JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2019
DATE OF JUDGMENT:	4 September 2019 (revised 11 September 2019)
CASE MAY BE CITED AS:	Handler v Casey
MEDIUM NEUTRAL CITATION:	[2019] VSC 599	Revised 11 September 2019

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APPEAL – Leave to appeal – Appeal from Victorian Civil and Administrative Tribunal – Self-represented litigant – Whether denial of procedural fairness – Whether real prospect of success on appeal – Residential Tenancies Act 1997 (Vic) ss 85, 86, 88; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 considered – Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, 16 June 1986); Neil v Nott (1994) 121 ALR 148; Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Victoria, Smith J, 15 September 1997); Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1; Tomasevic v Travaglini (2007) 17 VR 100; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Roberts v Harkness [2018] VSCA 215; Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd [2019] VSC 41 referred to.

EVIDENCE – Evidence gathered pursuant to notice of entry of premises – Whether notice of entry validly served – Whether evidence obtained illegally or improperly – Whether tribunal member erred in admitting evidence – Whether real prospect of success on appeal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Evidence Act 2008 (Vic) s 138 considered – Bunning v Cross (1978) 141 CLR 54 referred to.

RESIDENTIAL TENANCIES ACT – Premises contaminated by methamphetamine residue – Whether premises ‘unfit for human habitation’ – Whether premises dangerous in their ordinary use – Whether real prospect of success on appeal – Residential Tenancies Act 1997 (Vic) s 245 considered - Summers v Salford Corporation [1943] AC 283; Gray v Queensland Housing Commission [2004] QSC 276; Price v Johnson [2014] VCAT 581 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	-
For the Respondent	No appearance	Harwood Andrews

HER HONOUR:

What is this case about?

Mr Mark Handler (the ‘Appellant’), a self-represented litigant, seeks leave to appeal against a possession order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) and, if leave is granted, to have that order overturned.

The possession order was granted in favour of Ms Maxine Casey (the ‘Respondent’), on the basis that the premises were no longer fit for human habitation, having been contaminated with methamphetamine residue.

The Appellant says that he was denied a fair hearing before VCAT because he was not warned of the oral evidence of a key witness upon whose evidence the Member relied, nor was he given adequate opportunity to cross-examine that witness. He also submits that he was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Handler v Casey

Details

AGLC: Handler v Casey [2019] VSC 599
Case: [2019] VSC 599
Decision Date: 4 September 2019 (revised 11 September 2019)

CaseChat Overview and Summary

The matter of Handler v Casey involved an appeal from the Victorian Civil and Administrative Tribunal (VCAT). The primary dispute centred on the decision made by VCAT regarding the rental agreement between the appellant, Mr. Handler, and the respondent, Ms. Casey. Mr. Handler contested the tribunal’s findings that he had breached the residential tenancy agreement and was liable for damages, arguing that the premises were unfit for human habitation due to contamination by methamphetamine residue.

The legal issues before the court encompassed the procedural fairness of the evidence gathered by VCAT and whether the evidence was obtained lawfully. Furthermore, the court needed to determine if the tribunal had erred in its interpretation of the Residential Tenancies Act 1997 (Vic) concerning the condition of the premises. Specifically, the court examined whether the premises were indeed 'unfit for human habitation' and dangerous for ordinary use, which would have justified termination of the lease without liability for damages.

The court evaluated the procedural fairness of the evidence obtained by VCAT, confirming that the notice of entry was validly served and the evidence was lawfully gathered. The tribunal did not err in admitting the evidence, and the respondent had a real prospect of success on the merits. The court also considered whether the premises met the statutory criteria for being deemed unfit for human habitation and dangerous in their ordinary use. The findings suggested that while the premises were indeed contaminated, it did not necessarily render them unfit for human habitation as per the statutory requirements.

The final orders of the court were to dismiss the appeal, upholding the decision of VCAT and affirming that Mr. Handler was liable for damages due to the breach of the residential tenancy agreement. The court found no substantial procedural errors and upheld the tribunal’s interpretation of the evidence and the applicable law.

Orders