house owner, caravan park owner, caravan owner or site owner (as the case may be).
Ms Goode’s submission was that the Tribunal’s discretion under s 331 had to be exercised reasonably. As the rent for the Thornbury property was sitting in Access CERC’s bank account, it could transfer those funds to CEHL. The Tribunal was therefore in error by concluding that: ‘There is no basis for me exercising my discretion to grant any order other than the possession order today.’ The Tribunal had also misdirected itself as to the relevant facts, because Ms Goode was attempting to make clear that she had consented to the transfer of the funds from Access CERC to CEHL, and that there was no threat of dissipation of the funds.
CEHL submitted that the Tribunal’s decision about the application of s 331 was the exercise of a discretion and involved factual matters which were not subject to appeal or judicial review.
Analysis of ground two particular 2
In my opinion, this ground was not made out. It does not appear to have even been raised expressly in the second proposed originating motion of 24 November 2016 or was the subject of discussion before the Associate Justice. But in any event, the Tribunal Member referred to this matter, but did not consider that the requirements of s 331 had been satisfied. CEHL was not receiving rent. The Member stated:
Under the Residential Tenancies Act, the Tribunal if it is satisfied that a valid notice to vacate has been given to the tenant and I am satisfied that in January I think, that a valid notice to vacate was given to Ms Goode [it] under the Residential Tenancies Act must make a possession order, unless it is satisfied that there [are] satisfactory arrangements in place to avoid financial loss to the landlord. The Tribunal did, by adjourning the matter, endeavour to assist …Ms Goode to put arrangements in place to avoid further loss to the landlord and the financial loss to the landlord continues to accrue. Therefore, there is no basis for me exercising my discretion to grant any order other than the possession order today and I affirm the possession order made by the Tribunal on the 7th of March 2016 and it remains in force.[25]
[25]VCAT Transcript, 3 May 2016, 26.
In my opinion, there was no error in this exercise of the Member’s discretion. The Member correctly referred to s 331 and formed the view that no satisfactory arrangements had been made about the payment of rental. Ms Goode did not establish that there was a real or significant argument that error existed in that exercise of discretion. In so far as the Associate Justice was obliged to consider this argument, he did not err by not upholding it. There was no real or significant argument that the Tribunal had erred in its interpretation of s 331(1), nor was it attended by sufficient doubt. Therefore, there was no question of law requiring the grant of leave to appeal in respect of the Tribunal’s application of s 331.
Ground 2 particular 3 - the Charter ground
The next ground was whether, in making its decision, the Tribunal had failed to comply with s 38 of the Charter and/or had failed to afford the appellant a fair hearing as required by s 24 of the Charter. Section 24(1) of the Charter provides that:
(1)A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Section 38 of the Charter provides that:
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
Submissions about Ground two particular 3
In written submissions filed on behalf of Ms Goode, it was submitted that her Charter rights were also engaged. Under the right in s 24 she was entitled to a fair hearing before VCAT and entitled to have the application adjourned to a date when she would have had the benefit of the assistance of Legal Aid. The Associate Justice erred in concluding that Ms Goode failed to raise a prima facie case in respect of the procedural fairness question.
CEHL submitted that the Associate Justice had considered Charter issues and determined that they could not be properly included in the Originating Motion.
Analysis of Ground two particular 3
In my opinion, the Tribunal Member and the Associate Justice gave proper consideration to Ms Goode‘s right to a fair hearing. For the reasons expressed in respect of the procedural fairness ground there was no purpose in granting an adjournment because of the impasse between the parties. That impasse has continued to the present day.
Ms Goode has not established any error by the Associate Justice in dealing with the existence of any question of law concerning her Charter rights, including her right to a fair hearing before VCAT.
I do not consider the Tribunal failed to comply with s 38 of the Charter or failed to afford Ms Goode a fair hearing as required by s 24 of the Charter. The Tribunal had adjourned the proceeding to enable her to make an arrangements for rent to be paid, and there was no real purpose in adjourning the matter further.
Conclusion
The appeal must be dismissed. None of the grounds in the amended notice of appeal has been established.
As previously mentioned, this is an unfortunate and unusual case. Even at this late stage of the dispute, if both parties considered that some constructive progress might occur by further discussions, those discussions should be encouraged, whether they occur informally or through Court processes, if available.
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