Jafarpourasr v Tancevski
[2018] VSC 497
•4 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00718
| MITRA JAFARPOURASR | Applicant |
| v | |
| IVAN TANCEVSKI | Respondent |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2018 |
DATE OF JUDGMENT: | 4 September 2018 |
CASE MAY BE CITED AS: | Jafarpourasr v Tancevski |
MEDIUM NEUTRAL CITATION: | [2018] VSC 497 |
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JUDICIAL REVIEW AND APPEALS – Application by tenant under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) for leave to appeal and appeal from VCAT decision to make possession order – Landlord issued tenant with notice to vacate premises within 60 days pursuant to s 258 of Residential Tenancies Act 1997 (Vic) – Tenant disputed landlord’s entitlement to evict her – VCAT Member made possession order on basis that landlord was entitled to evict tenant – Whether Member erred in law by failing to take into account mandatory relevant considerations or misconstruing the terms of the relevant statutory provision – Whether VCAT had jurisdiction to make a possession order and, if so, whether the Member erred in law in making the possession order – Whether any failure to afford procedural fairness – Smith v Director of Housing [2005] VSC 46 (‘Smith’), applied – Consideration of application of Smith to notices to vacate – Failure to take into account mandatory relevant considerations – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, applied – Lang v Carron Investments Pty Ltd & Anor [2016] VSC 165, referred to – Residential Tenancies Act 1997 (Vic) ss 258(1), 319(d) and 330(1) – Application for leave granted – Two out of six grounds of appeal allowed
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Cafarella | Victoria Legal Aid |
| For the Respondent | Ms M McDonald, real estate agent on the Respondent’s behalf, by leave |
HER HONOUR:
Introduction and Background
The applicant is the tenant of rented premises at 5/13 Hyde Street, Footscray. The respondent is her landlord. In November 2017, the respondent gave the applicant written notice that she was to leave the premises within sixty days, pursuant to s 258(1) of the Residential Tenancies Act 1997 (Vic) (‘RTA’) (‘notice’). The applicant disputed the landlord’s entitlement to evict her, and the matter came before the Victorian Civil and Administrative Tribunal (‘VCAT’) on 15 February 2018. The Member determined that the respondent was entitled to evict the applicant, and made an order for possession of the property. This order has been stayed pending the hearing and determination of this application for leave to appeal.
The applicant, who suffers from a number of disabilities, is an asylum seeker from Iran and is currently on a Safe Haven Enterprise Visa (‘SHEV’), which she is required to reapply for every five years. The applicant has resided at the property since 2015.
On 3 November 2017, the notice, which was prepared by the respondent’s agent, Newport Real Estate Pty Ltd (‘agent’), was served upon the applicant. Under the heading ‘Reason for notice to vacate’, the notice referred to:
‘258(1) – occupation by landlord’s family. The premises are to be occupied by my great grandson who is dependent on me immediately after the termination date.’[1]
[1]While the notice referred to the respondent’s great grandson, the parties largely proceeded on the basis that the relevant family member was the respondent’s grandson. The status of the family members remains unclear, but little turns upon this for present purposes.
The notice was attached to a letter, which stated as follows:
We wish to advise that the landlord has informed us that a family member intends to occupy the above property and therefore we have been instructed to issue you with a 60 days’ [sic] notice to vacate the above premises.
In accordance with Section 258 of the Residential Tenancies Act 1997 (indistinct) 60 days’ notice to vacate requires you to leave the premises by 20 January 2018.
We will certainly try to help you locate another property and will update you with any rentals that become available. (Indistinct) further information please do not hesitate to contact our office.
At a hearing at VCAT on 15 February 2018, Member B. Ussher (‘Member’) determined that the respondent was entitled to evict the applicant and made an order for possession of the property (‘VCAT order’). On 27 February 2018, the applicant filed this application for leave to appeal under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).
The applicant, who was represented before VCAT by a solicitor from the Western Suburbs Legal Service, and in this application for leave to appeal by Victorian Legal Aid, contends that in making his decision, the Member made several errors of law. The applicant seeks leave to appeal on a number of grounds, and seeks leave to appeal on the basis that her appeal has a real prospect of success, and that the issues raised on appeal are matters of significant public interest.
The applicant submitted:
[T]he Act, and its interpretation application by the tribunal, affects the housing rights of many tenants in Victoria. The provisions in relation to the termination of tenancy rights, and the proper consideration of the legislative test by the tribunal, concern the removal of tenants from their housing. It is therefore of particular importance that the terms of the Act are interpreted and applied faithfully and accurately.
Further, the applicant submitted that the decision of the Member imposed a substantial injustice upon the applicant in that it improperly led to her eviction from the premises.
Whilst strictly speaking the evidence relied upon by the applicant in support of her successful application to this Court for a stay of VCAT’s orders of 15 February 2018 is not relevant to determining the questions of law, the applicant’s affidavit does provide some useful background to the issues that were before the Member, and the applicant’s personal circumstances are relevant to the question of whether I ought grant leave to appeal. On 14 March 2018 the applicant deposed as follows:
1. I am an asylum seeker from Iran. I arrived in Australia in 2013.
2. I began renting the premises at 5/13 Hyde Street on 28 January 2015.
3.I am currently on a safe haven enterprise visa (‘SHEV’) and due to my financial hardship, I receive a special benefit.
4.I am required to reapply for the SHEV every five years.
5.I am not eligible for public housing due to this visa.
6.I suffer from several medical conditions.
7.I contracted polio as a child. Subsequent corrective operation undergone during my time in an immigration detention centre has left me with very limited mobility. As a result, I am reliant on an electric mobility scooter.
8.I also suffer from chronic back pain, depression and anxiety.
9.I have recently been found to have a lump in my breast that is being investigated for breast cancer.
10.I have connections to the local area, including my doctor, whom I must see every three weeks. I also have regular hospital appointments I must attend.
11.There are limited properties in the local area that I can apply for which are suitable for my health needs.
12.My case worker at AMES has assisted me to apply for approximately two private rental properties since I received a notice to vacate in November 2017. I made a further four applications myself. None of these applications have been successful.
13.If I am evicted I will be facing immediate homelessness. With my multiple medical conditions, limited mobility, limited finances and restricted access to public housing the impact of eviction on me will be severe.
On 23 March 2018, upon application by the applicant, the VCAT order was stayed by order of Mukhtar AsJ, pending the hearing and determination of the application for leave to appeal.
The respondent was not legally represented. At the hearing before VCAT and at the trial before me, a representative of the real estate agent, Ms Metka McDonald, appeared on the respondent’s behalf. Prior to the hearing of the trial, the respondent was effectively unrepresented in this Court, and efforts by Victorian Legal Aid to communicate with him directly were unsuccessful. No-one appeared on the respondent’s behalf at the return of the applicant’s application for a stay on 23 March 2018. However, some documents were sent by the respondent and the agent to the Court in the days leading up to the hearing of the application. These documents have received as submissions for the purpose of this application.
The relevant statutory framework
I will first turn to the relevant statutory framework governing the dispute between the applicant and the respondent, which is accurately summarised in the applicant’s submissions. The termination of tenancy agreements is regulated by Parts 6, 7 and 8 of the RTA. Under s 219(1), a tenancy agreement is terminated if the landlord gives a notice to vacate, and either the tenant vacates the rented premises on or after the termination date specified in the notice, or the tenancy agreement terminates in accordance with the possession provisions elsewhere in the RTA. Sections 243 to 268B set out the bases upon which a landlord can issue a notice to vacate.
Under s 258, a landlord may issue a notice to vacate if the premises are to be occupied by certain people immediately after the termination date (emphasis added):
Premises to be occupied by landlord or landlord’s family
(1)A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be occupied –
(a) by the landlord; or
(b) in the case of a landlord who is an individual –
(i)by the landlord’s partner, son, daughter, parent or partner’s parent; or
(ii)by another person who normally lives with the landlord and is wholly or substantially dependent on the landlord.
(2)The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.
Section 319 prescribes various requirements that a notice to vacate must comply with. A notice to vacate is not valid unless it complies with the following criteria (emphasis added):
Form of notice to vacate
A notice to vacate given under this Part is not valid unless—
(a) it is in the relevant prescribed form; and
(b) it is addressed to the tenant […]; and
(c)it is signed by the person giving the notice or by that person’s agent; and
(d)except in the case of a notice under section 263, 288, 314, 317ZF or 317ZG, it specifies the reason or reasons for giving the notice; and
(e)it specifies the date by which compliance is required (the termination date).
Under s 322, a landlord may apply to VCAT for a possession order once it has given a tenant a notice to vacate, and the time for the tenant to vacate the premises has expired.
Section 330(1) provides:
Order of the Tribunal
(1)The Tribunal must make a possession order requiring a tenant, 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 landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee was entitled to give the notice; and
(ii) the notice has not been withdrawn; and
[…]
(c)that the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and
(d)that the tenant, 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.
The proceeding at VCAT
On 24 January 2018, the landlord’s agent issued an application for possession of the premises pursuant to s 322 of the RTA. The application stated that the application was for ‘Possession – Premises are to be occupied by the Landlord’s [sic] family’ and that the tenant was still in possession.
On 15 February 2018, the matter came before the Member, who made the following orders pursuant to s 330 of the RTA:
The Tribunal finds that:
1.The landlord gave the tenant not less than 60 days’ notice to vacate under s 258 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 rental premises by 01 March 2018.
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 be executed within 14 days after the date of issue (any request must be made no later than 15 August 2018).
Warning to tenant: If you fail to vacate the rental 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.
Prior to turning to the applicant’s grounds of appeal, I shall briefly summarise what transpired before the Member at the hearing.
The applicant was represented by a solicitor from the Western Community Legal Centre, Ms Bake, and the landlord was represented by the agent, Ms McDonald. Ms Bake stated that the applicant would be seeking a postponement of the warrant of possession. In response to a question by the Member as to whether the applicant contested the validity of the notice, the solicitor stated that she would like to ask the agent about whether the grandson referred to in the notice was substantially dependent on the landlord, referring to s 258(1)(b)(ii) of the RTA.
MEMBER: Could you kindly - I take it there’s no dispute as to the service of the notice to vacate, but there is a concern in relation to the grandson’s connection to the landlord.
MS McDONALD: Yeah.
MEMBER: What can you say in regards to that?
MS McDONALD: Well, he’s already here. He studies in the city and he needs somewhere to live, and yes, when he is to be available.
MEMBER: The application says that the grandson is dependent upon the landlord.
MS McDONALD: Yes.
MEMBER: Well, what can you tell me in regards to that?
MS McDONALD: Well, it’s his - the landlord’s land. It’s his flat. He can live in there.
MEMBER: Sorry, I can’t hear you.
MS McDONALD: It’s the landlord’s flat, so he - he needs a flat for his grandson to be able to move in.
MEMBER: Yes, and is the grandson dependent upon the landlord?
MS McDONALD: Yes, he’s a student.
Ms Bake then asked that there be a thirty day postponement of the warrant on the basis that the hardship that the applicant would face would be significant. The Member observed that the applicant had already been given more than sixty days to vacate the premises and asked what steps she had taken to find alternative accommodation. Ms Bake said that the applicant had taken steps to find alternative accommodation but had been unsuccessful. The Member asked again what steps had she taken to seek alternative accommodation and why had she been unsuccessful. Ms Bake replied as follows:
MS BAKE: So Ms Jafarpouras [sic] has applied for other properties. As you can see, she has issues with her mobility. She has a disability and so this is her main mode of getting around. The properties that she needs to apply for have to be specific for her disability and that can be referred – that’s also referred to in the letters from the doctors. It also limits the number of properties that are available to her to apply for.
She is also an asylum seeker. She is on a SHEV visa, so she’s not - she is not eligible to apply for public housing which also again, I imagine she would be on the priority list for public housing if she could apply, but she’s not eligible. So the steps, you know, in her step - - -
The Member then asked the applicant directly as to what steps she had taken to apply for accommodation and was told that she had applied for six properties. Ms Bake pointed out that there is a limited amount of properties that she could apply for that would meet her needs with respect to her disability, and that her doctors and support people are all in the local area. The Member stated as follows:
Yes, I appreciate that but if you can’t obtain accommodation in that area could you not look elsewhere then transfer your services to another doctor?
Ms Bake asked the agent where the respondent’s grandson was living now.
MS BAKE: Where is the grandson living now?
MS McDONALD: He’s living with another family.
MS BAKE: And is it possible for that grandson to live in that property for longer?
MS McDONALD: No, he’s - they want this flat empty for grandson to go in there.
MS BAKE: But my question is not whether or not the landlord wants the flat empty ‑ ‑ ‑
MS McDONALD: No, we waited for this.
MS BAKE: is - is whether the grandson can stay for a longer period of time where he currently is living.
MS McDONALD: See, we - we might say, “Okay, another week, another month”, but we’ll be back here again because this truly will be exactly the same because there’s too many other things that - and she should be speak in English because she speaks enough English. She understand. You should be speaking English. You know – – –
Ms Bake drew the Member’s attention once again to the fact that the applicant was not eligible for public housing and also explained the medical conditions suffered by the applicant. The applicant herself told the Member that the landlord has many other properties within the same apartment complex, so the grandson could occupy another property, and that she was the only person in the complex who was being asked to leave her property. The Member asked the agent about the course of study in which the grandson was enrolled. Ms Bake asked the Member whether she could ask the agent about the repairs she said would be going on at the premises after the property vacated and what work that would be on the basis that they could be done while the tenant was still living in the property and it could allow her more time. The Member replied as follows:
I can’t see that they’re relevant. There is a reason for – the notice has been served under s 258 on the basis that a relative of the landlord is going to be occupying the premises immediately after the termination date. Now, if the premises are also going to be renovated so be it, but that’s – the basis of the notice to vacate is 258 so I can’t see that that’s relevant.
The agent then gave some evidence about what works had already been carried out on the property.
In his ruling, the Member stated his reasons for granting the possession order, as follows:[2]
[2]T 15–T 16.
The landlord is entitled to possession. The notice to vacate was valid. It hasn’t been challenged. It was served. The termination date was 20 January. It is not alleged that it was short served or badly served. It is not alleged that the notice to vacate is invalid in any way. The only question is, that I’ve been asked to postpone the tenancy.
Well, first there are two issues. Firstly, the basis was questioned, that is to say, the dependency of the grandson on the landlord. I accept that the grandson is being assisted by the landlord to enable him to complete his studies which seem to be serious studies in the field of physiotherapy, and he requires the accommodation for that purpose.
In relation to the other element, that was that there should be a postponement of the issuing of a warrant, because of the hardship that would be suffered by the tenant on her being required to move out, I have to balance that hardship against the landlord’s hardship, and in doing so I have to consider whether the tenant has acted appropriately to protect her own interests or not.
I am told that she has lodged applications for a total of six properties in the course of at least 70 days. She has the assistance of a case manager, and she is restricted in the applications she can lodge because of her physical ailments and her lack of mobility.
Nevertheless, that appears not to be a particularly energetic attempt to obtain alternative accommodation. Whilst I appreciate that there are difficulties because of her health, her requirement to stay near the doctors that she wants to use and the hospital, there doesn’t appear to be any real reason why she cannot expand her searches, particularly given the fact that she now says her prospects are quite dire, that she would be homeless if she is required to leave immediately.
I must also take into account that she has had well over the date of termination to make these arrangements. However, I accept that the tenant does suffer from medical conditions, and there is some difficulty in her getting further accommodation, and I also accept that a person with those ailments and conditions would be very, very disadvantaged if they suddenly found themselves homeless.
Taking all those matters into account, and taking into account my view that the tenant has not acted in her own best interests, I am prepared to extend the time for the vacation date. I will not make an order under s.335 which is to postpone the warrant, the issuing of a warrant, but rather I will exercise my discretion to extend the date upon which the premises are to be vacated, and I intend to make an order that the tenant must vacate the premises by 1 March 2018.
If the tenant does not vacate the premises by that date, then the landlord can purchase a warrant to be executed within 14 days after the date of purchase as from 2 March.
So that recognises the fact that the tenant has already had over the 60-day period to obtain alternative accommodation. It recognises her ailments and her conditions which limit her. It recognises the hardship that she would suffer if she is homeless because of those conditions, but it also takes into account that the landlord is entitled to use his premises in accordance with his own wishes, provided he acts in compliance with the law, and this grandson and the landlord would have a legitimate interest in being able to use those premises as the landlord wishes.
The grounds of review
In her originating motion filed on 27 February 2018, the applicant sought, among other things:
(a) an order pursuant to s 148(7) of the VCAT Act that the order of the Member be set aside;
(b) an order under s 148(7) of the VCAT Act for an order quashing the decision of the Member and dismissing the respondent’s application under s 322(1) of the RTA; and
(c) in the alternative to (b) above, that the respondent’s application under s 322(1) of the RTA for a possession order be remitted to a differently constituted tribunal pursuant to s 148(7) of the VCAT Act, to be heard and determined in accordance with the law.
By summons and supporting affidavit filed on 16 May 2018, returnable on the commencement date of trial, the applicant applied for leave to file an amended originating motion and amended draft notice of appeal, which included the removal of three grounds of review. Leave was granted accordingly.
The grounds of appeal are as follows:
1.The Tribunal erred by making a possession order under s 330(1) of the RTA as it had no jurisdiction to hear the defendant’s application for a possession order under s 322(1) of the RTA, because the Notice to Vacate was not valid pursuant to s 319(d) of the RTA in that it did not adequately particularise the basis for the Notice to Vacate.
2.The Tribunal erred by failing to perform its statutory task under ss 331A(i) and 258(1)(b)(ii) of the RTA in that it did not consider whether the defendant’s grandson was a person who normally resides with the respondent.
3.The Tribunal erred in its interpretation of ‘wholly and substantially dependent’ under s 258(1)(b)(ii) of the RTA in finding the defendant’s adult grandchild who does not normally live with the defendant, who is supported by the defendant only financially and who does not have a disability or other characteristic making him entirely or substantially reliant on the defendant, can be regarded as being ‘wholly and substantially dependent on the defendant’.
4.The Tribunal erred by failing to perform its statutory task under s 331A(1) and s 258(1) of the RTA, in that it did not consider at all whether the premises were to be occupied by a person under either ss 258(1)(a), (b)(i) or (b)(ii) of the RTA, immediately after the termination date contained in the Notice to Vacate.
5.In the alternative to the grounds stated in 4, the Tribunal erred by failing to take into account a relevant consideration, namely that the renovation works were proposed, or potentially proposed, before the grandson commenced occupancy of the property and that the premises would not be immediately occupied after the termination date.
6.The Tribunal erred by failing to afford procedural fairness under s 98(1)(a) and 101(a) and (b) of the VCAT Act and the common law, by refusing to hear evidence about the landlord’s plans for the property immediately after the termination date.
Grounds 2 to 5 above essentially cover the same field, being that the Member was in error in finding that the landlord was entitled to serve the notice pursuant to s 258(1)(b)(ii) of the RTA. Given that, pursuant to s 330(1) of the RTA, VCAT must make an order for possession if the landlord was entitled to issue the notice to vacate, the following could amount to legal error on the part of the Member:
(a) failing to take into account mandatory relevant considerations; and/or
(b) misconstruing the terms of the relevant statutory provision, being s 258(1) of the RTA.
Accordingly, the issues to be determined on this application are as follows:
(a) did VCAT have jurisdiction to make an order for possession?
(b) if yes to (a), did the Member err in law in making the order for possession?
(c) further or alternatively, if yes to (a), did the Member fail to afford procedural fairness to the applicant?
Before turning to each of the issues above, by reason of the orders made on 23 March 2018, the application for leave to appeal is to be heard and determined with the appeal. It is not necessary to canvass the authorities concerning whether the applicant ought to have leave to appeal. The draft notice of appeal raises arguable questions of law relevant to the relief sought by the applicant. The consequence of the possession order (now stayed), if not set aside, is that the applicant, who suffers physical and financial hardship, will lose her home. The nature of the issues in the application are of broader public importance, given the high volume of landlord‑tenant disputes at VCAT. Accordingly, I grant leave to appeal.
Respondent’s submissions
No submissions were filed in response to the written submissions filed by the applicant. However, two documents were forwarded to the Court by the respondent and the agent prior to the hearing.
On 6 May 2018, the respondent wrote to the Court, in summary, as follows:
(a) the tenant has had ample time to locate a new rental property, with over six months having passed since the notice was given to the applicant on 3 November 2017;
(b) Ms McDonald stated that over the past six month period, her office has not been approached by any prospective landlord or agent to enquire about the applicant’s references;
(c) the respondent’s great grandson resides with the respondent. The respondent pays for his great grandson’s schooling, food, travel to Australia and other financial needs;
(d) the applicant has rented the flat since 24 January 2015. Throughout this period, the applicant has had unauthorised tenants including her boyfriend and nephew living with her. The applicant’s nephew continues to live at the property;
(e) the applicant and her nephew have many visitors at the property, mainly in the evening. As a result, some tenants have expressed concerns that they feel unsafe;
(f) the applicant and her nephew park their cars rear of the flats, which obstructs other tenants from entering and parking in their garages. In addition, the applicant parks her mobility scooter under the public stairway instead of inside the garage; and
(g) the applicant and her legal team have submitted documentation to the effect that she is suffering serious mobility issues. However, this is contradicted by her decision to rent a first floor flat. It is also noted that the applicant owns and drives a car.
On 17 May 2018, Ms McDonald wrote to the Court repeating some of the matters addressed in the respondent’s letter and, further, stated:
(a) Ms McDonald has been the respondent’s real estate agent for ‘many years’;
(b) on 3 November 2017, Ms McDonald posted the notice to the applicant, on the instructions of the respondent who had advised that his great-grandson was coming to Australia;
(c) on 6 November 2017, Ms McDonald’s colleague explained to the applicant in person and to the applicant’s case manager over the telephone that the applicant would need to vacate by 20 January 2018. The conversations took place in English;
(d) the respondent’s great-grandson arrived in Australia on 15 January 2018. He is a student;
(e) the respondent’s property is not suitable for other people to live in and requires a good clean up; and
(f) the garage is uninhabitable but is nevertheless occupied by the applicant’s nephew, who entertains his friends there. Some of his friends seem to be affected by drugs.
Ms McDonald made brief oral submissions at the hearing of the application. She noted that she copied the wording of the reasons on the notice from information provided by Consumer Affairs Victoria. The respondent’s grandson has been in Australia since 15 January 2018. He was only staying with another family for two days, on a holiday, at the time of the hearing. Otherwise, he is living with the respondent, whose premises are in terrible condition.
Ms McDonald repeated her submission that the applicant has had plenty of time to find another property. She submitted that the Member had done nothing wrong during the course of the hearing: he had asked her a lot of questions. No renovations were planned for the property in question, just a clean-up.
I accept that, to the extent that Ms McDonald sought to qualify or supplement the evidence which was before VCAT, that evidence was contested, and ought to be disregarded.
These documents do not directly address the grounds of appeal and the legal submissions relied upon by the applicant. Indeed, the nature of those submissions tend to detract from the respondent’s position that the premises are required to house the respondent’s dependent relative. Rather, they seek to cast aspersions upon the applicant and her conduct as a tenant of the premises, and as such, do not assist the resolution of the issues in this application.
Was the notice valid?
The applicant has submitted that the notice was invalid and that, by reason of its invalidity, VCAT lacked the jurisdiction to make a possession order. In particular:
(a) the reasons provided in the notice were deficient, resulting in the notice failing to comply with the requirements of s 319(d), and thus being invalid. Specifically, the notice failed to assert whether the relevant family member was a person who normally lived with the respondent, and failed to assert the facts or provide any evidence going to the relevant family member’s dependence on the respondent; and
(b) by reason of the notice being invalid, VCAT did not have the jurisdiction to hear the respondent’s application under s 322(1) of the RTA for a possession order.
Counsel for the applicant submitted that a notice to vacate has two purposes:
(a) to provide a tenant with sufficient information to determine whether to comply with the notice, or whether to challenge the notice; and
(b) to identify the issues at any hearing before VCAT concerning the entitlement of the landlord to issue a notice to vacate.
The applicant submitted that the consequence of the notice’s non-compliance with s 319(d) was that she was denied procedural fairness, as the applicant would not know the case she had to face or the facts she would be required to challenge, having not been availed of the essential facts, claims or allegations upon which the respondent had asserted a basis for issuing the notice. Secondly, the applicant submitted that the respondent’s failure to particularise key facts in the notice may have contributed to the Member’s failure to consider those issues properly at the hearing.
The applicant relied on the decision of Bongiorno J in Smith v Director of Housing[3] (‘Smith’) as authority for the proposition that VCAT’s jurisdiction is dependent on the issuing of a valid notice to vacate, being a notice which contains sufficient information to enable the recipient to understand the basis upon which the landlord asserts they are entitled to retake possession of the property. Smith[4] concerned a notice issued pursuant to s 244 of the RTA, which entitles a landlord to issue a notice to vacate where ‘the tenant or tenant’s visitor by act or omission endangers the safety of occupiers of neighbouring premises’ (‘danger notice’).
[3][2005] VSC 46.
[4]Ibid.
Counsel for the applicant addressed the question of whether the requirements in s 319(d), as set out in Smith,[5] are limited to notices which allege fault on the part of the tenant only (such as danger notices) or, alternatively, extend to other types of notices such as notices issued under s 258 of the RTA. Counsel for the applicant submitted that the RTA does not demonstrate any intention to restrict the requirements of s 319(d) to notices where the tenant is alleged to be at fault.
[5][2005] VSC 46.
In Smith,[6] Bongiorno J stated (citations omitted):[7]
The requirement laid down in s 319(d) [of the RTA] is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question ‘Why is this notice being given?’ A basic facility for communication in plain English is enough.
The answer, for the notice to comply with s 319(d), requires the setting out of the facts upon which the assertion that the tenant or her visitor has endangered or is endangering the safety of relevant neighbours with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes.
[…]
[The purpose of s 319] is to lay a proper basis for the pursuit by a landlord of a very summary method of terminating a tenancy and thus extinguishing the rights of the tenant. It is incumbent upon a landlord who seeks to avail himself of such a summary remedy to comply strictly with the law so as to ensure that by resorting to such a remedy he is neither deliberately nor accidentally trampling on the rights of the person against whom the remedy is being sought.
[6]Ibid.
[7]Ibid, [17]-[18] and [20].
In my view, the reasoning in Smith[8] extends beyond ‘danger notices’ to any notice to vacate for which reasons are required to be provided pursuant to s 319(d) of the RTA. I agree with counsel for the applicant that there is no basis for reading down the requirements of s 319(d). Any notice to vacate for which reasons are required to be given must explain, in the words of Bongiorno J in Smith:[9] why is this notice being given?’
[8]Ibid.
[9][2005] VSC 46.
In her written outline of submissions, counsel for the applicant drew my attention to a number of VCAT decisions which were said to reflect inconsistent decision making with respect to what information was required to be provided in a notice to vacate. Having reviewed the decisions referred to in the applicant’s submissions, I agree. In short, in some quarters there seems to be a view that the reasoning in Smith[10] only applies where the notice to vacate relies upon misconduct or some other breach on the part of the tenant, but not in other circumstances. Other decisions emphasise the importance of providing some particularity where any alleged breaches were capable of being remedied, or where it was said the purpose of issuing the notice to vacate was to carry out repairs and/or renovations. In other cases similar to the present,[11] it was said not to be necessary for the notice to vacate to specify the name and family relationship of the person who was to occupy the property upon the termination of the tenancy.
[10]Ibid.
[11]NS v CH [2008] VCAT 971; Cassar v Nguyen [2018] VCAT 1192.
I see no reason why the statements of Bongiorno J in Smith[12] ought not be applicable to all notices to vacate where s 319 specifies that reasons must be provided. After all, his Honour was doing no more than stating, with some elaboration, the requirement for a landlord to give reasons. That it might be difficult for a tenant to challenge the entitlement of a landlord to terminate a tenancy on the basis that the facts relied upon are peculiarly within the knowledge of the landlord does not usurp the statutory requirement to give reasons, particularly given that it is accepted that, if the landlord’s entitlement to terminate is challenged by the tenant, the onus lies upon the landlord to establish the facts necessary to supports its entitlement to terminate the tenancy. To the extent that previous decisions have stated that Smith[13] does not apply save in cases of alleged misconduct or breach on the part of the tenant, those decisions are wrong.
[12][2005] VSC46.
[13]Ibid.
The question is, then, to what level of particularity ought a notice to vacate descend in order for a Court to be satisfied that a landlord has sufficiently informed a tenant of his or her reasons for re-possessing the property? Smith[14] makes it clear that the landlord’s obligation to inform the tenant of the basis for termination is guided by the rationale that tenants should have the opportunity to respond to any relevant allegations, and the overarching objective of the RTA is to protect the rights of tenants. The decision in Smith[15] also makes it clear that it is insufficient to simply restate the statutory provision relied upon by a landlord to issue a notice to vacate. However, it seems to me that the degree of particularity required in a notice to vacate will vary according to the circumstances.
[14][2005] VSC 46.
[15]Ibid.
While it is not necessary or appropriate to lay down hard and fast guidelines for the degree of detail required to be included in a notice to vacate, relevant factors would include:
(a) the length of the notice period: the shorter the notice period, the more detail is required;
(b) the nature of the reasons advanced in the notice, with greater detail required where some misconduct is alleged, or where an alleged breach is capable of being remedied by the tenant;
(c) in cases where there might be genuine debate about whether there is a need to vacate the relevant property, such as where repairs and/or renovations are planned, more detail would be required; and
(d) for notices relying upon s 258, the notice to vacate should at least include details of the family relationship between the landlord and the person who was going to be living in the property.
In the present case, the notice specified the respondent’s ‘great grandson’ as the immediate occupier of the property, and the provision pursuant to which the notice had been issued. The notice also stated that the ‘great grandson’ was dependent upon the respondent. I am satisfied that this information was sufficient to comply with the requirements of s 319(d). Further, I reject any contention that evidence should be submitted by a landlord in support of reasons for any notice to vacate. I do not consider that the scope of s 319(d) extends so far as to require, in effect, the landlord to identify the evidence which supports the assertion by the landlord that a family member falls within the terms of s 258(1)(b)(ii) of the RTA.
While reasons must always be included in a notice to vacate, save where specifically exempted by the RTA, as noted above, the degree of particularity required in a notice to vacate must be somewhat dependent upon the reasons for issuing the notice to vacate and the circumstances in which it is issued. In Smith,[16] the notice to vacate sought immediate possession of the premises, based upon the alleged misconduct of the tenant and/or the tenant’s associates. In those circumstances, it was incumbent upon the landlord to identify, with some particularity, the conduct of the tenant relied upon to support an immediate eviction.
[16][2005] VSC 46.
The current case is quite different. First, the applicant was given sixty days’ notice to vacate the premises. This gave her ample time to seek advice on the question of whether the notice was valid. Secondly, the notice identified the relevant provision of the RTA relied upon by the landlord, the relationship to the respondent of the person who was to live in the property, and the assertion that the family member was dependent upon the respondent. The notice not only specified, albeit in succinct terms, the reason for issuing the notice to vacate, but also provided sufficient information to highlight the issues which were raised by the applicant’s solicitor at the hearing at VCAT: that is, whether the specified family member lived with the respondent, and whether he was truly dependent upon the respondent, and whether the property was to be occupied immediately after the termination of the tenancy.
Accordingly, while it could be said that the notice barely complied with s 319, it did comply, and as such the notice was valid. Indeed, it is difficult to see what further information could be required to be provided in such a notice. Requiring a notice of this nature to include, for example, the facts relied upon to establish the dependency of the family member is not supported by the terms of the RTA or the reasoning in Smith.[17] The mere reference in the notice to the property being required for the respondent’s great-grandson to live in was sufficient to alert the applicant and those advising her that the respondent would be required, if challenged, to establish that the family member was ordinarily living with the respondent, and is wholly and substantially dependent upon the respondent. Indeed, that is evidenced by the line of questioning pursued by Ms Bake at the hearing before VCAT.
[17][2005] VSC 46.
Accordingly, I am satisfied that VCAT had jurisdiction to issue the warrant for possession. The first ground of appeal fails.
Whether VCAT failed to take into account relevant considerations and other errors of law
A key question is whether the Member failed to satisfy himself of the relevant test for a valid notice to vacate, as set out in s 258(1)(b)(ii) of the RTA. Section 258(1)(b)(ii) comprises three limbs, each of which must be satisfied before the respondent was entitled to issue the notice, being:
(a) whether the person who is to occupy the property immediately following the termination date normally lives with the landlord;
(b) whether that person is wholly or substantially dependent on the landlord; and
(c) whether that person would occupy the premises immediately after the termination of the tenancy.
The applicant submitted that, in exercising his power to make a possession order pursuant to s 330(1) without engaging with the above considerations, the Member failed to have regard to relevant considerations.
A summary of the applicant’s submissions in respect to the elements of s 258(1)(b)(ii), followed by my consideration of those submissions, is set out below.
Counsel for the applicant relied on a number of authorities, including:
(a) the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (‘Peko-Wallsend’)[18] in support of her contention that the wording of s 330(1) requires VCAT to be satisfied that a landlord was entitled to give a notice to vacate before making a possession order; and
(b) the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS and other[19] where the Court held that a failure to evaluate a relevant matter amounted to a ‘constructive failure to exercise jurisdiction’.
[18](1986) 162 CLR 24, 40-41.
[19](2013) FLR 341, [44]-[46].
‘Normally lives with’
The applicant contended that VCAT had erred in its consideration and application of the statutory test set out in s 258(1)(b)(ii) by failing to consider whether the relevant family member was a person who ‘normally lives with’ the respondent. The applicant says that the Member could not have reached the requisite level of satisfaction in relation to the elements in s 258(1)(b)(ii) to make a possession order.
Counsel for the applicant referred to the following factors in her written outline of submissions in support of her submission that VCAT had failed to determine the first limb of the relevant test under s 258(1)(b)(ii) (omitting footnotes):
(a) At the outset of the ruling, the Tribunal said that:
[…] the fact is this. The landlord is entitled to possession.
(b)In purporting to explain the basis for that decision, the Tribunal’s ruling did not address the issue of whether the relevant family member was a person who normally lived with the landlord.
(c)The Tribunal identified only ‘two issues’ to be determined. The first was said to be the ‘dependency of the grandson on the landlord’, and the second was whether ‘there should be a postponement of the issuing of a warrant.’
(d)The Tribunal did not refer to the issue of whether the relevant family member usually lived with the landlord.
(e)The Tribunal did not ask any questions about where the relevant family member was living, or where they usually lived.
(f)The Applicant’s representative elicited evidence the relevant family member was residing with another family, and not with the Respondent. In response to her question ‘where is the grandson living now?’, the Respondent’s representative replied ‘he is living with another family’. This evidence was not considered or discussed by the Tribunal in determining whether to make a possession order.
(g)The above is further coloured by the fact that the relevant family member’s living situation was not referred to in the notice to vacate.
‘Wholly or substantially dependent’
The applicant contended that the Member’s treatment of the question of whether the relevant family member was ‘wholly or substantially dependent’ on the landlord in s 258(1)(b)(ii) evidenced an erroneous construction of this provision, and that the Member consequently misdirected himself as to his statutory task.
The evidence given before VCAT in respect of the dependence of the relevant family member was summarised by the applicant as follows:
(a)the Respondent simply wanted to regain possession of the rented premises;
(b) the Respondent ‘needs a flat for his grandson to be able to move in’;
(c) the relevant family member is a student; and
(d) the ‘grandfather looks after everything.’
At the hearing before me, counsel for the applicant submitted that the above evidence was plainly insufficient to satisfy the statutory requirement.
In his ruling, the Member stated:
[…] the basis was questioned, that is to say, the dependency of the grandson on the landlord. I accept that the grandson is being assisted by the landlord to enable him to complete his studies which seem to be serious studies in the field of physiotherapy, and he requires the accommodation for that purpose.’
The applicant submitted that, in this context, the Member had erroneously equated the phrase ‘wholly or substantially dependent on’ with ‘being assisted by.’ The applicant relied on a number of authorities[20] in support of the contention that ‘wholly or substantially dependent’ ought be interpreted to require that a person be essentially or primarily dependent on another person in order to satisfy the test in s 258(1)(b)(ii).
[20]Commissioner of Superannuation v Scott (1987) 12 ALD 38; Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690; Minister for Immigration and Multicultural Affairs v Pires (1998) 90 FCR 214.
Immediacy of occupation / renovation works
The applicant submitted that VCAT failed to properly consider the question of whether the relevant family member was to commence occupation of the rented premises immediately after the termination date. In particular, the applicant submitted that the Member had to be positively satisfied that the relevant family member was to commence occupation of the rented premises immediately after the termination date contained in the notice to vacate, as a precondition to exercising its power to make a possession order. There was no basis for giving the word ‘immediately’ any other meaning apart from its ordinary meaning, being ‘without delay’.
Further, and in the alternative to the above ground, the applicant contended that VCAT erred by failing to consider evidence about renovation works that may have taken place immediately after the termination date contained in the notice in determining whether it should make a possession order. Counsel for the applicant submitted as follows:
(a) Peko-Wallsend[21] stands for the proposition that where a decision-maker is bound to take a particular matter into account and fails to do so, that failure constitutes an error of law; and
(b) what a decision-maker is bound to consider essentially depends on the scheme and the circumstances in place. Parliament has made it clear in ss 258(1) and 330 that any evidence in respect to the plans for a property subsequent to the termination date are vitally important for VCAT’s consideration, particularly because VCAT is required to issue a possession order if certain criteria are made out.
[21](1986) 162 CLR 24.
The applicant relied upon the following matters:
(a) the Member had cut short a discussion about repairs that may take place at the property prior to commencement of the relevant family member’s occupation and denied the applicant’s representative the opportunity to cross-examine the respondent’s representative on that issue; and
(b) the Member determined that the issue of whether repairs were to be conducted prior to the relevant family member commencing occupation was ‘not relevant’ to the proceeding.
These matters were also relied upon in support of the applicant’s contention that the Member’s refusal of Ms Bake’s request to question Ms McDonald further about the respondent’s repair and/or renovation plans had the consequence of denying the applicant procedural fairness.
Conclusions
It is clear from the wording of s 330(1) that VCAT not only may, but is compelled, to make a possession order where it is satisfied that a landlord was ‘entitled’ to give a notice to vacate.
In making his decision, the Member was required to have regard to the matters prescribed by s 258(1)(b)(ii). Given their statutory force, these elements amount to mandatory relevant considerations, to which the Member was bound to have regard. A failure to take into account mandatory relevant considerations is a well‑established category of jurisdictional error.[22]
[22]Refer to Peko Wallsend.
Further, it is accepted that, in determining whether a decision‑maker has had regard to relevant mandatory considerations, it is permissible to look at any reasons provided by the decision‑maker.
Finally, the decision‑maker must do more than simply advert to a matter in issue in order to satisfy the obligation to consider mandatory relevant considerations. The position is aptly summarised in the decision of the Full Court of the Federal Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts,[23] as follows (omitting citations):[24]
The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration. However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case.
Once a matter has been identified as a mandatory relevant consideration, it is the salient facts that give shape and substance to the matter that must be brought to mind. These are the facts which are of such importance that, if they are not considered, it could not be said that the matter has been properly considered.
[23][2011] FCAFC 59.
[24]Ibid, [44]-[45].
I accept the applicant’s submissions that the Member failed to adequately engage with all of the considerations set out in s 258(1)(b)(ii), which he was bound to consider. This is apparent from the transcript and the Member’s ruling. In my view, it was the Member’s duty to make further inquiries to satisfy himself of the basis for claims made by Ms McDonald on the respondent’s behalf, in particular broad ranging statements such as ‘his grandfather looks after everything’ which, without further elaboration, would be insufficient to satisfy a decision-maker of the s 258(1)(b)(ii) requirements. Further, Ms McDonald’s evidence that ‘he is living with another family’ was directly contrary to the requirement in s 258(1)(b)(ii) that the relevant family member be normally living with the respondent.
While the applicant’s submissions focussed upon the Member’s alleged failure to take into account mandatory relevant considerations, it could also be said that in some respects, the matters which the Member was required to be satisfied of are analogous to jurisdictional facts.
In Lang v Carron Investments Pty Ltd & Anor,[25] I had cause to consider whether a court’s finding in respect of a relevant matter was reviewable on the basis it was a jurisdictional fact, as follows (citations omitted):[26]
[25][2016] VSC 165.
[26]Ibid, [36]-[39].
In Corporation of the City of Enfield v Development Assessment Commission (‘Enfield’),[9] the High Court defined the term ‘jurisdictional fact’ as follows:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.
In Plaintiff M70 v Minister for Immigration and Citizenship, French CJ defined a jurisdictional fact in the following terms:
The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a ‘complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
Notwithstanding the reservations and limitations referred to by French CJ above, the authorities make it clear that a finding of jurisdictional fact may be reviewable even if ‘the question ... was clearly a matter of evaluation and assessment.’
In determining whether a matter is a jurisdictional fact, the statutory framework is critical. In Woolworths Ltd v Pallas Newco Pty Ltd, Spigelman CJ stated that the ‘issue is one of statutory construction’ and, elaborating further:
The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact and that the legislature intends that the absence or presence of the fact will invalidate action under the section.
In my view, the matters set out in s 258(1)(b)(ii) are equivalent to jurisdictional facts. While the Member’s findings regarding these matters did not enable him to exercise a discretion, if he were satisfied certain matters were made out, then he was compelled by the terms of s 330 to make an order for possession. It is settled law that a decision‑maker’s finding as to a jurisdictional fact is amendable to judicial review.[27]
[27]Saville v Hallmarc Constructions Pty Ltd [2015] VSCA 318.
There is scope for debate as to whether, in reviewing a decision‑maker’s finding as to a jurisdictional fact, the reviewing court must find that the decision‑maker’s finding of fact was unreasonable or irrational, or based upon no evidence, or whether the reviewing court is entitled to review the evidence and substitute its own view for that of the decision‑maker. As will be seen from these reasons, it is not necessary to engage further in that debate on this occasion.
Before turning to the particular matters set out in s 258(1)(b)(ii), it is apparent that, when reviewing s 258(1) as a whole, the legislature intended to limit a landlord’s recourse to s 258(1) to circumstances where there was an immediate need for accommodation on the part of a close family member. In the case of people in relationships outside the scope of s 258(1)(i), the relevant relationship must be one of co‑residence and at least substantial financial dependence. Not just any extended family member is eligible, and in order to be satisfied that the respondent was entitled to issue the notice, the Member was required to bring some attention to bear upon these matters.
Turning now to the specific indicia contained in s 258(1)(ii), with respect to the question of whether the grandson normally lived with the landlord, there was no evidence before the Member that the grandson lived with the respondent. Indeed, the only evidence before the Member was that he was staying with another family. While during the course of the hearing before me Ms McDonald said that this was only for a matter of days, this evidence was not before the Member and was of course untested. Accordingly, while the Member did not appear to consider at all whether this requirement was made out, if he had considered the matter, he could not have made a finding in favour of the respondent in that regard.
In respect to whether the grandson was ‘wholly or substantially dependent on’ the respondent, I accept the distinction drawn by the applicant between the phrase adopted by the Member, ‘being assisted by,’ and the phrase ‘wholly or substantially dependent on’. From my reading of the transcript of the hearing, it is apparent from the Member’s line of questioning that he was alive to the question of whether the relevant family member was ‘dependent’ upon the landlord. The Member however only engaged with this question cursorily, and did not make the further enquiries necessary to satisfy himself as to the factual basis for the claim of dependence, and whether it was ‘wholly or substantial’. The relevant sections of the transcript follow:
(a) at the outset of the hearing, the solicitor for the applicant drew the Member’s attention to the requirement in s 258(1)(b)(ii):[28]
[28]T1-T2.
MS BAKE: I would like to ask the agent if I should about the – about the grandson being substantially dependent on the landlord.
MEMBER: Why is that relevant?
MS BAKE: As in 258B(ii) requires that the person moving into the property is substantially dependent on the landlord.
MEMBER: I see, subparagraph (ii).
(b) in the course of the hearing, the Member’s line of inquiry demonstrated an engagement with the concept of ‘dependence’, but only to a limited extent’:[29]
[29]T3-T4.
MEMBER: Could you kindly – I take it there’s no dispute as to the service of the notice to vacate, but there is a concern in relation to the grandson’s connection to the landlord.
[…]
MS McDONALD: Well, he’s already here. He studies in the city and he needs somewhere to live, and yes, when he is to be available.
MEMBER: The application says that the grandson is dependent upon the landlord.
MS McDONALD: Yes.
MEMBER: Well, what can you tell me in regards to that?
[…]
MS McDONALD: It’s the landlord’s flat, so he – he needs a flat for his grandson to be able to move in.
MEMBER: Yes, and is the grandson dependent upon the landlord?
MS McDONALD: Yes, he’s a student.
MEMBER: He is a student.
[…]
MS BAKE: And in addition to being a student, is the grandson financially dependent on the grandfather or is it solely just for accommodation that the grandson is dependent on the - - -
MS McDONALD: His grandfather looks after everything.
MS BAKE: Okay.
MS McDONALD: That’s account, that’s everything.
[…]
MEMBER: Very well […
Further, I agree that the Member’s finding that ‘the grandson is being assisted by the landlord to enable him to complete his studies which seem to be serious studies in the field of physiotherapy, and he requires the accommodation for that purpose’ indicates that the Member misconstrued the term ‘wholly or substantially dependent’. While it is not necessary for present purposes to traverse the authorities concerning the meaning of ‘wholly or substantially dependent’, it is notorious that concepts of dependency have been the subject of extensive judicial discussion in the immigration, superannuation, and worker’s compensation jurisdictions.
While the issue has not been the subject of extensive argument before me, I have no reason to believe other than that the statements referred to in the authorities relied upon by the applicant remain good law. In Commissioner of Superannuation v Scott,[30] the Full Court of the Federal Court stated that:[31]
It has in our opinion the meaning, in relation to a person in the expression ‘wholly or substantially dependent’, that the person is primarily, essentially or in the main dependent upon another person.
[30](1987) 12 ALD 38.
[31]Ibid, [14]. See also Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690, Kaura Timber Co (Tas) Pty Ltd v Reeman (1972) 128 CLR 177.
In Minister for Immigration and Multicultural Affairs v Pires,[32] Mansfield J held that the expression ‘wholly or substantially dependent’ meant that the relevant person had a need to rely upon another for financial support, as opposed to simply receiving financial support.
[32](1998) 90 FCR 214.
While there was some evidence given by the agent which could have supported a finding that the grandson was wholly or substantially dependent upon the grandfather (respondent), one would query the reliability of such evidence, given that the evidence was given by the agent, not the respondent. In any event, that was not the finding made by the Member. Rather, he found that the grandson was being ‘assisted by’ the respondent. That finding, to the extent that it was said to support the respondent’s entitlement to recover possession of the property, either amounted to a misconstruction of s 258(1)(b)(ii), or to taking into account an irrelevant consideration. Either way, the Member was in error. One would also query whether the fact that the grandson was undertaking a ‘serious course of study’ was a relevant consideration.
The applicant also relied upon the Member’s statement to the effect that the question of whether repairs were to be carried out prior to the grandson moving in was ‘not relevant’ as amounting to an error on the part of the Member. Strictly speaking, that is correct, but if that were the only error relied upon, I doubt that I would give the relief sought by the applicant. The agent did give some evidence about the matter, but while that evidence was somewhat confused and confusing, it is tolerably clear from the transcript that the agent was referring to repairs which had been effected at the property in the past, not what was planned to be done in the future. Further, it was also tolerably clear that the respondent wanted the property to be available for his grandson as soon as possible. Accordingly, while the issue of what repairs might be required might well have been relevant to the question of whether immediate possession of the property was required, the limited evidence on this point indicates that the respondent would have satisfied this limb of the test.
Accordingly, grounds 2 and 3 of the draft notice of appeal are made out, but not grounds 4 and 5.
Denial of procedural fairness
Finally, the applicant submitted that VCAT had denied the applicant procedural fairness under ss 98(1)(a) and 102(1)(a) and (b) of the VCAT Act and at common law, by refusing to hear evidence about the respondent’s plans for the property immediately after the termination of the tenancy.
The common law principles underpinning an administrative decision-maker’s duty to afford procedural fairness are well settled. In respect to the statutory framework within which VCAT exercises its powers, I accept that VCAT is bound by the rules of natural justice, pursuant to s 98(1)(a) of the VCAT Act. Further, sub-sections 102 (a) and (b) of the VCAT Act provide:
Evidence
(1) The Tribunal must allow a party a reasonable opportunity–
(a) to call or give evidence; and
(b) to examine, cross-examine or re-examine witnesses
[…]
Relevantly, the operation of sub-ss 102(1)(a) and (b) is limited by sub-s 102(2), as follows:
(1)Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
The applicant submitted:
(a) that natural justice requires fairness in all the circumstances, referring to Herald & Weekly Times Ltd v Victorian Civil and Administrative Tribunal;[33]
[33](2006) 24 VAR 174; [2004] VSC 49.
(b) that a denial of natural justice constitutes an error of law, referring to Collection House Ltd v Taylor;[34]
(c) that various authorities support the proposition that, in a case where important decisions turn on questions of fact, natural justice requires that parties be given an opportunity to confront and cross-examine witnesses, referring to Naylor v Advaland Pty Ltd & Anor;[35] and
(d) in the present case, it is relevant that the person to whom cross-examination was intended to be directed was present and had been sworn in to give evidence, and that the questions proposed to be directed to that person were relevant to VCAT’s determination under ss 258(1) and 330(1).
[34](2004) 21 VAR 333; [2004] VSC 49.
[35][2014] VSC 331.
Counsel for the applicant submitted that Ms Bake’s proposed question went directly to the requisite state of satisfaction that VCAT was required to reach under s 330. Counsel relied on the decision of this Court in Leon Holdings Pty Ltd v O’Donnell[36] as authority for the proposition that a VCAT member is obliged to allow reasonable cross-examination of witnesses.
[36][2009] VSC 430.
I accept the correctness of these propositions. However, I note that, as noted in paragraph 86 above, following his refusal of Ms Bake’s request to ‘ask Ms McDonald a question about the repairs she said will be going on at that apartment after the property is vacated and what repairs work that would be’,[37] the Member proceeded to put forward a question in substantially similar terms to that which Ms Bake had proposed to direct to Ms McDonald, as follows:[38]
MEMBER: Are there any repairs contemplated?
MS McDONALD: No, it needs a new stove. No, I’m not too sure.
[…]
MS McDONALD: Ah, we did put a new stove in. There’s a new stove. Many of the carpets were washed. There’s some electrical things that have been done for her. Whatever she asks for she get it done, but - - -
[37]T12.
[38]T13.
None of the applicant’s submissions are controversial. However, what natural justice requires depends upon the circumstances of the case. However, a Court of Appeal decision handed down while judgment was reserved emphasises that the concept of natural justice is flexible. In Roberts v Harkness[39] the Court of Appeal stated as follows (omitting citations):
[39][2018] VSCA 215, [47]-[49].
The existence of the fair hearing right being uncontroversial, the critical question is: ‘What does the duty to act fairly require in the circumstances of the particular case?’ Natural justice is ‘fair play in action’. As Gleeson CJ said in Lam:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.
Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include
• the nature of the decision to be made;
• the nature and complexity of the issues in dispute;
•the nature and complexity of the submissions which the party wishes to advance;
•the significance to that party of an adverse decision (‘what is at stake’); and
•the competing demands on the time and resources of the court or tribunal.
Having reviewed the transcript of the hearing, it is apparent the Member gave Ms Bake a reasonable opportunity to question the agent about a range of matters, and also questioned the agent himself. Also, it is well known that the Residential Tenancies List at VCAT is a high volume list, which by necessity must deal with its case load in an expeditious manner. A reviewing court must be cautious of imposing overly strict and prescriptive procedural requirements upon decision‑makers in a jurisdiction which is required to deal with matters promptly and efficiently.
Further, in Bahonko v Moorfields Community (‘Bahonko’),[40] the Court of Appeal stated as follows:
The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome. In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would ‘inevitably result in the making of the same order as that made by the primary judge at the first trial’.
[40][2008] VSCA 6, [30].
Applying the test in Bahonko,[41] the question is then whether any further evidence elicited by Ms Bake, upon being afforded the opportunity to cross-examine the agent about planned repairs, would have resulted in the Member making a different finding in respect to the validity of the notice. In my view, for substantially the same reasons as set out in paragraph 86 above, it would not. The better view of the limited evidence is that no significant repairs or renovations were planned. While he did not permit further cross‑examination by Ms Bake, he proceeded to question the agent on the topic himself. Accordingly, while I accept that it is arguable that the applicant was, to a minor extent, denied procedural fairness as a result of the Member’s limitation on the scope of cross‑examination, I would not grant relief on that ground alone, as I am not satisfied that it materially affected the outcome of the hearing before VCAT. Accordingly, ground 6 of the draft notice of appeal is not made out.
[41][2008] VSCA 6.
I will allow the appeal, insofar as it concerns grounds 2 and 3 of the applicant’s grounds of appeal. Given that I understand that the parties are scheduled to attend at VCAT in the forthcoming days, I shall seek the parties’ views on the appropriate form of relief. In the ordinary course of events, I would have remitted the matter back to VCAT to be determined by a differently constituted tribunal in accordance with law.
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