Heleno Mendes v Baptcare Ltd
[2020] VSCA 77
•31 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2019 0130
| HELENO MENDES | Applicant |
| v | |
| BAPTCARE LTD | Respondent |
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| JUDGES: | TATE and NIALL JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 February 2020 |
| DATE OF JUDGMENT: | 31 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 77 |
| JUDGMENT APPEALED FROM: | [2019] VSC 790 (Forbes J) |
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RESIDENTIAL TENANCIES – Notice to vacate – Applicant tenant of rooming house operated by respondent — Eligibility for rooming house contingent on applicant’s asylum seeker status — Applicant exhausted legal rights concerning asylum – Victorian Civil and Administrative Tribunal order for possession – Trial Division judge refused leave to appeal from Tribunal’s order – Residential Tenancies Act 1997 ss 288, 289(1), Victorian Civil and Administrative Tribunal Act 1998 s 148.
APPEAL – Application for leave to appeal from trial judge’s decision – Whether trial judge acted with bias – Whether applicant denied natural justice – Whether trial judge overlooked evidence – Whether trial judge wrongly applied legal principles and failed to give adequate reasons – Proposed grounds of appeal lacked evidentiary foundation – Application for leave to appeal lacked merit – No reasonable prospects of success – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 117(6).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr J Manning | Russell Kennedy |
TATE JA:
I have had the advantage of reading, in draft form, the reasons of Croucher AJA. I agree with his Honour that none of the proposed grounds of appeal has any real prospect of success. The proposed grounds of appeal are without merit, for the reasons his Honour gives, and leave to appeal should be refused.
NIALL JA:
I have had the benefit of reading in draft the reasons for judgment of Croucher AJA and agree that leave to appeal should be refused for the reasons he gives.
CROUCHER AJA:
Overview
On 16 July 2019, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) ordered that Baptcare Ltd (‘Baptcare’/’the respondent’) ‘is entitled to a possession order’ in respect of a room in its rooming house occupied by Heleno Mendes, and that Mr Mendes ‘must vacate the rented premises by 18 July 2019’.
On 10 December 2019, a judge of the Trial Division refused an application for leave to appeal by Mr Mendes against the Tribunal’s orders.
Mr Mendes now applies to this Court for leave to appeal against the judge’s refusal of leave. He appears without any legal representation, as he did before both the Tribunal and the Trial Division. In his proposed grounds of appeal, and in his written and oral submissions, Mr Mendes makes a number of overlapping complaints about the judge’s approach below, including claims of ‘natural bias’, a denial of ‘natural justice’, claims that the judge ‘overlooked evidence’, took into account evidence not before the Tribunal and gave ‘inadequate reasons for refusing leave to appeal’.
In my view, those complaints must be rejected. The application lacks merit and an appeal would enjoy no reasonable prospect of success. Accordingly, I would refuse leave to appeal.
My more detailed reasons follow.
Background
Baptcare is a faith-based not-for-profit organisation which provides residential and community care of various kinds for persons in need. Amongst its services, Baptcare, through its ‘Sanctuary Program’, provides supported transitional accommodation in a rooming house for persons seeking asylum in Australia.
As part of the Sanctuary Program, since about 7 May 2012, Mr Mendes has lived in a room at Baptcare’s rooming house in Brunswick. One of Baptcare’s conditions in providing the accommodation was that Mr Mendes was a person seeking asylum in Australia.
On 14 December 2016, the High Court refused Mr Mendes’s application for special leave to appeal in relation to his claim of asylum. To Baptcare, this suggested that Mr Mendes had exhausted his legal rights concerning asylum.
On Baptcare’s case, despite repeated requests of him, by the end of 2018 Mr Mendes had insufficient evidence that he had any pending claims of or extant court appeals concerning asylum.
On 27 December 2018, Baptcare served a notice to vacate on Mr Mendes pursuant to s 288 of the Residential Tenancies Act1997 (‘the RTA’). In accordance with the terms of s 288, that notice did not require a reason to be specified, but did require specification of a termination date not less than 120 days after the date of service. The specified termination date was 3 May 2019, some 128 days after service.
Mr Mendes continued to live in the premises. Consequently, on 21 May 2019, Baptcare applied to the Tribunal for a possession order under s 323 of the RTA.
The Tribunal hearing
On 16 July 2019, a contested hearing was conducted before the Tribunal. While Mr Mendes and Peter Andrews (a representative of Baptcare) were both sworn (or affirmed) to give evidence, the transcript of the hearing reveals that the matter proceeded more in the form of oral statements and submissions instead of the more conventional process involving each witness in turn giving evidence-in-chief and being cross-examined followed by submissions.
At the hearing, Mr Mendes made two main points. First, he said that he was still ‘seeking asylum’ and that he had ‘not exhausted [his] legal options’. Secondly, he asserted that Baptcare was ‘seeking repossession of the room without reason, and … that it’s retaliatory … because [he] exercised all [his] rights under the [RTA]’, which, he said, had involved expressing concerns about safety and security of the premises and about their ‘sanitary condition including insect infestation’. The second point was designed to engage s 289(1) of the RTA, which provides that ‘[a] notice under s 288 is of no effect if it was given in response to the exercise, or the proposed exercise, by the resident of a right under this Act’.
During the hearing, Mr Andrews responded to both points. He said that the only reason why the notice to vacate was given was because Mr Mendes had failed to provide sufficient evidence that he had not exhausted his legal options regarding asylum and not because he had exercised any of his rights under the RTA. Mr Andrews accepted that Mr Mendes had provided Baptcare with a copy of a letter he had written to the High Court, dated 19 June 2019, in which he asserted that he had not received valid notification of the Court’s decision in December 2016 because a letter notifying of the decision had commenced ‘Dear Madam’. (Presumably, the author of the notification letter from the High Court had mistaken Mr Mendes’s given name ‘Heleno’ as designating a female.) While Mr Andrews did not complete his response, it was obvious that Baptcare reasonably considered that any error in the notification letter did not mean Mr Mendes’s claim to asylum was ongoing.
Later in the hearing, Mr Mendes asserted that, as soon as he had ‘a sealed order’ from a single judge, he could appeal to a Full Bench of the High Court and, even if that failed, he would have the option of applying for ministerial intervention. Mr Andrews responded by saying that, if that is so, even at this stage of the proceedings, Baptcare would consider evidence of such an appeal or an application on foot, even if from a legal representative. But Mr Mendes seemed to be saying either that that was not possible or that he did not have to provide any such information under the tenancy agreement.
Soon thereafter, the Tribunal member indicated that she had heard the arguments of both parties and that she was ready to give a ruling there and then. The member then gave her decision and her reasons therefor, which were addressed directly to Mr Mendes:
Sir, I’m satisfied that notice … has been validly served. There was 128 days [of] notice that was given in relation to the 110 [scil, 120] day notice sent by registered mail on 27 December. The landlord has said that the reason given for the notice was that you didn’t fulfil the required criteria that is specified by Baptcare in relation to your tenancy.
Now, sir, you’ve said that that’s not the case, that in fact it was given in response, in effect it was retaliatory, that it’s given in response to you having exercised your rights as a tenant under the legislation.
I’m not satisfied that you’ve proven that matter. I’m not satisfied that it’s been established on the balance of probabilities that the notice was given in response to the exercise or perceived exercise of the right under the legislation.
There may have been issues in relation to your status as to whether you’re an asylum seeker or a refuge seeker, but the reality is that the landlord’s entitled to serve a notice for no specified reason provided it’s not retaliatory. So I’m going to make an order that the notice is valid and I will specify the date as today. But having said that, … Baptcare has up until 16 January next year as to whether they take out a warrant or not.
So, a copy of the order will print outside, sir.
Immediately thereafter, the following further exchanges between Mr Mendes and the member occurred:[1]
[1]Emphasis added.
Mr MENDES: Can I object that under s 38?
MEMBER: You can appeal the decision if you wish. That’s my decision. So, a copy of that will print out now. And it’s up to Mr Andrews and Baptcare as to whether they actually enforce that order. As has been indicated by Mr Andrews on the last occasion, they don’t wish to exercise their rights to purchase a warrant straight away. They want to work with you in relation to this, but that’s a matter for you.
Mr MENDES: So you’ve decided that Baptcare is - - -
MEMBER: I’ve given my reasons. I’ve said I don’t believe it is retaliatory, I don’t believe - - -
Mr MENDES: Why don’t you believe even though I present … all the evidence?
MEMBER: Sir, I’ve made my decision. I’m not satisfied on the evidence that you’ve established it’s retaliatory, and the landlord in those circumstances is entitled to get an order of possession based on a valid notice to vacate, so that’s my decision.
Mr MENDES: So, even – even – even though - - -
MEMBER: Sir, I’m not engaging in any further discussion. I’ve made my decision. All right.
Mr MENDES: Okay, but bear in mind that your decision will have consequences.
MEMBER: All right. Yes, sir, I understand that. Thank you.
The key aspects of the order to which the Tribunal member referred were set out in the following way:
APPLICANT(S):
Rooming House Owner Baptcare Ltd
RESPONDENT(S):
Resident Heleno Mendes
RENTED PREMISES: C05/33 Blyth St, Brunswick 3056
Application under [RTA] possession – notice for no specified reason [s] 323(a), 288
The Tribunal finds that:
1. The landlord gave the tenant not less than 120 days’ notice to vacate under section 288 of the [RTA].
2. The landlord has proven the grounds for giving the notice to vacate.
The Tribunal orders and directs that:
1. The landlord is entitled to a possession order.
2. The tenant must vacate the rented premises by 18 July 2019.
3. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 16 January 2020).
Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.
Application for leave to appeal to the Trial Division
On 19 September 2019, Mr Mendes sought leave to appeal (out of time) to the Trial Division of this Court against those orders, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).
While the judge granted Mr Mendes’s application for an extension of time,[2] she refused his application for leave to appeal.[3]
[2]Mendes v Baptcare Ltd [2019] VSC 790, [13]-[14].
[3]Mendes v Baptcare Ltd [2019] VSC 790, [44].
As the judge pointed out in her reasons, aspects of Mr Mendes’s proposed grounds of appeal amounted to an attempt to review the merits of the dispute instead of raising questions of law, as required by s 148(1) of the VCAT Act.[4] Nevertheless, with great care and conspicuous fairness, her Honour was able to distil Mr Mendes’s complaints into four grounds raising possible questions of law.[5]
[4]Mendes v Baptcare Ltd [2019] VSC 790, [15]-[16].
[5]Mendes v Baptcare Ltd [2019] VSC 790, [12], [16].
Ground 1: Overlooking evidence
Ground 1 asserted that the Tribunal overlooked documents or other evidence.
The judge accepted Baptcare’s submission that, as argued, at least some aspects of the ground were directed to the weight given to evidence Mr Mendes relied on, which was not a question of law.[6]
[6]Mendes v Baptcare Ltd [2019] VSC 790, [18] & [22].
In any event, her Honour was unable to detect any evidence before the Tribunal that was ‘overlooked’. When asked to identify the evidence or documents put before the Tribunal that were overlooked, Mr Mendes did not identify anything specific and instead referred to many things which he said underscored his argument. Her Honour, however, observed that the Tribunal received and sought comment on various materials Mr Mendes placed before it. Much of this material concerned a series of disputes over time which, it seemed, went to Mr Mendes’s complaint that the notice to vacate was retaliatory. Again, in the judge’s view, his argument before her on this point appeared to be more in the nature of an impermissible merits review.[7]
[7]Mendes v Baptcare Ltd [2019] VSC 790, [18]-[22].
Further, in so far as there was evidence, from Mr Mendes, that he believed Baptcare’s notice to vacate was retaliatory, which in turn, he submitted, made it ineffective, and in so far as he disputed that he had exhausted his legal avenues with respect to asylum, the judge indicated that there was evidence to the contrary from Mr Andrews, which evidence the Tribunal was entitled to prefer.[8]
[8]Mendes v Baptcare Ltd [2019] VSC 790, [23]-[24].
Her Honour concluded that the ground had no realistic prospect of success.[9]
[9]Mendes v Baptcare Ltd [2019] VSC 790, [25].
Ground 2: Bias or apprehended bias
Ground 2 complained that the Tribunal was biased or that there was a reasonable apprehension of bias.
No such complaint was raised before the Tribunal. Nor was any application made that the Tribunal member should disqualify herself.
Nevertheless, in an affidavit filed before the judge, and in submissions, Mr Mendes alleged that, prior to the commencement of the hearing before the Tribunal, the Registrar asked the Baptcare representative (Mr Andrews) whether Mr Mendes had given Baptcare a document and that the response given was incorrect. This, it was said, was unreasonable and suggested ‘collusion’. In a responding affidavit, Mr Andrews deposed that the only interaction he had with the Registrar prior to the hearing was to advise his name and that he represented Baptcare.[10]
[10]Mendes v Baptcare Ltd [2019] VSC 790, [26].
The judge pointed out that there was no submission that the suggested collusion involved the Tribunal member. In her Honour’s view, at its highest, accepting that the Registrar did ask one party whether a document had been received, there was nothing in that behaviour that could point to an actual or perceived bias by the decision maker in the conduct of the hearing.[11]
[11]Mendes v Baptcare Ltd [2019] VSC 790, [27].
The judge also dealt with other complaints that Mr Mendes made under cover of this proposed ground. Her Honour considered that none of those complaints would ground an appeal based on either bias or apprehended bias or any other failure to accord natural justice. Nor, in her Honour’s view, would any such complaint have a realistic prospect of success.[12]
[12]Mendes v Baptcare Ltd [2019] VSC 790, [28]-[32].
Ground 3: Adequacy of reasons
Ground 3 alleged that the Tribunal did not give adequate reasons as it did not provide written reasons when requested to do so.
The judge explained that, on the day after the orders were made (ie 17 July 2019), Mr Mendes sought written reasons for the decision. His request, however, erroneously relied on s 45 of the VCAT Act, which had no application to his case. The judge said that the request should have been based on s 117(2), as the Tribunal had given oral reasons. By s 117(3), the Tribunal must comply with a request under s 117(2) within 45 days after receiving the request. Mr Mendes was informed that his request for written reasons was refused by an email letter dated 22 October 2019, which was outside the 45-day period. Although no reasons were given for the refusal, cl 76 of sch 1 of the VCAT Act provides that, despite anything to the contrary in s 117(2), the Tribunal is not obliged to give written reasons for an order made in a proceeding under the RTA ‘unless the person has made a request to the Tribunal for written reasons for orders that may be made in the proceeding before or at the time of the giving or notification of the Tribunal’s decision in the proceeding’.[13]
[13]Mendes v Baptcare Ltd [2019] VSC 790, [33]-[34] (emphasis added).
In those circumstances, the judge rejected Mr Mendes’s argument that the refusal to provide written reasons amounted to a denial of natural justice because there was simply no obligation to provide such reasons, such that there could be no denial of natural justice.[14]
[14]Mendes v Baptcare Ltd [2019] VSC 790, [35].
Further, in so far as it was submitted, orally, that the oral reasons given — namely, those set out earlier in this judgment — were inadequate, the judge concluded that Mr Mendes ‘could clearly understand, from the reasons given, why the Tribunal decided the case against his interests’.[15]
[15]Mendes v Baptcare Ltd [2019] VSC 790, [36]-[39].
Ground 4: Whether Mr Mendes received the notice to vacate
Ground 4 asserted that Mr Mendes did not receive the 120-day notice to vacate.
In an affidavit (his third) filed before the judge, Mr Mendes said he had ‘no knowledge of receiving the 120 days’ Notice to Vacate by registered post’.[16]
[16]Mendes v Baptcare Ltd [2019] VSC 790, [40].
The judge pointed to case notes and a letter written by Mr Mendes,[17] which, on their face, suggested he had received the letter in question and was aware of the relevant notice to vacate. A letter dated 27 December 2018 was sent to Mr Mendes by registered post. The letter referred to an enclosed copy of a fourteen-day notice to vacate for rent arrears, an enclosed copy of the 120-day notice to vacate ‘as a result of no longer meeting the eligibility criteria for Baptcare Sanctuary’, and that ‘[t]hese notices have also been sent by registered post’.[18]
[17]Mendes v Baptcare Ltd [2019] VSC 790, [42].
[18]Mendes v Baptcare Ltd [2019] VSC 790, [41].
On this ground, her Honour concluded as follows:[19]
There is no requirement that a notice to vacate be served on an individual by registered mail, although this may be one method of proving service in accordance with s 506 of the [RTA]. There was clear evidence before the Tribunal that the Notice had been received by Mr Mendes even if the registered post copy had not come to his attention. There was no error in the Tribunal’s finding that the notice was validly served.
[19]Mendes v Baptcare Ltd [2019] VSC 790, [43].
Concluding remarks
The judge concluded her reasons by saying that she was not persuaded that any of Mr Mendes’s grounds of appeal had ‘a real prospect of success’. Accordingly, her Honour refused leave to appeal.[20]
[20]Mendes v Baptcare Ltd [2019] VSC 790, [44].
Application for leave to appeal to this Court
Introduction
On 16 December 2019, Mr Mendes filed an application for leave to appeal to this Court against the orders of the trial judge.
On 19 December 2019, Kyrou JA ordered a stay of the possession order until the determination of the leave application and appeal.
Mr Mendes’s draft notice of appeal contains six proposed grounds of appeal.
Baptcare distilled the complaints under each ground and then responded to each in turn. It is convenient to adopt the same course.
Whether Mr Mendes’s further evidence should be admitted
Before turning to those grounds, I should deal with a preliminary matter.
Mr Mendes sought to file a further affidavit (affirmed 24 January 2020) at the hearing of the application for leave to appeal in this Court. He claimed, in this Court, that he did not file the exhibits before the judge because they were not accessible to him at that time. This is despite the fact that one was a letter addressed to him and the other was a document created by him on a computer.
The second document, which was his letter to the Tribunal, sent prior to the final hearing, querying why certain adjournments had been granted, was necessary, he said, to show the existence of bias and how the Tribunal just ‘gave in’. He said that, while he did not want to eulogise himself, he regards himself as ‘respectable when it comes to analysis, and he can pick people’s minds very quickly’. ‘And,’ he continued, ‘analysing that, I was … all foreseeing the outcome, so that’s why it’s important to show that letter.’ That document was inaccessible at the time of the hearing before the judge because he created it on ‘another’ computer and did not save it.
Baptcare objected to receipt of the affidavit and exhibits. Justice Kyrou, who granted Mr Mendes leave to amend his application and the written case, did not grant leave to file a further affidavit. Many of the matters raised in the affidavit are not fresh, and were available at the time of the hearing before the trial judge. Some also raise matters of opinion or submission and are either irrelevant to the decision by the judge, were the subject of evidence before her Honour or are otherwise on the transcript before this Court, or add nothing to this application.
In my view, this Court should not receive the affidavit or the exhibits. As counsel submitted, much of the affidavit contains opinion or submissions or matters already known.
I should add that, even if the affidavit and exhibits were admitted, it would make no difference to the outcome of this application.
Ground 1: ‘Natural bias’
Ground 1 asserts that the trial judge ‘acted with natural bias against [Mr Mendes’s] case’.
The respondent submitted that Mr Mendes’s arguments in support of this ground appear variously as follows:
· The judge acted with bias as it was not open to conclude that the Tribunal member had not breached the rules of natural justice, by failing to apply a legislative provision.
· The judge ‘may have been’ negatively swayed by systemic prejudice and the dramatic disparity of opportunity between people of different ethnic backgrounds.
· A fair-minded lay observer might reasonably apprehend the judge might not have brought an impartial mind to the resolution of the judgment, based upon her conduct, ‘various aspects’ of her reasons, the ‘way in which she dealt with the applications made’, and by her ‘disposition’.
· The impartial observer might reasonably think that the judge ‘might be inclined’ to give Baptcare what it wanted, ‘based on her hypothetical and strong disapproval of the immigration matter’.
· ‘Comments’ were of such a kind from which one might imply bias.
· The judge pre-emptively tried to block the appeal, refusing leave. Her Honour ignored his objections. Her body language and vocal delivery after the objection failed to exude confidence and suggested prejudgment.
· There might be a reasonable apprehension of bias and empathy towards the Baptcare because it was alleged to be in a difficult position.
· The way the judge dealt with Mr Mendes’s case suggests natural bias.
The respondent submitted that these arguments lack evidentiary foundation, are speculative, vague, simply rephrase the ground of appeal and/or are nonsensical. It was also submitted that there is nothing in the materials suggesting that the trial judge would not bring an impartial mind to her task.
I agree.
The transcript of the hearing makes clear that the judge heard, engaged with, and ruled upon Mr Mendes’s objections. For example, her Honour granted his application to stand down at the commencement of the hearing so that he might have more time to prepare himself in view of the altered commencement time of the hearing. Mr Mendes was not prevented from advancing any argument, whether written or oral; he was able to place any material before the judge, and the judge did not refuse to receive material from him. At all times the judge was polite and endeavoured to assist the applicant in making submissions and developing his argument.
Further, at no stage of the hearing did Mr Mendes raise any concerns about the judge’s behaviour or any perceived bias. Nor did he make any application for the judge to disqualify herself based on his claims of bias. The allegation that her Honour was biased was raised for the first time after the decision refusing leave.
The respondent observed that, while Mr Mendes was self-represented at the hearing before the judge, he raised similar claims of bias by the Tribunal member whose orders were the subject of the application for leave to appeal to the judge. Baptcare, in its written submissions filed prior to that hearing, pointed out that Mr Mendes had not raised his concerns of bias with the Tribunal member or made any relevant application. In this Court, Baptcare submitted that Mr Mendes’s failure to raise the issue with the judge or make any disqualification application should be seen against that backdrop.
It is unnecessary to make any finding, or draw any inference, about Mr Mendes’s failure to raise concerns about alleged bias or the like before the Tribunal. It is enough to say that, having considered all the materials before this Court, I can see not the slightest hint of bias, whether actual or apprehended, in the judge’s approach to any aspect of the case or her reasons for judgment.
The proposed ground is hopeless. Accordingly, I would reject it.
Ground 2: Denial of ‘natural justice’
Ground 2 asserts that the trial judge ‘did not provide [Mr Mendes] with natural justice resulting a process that violated basic due process and fundamental fairness’.
Mr Mendes’s written arguments, under cover of Ground 2, commence with the complaint that the judge failed to determine the application in his favour, despite the evidence that the Tribunal member breached the rules of natural justice. Similar arguments follow where the alleged denial of natural justice is based upon the judge’s ultimate decision and/or the Tribunal member’s alleged conduct.
None of Mr Mendes’s arguments support the contention that the judge denied him natural justice. The mere fact that, in a litigant’s view, a decision is contrary to the evidence does not amount to a denial of natural justice.
Two further arguments were advanced under this ground by Mr Mendes, one relating to the form of the possession order and the other to his immigration status.
First, the form of the possession order does not bear upon the question of natural justice, the issue having never arisen prior to the stay application before Kyrou JA on 19 December 2019. Mr Mendes cannot reasonably complain of a denial of natural justice in circumstances where the argument was never put before the Tribunal or the judge.
Second, Mr Mendes’s immigration status (i.e. whether he had exhausted his legal rights to seek asylum) was relevant to the decision to issue the notice to vacate. While s 288 of the RTA permitted the giving of the notice to vacate without specifying a reason for doing so, the importance of the reason relied upon by Baptcare was in refuting the suggestion by Mr Mendes that the notice was an act of retaliation to an exercise of legislative rights. This does not bear upon the question of natural justice. Further, it was the subject of extensive argument both at the Tribunal and before the judge. There is nothing that her Honour said, did or found concerning this topic that sensibly could be argued to have involved a denial of natural justice or to have resulted in a process that violated basic due process or fundamental fairness.
In so far as it might have been suggested, under this ground, that the late filing of Baptcare’s submissions created or contributed to a denial of natural justice, it should be noted that Baptcare served its submissions on 19 November 2019; and that, on 22 November 2019, in response to Baptcare’s submissions, Mr Mendes filed six pages of further submissions, a five-page affidavit (his third), two further exhibits, and added a further six cases to his list of authorities. The material filed demonstrates that Mr Mendes understood the nature of the arguments against him and provided a detailed response. Further, on 29 November 2019, ten days after Baptcare’s submissions were filed, the application was heard. Mr Mendes made oral submissions addressing Baptcare’s submissions. At no stage of the hearing did Mr Mendes apply for an adjournment. Again, this is inconsistent with any denial of natural justice or procedural fairness. I consider that no procedural unfairness was occasioned by Baptcare’s late filing of documents.
Further, I accept Baptcare’s submission that, contrary to Mr Mendes’s claim, the judge did not admit into evidence documents to which objection had been taken. The evidence before the judge does not appear to have been the subject of an objection (whereas there were objections to Baptcare’s submissions and list of authorities). Further, I also accept that there is no suggestion that the judge relied upon any material that Mr Mendes did not possess or have the opportunity to address.
To the extent Mr Mendes suggested, in his oral submissions in this Court, that he was hampered in the presentation of his case before the judge because the commencement time for the hearing was brought forward without his knowledge, I cannot accept it. It is plain from the transcript of the hearing that her Honour granted Mr Mendes’s application to stand the matter down at the commencement of the hearing so that he might have more time to prepare himself in view of the altered commencement time of the hearing. Mr Mendes made no request for further time upon the resumption. In fact, he thanked the judge for the time given. All of this demonstrates not only that there was no denial of procedural fairness but that Mr Mendes was well capable of objecting or making requests of the judge when he considered it necessary to do so, whatever his level of confidence might have been in the process.
Accordingly, I consider that there is nothing in Ground 2. It follows that I would reject it.
Ground 3(a): Evidence overlooked
Ground 3 asserts that the ‘trial miscarried due to evidence being overlooked and the fact that the possession order of VCAT dated 16 July 2019 was not valid’.
This ground in fact comprises two complaints, which I shall describe as Grounds 3(a) and 3(b). It is convenient to deal with Ground 3(a) first.
In his amended written case, Mr Mendes submitted that the hearing miscarried as a result of evidence being overlooked because of ‘an unreasonable and fanciful judgment’. No aspect of the judge’s reasons is identified in support of this argument.
The judge dealt with matters raised by the parties comprehensively, both in seeking submissions from Mr Mendes and in her reasons.[21]
[21]Mendes v Baptcare Ltd [2019] VSC 790, [8], [12](a), [18]-[25].
This part of Ground 3 fails.
Ground 6: Erroneous application of principles/inadequate reasons
It is convenient to turn to Ground 6 at this point. This ground asserts that the trial judge ‘wrongly applied legal principles as she had inadequate reasons for refusing leave to appeal’.
The judge’s reasons for refusing leave to appeal are plain. Her Honour set out the background to the matter and parts of the evidence, distilled Mr Mendes’s various complaints into comprehensible grounds of appeal and questions of law, dealt with the application for an extension of time, briefly (and correctly) set out the law to be applied on an application for leave to appeal, dealt with each ground comprehensively, including the rival contentions, and concluded that none of the grounds had any real prospect of success.
I would reject Ground 6.
Ground 4: Accepted evidence that was not before the Tribunal and Baptcare’s late filing of documents
Ground 5: Failure to inquire into whether material relied on before Tribunal
Introduction
Ground 4 asserts that the judge ‘erred by accepting new evidence that was extended beyond the evidence before VCAT dated 8 November 2019 [and she] admitted [Baptcare’s] late filing of documents that [Mr Mendes] objected to’.
Ground 5 asserts that the judge ‘failed to inquire into whether the material she relied on was before the Tribunal and wrongly applied the law’.
It is convenient to deal with these two grounds together.
Late filing of documents
The late filing of documents was dealt with, in part, under cover of Ground 2. It was within the judge’s discretion to allow the filing of the documents in question. Mr Mendes was a day late in filing some of his documents; Baptcare was two days late in filing some of its documents. Mr Mendes had plenty of time to read and respond to Baptcare’s documents. As indicated under cover of Ground 2, there was no denial of procedural fairness in allowing Baptcare to rely on those documents.
Both parties relied on evidence not before Tribunal
Both parties produced and relied upon evidence before the judge that was not before the Tribunal.
Mr Mendes filed three separate affidavits in the Court below. Such a course was (in part) arguably necessary for Mr Mendes, in order to support his claim of bias or a denial of procedural fairness at the Tribunal (including, for example, that Mr Andrews communicated with the Registrar). In other instances, the additional evidence related to matters not advanced before the Tribunal (for example, the delivery of mail at the premises or the alleged conduct of one of Baptcare’s employees), or simply provided new evidence relating to existing arguments and could not relate to a question of law in relation to the Tribunal’s decision.
Given the way the parties implicitly agreed to conduct the hearing, there was no error in merely having evidence before the Court that was not before the Tribunal.
Judge discerned which material was before Tribunal
More important was how that other evidence was dealt with by the judge.
As we have had in this Court, her Honour had a transcript of the hearing before the Tribunal, and specifically discussed with Mr Mendes what material he placed before the Tribunal. The respondent submitted that the judge was able to discern what was before the Tribunal and that her Honour expressly identified that material in her judgment.[22] Again, subject to a point to be made below about some case notes and a letter, those submissions must be accepted.
[22]Mendes v Baptcare Ltd [2019] VSC 790, for example, [7]-[9] & [22]-[24]; see also [18]-[25], which comprises the judge’s reasons under cover of Ground 1 below; and see also the discussion above under cover of the first part of Ground 3 in this Court.
The judge was careful to identify the evidence that was before the Tribunal in assessing whether it committed any error of law. Those matters included the following. First, there were the additional matters and history of the case (including reference to case notes) within the section of the judge’s reasons entitled ‘The background to the Notice to Vacate’.[23] Secondly, her Honour identified the matters that were specifically the subject of evidence before the Tribunal.[24] Finally, in dealing with Ground 1 in the Court below, the judge distinguished between the evidence that was before the Tribunal, and the evidence that was before her,[25] concluding, ‘I can identify no piece of evidence that was placed before the Tribunal which was “overlooked” giving rise to a legal error.’[26]
Service of notice to vacate
[23]Mendes v Baptcare Ltd [2019] VSC 790, [4]-[7].
[24]Mendes v Baptcare Ltd [2019] VSC 790, [8]-[10], [19]-[20].
[25]Mendes v Baptcare Ltd [2019] VSC 790, [18]-[25].
[26]Mendes v Baptcare Ltd [2019] VSC 790, [22] (emphasis added).
In his (third) affidavit filed before the judge, Mr Mendes affirmed that he ‘has no knowledge of receiving the 120 days’ Notice to Vacate by registered post’. As indicated earlier, the fourth ground of appeal identified by her Honour was described as, ‘The Tribunal wrongly decided that the Notice to Vacate was received by Mr Mendes when he asserted he had not received the registered mail.’[27]
[27]Mendes v Baptcare Ltd [2019] VSC 790, [12](d).
No point about service was taken by Mr Mendes before the Tribunal. The member had before her the evidence of the notice to vacate being sent to Mr Mendes by registered mail. Such evidence is put before the Tribunal as a matter of course when filing an application for possession. As can be seen from the transcript of her reasons delivered orally and extracted earlier in this judgment, the Tribunal member observed — without objection by Mr Mendes — that she was satisfied as to valid service both in terms of the legislative timeframe (120 days’ notice) and the nature of that service (by registered mail on 27 December).
Section 506(3)(b) of the RTA permits registered post as a method of service for a notice to vacate. Service by that means is, unless the contrary intention appears, ‘deemed to be effected by properly addressing, prepaying and posting the document as a letter either by the registered post or through the certified mail service to the person on whom it is to be served’.[28]
[28]Interpretation of Legislation Act 1984 s 49(2)(a).
Baptcare submitted that the Tribunal’s finding as to service was uncontroversial in the circumstances of that hearing, given there was no evidentiary basis to reach a different view. Accordingly, the submission continued, no error of law could arise concerning the Tribunal’s consideration of that evidence.
In his amended written case, however, Mr Mendes asks rhetorically, ‘Who would have thought that the primary judge would be relying on the material that was not before the Tribunal and satisfy herself on that basis for refusing leave to appeal?’ Yet, in order to make the complaint before the judge with respect to service, Mr Mendes was compelled to rely on the introduction of new evidence in his affidavit of 22 November 2019.
In Baptcare’s submission, whether or not the judge could or should have had regard to the additional complaint regarding service by Mr Mendes, and Baptcare’s affidavit and its responding submissions, this does not alter the correctness of the Tribunal’s decision with respect to service, or the assessment of the prospects of that ground of appeal.
Baptcare’s further submission was that the relevance (if any) of the additional material filed (including Baptcare’s affidavit material touching on service) lies in demonstrating that, even if the Tribunal member erred in law in her approach to the question of service (which is not accepted by Baptcare), it would have no bearing upon the ultimate result on that issue.
Earlier, when dealing with Ground 4 before the judge, I set out one particular paragraph of her Honour’s reasons. At this point, I should set out that paragraph again, and the two preceding it:[29]
[41] A letter dated 27 December 2018 was sent by registered post. The letter concluded:
With this letter please find a copy of the 14 day notice to vacate for rent arrears and a copy of the 120 day Notice to Vacate as a result of no longer meeting the eligibility criteria for Baptcare Sanctuary. These notices have also been sent by registered post.
[42] The case notes exhibited to the Tribunal recorded a request by Mr Mendes for a meeting on 28 December 2018 to discuss his letter of 27 December 2018. There was also a letter dated 31 December 2018 written by Mr Mendes that began, ‘I am writing with reference to a meeting between you and me on Friday 28 December 2018 and concurrently responding to a letter of notice to vacate.’ His letter concluded, ‘Good luck with the VCAT proceedings.’
[43] There is no requirement that a notice to vacate be served on an individual by registered mail, although this may be one method of proving service in accordance with s 506 of the [RTA]. There was clear evidence before the Tribunal that the Notice had been received by Mr Mendes even if the registered post copy had not come to his attention. There was no error in the Tribunal’s finding that the notice was validly served.
[29]Mendes v Baptcare Ltd [2019] VSC 790, [41]-[43] (emphasis added).
Baptcare conceded that, contrary to the first sentence of paragraph 42 of the judge’s reasons, the case notes were not before the Tribunal. As I understood the submissions, the same is true of Mr Mendes’s letter of 31 December 2018. Instead, those things were before the judge as exhibits to an affidavit sworn by Mr Andrews on 8 November 2019, which followed Mr Mendes’s affidavits sworn 26 September and 24 October 2019 and preceded his affidavit of 22 November 2019.
Thus, on the face of it, the judge mistakenly considered that the case notes (and the letter) were before the Tribunal and, Mr Mendes would submit (when regard is had to the rest of paragraph 42 and the highlighted sentence in paragraph 43), that she acted on that evidence to determine the question of service adversely to him. If that is correct, then at least part of his Ground 4 in this Court (namely, the judge ‘erred by accepting new evidence that was extended beyond the evidence before VCAT dated 8 November 2019’) and Ground 5 (namely, the judge ‘failed to inquire into whether the material she relied on was before the Tribunal and wrongly applied the law’) might have some merit.
Counsel for Baptcare, however, submitted that there was no error of law. The respondent conceded that, while the second sentence of paragraph 43 might be read otherwise, it is not clear whether it incorporates the information in paragraph 42, including the case notes (and the letter). That, to me, was not a very persuasive submission.
However, the respondent made two further points. First, it pointed to other evidence before the Tribunal which also compelled the same decision. In particular, in one document before the Tribunal, Mr Mendes said that Baptcare gave him ‘a notice to vacate using eligibility as [a] pretext’. Further, Mr Mendes’s failure to challenge service before the Tribunal, coupled with his argument to the effect that the notice was an act of retaliation, implies prior knowledge of the notice.
Secondly, the second sentence of paragraph 43 was put in the form of a hypothetical: in other words, even if the registered post copy had not come to Mr Mendes’s attention, there was other evidence. But, as indicated earlier, service by registered post is, unless the contrary intention appears, ‘deemed to be effected by properly addressing, prepaying and posting the document as a letter either by the registered post or through the certified mail service to the person on whom it is to be served’.[30]
[30]Interpretation of Legislation Act s 49(2)(a).
In the alternative, Baptcare submitted that any error in this regard could make no difference and therefore could not support a grant of leave. In particular, it made the following submissions. First, as indicated earlier, in Baptcare’s submission, the only evidence before the Tribunal compelled the member’s conclusion in any event.
Secondly, without his own affidavit (of 22 November 2019), Mr Mendes’s complaint about service would have no factual foundation. Baptcare submitted, Mr Mendes cannot pick and choose which material is relied on once he opens up the issue of service. And when the affidavit material (including the case notes and letter) that Baptcare filed before the judge is considered as well, it is still plain that no other conclusion could have been reached by either the Tribunal member or the judge. Indeed, Baptcare’s purpose in putting in its affidavit material before the judge was to show that, even if there were error by the Tribunal in its approach, the same conclusion would be inevitable on broader evidence at any rehearing, such that any order for remittal would be futile.
In my view, Baptcare’s submissions, in the main, should be accepted. While I think it is plain that the judge incorporated the information mentioned in paragraph 42 into her consideration of what was before the Tribunal, and therefore erred, in the particular circumstances of this case, there is no reasonable prospect that that error could have made any difference to the decision to refuse leave. There was no material error. On any view, the evidence before the Tribunal on service was all one way, and was unchallenged. Even if the further evidence of Mr Mendes were put before the Tribunal, when regard is also had to Baptcare’s further evidence, it remains inevitable that the Tribunal would conclude that service was effected, one way or another. Similarly, I do not think the judge could have come to any different conclusion even without the impugned evidence.
Finally, Mr Mendes should not be permitted to take this point on appeal on a question of law when he had not raised it before the Tribunal and it could have been met by evidence. While allowances must be made for the fact that he was unrepresented at the Tribunal, I can see no reason in this case why, on this particular issue, Mr Mendes should not be bound by his conduct of the case at that hearing.
Conclusion
Accordingly, I would reject Grounds 4 and 5.
Ground 3(b): Order not valid
As I indicated earlier, the second part of Ground 3 asserts that the ‘trial miscarried due to … the fact that the possession order of VCAT dated 16 July 2019 was not valid’.
For convenience, I shall set out here again the key aspects of the purported possession order:[31]
[31]Emphasis (in bold) added.
APPLICANT(S):
Rooming House Owner Baptcare Ltd
RESPONDENT(S):
Resident Heleno Mendes
RENTED PREMISES: C05/33 Blyth St, Brunswick 3056
Application under [RTA] possession – notice for no specified reason [s] 323(a), 288
The Tribunal finds that:
1. The landlord gave the tenant not less than 120 days’ notice to vacate under section 288 of the [RTA].
2. The landlord has proven the grounds for giving the notice to vacate.
The Tribunal orders and directs that:
1. The landlord is entitled to a possession order.
2. The tenant must vacate the rented premises by 18 July 2019
3. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 16 January 2020)
Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.
The substance of Mr Mendes’s argument concerning the validity of the possession order, as I understood it, was that the order, in terms, in Order 2, provides that Baptcare ‘is entitled to a possession order’ instead of saying that the ‘possession order is granted’. In his submission, it is irrelevant that the order also directed that he ‘must vacate the rented premises by 18 July 2018’.
Mr Mendes did not raise this complaint before the judge below. Nor did he put any particular argument to this Court as to why he should be entitled to raise the point now.
Baptcare submitted that the proceeding before the Tribunal was not an application for declaratory relief. At all times, the parties and the Tribunal proceeded on the basis that Baptcare was applying for a possession order (pursuant to s 323 of the RTA), that Mr Mendes opposed the making of a possession order, and that the Tribunal was determining whether to grant or refuse the application for a possession order. That process was governed by the legislative provisions relevant to that application (namely, div 1 of pt 7 of the RTA).
In giving reasons, Baptcare submitted, the Tribunal member directed herself to the evidence supporting each of the legislative criteria for a possession order. By her decision, it was clearly the intention of the Tribunal member that the application be granted and a possession order made. Baptcare also pointed out, correctly, that, by s 117(6) of the VCAT Act, the reasons for an order of the Tribunal, whether written or oral, form part of the order.
Additionally, once the Tribunal member made the factual findings she did pursuant to s 330(1) of the RTA, she was obliged to make the possession order; there was no discretion vested in the Tribunal to do otherwise.
Consistently with the foregoing, the respondent submitted, the orders refer to the application under ss 288 and 323(a) of the RTA and are otherwise consistent with a possession order having been made. It was also submitted that the document also otherwise complies with s 333 of the RTA in meeting the requirements for the contents of a possession order.
Ultimately, Baptcare submitted that Mr Mendes’s complaint concerns a matter of form, not substance. Any differences between the form of the order and the requirements of the RTA are insignificant. There is no basis to infer that the wording chosen was chosen deliberately to create something different from a possession order, and such an approach would be inconsistent with the balance of matters raised above. At its highest, it can be described as an error arising from an accidental slip or omission, or defect of form.[32] Thus, it was submitted that this is precisely the type of matter amenable to amendment under the slip rule, to prevent injustice arising from an inadvertent slip or omission.[33]
[32]See s 119 of the VCAT Act.
[33]Counsel referred to Victorian Civil and Administrative Tribunal Practice Note 1 – PNVCAT1 Common Procedures, 15; and Niebieski Zamek Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 453, [15], citing Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385.
In oral submissions, Baptcare pointed to other specific aspects of the order that are consistent with its being a possession order. For example, the order directing the tenant to vacate (Order 2) and the order directing the issue of a warrant of possession (Order 3) would be unnecessary unless Baptcare had been granted possession. Further, the provisions mentioned in the heading to the order — ss 288 and 323(a) of the RTA — and the warning to the tenant also make it clear that the order (Order 1) is a possession order.
The respondent submitted there is no requirement in the RTA that a possession order must declare that possession is granted to the landlord. Further, Order 2 is the operative provision — directing Mr Mendes to vacate the premises by a certain date — and Order 1 is not strictly necessary.
It was also submitted that, even if the order were held to be defective, while that might have implications for the validity of any warrant obtained on the basis of this possession order, these were not matters that the judge was asked to consider, and therefore should not be regarded as matters with which this Court might deal on an application for leave to appeal against her Honour’s decision.
When asked, nevertheless, whether this Court, if satisfied of defects in the form of the order, would have power to correct those defects, Baptcare submitted that r 64.36 of the Supreme Court (General Civil Procedure) Rules2015 would authorise such amendments to the order, as would s 148(7) of the VCAT Act. Baptcare also submitted that it could make an application to the Tribunal pursuant to s 119 of the VCAT Act.
Equally, Baptcare conceded that it could not point to any prejudice it suffered because this matter had been raised in this Court for the first time, rather than in the Court below or before the Tribunal, and by this Court making any amendments to the order that were thought necessary. For example, no further evidence would have been called had it been raised below and Baptcare was able to deal with the point in this Court by submissions. That said, Baptcare submitted that, had the matter been raised at primary hearing, the Tribunal member would have corrected whatever perceived defect there was at that time.
In my opinion, the attack on Order 1 must fail. I accept that it might have been more happily expressed to the effect that Baptcare ‘is granted a possession order’. I also accept that the words used — ‘[t]he landlord is entitled to a possession order’ — might suggest some sort of contingent order rather than a final one. But I also accept the substance of Baptcare’s submission that, when regard is had to all of the other surrounding terms of the order, to the notice to vacate, and to the Tribunal member’s oral reasons, there can be no doubt that her intention was to grant, and that she did grant, a possession order.
In the end, there was finality in the order, for the Tribunal member made it clear, in Order 2, that Mr Mendes must vacate the premises by 18 July 2019. By Order 3, she also allowed for a warrant of possession to be issued. And by the ‘warning’ at the end of the set of orders, Mr Mendes was put on notice that he may be forcibly vacated, by a member of the police force, should he fail to vacate the premises by the date stated in the order.
Accordingly, I would reject Ground 3(b).
Conclusion and proposed order
For the foregoing reasons, none of the proposed grounds of appeal has merit. I would refuse Mr Mendes’s application for leave to appeal.
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