Loh v Shi
[2003] VSC 271
•31 July 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5447 of 2003
| TEO HUANG LOH | Plaintiff |
| v | |
| URII WILLIAM SHI | First Defendant |
| and | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 July 2003 | |
DATE OF JUDGMENT: | 31 July 2003 | |
CASE MAY BE CITED AS: | Loh v Shi and VCAT | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 271 | |
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JUDICIAL REVIEW – Jurisdiction of VCAT – Residential Tenancies Act – Jurisdiction to make order for possession where rental dispute exceeds jurisdiction – Jurisdiction to make order for possession distinct from claim for rental.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Burnside Q.C. with Mr S.D. Hay | C. Tang & Associates |
| For the First Defendant | Mr P. Duggan | Philip Quinn & Associates |
| For the Second Defendant | No appearance |
TABLE OF CONTENTS
Proceeding in Tribunal..................................................................................................................... 2
The Supreme Court Proceeding...................................................................................................... 3
Judicial Review................................................................................................................................... 6
Jurisdictional Error............................................................................................................................ 8
HIS HONOUR:
This is a return of an amended summons in a proceeding instituted by originating motion in which the plaintiff seeks an order to the effect that an order for the possession of premises made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), on 8 April 2003 be set aside. The plaintiff, Teo Huang Loh (“Mr Loh”), has until recently conducted the proceeding without legal representation. It is not an understatement to observe that the proceeding in this Court is a mess, and until the hearing before me, it was not made clear what was the nature of the proceeding.
Proceeding in Tribunal
On 19 March 2003, the defendant Urii William Shi (“Mr Shi”), signed and forwarded to Mr Loh a document called “Application by a Landlord to the Victorian Civil and Administrative Tribunal”. The document revealed that Mr Shi was the landlord of premises situated at 742 Elgar Road, Doncaster (“the premises”) and that Mr Loh was the tenant.
The relief sought was expressed to be–
“I want the tenant to vacate the premises and to pay up the rent that he owes me.”
The application form recorded further details about the application which were expressed as follows –
“The stated tenant has been residing at the premises for four years with only one year’s having been paid. He refuses to vacate and constantly lies to me about paying up the money. He also refuses to sign the agreement for lease.”
Mr Shi and Mr Loh appeared before a member of the Tribunal sitting at Ringwood on 8 April 2003. The proceeding was not recorded. After hearing the parties, the member, Ms E.A. Kominos, made the following orders –
“The Tribunal orders and directs that:
1. The landlord is entitled to a possession order.
2. The tenant must vacate the rented premises by 08 April 2003.
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 08 October 2003.)”
The copy of the order contained a warning to the tenant that if he refused to leave he may be forcibly evicted.
By reason of s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”), a party to a proceeding may appeal on a question of law to this Court if this Court grants leave to appeal. An application for leave to appeal must be made no later than 28 days after the date of the order. In addition, the Tribunal being a creature of statute, is amenable to the common law judicial review jurisdiction of this Court.
The Supreme Court Proceeding
On 17 April 2003, Mr Loh issued an originating motion against Mr Shi. Mr Loh described himself as “the appellant” and he described Mr Shi as “respondent”. The motion did not set out any grounds for relief but sought relief, inter alia, to set aside the order of the Tribunal dated 8 April 2003. Mr Loh also sought relief to the effect of a declaration that the order made by the Tribunal was based on jurisdictional error “as the matter is not within the scope of the Residential Tenancies Act.” On the same day he issued a summons which also did not disclose any grounds and sought the same relief as the originating motion. The summons was returnable before a Master on 28 April 2003.
Mr Loh filed an affidavit sworn by himself on 17 April 2003 and it is headed – “Affidavit in support of the application for leave to appeal”. Mr Loh described himself as an accountant and a law student. His affidavit is argumentative. One may be pardoned for thinking he was applying for leave to appeal under s.148 of the VCAT Act.
If the application was pursuant to s.148 of the VCAT Act, the Master would have jurisdiction to consider and determine the application for leave to appeal. On the other hand, if the proceeding was by way of judicial review pursuant to Order 56 of the Rules of Court, the Master would not have jurisdiction to hear the matter. He would have jurisdiction to give directions concerning the proceeding.
The matter came on for hearing before Master Wheeler on a number of occasions. He granted leave to Mr Loh to amend his summons, and on 23 May 2003, Mr Loh filed an amended summons. He added the Tribunal to the title of the proceeding as second respondent. He again did not set out any grounds but merely sought relief. Evidently, the amended proceeding was served on the Tribunal, and by letter dated 29 May 2003, the Senior Registrar informed the Prothonotary of this Court that the Tribunal, as second respondent, did not intend to take an active role in the proceeding except in respect of a question of costs, and would abide the decision of the Court. Reference was made to the High Court decision of R v Australian Broadcasting Tribunal.[1]
[1]Ex parte Hardiman J (1980) 144 CLR 13 at 35.
If the application was pursuant to s.148 of the VCAT Act, then the Tribunal was not a party to the proceeding. On the other hand, if it was a judicial review proceeding then the Tribunal was a necessary party to the proceeding. See Rule 56.01(2). If it was a judicial review, the originating proceeding had to state the grounds upon which the relief was sought. See Rule 56.01(4).
On the return of the summons before the Master, Mr Loh appeared unrepresented. Mr Duggan of Counsel appeared for Mr Shi. It is clear that Master Wheeler and Mr Duggan proceeded on the assumption that the application was an application for leave to appeal. This is despite the fact that it appeared that the Tribunal had been added to the title of the proceeding although there was no order made joining the Tribunal and it is not a party to an application for leave to appeal. At the hearing, Mr Loh relied upon another affidavit, again expressed to be for leave to appeal against the decision of the Tribunal. Although containing some factual matters, it contained matters that clearly were not before the Tribunal and was argumentative.
No criticism can be made of Master Wheeler or Mr Duggan for thinking that the application was an application for leave to appeal. Master Wheeler, after hearing the parties, dismissed the application. Master Wheeler noted in the order that no question of law had been demonstrated by the appellant. On 3 July 2003, Mr Loh filed a notice of appeal against the orders made by Master Wheeler. He set out grounds of appeal. These are not necessary as the appeal was a re-hearing de novo.
When the matter commenced before the Court, Mr Burnside QC, who appeared with Mr S.D. Hay of Counsel for Mr Loh, informed the court that it was not an application for leave to appeal but a proceeding under Order 56 of the Rules of Court, namely, a judicial review. This came as a surprise not only to Mr Duggan but myself as the documents pointed to the proceeding being an application for leave to appeal on a ground of law. After some discussion, Mr Burnside QC stated that the proceeding was to continue as a judicial review, and after indicating to Mr Duggan that I was prepared to take steps to regularise the proceeding, I gave him an opportunity to consider whether he wished to adjourn the matter to enable him to propose to meet a judicial review. Upon resuming, Mr Duggan stated that there had already been a number of appearances before this court, that costs were getting out of hand and that in the circumstances Mr Shi was prepared to proceed. I may say that an appeal under s.148 of the VCAT Act and a judicial review under Order 56 raise very similar issues. The High Court has held that an appeal under s.148 is very similar to a judicial review. See Roy Morgan Research v The Commissioner of Revenue.[2] As the costs are tending to run away from the parties, and the parties were anxious to proceed, the Court was prepared to proceed with the matter as a judicial review and I made an order joining the Tribunal, extending time to enable this to be done. I do not think that Mr Duggan or his client was prejudiced by what was done. There is a concern about the orders made by Master Wheeler on 27 June 2003. As this is an appeal from those orders, and is a re-hearing de novo, and in light of the fact that Mr Loh appeared in person before the Master and obviously did not appreciate the true nature of his proceeding, I thought it appropriate to proceed to hear the appeal. Once the position was clarified, it was clear the Master did not have the jurisdiction to hear the proceeding as a judicial review. Accordingly, I allow the appeal and set aside the orders made, save for the order that Mr Loh pay Mr Shi’s costs of the proceeding. I will hear the parties on that question, but my provisional view is that Mr Loh should pay Mr Shi’s costs of the appearance before Master Wheeler on 27 June 2003. I observe that no criticism can be made of Master Wheeler. He had good grounds for believing it was an application for leave to appeal.
[2](2001) 75 ALJR 1342 at 1345.
The proceeding before the Member of the Tribunal was not recorded. Hence, there is no transcript of what occurred. A request was made of the Member to provide reasons for her decision, and on 14 May 2003, some five weeks after the hearing, she provided her reasons. She frankly conceded that the reasons were given on the basis of recollections of the evidence given by the parties. Unfortunately, neither party has sought to reproduce what took place before the Member. Mr Loh and Mr Shi have sworn affidavits and much of the factual matter of what appears in those affidavits is material I am not persuaded was before the Member. The reasons of the Member summarise some of the evidence which leads to conclusions as to what the evidence was before the Member.
On a judicial review, the Court is concerned with the legal correctness of what took place before the Member. Accordingly, the Court will confine itself to the evidence which was before the Tribunal.
Judicial Review
Mr Loh seeks an order in the nature of certiorari, quashing the orders made by the Tribunal. I should say that no argument was put to this court that because there was an avenue open to Mr Loh to appeal in accordance with the VCAT Act, it was not open to him to bring a judicial review proceeding, nor was it submitted that in the exercise of the discretion the court should refuse to make an order on the ground that the Legislature had provided an avenue of appeal.
The common law jurisdiction of this court to review decisions and orders of inferior bodies is subject to the procedure set out in Order 56 of the Rules of Court. The jurisdiction to review decisions and orders of inferior courts and tribunals is limited. I have in the past discussed the principles in a number of cases and there is a convenient summary in the decision of Kay v DPP (Cth) and Anor.[3] I will not repeat what I said in that case. I summarise the main points. The jurisdiction is supervisory and does not entitle the court to canvass matters it would on an appeal. The jurisdiction is different to an appeal. The judicial review jurisdiction is concerned with jurisdiction of the tribunal and the legality of what was done and is not concerned with the merits of the decision under review. The court is not concerned with whether the decision was fair and correct. The scope of the jurisdiction where an order is sought in a form similar to the old prerogative writ of certiorari was discussed by the High Court in Craig v South Australia.[4] The High Court identified the most important established grounds of judicial review, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, or an error of law on the face of the record. The High Court in Craig’s case drew a distinction between tribunals and inferior courts and at pp.177-9 gave examples of jurisdictional error by a tribunal.
[3][2003] VSC 264.
[4](1994) 184 CLR 163 at 175-6.
If an attack is made upon the basis that there is an error of law on the face of the record, the court is restricted to the record. However, where the attack is made on grounds other than error on the face of the record, the court can take into account any relevant material placed before it, subject of course to the rules of procedure and evidence.
This court is concerned with the legal correctness of what was done by the Tribunal.
Mr Burnside QC submitted that the Tribunal had acted outside its jurisdiction when it made the order for possession. Accordingly, the order was made without jurisdiction and should be quashed.
Jurisdictional Error
There is no doubt that the Tribunal has jurisdiction to deal with disputes between landlord and tenant under a tenancy agreement to which the Residential Tenancies Act 1977 (“the Act”) applies. The application by Mr Shi invoked that jurisdiction. It is noted that the application sought an order for payment of outstanding rent and an order for possession. This is permitted by s.213A. In fact, the order made by the Tribunal was for possession and no order was made in respect of the claim for rent. The order noted that the application was under the Act for “possession and rent s.322(1), 246”.
The evidence before the Tribunal revealed that the claim for rent covered a number of years and was in excess of $10,000. The evidence also revealed that there was a dispute between the two parties as to the amount that was in fact owing. The tenant, Mr Loh, informed the Tribunal that he was owed a large sum of money by the landlord, and the landlord disputed this and claimed that he was owed a large sum of money for rent. Mr Burnside QC submitted that once the Tribunal was seized with a dispute involving a sum greater than $10,000, the Tribunal no longer had jurisdiction and hence could not make an order for possession. He relied upon s.447(1A)(a). Mr Duggan, on behalf of Mr Shi the landlord, submitted that although the claim for rent exceeded the jurisdictional limit of the Tribunal, the Tribunal did not make any order in respect to the outstanding rent and exercised a separate jurisdiction to grant an order of possession on the ground that rental was owing for a period in excess of 14 days.
As stated, the proceeding was not recorded, there is no record of what in fact took place before the Member and the parties have provided very little evidence of what in fact did take place before the Member. Much of what is in the affidavits I will ignore because I am not satisfied that the matters deposed to were before the Member. One can draw some inferences from the reasons given by the Member. It is noted that the application made by Mr Shi was for an order for rent and for an order for possession. I set out the Member’s reasons in full as follows –
“REASONS FOR DECISION
These reasons for decision arise from a request by the tenant in relation to a hearing which took place on 8 April 2003.
The proceedings at the venue, Ringwood Magistrates' Court are not recorded and therefore there is no transcript.
I provide the following reasons on the basis of recollections of the evidence given by the parties on that date.
The parties entered into an oral tenancy agreement in 1999. As I recall the rent was about $200.00 per week. There were no receipts provided nor a bond paid by the tenant to the landlord. The tenant had total use of occupation of the rented premises.
The landlord claimed rental arrears of $35,000.00. The tenant agreed he owed the landlord rental, but not the amount as claimed by the landlord.
The matter was complicated by the fact, the tenant had been the landlord’s accountant, and the parties were involved in a business venture together.
As the parties were arguing over monetary amounts in excess of the jurisdiction of the Tribunal, and there were other matters to be determined but not at this Tribunal, the parties were informed that a possession order would be made to end the tenancy. There was no doubt that the tenant was at least 14 days in arrears of rent at the time of service of the notice; it was a question of the exact amount. The parties were advised that the tenancy agreement was to be terminated that day.
The parties were further advised to seek separate legal advice as to the other matters in dispute between them.”
The reasons were dated 14 May 2003.
The affidavits of the parties, as I have said, raise matters that were not before the Tribunal and I ignore them. In particular, Mr Loh, in his affidavit sworn 23 May 2003, gave evidence that statements made by the Member in her reasons were wrong. He contended there was a lack of evidence or contrary evidence. However, in my opinion it is not permissible to consider additional evidence which was not before the Member, nor is it possible for this court in the absence of any record of what occurred at the hearing to determine whether or not the findings were supported by evidence or contrary to evidence. In a later affidavit, Mr Loh swore that a statement in the reasons that he agreed that he owed rental was factually incorrect. He said he did not make that concession. He also said it was factually incorrect to say that the tenant was at least 14 days in arrears of rent. Again, I am not in a position to resolve those matters in the absence of what did take place before the Member and accordingly I will decide this proceeding on the application, and the Member’s reasons. A notice to vacate was evidently served and two forms of documents were placed before me. Counsel for the parties have agreed that the notice to vacate was the one signed in the form dated 19 March 2003 pursuant to the Regulations. It is noted that the Tribunal was satisfied that a notice was served and that the tenant was at least 14 days in arrears of rent.
It is clear from her reasons that the parties did inform the Member and gave evidence to the effect that the landlord claimed rental arrears of $35,000 and that Mr Loh disputed that amount. The issue was complicated by the fact that Mr Loh had been Mr Shi’s accountant at one stage. It is apparent that the Member was of the view that the parties were arguing over monetary amounts in excess of the jurisdiction of the Tribunal. Part 11 of the Residential Tenancies Act 1997 (“Tenancies Act”), deals with the functions of the Tribunal. Division 2 is concerned with the jurisdiction of the Tribunal. Section 447(6) states in general terms the jurisdiction of the Tribunal which is to hear any matter arising in relation to a tenancy agreement of premises situated in this State. However, s.447 limits the jurisdiction of the Tribunal. Relevantly it provides –
“447. Limits of jurisdiction of Tribunal
(1)Subject to sub-s.(3), the Tribunal must not hear and determine an application –
(a)by a landlord or tenant under a tenancy agreement which involves a monetary claim for an amount exceeding $10,000;
(b)…
(c)make a determination requiring or authorising the payment of an amount that exceeds $10,000;
(d)…
(2)…
(3)The Tribunal may hear and determine an application … in respect of a higher amount if the parties to the application … by instrument authorise the Tribunal to do so.
(4)…
(5)… “
Mr Burnside QC submitted that the application, according to the Application Form, was for an order for the payment of money and for an order for possession. It is clear on the face of the reasons given that the Tribunal was informed there was a dispute over rent, that the amount claimed was $35,000, there was a real dispute as to who owed what to whom, and the Tribunal had no jurisdiction to deal with the matter. Mr Burnside QC pointed out that the Member accepted that the monetary amount was in excess of the jurisdiction of the Tribunal. Given the Tribunal lost jurisdiction in respect of the monetary claim, it was submitted it could not deal with an application for possession based upon rent being in arrears for a period in excess of 14 days.
Mr Duggan submitted on behalf of Mr Shi that the Tribunal did have jurisdiction to make an order for possession. He submitted the claims were discrete.
Section 246 deals with non‑payment of rent and the right to give notice to vacate. It provides –
“246. Non-payment of rent
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant owes at least 14 days’ rent to the landlord.
(2)The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.”
Mr Duggan submitted that the evidence before the Member was clear. The tenant did owe at least 14 days’ rent. She made a finding to that effect. Although Mr Loh wished to challenge that in his affidavit, he cannot do that on this review. The Member made the necessary finding.
Part 7 of the Tenancies Act deals with possession. Section 322(1) provides –
“322 Application for possession order by landlord
(1)A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under s.261 or s.263).”
The two sections referred to are irrelevant. Section 330 obliges the Tribunal to make a possession order upon proof of certain matters.
An application for compensation for non-payment of rent is a different claim.
Mr Loh’s application form made two complaints. One was for an order for compensation for non-payment of rent and the other was for an order for possession. An application seeking both compensation for non-payment of rent and an order for possession was permitted by s.213A. Each is a separate claim. The landlord must prove different elements for each claim. In each claim the landlord must prove that he and the tenant are parties to a tenancy agreement to which the Act applies. But at that point the elements of proof of each claim diverge.
A claim for rent is governed by Part 5 of the Act. The relevant provisions are ss.210, 211, 212(2) and 213. These provisions set out the elements of proof which the landlord must establish.
A claim for possession is made pursuant to Part 7. Having proven the tenancy agreement, the landlord must prove that he has given the tenant a notice to vacate the premises. A notice to vacate may be given under a number of sections.[5] Where the basis for the notice is non-payment of rent, the notice may be given under s.246. That is what Mr Loh did. The landlord must prove compliance with that section and s.326(1). The Tribunal cannot determine the application earlier than the termination date specified in the notice to vacate.[6]
[5]See s.322.
[6]See s.329.
The landlord must then prove that the notice has not been withdrawn,[7] compliance with s.72 of the VCAT Act,[8] and that the tenant is still in possession.[9] Section 72 of the VCAT Act is concerned with service of documents.
[7]See s.330(1)(a).
[8]See s.330(1)(c).
[9]See s.330(1)(d).
In my opinion, it is clear that each application is discrete and that the elements of proof in relation to each claim are different. They can be heard together but it is not necessary to do so. Section 213B confirms this conclusion. It provides that if a landlord who obtains a possession order as a result of failure by a tenant to pay rent wishes to also seek compensation for non‑payment of rent the application must be made within 28 days after the tenant delivers up vacant possession. The Act draws a distinction between the two claims and they are discrete. The claim for rent requires the landlord to prove the amount of rent actually owing before he recovers an order for compensation, whereas the claim for possession requires the landlord to merely prove that at least 14 days’ rent was owing.
Section 447(1)(a) of the Act, which limits the jurisdiction of the Tribunal, deprives the Tribunal of jurisdiction to hear and determine an application which involves a monetary claim for an amount exceeding $10,000. The claim of Mr Loh for possession does not involve a monetary claim for an amount exceeding $10,000.
In my opinion, the Tribunal had jurisdiction to hear the application for a possession order. The Member assumed she did not have the jurisdiction to determine the claim for outstanding rent and hence did not do so. But she had jurisdiction to hear the other and separate claim for possession. The reasons of the Member clearly show that the landlord established all the elements of proof which he had to prove to obtain an order for possession. It follows that in my opinion the Tribunal did have jurisdiction and this proceeding fails.
Subject to any submissions by counsel I am prepared to make the following orders –
(i)That the appeal from the orders made by Master Wheeler on 27 June 2003 be allowed;
(ii)that the orders made by Master Wheeler be set aside;
(iii)that the proceeding be dismissed; and
(iv)that the plaintiff Teo Huang Loh pay the first defendant’s costs, including reserved costs, of the proceeding.
I will hear the parties on the question of the costs of the hearing before Master Wheeler.
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