Hanson v Director of Housing

Case •

[2022] VSC 710

•

18 November 2022

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01992

SHANE HANSON Applicant
v 
DIRECTOR OF HOUSING Respondent

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JUDGE:

WALKER JA

WHERE HELD:

Melbourne

DATE OF HEARING:

19 October 2022

DATE OF JUDGMENT:

18 November 2022

CASE MAY BE CITED AS:

Hanson v Director of Housing

MEDIUM NEUTRAL CITATION:

[2022] VSC 710

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JUDICIAL REVIEW – Appeal from VCAT on questions of law – Failure to take into account mandatory relevant consideration – Tribunal made possession order against residential tenant – Whether Tribunal failed to take into account impact on renter, as required by s 330(1)(f) of Residential Tenancies Act 1997 – Tribunal did not actively engage with applicant’s submissions concerning impact of possession order on him – Tribunal principally evaluated applicant’s circumstances by reference to whether he could maintain property in good order – Whether error material – Error could have made difference to decision – Appeal allowed – Matter remitted.

Residential Tenancies Act 1997, ss 330–330A.

Gautham v Panwar [2021] VSC 157, applied; Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, followed.

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APPEARANCES:

 Counsel Solicitors
For the Applicant Mr G Ayres Victoria Legal Aid
For the Respondent Ms L Martin HWL Ebsworth

HER HONOUR:

Introduction

  1. Since 1998 the applicant, Shane Hanson, has rented a property from the respondent, the Director of Housing. His tenancy is governed by the Residential Tenancies Act 1997 (‘the Act’). The Director became concerned about the state in which the property was being kept. In November 2019 the Director issued Mr Hanson with a breach notice for failing to keep the rented premises in a reasonably clean condition, as Mr Hanson was required to do by s 63 of the Act. In February 2020 the Director formed the view that Mr Hanson had failed to remedy the breach. The Director sought a compliance order from the Victorian Civil and Administrative Tribunal pursuant to s 209 of the Act, requiring Mr Hanson to comply with s 63. The Tribunal made such an order in March 2020. In April 2021 the Director formed the view that Mr Hanson had not remedied the breach. In June 2021 the Director sent Mr Hanson a notice to vacate pursuant to s 91ZO of the Act, on the basis that Mr Hanson had failed to comply with the March 2020 order. When Mr Hanson failed to comply with that notice, the Director applied to the Tribunal for a possession order pursuant to s 322 of the Act.

  1. After hearing the possession order application, at which the applicant did not give evidence himself, but adduced some limited medical evidence, the Tribunal member delivered an ex tempore decision in which he granted the possession order and gave reasons for doing so. The applicant now seeks leave to appeal from the Tribunal’s orders.[1]

    [1]In addition, both parties sought a stay of the Tribunal’s orders dated 4 May 2022 pending the outcome of this appeal. A stay was granted by way of consent orders made on 27 October 2022.

  1. The proposed grounds of appeal[2] are as follows:

    [2]The proposed grounds of appeal will be referred to as grounds of appeal, for convenience. The three grounds of appeal correspond to three questions of law on which the appeal is brought.

(a) Ground 1: In making the possession order, the Tribunal failed to take into account the impact on Mr Hanson, as required by s 330(1)(f) of the Act.

(b)       Ground 2: In making the possession order, the Tribunal:

(i) was required by s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 to given proper consideration to Mr Hanson’s human rights in ss 13(a) and 20 of the Charter; and

(ii)       failed to give proper consideration to those human rights.

(c)        Ground 3: In the alternative to Grounds 1 and 2, the Tribunal’s decision was legally unreasonable.

  1. For the reasons that follow, I would grant leave to appeal and allow the appeal. That is because, when the Tribunal’s reasons are considered as a whole, I consider that the Tribunal failed to take into account the impact of a possession order on Mr Hanson, as required by s 330(1)(f) of the Act. Thus ground 1 is made out. In light of that conclusion it is not necessary for me to consider grounds 2 and 3.

The legislative regime

  1. The purposes of the Act are set out in s 1. They include, in relation to tenancies of residential premises:

(a)        to define the rights and duties of residential rental providers and renters of rented premises; and

…

(d)to provide for the inexpensive and quick resolution of disputes under this Act …

  1. Division 5 of pt 2 of the Act specifies the general duties of tenants and residential rental providers. As noted above, s 63 provides that a duty of renters is to keep the rented premises reasonably clean.

  1. Part 5 of the Act concerns compensation and compliance. Section 208 provides that a person to whom a duty is owed may give a breach of duty notice to a person in breach of that duty. The notice must specify the breach and require the person to remedy the breach within the required time.[3] Section 209 provides that, if a breach of duty notice is not complied with, the person who gave it may apply to VCAT for a compensation order or a compliance order.

    [3]The ‘required time’ for a breach of s 63 is defined as 14 days: s 3.

  1. Division 9 of pt 2 concerns the termination of residential tenancies. Section 91B provides that, despite any law to the contrary, a residential rental agreement does not terminate and must not be terminated ‘except in accordance with this Division or Part 7 or Part 8.’

  1. Amongst other means provided for in div 9, s 91E provides that a residential rental agreement terminates if the residential rental provider gives the renter a notice to vacate and either the renter vacates on or after the termination date, or the agreement terminates in accordance with s 334.

  1. Division 9 of pt 2 sets out the various grounds upon which a residential rental provider may give a renter a notice to vacate their rented premises. Relevantly, s 91ZO provides that a residential rental provider may give a renter a notice to vacate if the renter fails to comply with an order of VCAT under s 212.[4] Pursuant to s 91ZO(2), the notice to vacate must specify a termination date that is not less than 14 days after the date on which the notice is given.

    [4]Section 212 provides for the Tribunal, following an application made to it under s 209, to make an order that a person remedy the breach as specified in the order. That occurred here on 3 March 2020.

  1. Part 7 of the Act is headed: ‘Regaining possession — Possession orders and warrants’. Relevantly, div 1 of pt 7 makes provision for applications to VCAT for possession orders. Under s 322, if a residential rental provider has given a tenant a notice to vacate rented premises, the landlord may apply to the Tribunal for a possession order.

  1. Section 330 of the Act provides as follows:

(1)The Tribunal must make a possession order requiring a renter, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied—

(a)in the case of an application where notice to vacate has been given, that—

(i)the residential rental provider, rooming house operator, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 142ZO or mortgagee was entitled to give the notice; and

(ii)the notice has not been withdrawn; and

(b)in the case of an application where a notice of intention to vacate has been given by a renter, resident or site tenant, that the residential rental provider, rooming house operator, caravan park owner, caravan owner or site owner acted reasonably by relying on the notice of intention to vacate; and

(c)that the residential rental provider, rooming house operator, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 142ZO or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and

(d)that the renter, resident or site tenant is still in possession of the rented premises, room, building, site or caravan after the termination date specified in the notice to vacate or notice of intention to vacate; and

(e)that any resident who is entitled to a period of notice under section 142ZO has been given the required notice; and

(f)that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—

(i)the residential rental provider, rooming house operator, caravan park owner, site owner or mortgagee, as the case requires;

(ii)the renter, resident or site tenant;

(iii)any co-tenants or co-site tenants or other residents;

(iv)any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter, resident or site tenant to whom the notice to vacate was given.

(2)If an application for a possession order is made under section 322(2), 323(b), 323A, 324(3) or 324A(2)—

(a)the application must be heard within 14 days after the application is made; and

(b)the possession order must be made within 7 days of that hearing.

(3)The Tribunal must have regard to any guidelines issued by the Director when determining any application for a possession order which is supported by a notice to vacate under section 91ZJ, 142ZC, 206AR or 207X.

  1. Section 330A of the Act, headed ‘What is reasonable and proportionate?’, provides as follows:

For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following—

(a)the nature, frequency and duration of the conduct of the renter, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement, residency right or site agreement;

(b)whether the breach is trivial;

(c)whether the breach was caused by the conduct of any person other than the renter, resident or site tenant;

(d)whether the renter, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order and—

(i)if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and

(ii)if a notice or order was made, whether it included an exclusion condition; and

(iii)any other matter in relation to family violence or personal violence the Tribunal considers relevant;

(e)       whether the breach has been remedied as far as is practicable;

(f)whether the renter, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement, residency right or site agreement, as the case requires;

(g)the effect of the conduct of the renter, resident or site tenant on others as a renter, resident or site tenant;

(h)whether any other order or course of action is reasonably available instead of making a possession order;

(i)as the case requires, the behaviour of the residential rental provider, the provider’s agent, the rooming house operator, the caravan park owner, the caravan owner or the site owner;

(j)        any other matter the Tribunal considers relevant.

  1. Section 334 of the Act relevantly provides as follows:

(1)If a possession order is made under this Division in respect of rented premises, the residential rental agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the residential rental provider or mortgagee.

…

  1. Finally, div 4 of pt 7 concerns the issue of warrants of possession. That is, if the renter does not deliver up the rented premises following a possession order, the residential rental provider may seek that the rented premises be delivered up pursuant to a warrant of possession. A person who obtains a possession order may apply to the principal registrar of VCAT for a warrant of possession pursuant to s 351.

Ground 1: Did the Tribunal fail to take into account a mandatory relevant consideration?

  1. By ground 1 Mr Hanson submitted that the Tribunal had failed to take into account the impact of a grant of an order for possession on him, as required by s 330(1)(f). There is no dispute between the parties that the Tribunal was required to take this matter into account. The only question is whether the Tribunal did so.

  1. As already noted, the Tribunal’s decision was given ex tempore. The parties provided the Court with a transcription of the decision, but unfortunately there were some technical issues with the recording and thus the transcribed reasons contain various gaps.[5] Nonetheless, the parties submitted, and I accept, that it is possible to identify the key aspects of the Tribunal’s decision relevant to the issues in the application for leave to appeal.

    [5]The parties also provided the Court with an audio recording of the Tribunal’s reasons. I listened to the key parts of that recording. In the main, the recording did not assist in better understanding what the Tribunal had said, although there were parts in which I found some assistance could be gained from it. I provided a revised version of the transcript to the parties, and in the course of the hearing the Director provided a further revised transcript with which Mr Hanson agreed. It is that further revised version that I have relied upon for the purposes of considering the issues raised on the appeal.

  1. It is also important to take account of the fact that, by their nature, ex tempore rulings may on occasion lack the depth and clarity of those which a Tribunal member has had time to revise and refine. Hence, such reasons may sometimes have features that are unclear or uncertain, but which may be explained or clarified by reference to the context in which the decision was made.[6]

    [6]See, eg, Makeham v Sheppard [2020] VSCA 242, [53] (Priest JA, Kyrou JA agreeing at [70], Weinberg JA agreeing at [71]); State of Victoria v Villan [2022] VSCA 106, [68] (Kennedy and Walker JJA).

Mr Hanson’s submissions

  1. Mr Hanson submitted that the Tribunal had considered whether to make a possession order ‘principally through the lens of s 330A’, rather than by considering the impact of the order on Mr Hanson. That meant that the Tribunal had focused on whether Mr Hanson’s medical issues and financial situation excused the fact that he had not complied with the compliance order, in the sense of whether he was capable of complying with that order, rather than considering how those matters would affect the impact of the possession order on him. Mr Hanson submitted that the Tribunal did not consider the impact on him of making a possession order ‘at all’, and that the Tribunal had ‘discarded the evidence that showed what that impact would be, apparently on the basis that the Member thought it was irrelevant unless it excused non-compliance’ with the compliance order. Alternatively, he submitted that even if the Tribunal had given the impact some consideration, that consideration was ‘cursory or dismissive (and therefore inadequate)’.[7] He submitted that, even if the Tribunal was generally aware of the impact on Mr Hanson of making a possession order, there is no indication that the Member ‘actively engaged with that consideration’.[8]

    [7]Referring to Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135, [56] (Basten JA, Leeming JA agreeing at [69], Sackville AJA agreeing at [85]).

    [8]Referring to DZ (a pseudonym) v Unison Housing Ltd [2022] VSC 249, [31] (Moore J) (‘DZ’).

The Director’s submissions

  1. The Director submitted, as a preliminary matter, that question of law 1,[9] which corresponded to ground 1, did not raise a question of law but was an attempt to have the Court engage in merits review.

    [9]Question of Law 1 is set out at [23], below.

  1. In relation to the substance of ground 1, the Director submitted that the Tribunal had taken into account all the material that had been put before it, including the impact of a possession order on Mr Hanson. The Director submitted that Mr Hanson had failed to adduce evidence of the impact a possession order would have on him, whether his own evidence or expert medical evidence. The Director submitted that the Tribunal was not required to make its own inquiries to supplement any deficiency in Mr Hanson’s case.

  1. The Director submitted that the Tribunal was required to consider the impact of a possession order on the applicant on the basis of the evidence before it. In so far as Mr Hanson’s submissions put propositions unsupported by evidence, the Tribunal was entitled to give those little or no weight. The Director submitted as follows:

The Member comprehensively considered the material and submissions of [Mr Hanson] and the Director as to the impact of the making of a possession order on [Mr Hanson]. However, the Member was entitled to attribute the weight which he considered it deserved in the light of the submissions and evidentiary material before it. The Member concluded that, while [Mr Hanson] had limited financial means, he would receive further support in finding alternative accommodation from the Department. He acknowledged that the making of a possession order would be a traumatic and difficult experience for [Mr Hanson]. The Member further accepted that [Mr Hanson] had the medical conditions that were highlighted in his submissions. But he said that it had not been made clear to him, through the provision of expert evidence, how [Mr Hanson’s] medical conditions made the situation of having to vacate the rented premises … a lot worse for him as opposed to other renters. On the basis of the way in which [Mr Hanson] ran his case before VCAT, it is difficult to see what other approach VCAT could lawfully have taken.

Did ground 1 raise a question of law?

  1. I do not accept the Director’s submission that question of law 1 does not raise a question of law for the purposes of s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). Question of law 1 is framed as follows:

In making the possession order … did the Tribunal fail to take into account the impact on the Applicant, as required by s 330(1)(f) of the Residential Tenancies Act 1997?

  1. That question is directed to whether the Tribunal made an error of law by failing to taken into account a mandatory relevant consideration. It is well established that a question of that kind is a question of law for the purposes of s 148 of the VCAT Act.[10]

    [10]See, eg, Cosic v Director of Housing [2007] VSC 486, [23] (J Forrest J), citing Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255; Gevah Constructions Pty Ltd v GRN Australia Pty Ltd [2006] VSC 266. See also Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 926 [148.340] and the authorities there cited.

Consideration of ground 1

  1. It is not in dispute that the Tribunal was required to take into account the impact of a possession order on Mr Hanson; that is expressly required by s 330(1)(f)(ii) of the Act. Further, inherent in the assessment of whether a possession order is ‘reasonable and proportionate’ is a balancing of the tenant’s interests and the impact of the order on the tenant against other factors (including the interests of the other persons mentioned in s 330(1)(f) and the matters set out in s 330A). The question is whether the Tribunal did so.

  1. It will be necessary, in determining ground 1, to set out in some detail the reasons of the Tribunal. However, in order to place those reasons in context it is necessary first to set out the way in which Mr Hanson’s case on impact was put to the Tribunal.

The parties’ submissions to the Tribunal

  1. Mr Hanson did not give evidence himself about the impact the making of a possession order would have on him. However, he filed a medical report from Dr Clise stating that he:

·had chronic back pain due to degenerative disease of the lumbar spine;

·suffered from diabetes;

·is morbidly obese; and

·had symptoms of early heart failure.

That report stated that as a consequence of these conditions, Mr Hanson could not travel more than 50 km.

  1. The Director had also filed some medical evidence that was consistent with Dr Clise’s report. The medical evidence did not address the effect on Mr Hanson of being required to move out of his home.

  1. In addition, Mr Hanson’s written submissions included various matters directed to the effect that a possession order would have on him. His submissions referred to the medical conditions set out above. The submissions also stated that Mr Hanson’s disability support pension of around $780 per fortnight[11] was his only source of income, that he had resided in the premises for 22 years, and that prior to moving into the premises he had been homeless for five to six years.

    [11]The Court was informed that, although this figure was not disputed before the Tribunal, it was in fact inaccurate. However, the Director accepted that there was no error in the Tribunal proceeding on the basis of an asserted fact that was not disputed. Nor was it suggested that the correct figure was such as to negate the submission that, were he to be evicted, Mr Hanson was likely to become homeless.

  1. It was submitted on his behalf that a possession order would have a ‘severe negative impact’ on him, by reason of the following matters:

(a)his medical conditions;

(b)his only source of income was his pension of $780 per fortnight;

(c)his mental health had been deteriorating because of the deaths of his father, girlfriend, neighbour and cat and he had had suicidal ideation at the prospect of being evicted;

(d)he reported that he lived with post-traumatic stress disorder and that he had significant childhood trauma; and

(e)if he had to vacate the premises, it was likely he would be rendered homeless.

  1. The submissions then stated that, if a warrant for possession were executed, his lawyers were instructed that the following would likely occur:

(i)        Mr Hanson could be rendered homeless;

(ii)Mr Hanson’s mental and physical health would be severely impacted; and

(iii)      Mr Hanson would suffer significant financial strain.

  1. No evidence was adduced in direct support of any of these submissions, although it appears that the Director accepted that Mr Hanson’s only source of income was his pension, that he had lived in the premises for 22 years and that he had previously been homeless.

  1. In oral argument Mr Hanson’s lawyer had the following exchange with the Tribunal member in relation to the impact of a possession order on him:

[MR HANSON’S SOLICITOR]: I won’t – I – I don’t have any further points to make in that respect, [Member]. But just moving on to section 330A ‑‑‑

[TRIBUNAL MEMBER]: Yes.

[MR HANSON’S SOLICITOR]: ‑‑‑ subsection (j), whether or not the possession order is reasonable also requires a consideration of any other matter that the tribunal considers relevant. In our submission, there are two key, relevant considerations here. The – the first is that if a possession order is granted, there is a significant likelihood that Mr  Hanson will become homeless. Mr Hanson ‑‑‑

[TRIBUNAL MEMBER]: Where’s the evidence on that?

[MR HANSON’S SOLICITOR]: Well ‑‑‑

[TRIBUNAL MEMBER]: That’s a statement that you’re making. That’s fine. You’re entitled to put your submission and I will not deny you to do that, but I’m asking you where do I draw that conclusion from the evidence?

[MR HANSON’S SOLICITOR]: Well, Mr Hanson has been at the property for approximately 22 years. He’s always – he’s got a previous history of homelessness before taking up residence in the property which is stated in our written submissions. Mr Hanson receives a disability support pension of $780 a fortnight which is his only source of income and ..... our submission is that there’s a – a likelihood that Mr Hanson will become homeless if the possession order is granted.

[TRIBUNAL MEMBER]: Okay. And so you say that that’s the other consideration that I have to consider. Yes.

[MR HANSON’S SOLICITOR]: The – the second consideration is given Mr Hanson’s significant mental, emotional and physical health conditions which are discussed at paragraph 7.4(a) of our submissions, the granting of a possession order and the likelihood of homelessness could have a potentially catastrophic impact on Mr Hanson’s health. You’ll see from our written submissions that Mr Hanson – that we’ve provided – provided evidence of Mr Hanson having early heart failure, type 2 diabetes, pneumonia, chronic back pain due to degenerative disease of the lumbar spine and also has been diagnosed as – as being morbidly overweight. So we submit that those are two relevant factors that the tribunal should take into account when determining whether the granting of a possession order is reasonable in the circumstances.[12]

[12]Emphasis added.

  1. In the Director’s written submissions it was said that ‘[i]t is understood that eviction is likely to have an adverse impact on [Mr Hanson]’. The nature of severity of the impact was not addressed. In response to Mr Hanson’s claim that he could be rendered homeless, the Director’s written submissions included the following two paragraphs:

An eviction would not prevent [Mr Hanson] from seeking any health or welfare support services and the [Director] would refer [Mr Hanson] to Northern District Community Health for homelessness service support.

[Mr Hanson] may be entitled to other government allowances including a bond loan through the department. This may assist [Mr Hanson] to secure a private rental property.

  1. Similar evidence was given by Ms Fizzo, for the Director, in cross-examination, as follows:

[LAWYER FOR MR HANSON]: … In the event that a possession order is granted, you know, in all likelihood, were Mr Hanson required to vacate the property, he would become homeless. He would remain in the Charlton area. Has the Department considered what sort of arrangements would be made to accommodate Mr Hanson if he was to ultimately be required to leave the premises?

MS FIZZO: Well, Mr Hanson could certainly engage with a homelessness service. There are – there is assistance that the Department can actually provide to people in terms of securing perhaps a private rental property. We do have bond loans that we can assist people with, subject to eligibility.

[LAWYER FOR MR HANSON]: But you accept that if Mr Hanson was required to ultimately vacate the premises, the outcome would potentially be a 60-year-old man with chronic back pain due to a degenerative spinal disease, type 2 diabetes, morbidly obese, and symptoms of heart failure, potentially experiencing homelessness.

MS FIZZO: Well, that’s a big if. I don’t actually know Mr Hanson’s personal circumstances. He has never advised whether he has family or anything of that nature, so I can’t speak to the fact that if we were to obtain possession and actually regain possession of the property – I can’t speak to what Mr Hanson’s plans would be moving forward.

[LAWYER FOR MR HANSON]: And just one final question: if Mr Hanson were to be made to vacate the premises and remained in the Charlton area, would he still require – would he still be eligible for the services of the Housing Office that you and Mr Lane work at?

MS FIZZO: I’m not sure really what you mean by that, I do apologise.

[LAWYER FOR MR HANSON]: If Mr Hanson was homeless in the Charlton district, would he come to your department to try and access alternative accommodation?

MS FIZZO: Well, that would be up to Mr Hanson - - -

[LAWYER FOR MR HANSON]: Are there any other - - -

MS FIZZO: - - - and what his – and what his personal circumstances are. …

[LAWYER FOR MR HANSON]: … Are you aware of any other social housing  providers that operate in the Charlton district?

MS FIZZO: No.[13]

[13]Emphasis added.

  1. Later in the VCAT hearing Mr Lane gave the following evidence for the Director:

[COUNSEL FOR THE DIRECTOR]: And just – yes. And just finally, Mr Lane, I had intended to ask you at the last hearing but I think I neglected to, it was about the size of the waiting list for public housing in the Charlton area. Do you – are you able to recall how many people are on that waiting list?

MR LANE: A handful of clients, I believe. It – it does change very – like, it does change weekly, daily. Yes. It’s – it’s quite sporadic but, yes, there is about a handful or so waiting for housing in Charlton at any given time it’s safe to say.

[COUNSEL FOR THE DIRECTOR]: And the – and are they people who have nominated as Charlton as being a place where they would be prepared to live were they to be offered housing by the department?

MR LANE: Yes. That’s correct. Yes. We are somewhat of a final stop for a lot of housing. Being a government housing body, we find that, yes, we have quite a lot of clients that are homeless and/or escaping family violence or, you know, situations like that so people are just happy to be housed most of the time and have somewhere to stay.

  1. At the hearing of the appeal the Director accepted that no evidence was adduced by him before VCAT concerning the likely waiting period for further public housing, or the availability and likely cost of private rental accommodation in regional Victoria.

The Tribunal’s reasons

  1. It is necessary, in order to evaluate ground 1 of the appeal, to set out in some detail the Tribunal’s reasons. The Member relevantly said as follows:

[N]ow, turning then to the third issue, if Mr Hanson has breached the order, which I found he has, should there be an order for possession in light of the matters that the parties have raised and ..... consideration of section 330A of the Act.

In part – well, not in part. I’ll read out the whole section of 330A. 330A – well, before I go back – before I say that, I’d like to just make some comment about reasonable and proportionate issues. Section 322 of the Act provides that a rental provider may apply for a possession order ..... notice to vacate ..... the renter and that renter’s not given up possession. Section 330 of the Act requires the tribunal to make a possession order where the renter or provider ..... [was entitled] to give the notice and if in the circumstances of a particular application ..... [it is] reasonable and proportionate having regard to section 330A to make a possession order counting the various interests and the like. So the ..... [fundamental] issue is whether it’s reasonable and proportionate to make a possession order and, of course, you have the consideration of 33A – 330A. 330A, as the parties have noted, provides a list of matters which the tribunal might have regard to in determining whether a possession order is reasonable – reasonable and proportionate and, effectively, provides [examples] and guidance. It’s not a restrictive provision because at the end of it, right at the ..... subsection basically says any other matter – matter that the tribunal consider relevant. So it’s not a restrictive provision or a mutually exclusive provision by any means.

Now, reading the actual provision, it appears that the relevant provisions that the parties refer to may be applicable are things such as the nature and frequency and duration of the conduct of a renter led to the notice to vacate being given including whether the conduct is a recurring breach and a – under agreement or whether the breach is trivial, whether the breach was [caused] by any other person other than the renter.[14]

[14]Emphasis added. Most of the text in square brackets has been inserted by me after listening to the audio recording; some of it was also inserted by the Director.

  1. The Tribunal then referred to the various sub-sections of s 330A. The Member then said this:

Now, in relation to this reasonable and proportionate argument – issue, in effect, the Director of Housing submitted that there was no – Mr Hanson’s conduct has demonstrated – is demonstrated by – by his conduct or lack thereof they say. He’s demonstrated no desire to properly or [genuinely] engage with the Director of Housing. Now, he’s also demonstrated, the Director of Housing says, continual – in a way that’s demonstrated behaviour that is – that is – that shows that he’s continually acted in a manner contrary to the order ..... [the] order was made. There’s no proper alternative. The Director of Housing has tried to assist Mr Hanson by way of offering referral services to him, offering a skip to which he did accept at one point but in an inadequate [manner] ..... the Director of Housing alleges. And at one point had told Mr Hanson that if he wanted to get a shed, that he ..... to the relevant shed. There are, of course, other arguments that the Director of Housing has raised but I highlight those points. In contrast, Mr Hanson [has] raised the issue of the fact that he’s had severe medical issues and he’s also a pensioner with limited financial resources to ..... I assume, although there wasn’t a specific allegation or proposition put to me that his financial position had prevented him from ..... or rectifying issues. Merely that he’s got a financial position such that if he were to be required to vacate the premises, he may not be able to find alternative accommodation and be homeless and that could have catastrophic consequences.

He’s been noted to have received $780 per fortnight. In response to that [and there] ..... has been – I won’t – I won’t refer in any detail to the substance both written and oral submissions of the Director of Housing that once the protocols are in place ..... the Director of Housing ..... once an order for possession is made ..... it’s not that they don’t engage with the renter. They try and see what other alternatives ..... refer to ..... the renter. There are a few comments that I would like to make about ..... raised. First of all, whilst there is no reason for me to not accept that he’s suffering some medical conditions ..... [may be quite] difficult for him, there was no evidence as to how his medical ..... [conditions –] condition had actually prevented him from cleaning or removing the items or actually complying with the order in an acceptable manner. There was some reference to it but I’m not satisfied that there’s any compelling [evidence] ..... somehow excuse him or find that there was any circumstances were that he couldn’t ..... with the order and like I said, there was no application by Mr Hanson ..... to vary the order of the original order or to set it aside.

There was no evidence from Mr Hanson other than an [allegation] – a submission that somehow his medical condition would somehow prevent him from complying with future [requirements?] ..... and, in fact, Mr Williams made the submission that an alternative to possession is to require him to comply with the order – another order for 90 – another 90 – for 90 days in which case implicit in that is that Mr Hanson says he’s got the ability to do it both presumably financially and mentally and medically because where – why else would Mr Hanson propose [it as] an alternative. He wasn’t conveying to the tribunal that he could do it. So whilst the medical condition for Mr Hanson may be very difficult for him [personally?], it is unclear to me that it really is a factor for me to ..... [reasonable] [and] proportionate test ..... [of course] having somebody vacate out of the premises can be a traumatic experience, can be a very difficult experience for anybody [with] ..... [why] his condition somehow will make it a lot worse for him as opposed to any other renter ..... [in a] similar situation was not [made] clear to me. No evidence from any expert was given to me such that I’m satisfied that there is a finding that I can make in a manner that Mr Hanson has requested.[15]

[15]Emphasis added.

  1. The parties agreed that I should infer that in the final paragraph quoted above, the Member was saying words to the effect that it was unclear to him that Mr Hanson’s medical condition really was a factor for him to ‘consider in applying the reasonable and proportionate test’.

  1. After considering various arguments put by Mr Hanson concerning the factors set out in s 330A, the tribunal said as follows:

In relation to the financial situation, I do accept that he is ..... [an allowance] but the issue that I have is – and I’m – so I’m not saying that there aren’t considerations that I ought to make – ought to – ought to take into account. The problem that I have is I have to balance that with a situation where that – and I accept this – Mr Hanson has been well-aware even prior to the order of 3rd of March 2020 that the Director of Housing was not satisfied with the way he was [maintaining] ….

I’m satisfied there were a number of attempts made by the Director of Housing to communicate, to liaise with him and discuss with him. I’m satisfied that he – Mr Hanson did not adequately engage in those discussions and those communications. There’s no satisfactory ..... [reason provided] to me why he did that. So I’m satisfied that Mr Hanson has continually ..... [demonstrated] in a manner that’s contrary to the order since the order was made. … In some regards, the Director of Housing understands that their renters are in a more difficult position than some others and they provide some referral services and other means to try and resolve issues. Nothing of the facts seem to suggest to me that they’ve been harshly dealing with Mr Hanson and, in fact, the opposite is true.[16]

[16]Emphasis added.

  1. Later, the Tribunal concluded as follows:

These various factors demonstrate to me that, unfortunately, Mr Hanson ..... unlikely ..... comply with any further orders of the tribunal ..... very long process ..... the breach was not trivial, as I stated. The nature, frequency and duration of the conduct of Mr Hanson which led to the notice to vacate and his recurring breach of his obligations under the order [appears] to me to be [serious] ..... it wasn’t caused by anybody else other than Mr Hanson. It hasn’t been remedied as far as practicable. There – I’m not satisfied that Mr Hanson will have – will soon have or has the capacity to remedy the breach and comply with the obligations.

There are no course of actions reasonably available instead of making a possession order because there’s only one that was offered and I’m not satisfied that that is an appropriate or reasonably available ..... there are no behaviours of the Director of Housing that falls in Mr Hanson’s favour. In terms of the effect of the conduct on others as a renter, likewise. In terms of expert evidence, given the fact that I wasn’t provided with any expert evidence from the Director of Housing as to the actual electrical safety, structural safety issues, I’m not satisfied that there are any specific OH and S issues. Nevertheless, if one goes back – one goes back to the sheer level of severity of the breach [in question] ..... the level of sheer items. Not just items of usual household items, but the items specified in the 3rd of – on the 3rd of March order ..... [is] of such level that any other matters that Mr Hanson has raised do not outweigh the reasonable proportionate assessment that I’ve made that a possession order ought to be made.[17]

[17]Emphasis added.

  1. These two passages addressed the various factors set out in s 330A that were relevant to the Director’s application for a possession order; but there was no reference back to impact, as required by s 330(1)(f).

Relevant principles

  1. There was no real dispute between the parties as to the principles relevant to ground 1. Mr Hanson submitted, and I accept, that the direction in s 330(1)(f) to take into account ‘the impact on’ the renter (among other things) has the consequence that the impact on the renter is a fundamental aspect of the analysis required.[18] That is all the more so given that the renter’s interests and the impact on the renter will necessarily fall to be balanced against other relevant matters in determining whether a possession order is reasonable and proportionate.

    [18]See Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, 218 [275] (Tate JA); [2015] VSCA 197. See also R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329 (Mason J, Gibbs J agreeing at 324); [1979] HCA 32; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333 (Gibbs CJ), 338 (Mason J); [1982] HCA 69; Potter v Tural (2000) 2 VR 612, 630 [45] (Batt JA, Tadgell JA agreeing at 613 [1]); [2000] VSCA 227.

  1. As a consequence, it will not be sufficient for the Tribunal, in assessing whether a possession order is reasonable and proportionate, to make a cursory, dismissive or passing reference to the impact of the order on the renter. Rather, the Tribunal is required to give active intellectual consideration to that matter. Thus, in Gautham vPanwar, when considering a submission that the Tribunal had not taken into account a relevant consideration, Ginnane J observed that the Tribunal ‘must actively engage with the mandatory considerations, and that engagement must be evident in his or her reasoning’.[19] The Director did not dispute that proposition, and I agree with it.

    [19][2021] VSC 157, [18]. See also DZ [2022] VSC 249, [26] (Moore J).

  1. I also bear in mind the comments of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs that language such as ‘active intellectual consideration’ must be understood in its proper context and that a phrase of that kind must not be allowed to create ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker’s] decision can be scrutinised’. But, as their Honours observed, that remark does not detract from the established principle that if review of a decision‑maker’s reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, that may give rise to legal error.[20]

    [20](2022) 400 ALR 417, 426–7 [26]–[27]; [2022] HCA 17.

Analysis of the Tribunal’s reasons

  1. Noting that the Tribunal’s reasons were ex tempore and given in a busy list, I accept that its reasons are not to be construed with an ‘eye keenly attuned to the perception of error’.[21] Nonetheless, the Tribunal’s reasons are not to be construed in an overly deferential manner, with one’s eyes closed to error. They must be evaluated fairly, as a whole and in context, including by reference to the way in which the case was put to the Tribunal.[22]

    [21]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6. That statement has generally been applied to administrative decision-makers: see, eg, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29] (Neave, Santamaria and Kyrou JJA); R & M v IBAC (2015) 47 VR 148, 167 [59] (Priest, Beach and Kaye JJA); [2015] VSCA 271; Secretary to the Dept of Justice and Regulation vOUX (a pseudonym) [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA). But see Krajcar v Eastern Central Real Estate Pty Ltd [2022] VSC 173, [10] (Croft J). I note that in this case I have not found it necessary to decide whether the Tribunal was acting in an administrative or a judicial capacity. I accept that this approach to construing reasons has application to the Tribunal in the circumstances of this case, regardless of the nature of the power being exercised.

    [22]Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59] (Osborn J).

  1. In the present case I accept Mr Hanson’s submission that, when the Tribunal’s reasons are considered as a whole, and in the context of the particular submissions put to it by Mr Hanson, the Tribunal did not actively engage with the impact of an order for possession on Mr Hanson and the submissions he had made in that regard. Although it referred to some of the matters raised by Mr Hanson in relation to impact, it did not clearly consider and determine what the impact on him would be. Rather, it principally evaluated the effect of his financial circumstances and his health on whether he could comply with the requirement to keep the property in good order, both in the past and in the future. In so far as it accepted that eviction from his home would be ‘difficult’ for Mr Hanson, the Member said that it was ‘unclear’ to him that this was really a factor for him to consider in applying the reasonable and proportionate test. The Member then went on to put that difficulty to one side because it did not consider that the impact on Mr Hanson would be different from the impact on any other renter in similar circumstances. But that was not the correct statutory question. The question was what the likely impact would be on Mr Hanson.

  1. The Tribunal’s decision falls to be assessed in light of the manner in which the parties ran their respective cases before it. As set out above, Mr Hanson’s lawyers made submissions expressly directed to the impact a possession order was likely to have on him. While Mr Hanson himself provided no direct evidence in support of those submissions, there was medical evidence concerning the conditions from which Mr Hanson suffered. And his income, the fact that he had resided in public housing for 22 years, and the fact that prior to that he had experienced homelessness, were not in dispute. In my opinion the Tribunal ought to have considered, but did not properly consider, whether the existence of those undisputed matters meant that a possession order would have a negative impact on Mr Hanson, as he had submitted.

  1. I accept the Director’s submission that the Tribunal was not under an obligation to make its own inquiries in addition to what had been provided by the parties and that it is not the Tribunal’s responsibility to make an applicant’s case for them.[23] However, the Tribunal may draw inferences from the material before it. In the present case, even though there was no direct evidence explaining how Mr Hanson’s medical conditions might affect him if a possession order were to be made, the Tribunal ought to have considered whether it could infer, from the material before it and the undisputed facts, that by reason of his particular circumstances, an order would impact on Mr Hanson in a negative manner, and if so how, and then weigh that impact in the balance when considering whether a possession order was reasonable and proportionate in the circumstances. It did not do so.

    [23]Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220, 242 [69] (Flick and Rangiah JJ); [2016] FCAFC 52.

  1. I accept that the passages extracted above reveal that the Tribunal was aware of two key matters said to be relevant to the impact of a possession order on Mr Hanson: his financial circumstances and his medical conditions. That is because the Tribunal referred to both of these matters. The real question is whether it properly considered all of Mr Hanson’s submissions relating to the impact of a possession order on him. In my opinion a fair reading of the Tribunal’s reasons is that it did not. I have reached that conclusion for the following reasons.

  1. First, the Tribunal never expressly referred to the impact of a possession order on the renter when explaining the legislative provisions that it was called to apply. At the outset of the relevant part of its reasons, the Tribunal identified the question that arose under s 330 as whether ‘[it is] reasonable and proportionate having regard to section 330A to make a possession order counting the various interests and the like.’ That reference to interests is to the interests referred to in s 330(1)(f); but I do not consider that I should infer that the words ‘and the like’ are to be understood as a reference to the additional matter referred to in s 330(1)(f), being the impact of an order on the persons mentioned in that sub-paragraph. The words are vague, and of uncertain import, and could be referring to the various persons whose interests are to be considered. I note for completeness that, even if I am wrong in this regard, and those words are to be understood as referring to the impact of a possession order on the persons referred to in s 330(1)(f), that would not be sufficient to demonstrate proper consideration of that issue, in light of the matters that I discuss below.

  1. Secondly, although the Tribunal identified s 330A as providing ‘guidance’, not as restricting the matters to which the Tribunal could have regard, it nonetheless conducted its assessment principally by reference to the factors set out in s 330A. While of course it was required to have regard to the matters listed in s 330A, the problem with utilising s 330A as the principal vehicle by which to assess whether a possession order was reasonable and proportionate is that s 330A does not refer to the impact of the order on the renter; that form of analysis is thus apt to cause the Member to fail to properly consider that fundamental consideration.

  1. Thirdly, although the Tribunal expressly discussed the relationship between Mr Hanson’s financial circumstances and medical conditions, on one hand, and his ability to remedy the breach notice (which was a relevant matter under ss 330A(e) and (f)), on the other hand, in my opinion it did not actively engage with all of the matters raised by Mr Hanson in relation to the impact of a possession order on him.

  1. In relation to Mr Hanson’s financial issues, the Tribunal observed that there was no evidence that his financial position had prevented him cleaning up the property. The Tribunal then said Mr Hanson’s case was ‘[m]erely’ that his financial position was such that, if he had to vacate the premises, he may have difficulty finding alternative accommodation and may become homeless, which could have ‘catastrophic consequences’. The use of the term ‘merely’ is ambiguous, but in my opinion, when the relevant paragraph is considered in context, it does not demonstrate that the Tribunal actively engaged with Mr Hanson’s submissions that his circumstances — including but not limited to his financial circumstances — made it likely he would be rendered homeless if he was required to leave his home. Not only was he a disability pensioner on a very limited income, it also was not in dispute that he had resided in public housing for 22 years and had previously been homeless. These matters had been raised in both Mr Hanson’s written and oral submissions. Yet the Tribunal did not mention those matters when considering whether Mr Hanson might be rendered homeless by a possession order. Rather, it turned to the Director’s submissions that he would ‘engage with’ Mr Hanson, and ‘try and see what other alternatives’ might be available. But there was no evidence (or submission) that this form of ‘engagement’ with Mr Hanson would mean that it was likely that he would not become homeless, and the Tribunal did not make a finding to that effect. The Member simply noted the Director’s submissions and then moved on. The Director accepted in oral argument that this was the only place in the reasons where the Tribunal considered the issue of homelessness.

  1. Later in the reasons the Tribunal returned to Mr Hanson’s financial situation and said that this was a consideration it ought to take into account, but said that it had to balance that with Mr Hanson’s breaches. There was no reference here to whether Mr Hanson may be rendered homeless; and again there was no reference to Mr Hanson having been in public housing for 22 years and having previously been homeless.

  1. Having failed to have regard to matters relevant to whether Mr Hanson was likely to be rendered homeless by a possession order, and having failed to make a finding as to the likelihood of Mr Hanson becoming homeless, the Tribunal was not then properly able to weigh that possible impact on him in the analysis of whether the possession order was reasonable and proportionate.

  1. In relation to Mr Hanson’s medical conditions, the Tribunal plainly accepted that Mr Hanson suffered from the medical conditions he had identified (and about which he had provided medical evidence). The Tribunal commenced its consideration of the medical issues by observing that there was no evidence as to how those conditions had prevented Mr Hanson from cleaning the property. It then, in a new paragraph in the transcribed reasons,[24] observed that there was no evidence as to how those conditions would prevent him complying with future requirements. After discussing the possibility of a 90-day extension of time to comply with the breach order, the Tribunal said this:

So whilst the medical condition for Mr Hanson may be very difficult for him [personally], it is unclear to me that it really is a factor for me to ….. reasonable and proportionate test.

[24]I accept that the transcription might not accurately reflect paragraphs in the manner in which the Tribunal read its ex tempore reasons; however it is convenient to refer to paragraphs for the purposes of identifying key passages in the reasons.

  1. As noted earlier, the parties agreed that I should infer that the Member was saying words to the effect that it was unclear to him that Mr Hanson’s medical condition[25] really was a factor for him to consider in applying the reasonable and proportionate test.

    [25]I note that Mr Hanson suffered from more than one medical condition, but I give no weight to the fact that the Tribunal’s reasons refer to ‘condition’ in the singular.

  1. That remark suggests that the Tribunal did not think Mr Hanson’s medical conditions were relevant to the application of the test set out in s 330(1)(f). Yet Mr Hanson had made a clear submission that his medical conditions would mean that the possession order would have a negative impact on him.

  1. The Tribunal then went on to observe that having to vacate premises ‘can be a very difficult experience for anybody’ (possibly, anybody with a medical condition — the transcript was unclear in this regard) and then said that why Mr Hanson’s condition would make it ‘a lot worse for him as opposed to any other renter [in a] similar situation was not [made] clear to me’. That observation was not apposite to an evaluation of the impact of a possession order on Mr Hanson; there is no suggestion in s 330(1)(f) that the assessment of impact is to be made in some comparative sense, by comparing the particular renter with other renters. Further, it is not clear what the Tribunal meant by another renter ‘in a similar situation’. Did this mean: a renter of public housing; a renter (of any housing) with similar medical conditions; or some other renter?

  1. After those observations the Tribunal said that there had been no expert evidence that enabled the Member to be satisfied that ‘there is a finding that I can make in a manner that Mr Hanson has requested’. This final statement was again ambiguous. Mr Hanson submitted that this was a reference back to the opening of the paragraph — a finding that Mr Hanson’s medical condition would prevent him from complying with future requirements. In contrast, the Director submitted that the final statement referred to findings Mr Hanson had requested in relation to the negative impact of a possession order on Mr Hanson. In my opinion, when understood in the context in which it appeared, Mr Hanson’s submission is to be preferred.

  1. I note for completeness that, even if I am wrong about the way in which the Tribunal dealt with the medical evidence, and the Tribunal is to be understood as having declined to make a finding that Mr Hanson’s medical conditions would be exacerbated by a possession order, as the Director submitted, that would not negate the Tribunal’s failure to have regard to, and actively consider, the financial and personal matters relevant to whether Mr Hanson was likely to become homeless, and to make a finding on that issue.

  1. Finally, the Tribunal said that the seriousness of Mr Hanson’s breaches was such that, even when weighed against the ‘other matters’ that Mr Hanson had raised, the possession order was reasonable and proportionate. That final comment did not reveal an active engagement with Mr Hanson’s submissions about the impact that a possession order would have on him.

  1. All these matters lead me to conclude that the Tribunal did not actively engage with the impact of the possession order on Mr Hanson, including by reason of his medical, financial and personal circumstances, when considering whether it was reasonable and proportionate to make the order.

Materiality

  1. The Director submitted that, if I were to conclude that the Tribunal had failed to properly consider the impact of a possession order on Mr Hanson, I should nonetheless refuse relief because ‘there was no realistic possibility that the Tribunal’s decision could have been different had the Member given more detailed consideration to the applicant’s submissions on impact’. That is, the Director submitted that the error was not material. That was because, he said, Mr Hanson had not placed sufficient material before the Tribunal for the Member to make the finding that a possession order would render him homeless. The Director also submitted that Mr Hanson bore the onus of demonstrating that the error was material in the relevant sense.

  1. I accept that Mr Hanson bore the onus of demonstrating that the error he alleged was material. So much follows from the decisions of the High Court in Minister for Immigration and Border Protection vSZMTA,[26] Nathansonv Minister for Home Affairs[27] and MZAPC v Minister for Immigration and Border Protection.[28] It is important, however, to bear in mind the nature of the onus. As the plurality explained in Nathanson:

[I]t is necessary to consider whether the decision that was in fact made could have been different had the relevant condition [on the conferral of statutory power] been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’. The burden falls on the plaintiff to prove ‘on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition’.[29]

[26](2019) 264 CLR 421; [2019] HCA 3.

[27](2022) 96 ALJR 737; [2022] HCA 26 (‘Nathanson’).

[28](2021) 95 ALJR 441; [2021] HCA 17.

[29](2022) 96 ALJR 737, 747–8 [32] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26 (emphasis in original) (citations omitted).

  1. Their Honours observed that ‘the standard of “reasonable conjecture” is undemanding’.[30]

    [30](2022) 96 ALJR 737, 748 [33] (Kiefel CJ, Keane and Gleeson JJ); [2022] HCA 26. See also 750 [46]–[47] (Gageler J), 759, [93], 765 [127] (Edelman J).

  1. I note that these three cases concerned breach of procedural fairness, which is not the nature of the error established by Mr Hanson in this case. However, the statement of the plurality referred to above was articulated in terms that captured any jurisdictional error, not only breach of procedural fairness. Further, the High Court’s recent jurisprudence on materiality is consistent with the decision in Minister for Aboriginal Affairs vPeko-Wallsend Ltd,[31] on which Mr Hanson relied. In that case, which concerned a failure to take into account a mandatory relevant consideration, Mason J observed that a failure to consider such a matter may not justify the court setting aside the decision if the matter was ‘so insignificant that the failure to take it into account could not have materially affected the decision’.[32] Mason J did not consider the question of onus. In those circumstances I consider that it is appropriate for me to follow the more recent decisions of the High Court in that regard. I do not see any reason why the onus would be different if the error alleged is a jurisdictional error of a kind other than a breach of procedural fairness.

    [31](1986) 162 CLR 24; [1986] HCA 40.

    [32](1986) 162 CLR 24, 40; [1986] HCA 40.

  1. In the present case, I consider that Mr Hanson has discharged his onus. I do not accept the Director’s submission that there was no realistic possibility that the Tribunal’s decision ‘would have been different’ had it given proper consideration to the impact of the order on Mr Hanson, as required by law. That is not the correct question. The question is whether the decision ‘could have been different’, by reference to ‘reasonable conjecture’. Further, given that the question of impact concerns a forward-looking, hypothetical matter — that is, the impact of a possession order in the future, if such an order is made — the Tribunal needed to consider not whether Mr Hanson would be rendered homeless by the making of a possession order, but whether it was likely that he would be rendered homeless. It did not make a finding on that issue. I consider that, had the Tribunal taken into account all of the material relevant to the assessment of whether eviction would render Mr Hanson homeless, it would have been open for it to conclude that it was likely that eviction would have that consequence. Likewise, it would have been open to the Tribunal to infer from Mr Hanson’s medical conditions that a possession order would have a negative impact on him. It would then have been necessary for the Tribunal to have weighed those impacts against other relevant factors, such as the nature and severity of Mr Hanson’s breaches, and his failure to remedy them in a timely manner, in order to determine whether a possession order was reasonable and proportionate in the circumstances. Again, it did not do that. Thus in my opinion the Tribunal’s decision could have been different had it had proper regard to the factual materials and the submissions made by Mr Hanson concerning the impact of a possession order on him.

Conclusion

  1. When the Tribunal’s reasons are considered as a whole, I consider that ground 1 is made out.

  1. In light of that conclusion it is not necessary for me to consider grounds 2 and 3. Although it is often appropriate for a court to consider additional grounds even where another ground has been made out, in this case I do not consider it to be appropriate to do so. That is because ground 2 raises an issue of significance beyond the present appeal, and in a manner not directly relevant to the Director or Mr Hanson — that is, the question whether the Tribunal was exercising judicial power will also have implications more broadly for the jurisdiction of the Tribunal in relation to matters in federal jurisdiction. In those circumstances I do not consider it appropriate to determine ground 2. In relation to ground 3, any discussion of it would be hypothetical because it would be based upon the incorrect assumption that the Tribunal had properly considered the impact of a possession order on Mr Hanson. A consideration of that ground on a hypothetical basis would, in my opinion, be artificial, strained and unhelpful.[33]

    [33]Break Fast Investments Pty Ltd v Rigby Cooke Lawyers (A Firm) [2022] VSCA 118, [157] (Kyrou, McLeish and Walker JJA).

  1. In light of the above, I would grant leave to appeal and allow the appeal. Subject to hearing from the parties as to the appropriate form of order, I propose to order that the matter be remitted to the Tribunal to be heard and determined by a differently constituted Tribunal; in relation to costs, my present inclination is that the Director should pay Mr Hanson’s costs of the appeal.

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