Maiga v Port Phillip Housing
[2017] VSC 441
•25 July 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 4347
| MOCTAR MAIGA | Plaintiff |
| v | |
| PORT PHILLIP HOUSING ASSOCIATION LIMITED | Defendant |
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JUDGE: | DIGBY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2017 |
DATE OF JUDGMENT: | 25 July 2017 |
CASE MAY BE CITED AS: | Maiga v Port Phillip Housing |
MEDIUM NEUTRAL CITATION: | [2017] VSC 441 |
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APPEAL – Requirement of leave to appeal from the Victorian Civil and Administrative Tribunal – Necessity to show question of law – General assertion of a denial of natural justice – General reference to Charter of Human Rights and Responsibilities Act 2006 – No question of law identified – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998, s 148.
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APPEARANCES: | Solicitors | |
| For the Plaintiff | Appeared in person | |
| For the Defendant | Mr B Lloyd | Russell Kennedy |
HIS HONOUR:
Relief sought
In this matter Moctar Maiga (the plaintiff) makes application by Originating Motion dated 24 October 2016, and Summons on Originating Motion dated 7 November 2016, seeking:
(a) leave to appeal the decision of Senior Member Moraitis (the Senior Member) of 4 October 2016 at the Victorian Civil and Administrate Tribunal (VCAT);
(b) to have the Senior Member's orders of 4 October 2016 dismissed or quashed;
(c) to have certain breaches of the plaintiff’s, and his family’s, human rights addressed and remedied (being breaches it is said to be in respect of ss 7, 13, and 17 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter); and
(d) to have the plaintiff's position and right for public housing at the Department of Human Services re-established.
Background
By an amended proposed Notice of Appeal dated 20 January 2017, the plaintiff, if he is granted leave, foreshadows an appeal pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), against the judgment and orders of the Senior Member of 4 October 2016.
The Senior Member's orders of 4 October 2016 are as follows:
(a) the tenant must vacate the rented premises by 4 October 2016;
(b) 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 4 April 2017); and
(c) the tenant shall now pay the landlord rent owed of $3,288.30.
The evidence and other materials
At trial the parties relied on the following materials:
(a) Plaintiff:
(i) Originating Motion dated 24 October 2016;
(ii) Summons on Originating Motion dated 7 November 2016;
(iii) Affidavits, and exhibits thereto, affirmed 7 November 2016, 24 November 2016, 20 January 2017, 23 February 2017 and 27 April 2017;
(iv)Notice to the Victorian Equal Opportunity and Human Rights Commission filed 25 October 2016 in relation to matters under s 35 of the Charter;
(v) Notice to the Attorney-General filed 25 October 2016 in relation to matters under s 35 of the Charter;
(vi)Amended Proposed Notice of Appeal dated 20 January 2017;
(vii) Written Outline of Submissions and List of Authorities dated 27 April 2017;
(viii) Submissions dated 26 June 2017;
(ix) Documents contained within Court Books filed 12 May 2017 and 18 July 2017;
(b) Defendant:
(i) Affidavit of James Wray affirmed 20 March 2017;
(ii) Submissions dated 13 June 2017;
(iii) Court Book filed 30 June 2017.
Further, the evidence presented at trial included letters of 29 November 2016 from the Victorian Government Solicitor’s Office and 2 June 2017 from the Victorian Equal Opportunity and Human Rights Commission acknowledging and responding to the plaintiff's above Notices filed 25 October 2016 under s 35 of the Charter.
The Facts[1]
[1]These factual matters were largely unchallenged and were affirmed in the Affidavit of James Wray, 20 March 2017.
The plaintiff is a tenant of premises at 8 Strickland Street, Parkville (the Property).
The Property is a four-bedroomed townhouse in which the plaintiff resides.
Port Phillip Housing Association Limited (the defendant) is a not-for-profit provider of social housing in Victoria. The defendant is a registered housing association under the Housing Act 1983 (Vic), and the registered proprietor of the Property.
On about 10 September 2007, the plaintiff entered into a Tenancy Agreement with the defendant in respect of the Property and commenced residing in the Property with other members of his family. The plaintiff continues to be a tenant of the Property, although it appears that the other members of his family no longer live at the Property.
The plaintiff’s fixed term tenancy of the Property concluded on 10 September 2008 and the plaintiff has since then been holding over at the Property as a tenant-at-will.
Rent for the Property is calculated according to the Rental Rebate Manual, a document that is published by the Department of Health and Human Services. The rent, from time to time applicable to the Property referred to in the preceding paragraph, is significantly below market rent.
The rent payable by the plaintiff is calculated on the basis of the income of those adults living at the Property. In order to calculate the applicable rental for the Property, the defendant is entitled to and does, from time to time, seek details of the income of the adults who reside at the Property.
In 2016, the defendant sought the information referred to in the preceding paragraph in accordance with its annual rent review, however the plaintiff refused to provide such information.[2]
[2]Affidavit of James Wray, 20 March 2017, [13], [15] and [20]; Exhibits “JW-6”, “JW-8” and “JW-11”.
Accordingly, as stipulated in the Rental Rebate Manual, the plaintiff’s rent was calculated by the defendant at a larger portion of assessed market rental for the Property, namely 75 per cent.
The plaintiff was given notice of this increased rental, but continued to pay the rental amount that had been assessed for the previous year, namely 2015/2016. On the defendant's assertion this resulted in the plaintiff falling into rental arrears.
After a number of attempts by the defendant to obtain the information which it needed to undertake the usual rental review of the Property, the defendant issued a notice to the plaintiff to vacate the Property.
The defendant subsequently applied to VCAT for an order for possession.
In making the possession orders of 4 October 2016, VCAT considered the Notice to Vacate issued by the defendant, and the circumstances which had led to the plaintiff’s rental arrears.[3]
[3]Ibid Exhibit “JW-15”.
At the hearing before VCAT on 4 October 2016 the plaintiff did not persuade VCAT that he was not in arrears. Further, at that hearing it would appear from the transcript[4] that the plaintiff did not make any objection in relation to the Senior Member’s jurisdiction to deal with the defendant’s application, nor did he raise, in terms, the issues the plaintiff raises in this proceeding concerning the Charter.
[4]Ibid.
The plaintiff’s case at trial
I accept the defendant's submission that although the plaintiff's documents in this proceeding are unclear, it is however clear enough that the nature of this proceeding is an appeal from a decision at VCAT made on 4 October 2016 and that the application is one which is for leave initially, and then if leave be granted, to prosecute an appeal, under s 148 of the VCAT Act.[5]
[5]Plaintiff's Amended Proposed Notice of Appeal, 20 January 2017; Plaintiff’s Originating Motion also seeks to rely on ss 97, 98 and 102 of the VCAT Act.
Although the plaintiff also seeks relief in the nature of certiorari, directly and indirectly in the materials put forward by him, the plaintiff makes no application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 and VCAT is not named as a party in this proceeding, contrary to the requirements of Order 56.
The plaintiff also complained in this appeal that the Senior Member had not afforded him, and members of his family, certain “rights” pursuant to ss 7, 13 and 17 of the Charter.[6]
[6]Reasons for judgment, 29 July 2017, [57].
In substance however, the plaintiff makes his current application pursuant to s 148 of the VCAT Act.
Before dealing with the plaintiff’s application for leave under s 148 of the VCAT Act I note that by open letter of 7 February 2017,[7] the defendant offered to resolve this proceeding on terms which included that it would:
[7]Affidavit of James Wray, 20 March 2017, Exhibit “JW-22”.
(a) consent to the VCAT order for possession being set aside, with no adjudication of the merits;
(b) facilitate the withdrawal and/or cancellation of the Warrant which had been issued in respect of the Property on the basis of the order for possession dated 4 October 2016 at VCAT;
(c) record that the plaintiff was paying rental arrears and that the landlord had agreed not to enforce the Warrant that it had obtained;
(d) not seek the costs of the process which had been commenced by the defendant in relation to the Property, or the defendant’s costs of the plaintiff’s appeal, which were, at that stage, on foot; and
(e) further acknowledge that arrears of rental were no longer accruing in relation to the plaintiff's tenancy of the Property.
At the commencement of this application for leave by the plaintiff, there was extensive discussion about the proposals put by the defendant by its solicitor’s letter of 7 February 2017, and in relation to related matters.
A party may not appeal a decision of VCAT unless leave is granted to do so pursuant to s 148 of that Act. Furthermore, s 148 does not confer a general appellate function on the Court, and confines a relevant appeal to a question of law.
Here, the leave sought by the plaintiff to prosecute an appeal in relation to VCAT’s decision of 4 October 2016 calls into consideration the abovementioned strictures of an appeal under s 148 of the VCAT Act. Further, the decision as to whether to grant leave to the plaintiff to appeal the Senior Member’s orders of 4 October 2016 is a discretionary one.
In Secretary to the Department of Premier and Cabinet v Hulls[8] the Court of Appeal of this Court made the following relevant observations in relation to s 148 of the VCAT Act:
[8][1999] 3 VR 331.
(a) the decision whether leave to appeal should be granted must always depend on the justice of the case (and that means justice to all the parties, not just the plaintiff);
(b) although the discretion to grant leave cannot be fettered by judicial decision, it is possible to lay down guidelines concerning the exercise of that discretion;
(c) those guidelines may be summarised as follows:
(iv)the plaintiff must identify a question of law which is relevant to the granting of the relief sought on appeal;
(v) the importance of the question of law (either generally or specifically to the would be plaintiff) may be a relevant consideration in the exercise of the discretion;
(vi)the plaintiff need not show that VCAT erred (that is for the hearing of the appeal itself), rather the plaintiff must show there is a real or significant argument to be put on that question of law to justify the granting of leave;
(vii) it must be shown that to allow the error to go uncorrected would impose substantial injustice.
(d) the onus lies upon the plaintiff to identify the question of law arising out of VCAT’s decision.
Considerations
In this matter the plaintiff, in my view, has failed to identify any cogent, recognisable or arguable question of law, nor are the suggested questions of law referred to in the plaintiff’s draft Notice of Appeal substantiated on the evidence relied upon, or indeed even arguable.
The only argument which approaches a possible potential question of law referred to by the plaintiff is in respect of the non-conformity of the defendant's rent increase notice letter of 3 May 2016,[9] with the requirements of the Residential Tenancies Act 1997 (the RTA), including the apparent failure of that letter of 3 May 2016 to afford the plaintiff the 60-day period of time for a rental change, as stipulated in the RTA, and to specify one or all of the matters referred to in paragraph C on page 115 of the plaintiff's Court Book.
[9]Plaintiff’s CB76.
However, these potentially arguable deficiencies in the defendant’s rent increase notice of 3 May 2016 were not relied on by the plaintiff, or in any way argued, before the Senior Member at VCAT.
Further, in my view, such potential issues as to the validity of the said rent increase notice, had they been raised, would in any event have probably been in the nature of matters relating to questions of fact which the Senior Member was entitled to determine, rather than question of law.
I also consider, for the reasons referred to[10] that, in the exercise of my discretion, the possible potential issues of deficiencies with the defendant’s rental increase notice of 3 May 2016 do not, at all events justify the grant of leave in this matter.
[10]Refer: Paragraphs [24], [60] and [61] of these reasons for judgment.
Further, I make the observation that the grant of leave to appeal in respect of the plaintiff's suggested grounds in his Amended Notice of Appeal, including as adumbrated in oral argument by the plaintiff, would work an injustice to the defendant. This is because, notwithstanding the plaintiff’s efforts in argument to explain the points that are said to be raised in his Amended Grounds of Appeal, the defendant, in my view, could not reasonably be expected to know with a sufficient degree of precision, in what respects the plaintiff asserted that the VCAT decision under review was criticised, and exactly what errors of law were identified and relied upon by the plaintiff.
Furthermore, in my view, the plaintiff put forward no cogent argument that VCAT did not have jurisdiction to make the possession order it did in the residential tenancy matter before the Senior Member on 4 October 2016.
The statutory authority which provides the basis for granting of the orders made at VCAT on 4 October 2016, is set out in s 330 of the RTA. The terms of that section are as follows:
330 Order of 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
(b)in the case of an application where a notice of intention to vacate has been given by a tenant, resident or site tenant, that the landlord, rooming house owner, caravan park owner, caravan owner or site owner acted reasonably by relying on the notice of intention to vacate; 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; and
(e)that any resident who is entitled to a period of notice under section 289A has been given the required notice.
(2)If an application for a possession order is made under section 322(3), 323(b), 323A, 324(3) or 324A(2)—
(a)the application must be heard within 14 days after the application is made; and
(b)the possession order must be made within 7 days of that hearing.
The plaintiff does not rely upon any specific material or argument to support his general contention that VCAT was not the correct Tribunal to make an order for possession as the Senior Member did on 4 October 2016. Nor did the plaintiff point to any basis upon which he contended that in the matter before VCAT the requirements of s 330 of the RTA were not established.
In my view, the Senior Member was entitled on the evidence before her to find the facts and reach the conclusion that she did, including that the defendant was the relevant landlord, the plaintiff was the relevant tenant, and that a notice to vacate had been given by the defendant to the plaintiff and was effectual. Accordingly, in my view, the jurisdiction and relevant power of the Tribunal, including pursuant to s 330 of the RTA has not been impugned by the plaintiff in this appeal in even an arguable, and certainly not a substantive way, on the plaintiff's application.
As observed in the defendant's submissions, VCAT ultimately made a number of factual findings, all of which were in my view open to the Senior Member, upon which the possession order was made, including findings that:[11]
[11]Affidavit of James Wray, 20 March 2017, Exhibit “JW-14”.
(a) the defendant was the landlord;
(b) the plaintiff was the tenant;
(c) the landlord had given the tenant notice to vacate and the defendant owed at least 14 days rent;
(d) the notice to vacate had been provided to the plaintiff;
(e) the tenant was still in possession of the premises; and
(f) the tenant did not comply with the requirements of the tenancy to provide the revised rent or provide the information required to allow the defendant to revise the rent based on adult household occupation.[12]
[12]Ibid [13], [15] and [20]; Exhibits “JW-6”, “JW-8” and “JW-11”.
Furthermore, the plaintiff has not identified in any specific, cogent or persuasive way, how he says there was a denial of natural justice in the proceeding before VCAT. In my view, the transcript to which I have earlier referred, does not disclose that the plaintiff was denied a fair hearing or procedural fairness in any respect.
In respect of the plaintiff's assertions in relation to the Charter, in my view the proposed Notice of Appeal and Originating Motion, informed by the submissions made by the plaintiff at trial, do not particularise or detail in any specific, cogent or persuasive way, how there might be a breach of ss 13, 17 or 38 of the Charter, or indeed any other relevant section of that Act.
Further, as I have already emphasised, a perusal of the transcript of the hearing before the Senior Member on 4 October 2016 discloses that the plaintiff did not raise the question of his, or his children’s, deprival of human rights or any Charter related complaints.
The plaintiff's contention that there was a failure on the part of the defendant or the Senior Member at VCAT to consider his human rights is, in my view, unspecified, unsupported and not persuasive.
I find that the plaintiff has failed to indicate how it might be established that any relevant personal or property rights enjoyed by him or his family were ignored or treated in a manner contrary to law, including by reference to the Charter, or how in any relevant way under the Charter, or otherwise, his reputation was unfairly attacked, or his privacy, or that of his family, was violated.
I also observe that the matters he raises relating to his reputation and that of his children which the plaintiff contended were breaches of his privacy and that of his children, and the proposed steps and actions to which the plaintiff referred, by which he seeks protection of what he asserts are his family’s rights, do not constitute issues which can be addressed by this Court, or in respect of which this Court could grant relief, and certainly not on the plaintiff’s present application.
The matters in issue in this proceeding relate to the orders which were made by the Senior Member at VCAT on 4 October 2016. It is those orders which are sought to be set aside and in respect of which leave to proceed to do so is sought. However, the plaintiff's Notice of Appeal seeks the following relief:
(a) to have the breach of the plaintiff's human rights lawfully addressed and remedied by the court;
(b) to have the order made by VCAT on 4 October 2016 quashed or dismissed by certiorari on the grounds of breach of natural justice or error of law on the face of the record;
(c) an order directing the defendant to have the plaintiff's priority position right for public housing re-established; and
(d) to have a declaration as to the right of the plaintiff as a tenant.
Many of the above remedies sought by the plaintiff are not available to him. For example, as earlier noted, certiorari is not available under the process instigated by the plaintiff pursuant to s 148 of the VCAT Act. Put another way, it is clear that given the formal basis upon which the plaintiff has sought to bring his proposed challenge to the Senior Member’s orders of 4 October 2016, namely pursuant to s 148 of the VCAT Act, relief in the form of a prerogative writ is not available in this proceeding.
Further, the plaintiff’s desire to dismiss the order of 4 October 2016 appears to be an unnecessary pursuit because the defendant has previously indicated, in the letter of 7 February 2017 and in other communications, and indeed stated at the outset of the plaintiff’s appeal before me, that it does not intend to enforce the order and warrant for possession. The defendant has proposed to have such an order set aside by consent. The defendant has also proposed as part of the resolution of the plaintiff’s current proceeding to give undertakings in relation to the order for possession and in relation to the warrant which has been issued on the basis of that order.
Additionally, the defendant submits, in relation to the plaintiff’s assertion that he should be afforded a priority place for public housing, that the defendant plays no part in assigning priority to persons on the public housing waiting list other than to provide housing to people who might otherwise be eligible for public housing. The defendant's submission includes that the plaintiff is currently housed and so would not be eligible to be on the public housing list. The defendant submits that the Director of Public Housing (the Director) relevantly manages public housing, and the defendant points out that the Director is not a party to this appeal, nor was the Director a party to the VCAT proceeding from which this appeal arises.
Accordingly, the defendant submits that no relief is available in relation to the plaintiff’s desire to receive “priority” for public housing, and therefore it is futile for this form of relief to be pursued by the plaintiff.
I accept the defendant’s submissions in this matter, including those outlined in the last two preceding paragraphs. Further, in my view, making a declaration as to the rights of the plaintiff as a tenant would also be a futile remedy substantially because it is not in dispute that the plaintiff was and continues to be a tenant at the Property.
Conclusions
Accordingly, I am not persuaded that the plaintiff has identified any question of law which would found the granting of the specific relief which is sought in this appeal. Nor am I satisfied that there is any real or significant argument available to the plaintiff on any question of law sufficient to justify a grant of leave to appeal pursuant to s 148 of the VCAT Act.
Further, I am not persuaded that, even were there to be an arguable error of law as sought to be identified by the plaintiff, any substantial injustice would arise, or be likely to arise, in this case. This is because of the position adopted by the defendant to which I have referred.[13]
[13]Refer: Paragraphs [24], [60] and [61] of these reasons for judgment.
Further, the plaintiff did not seek to argue before the Senior Member at VCAT that VCAT lacked jurisdiction, either generally or on the basis that the defendant's rent increase letter of 3 May 2016[14] was not compliant with requirements, including the requirements of the RTA. Nor did the plaintiff seek to argue before VCAT that the rent increase letter of 3 May 2016 failed to afford the plaintiff 60 days’ notice of increase of rent as required by the RTA, or that that letter was wanting or non-compliant in any other respect.
[14]Plaintiff’s CB76 and following.
The plaintiff has also made it clear enough in his oral submissions on appeal that he is not seeking to mount his arguments on the basis of issues concerning either the rate of rental being sought by the defendant, or rental arrears.
Similarly, in the plaintiff's affidavit filed in his appeal[15] he makes it clear in general terms that rental increase was a matter which, perhaps tactically, he did not press at VCAT and considered it might be better deferred to be dealt with by an arbitrator.
[15]Plaintiff’s CB113, [7]; CB114, [12]; CB115, [E].
The issues which the plaintiff has sought to elaborate on his appeal, have been principally in relation to the more general concerns, disappointments and frustrations he and his family have suffered in relation to what has been in effect the dislocation of his children, what he says is the violation of the sanctity of his home, the degradation of his reputation, the breaches of his privacy and the privacy of his children, and other asserted contraventions of his and his children's human rights.
Finally, I observe that the plaintiff did not seek to identify any specific finding or conclusion reached by the Senior Member which the plaintiff contended was not evidence based.
I am therefore unpersuaded that the plaintiff has identified any real or significant argument to support his assertion that he was not afforded natural justice by the Senior Member, or that he has identified any real or significant argument as to a potential error of law below, including in relation to the Charter.
Apart from the identified considerations which primarily found my decision not to exercise my discretion in favour of granting the plaintiff leave to appeal in this matter, I also note the following additional factors, namely that:
(a) since at least 7 February 2017, the defendant has proposed to the plaintiff to set aside the order for possession at the core of the plaintiff's appeal;
(b) from that same time the defendant also offered, and continues to offer, to facilitate the cancelling of the warrant for possession issued on or soon after 4 October 2016;
(c) the defendant has offered to record and have the Court formally note that the plaintiff was paying rent as required;
(d) the defendant acknowledged that the plaintiff was and, since 7 February 2017, has been paying rent and that there are no accruing arrears of rent;
(e) from 7 February 2017, the defendant has communicated in open proposals not to seek costs in this proceeding. Furthermore, at the outset of the plaintiff's application today, the defendant restated that even as at today, the defendant would not be seeking to recover its costs if the defendant's proposals to which I have made reference were taken up by the plaintiff.
I consider that these factors demonstrate the defendant’s reasonable approach to a number of key aspects of the plaintiff’s complaint and claims and indicate that notwithstanding the plaintiff’s complaints, no substantial injustice will arise in the event leave to appeal is not granted.
In that respect, I also note that in its submissions at the hearing today, the defendant indicated that not only would suitable accommodation be found for the plaintiff, but also that suitable accommodation would include suitability in terms of that accommodation being at least equal to or better than the plaintiff's present accommodation, and that accommodation would also be located in the area in which the Property is located.
Decision
For the above reasons the plaintiff has failed to establish that he can identify any real or significant argument as to any error of law by the Senior Member at VCAT and accordingly I shall dismiss the plaintiff’s application for leave to appeal under s 148 of the VCAT Act in this matter.
Orders
Accordingly I order that:
1.Leave to appeal be dismissed.
2.The plaintiff’s Originating Motion filed 25 October 2016 and Summons filed 7 November 2016 respectively, are otherwise dismissed.
3.There be no order as to costs.
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