Mendes v Baptcare Ltd
[2019] VSC 790
•10 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04274
| HELENO MENDES | Plaintiff |
| v | |
| BAPTCARE LTD (ACN 069 130 463) | Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2019 |
DATE OF JUDGMENT: | 10 December 2019 |
CASE MAY BE CITED AS: | Mendes v Baptcare Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 790 |
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ADMNISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Whether to grant extension of time to bring appeal – Whether Tribunal overlooked documents and evidence – Whether failure to accord natural justice – Leave to Appeal refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 148(2), 148(5), 148(2A).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the Defendant | Mr J Manning | Russell Kennedy |
HER HONOUR:
Mr Mendes has been seeking asylum in Australia. He was granted a bridging visa in 2012 while his application was processed. Since 2012 he has been provided with accommodation by Baptcare Ltd (‘Baptcare’) through a program called ‘Sanctuary’ which gives ‘transitional supported accommodation to asylum seekers at risk of homelessness.’[1] In 2018 Baptcare requested current evidence that Mr Mendes remained elilgible for the accommodation. It said the evidence provided was not satisfactory.
[1]Plaintiff’s Exhibit A, Court Book (26 November 2019) (‘Court Book’) 79.
In December 2018 Baptcare issued a Notice to Vacate pursuant to s 288 of the Residential Tenancies Act1997 (Vic) (‘Residential Tenancies Act’). When Mr Mendes did not vacate, Baptcare then applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a possession order. After a contested hearing at VCAT, at which Mr Mendes was self-represented, a possession order was made on 16 July 2019. Mr Mendes has sought leave to appeal the possession order to this Court pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
Baptcare’s Notice to Vacate relied on s 288 of the Residential Tenancies Act which provides:
(1)A rooming house owner may give a resident a notice to vacate the room occupied by the resident without specifying a reason for giving the notice.
Mr Mendes disputed the notice saying that it was a retaliatory response to the exercise of his rights as a resident under the Act. If successful this argument meant that s 289 of the Act applied and the Notice was of no effect. Mr Mendes’ argument was not accepted by the Tribunal.
The background to the Notice to Vacate
I will outline some of the context in which the dispute arose. Historically Mr Mendes had a ‘highly acrimonious’[2] falling out with a former manager at Baptcare. His contention was that the tenancy workers with whom he was dealing in 2018 were targeting him specifically under the manager’s instructions because he was critical of aspects of the tenancy conditions. At a tenancy review in 2018 the tenancy workers asked for evidence of continued eligibility for accommodation under the Sanctuary program. Mr Mendes provided the 2012 letter granting him a bridging visa. Baptcare said this did not show his current status and asked for current evidence. There were conflicting understandings by Mr Mendes and Baptcare as to whether the review was concluded or not. However, no further document was provided by Mr Mendes. What Mr Mendes needed to show for eligibility was that he had unresolved legal proceedings or was awaiting the outcome of a ministerial application made after exhausting the legal process relating to his asylum application.[3]
[2]Heleno Mendes, ‘Submissions’, Submission in Heleno Mendes v Baptcare Ltd dated 7 November 2019 (‘Submissions dated 7 November 2019’) [2].
[3]Court Book (n 1) ‘Affidavit of Peter Andrews’, dated 8 November 2019 (‘Andrews Affidavit’) [4].
On 14 December 2016 the High Court had rejected his special leave application in relation to his asylum claim. From December 2016 Mr Mendes had not provided any document that demonstrated he had an outstanding appeal step or had made an application to the Minister. The Baptcare case notes showed that Mr Mendes’ visa expired in January 2017, although Mr Mendes questioned the validity of the letter informing him of this.
Following the tenancy review, many letters were exchanged and at least one meeting convened through November and December 2018 regarding the accommodation. This culminated in a letter dated 27 December 2018 and accompanying Notice to Vacate. Baptcare wrote that it was not satisfied on the evidence that had been provided that Mr Mendes continued to be eligible for accommodation through the Sanctuary program.
The VCAT hearing for a possession order was originally adjourned to allow Mr Mendes to produce some current evidence of his visa status to confirm continuing eligibility. Mr Mendes then provided a letter dated 19 June 2019 that he sent to the High Court asserting that he has not been validly informed of the outcome. The reason for this he said was because the letter sent to him referred to ‘Madam’ and that he did not know who the Court was referring to. As a result he was of the view that he had not exhausted his appeal process. He provided this letter to Baptcare who replied by letter saying:
“We have concluded that this letter does not constitute strong enough evidence that your claim for asylum is still in process. It appears to Baptcare that your application to the High Court challenging the decision of the Full Court of the Federal Court has been unsuccessful. The letter you received notifying you of this contained a clerical error addressing you as ‘Madam’, however, despite this, the letter was addressed to you and made reference to your case. The fact that there has been no further movement since December 15 2016, further indicates that the court views that matter as concluded.
In order to provide evidence that you are still pursuing legal avenues available to you, Baptcare needs to see a letter from an Australian court, Department of Home Affairs or legal representative indicating this.
If you have come to the end of your legal avenues for seeking asylum within Australia, we would suggest that you contact the case manager John to see what help he can offer.”[4]
[4]Court Book (n 1) 145.
At the hearing on 16 July 2019 Mr Mendes gave sworn evidence, telling the Tribunal:
“Now, he’s (the tenancy worker) seeking repossession of the room without reason, and I say very clearly and categorically that its retaliatory, ….And the reason why is because I have exercised all my rights under the Residential Tenancy Act 1997. I have expressed a concern about the security, the safety and security of the premises…this is nothing to do with immigration issue, but I was really happy to cooperate. I’m providing with the document on 19 June this year.”[5]
[5]Court Book (n 1) Transcript of Proceedings, Heleno Mendes v Baptcare (Victorian Civil and Administrative Tribunal, R2019/18018, Member B. Cremean, 16 July 2019) (‘VCAT Transcript’) 2.
In reply, Baptcare’s representative said:
“…the criteria for the housing that we provide is that it’s specifically for asylum seekers….One of the criteria’s [sic] is that the resident needs to be engaged in the lawful process of seeking asylum.”[6]
[6]Ibid, 3 (Mr Andrews).
The landlord is entitled to give a Notice to Vacate without giving any reason under s 288. However, it did in fact give a reason. Its explanation to Mr Mendes in a letter of 27 December 2018 and in a meeting with him on the following day, explained that the reason he was required to move out was that he had not shown that he still met the eligibility requirements. The tenancy worker gave sworn evidence to the Tribunal as to these matters. This evidence was given to demonstrate that its action was not retaliatory. It was not given to establish the accuracy or otherwise of Mr Mendes’ immigration status. Baptcare remained at all times willing to provide continued accommodation to Mr Mendes if he provided satisfactory evidence of ongoing eligibility for the program. It repeated this position to this Court at directions before the Judicial Registrar.
Mr Mendes now seeks leave to appeal the 16 July Orders. His application is out of time and he also requires an extension of time within which to commence this proceeding.
The questions of law identified by the proposed appeal are:
(a) The Tribunal overlooked documents and evidence about incidents at the premises raised by the tenant which supported his argument that the Notice was retaliatory and as such the hearing lacked validity.
(b) The Tribunal did not give him a fair hearing as it was biased or there was a perception of bias.
(c) The Tribunal did not give adequate reasons as it did not provide written reasons when requested to do so.
(d) The Tribunal wrongly decided that the Notice to Vacate was received by Mr Mendes when he asserted he had not received the registered mail.
This description of the appeal grounds follows the discussion with Mr Mendes during the hearing. His written grounds as filed referred to these issues but also included grounds that amounted to a review of the merit of the Tribunal’s decision.
Extension of time
An applicant has 28 days within which to bring an appeal[7]. The proceeding was commenced 65 days after the orders on 19 September 2019. The original notice of appeal simply identified ‘misleading advice’ as the reason for the delay.[8] The applicant’s affidavit as to the reasons for the delay made reference to the fact that he was advised on 17 September 2019 that a warrant had been issued.[9] As Mr Mendes elaborated from the bar table, he had attended VCAT a number of times after the hearing and been given some (unspecified) advice. He understood that he should inquire at VCAT whether a warrant had been issued. He did this until learning that a warrant had been issued at which time he lodged his appeal.
[7]VCAT Act s 148(2).
[8]’Misleading advice’ was not identified as the reason for the delay in the Amended Notice of Appeal, which stated ‘No warrant was issued, until 5 September 2019. And I was advised by the servant of the rooming house owner on 17 September 2019’.
[9]Court Book (n 1) ‘Affidavit of Heleno Mendes’, dated 26 September 2019 [5].
Baptcare’s submissions opposed the extension of time, largely on the basis that insufficient explanation had been proffered. It did however recognise that, as a self-represented litigant time limits might not be apparent. Although the Tribunal Member told Mr Mendes he had a right of appeal,[10] none of the documents described any time limits. The respondent does not assert any prejudice as a result of the delay. In those circumstances, notwithstanding the inadequate articulation of the reason in the affidavit, I am satisfied that Mr Mendes did not appreciate the need to appeal until such time as the warrant was issued. I grant the extension of time pursuant to s 148(5) of the VCAT Act.
[10]VCAT Transcript (n 5) 10.
Leave to appeal
The appellant requires leave to appeal the Tribunal’s orders. Pursuant to section 148(1), appeals are restricted to ‘a question of law’.
The Amended Grounds included the assertion that the behaviour of the landlord was retaliatory. This ground clearly amounts to an effort to review the merit of the dispute adjudicated by the Tribunal. It is not a question of law. However, issues of bias, failure to take account of relevant matters put before the Tribunal and adequacy of reasons as raised by Mr Mendes’ Amended Notice of Appeal are questions of law. On those questions of law, the test for leave to appeal is whether Mr Mendes has a ‘real prospect of success’.[11]
[11]VCAT Act s 148 (2A).
The test was explained in Kennedy v Shire of Campaspe:
Attention must be focussed on the words ‘real prospect of success’ used by the statute. Bearing that in mind, those words should be construed consistently with this Court’s interpretation of s 63 of the Civil Procedure Act. That is, the Court may only grant leave where the appeal has a ‘real’ as opposed to a ‘fanciful’ chance of success. This also accords with the interpretation given to the same words in the UK Civil Procedure Rules relating to appeals.
Naturally, there will be some cases where prospects of the appeal are strong, others where the prospects are weaker but it cannot be said that they are fanciful, and others where the prospects are fanciful. For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two. Nor is it useful to devise other categories using terminology deployed in other situations.[12]
[12]Kennedy v Shire of Campaspe [2015] VSCA 47 [12] – [14] (Whelan JA and Ferguson JA).
Ground 1: Did the Tribunal overlook documents or other evidence?
The respondent contended that this ground was directed at the weight given by the Tribunal to the evidence Mr Mendes relied on rather than to ‘overlooking’ it as Mr Mendes submitted. The weight given by a decision maker to evidence is not a question of law but goes to rearguing the merit of the application. In hearing I asked Mr Mendes to identify the documents or evidence that he put before the Tribunal that he says were overlooked. He did not identify anything specific to me but referred to many things which he said “underlied his argument”.
Before the Tribunal he said “I have expressed a concern about the security, the safety and security of the premises. And also I voice my concern and complain about the sanitary condition including insect infestation”.[13] Later Mr Mendes said “So, what you {referring to Baptcare} are doing is exactly retaliatory and I have the document to prove that”.[14]
[13]VCAT Transcript (n 5) 2.
[14]Ibid 6.
On each occasion that Mr Mendes referred to documents in support of his case, Mr Mendes was asked if he wanted the Tribunal to look at any particular documents and to make comment about them. Mr Mendes referred to a report sent to N Bell at Baptcare. He said it underscored his argument about the retaliatory nature of Baptcare’s action. He also produced an intervention order obtained on his application from the Melbourne Magistrates’ Court dated 31 October 2018 against another resident of the rooming house.
In this proceeding he affirmed a detailed affidavit on 22 November 2019 which detailed the specifics of his concerns about various matters relating to the premises dating between August 2017 and 31 October 2018 and about matters related to the December 2018 tenancy review.
I can identify no piece of evidence that was placed before the Tribunal which was ‘overlooked’ giving rise to a legal error. The Tribunal received and sought comment on those documents that Mr Mendes placed before it. It is clear from the detailed way in which Mr Mendes sets out the series of altercations over time for the purpose of this proceeding that he was directing his complaint in this respect to what is really a merits review. This is consistent with how he initially framed his complaint: a ‘failure to properly consider and evaluate the evidence that supports the argument that the notice….was not retaliatory.’
The Tribunal had the sworn evidence of Mr Mendes and the documents he produced. He argued that this demonstrated that Baptcare issued the Notice for a reason that made it ineffective. The Tribunal also had sworn evidence from the Baptcare tenancy worker who represented Baptcare at the hearing who said that the Notice was issued because Mr Mendes could not demonstrate eligibility for ongoing residential assistance. The Tribunal was required to and did determine this evidentiary conflict on consideration of the material placed before it by both parties.
It is clear from the transcript that Mr Mendes also disputed that he had exhausted his legal avenues. He said that he was entitled to appeal the 2016 refusal of special leave.[15] There was evidence from both Mr Mendes and the tenancy worker that conflict existing during the tenancy review that immediately preceded the Notice to Vacate was a dispute about eligibility and not about housing conditions. The Tribunal was entitled to act on that evidence.
[15]VCAT Transcript (n 5) 8.
In my view this ground has no realistic prospect of success.
Ground 2: Did the Tribunal act in a way that was biased or where bias might be perceived?
No complaint of bias or apprehended bias was raised with the Tribunal. No application was made that the Tribunal Member should disqualify herself. The applicant’s submissions of 22 November 2019 outline an interaction between the Baptcare representative and the VCAT Registrar prior to the commencement of the hearing. Mr Mendes alleges that the Registrar asked the Baptcare representative if Mr Mendes had given Baptcare a document and that Baptcare’s response was incorrect. This interchange was said to be unreasonable and to ‘suggest collusion’. The tenancy worker who attended the hearing deposed that the only interactions he had with the Registrar prior to the hearing was to advise his name and that he represented Baptcare.
There was no submission that the suggested collusion involved the Tribunal Member, only that it was between the Registrar and landlord. At its highest, accepting that the Registrar did ask one party whether a document had been received, there is nothing in that act that could point to an actual or perceived bias by the decision maker in the conduct of the hearing.
Mr Mendes also made the submission that the conduct of the hearing was ‘wildly unorthodox’ and contravened natural justice which required it to be impartial and unbiased[16]. Apart from the assertion that the Tribunal Member was biased because she ‘overlooked evidence’ no other allegation of bias was made against her. The submissions make assertions about the hearing process but do not provide examples of ways in which the hearing was unfair or in contravention of natural justice principles.
[16]Heleno Mendes, ‘Submissions’, Submission in Heleno Mendes v Baptcare Ltd, dated 22 November 2019 [18].
The Tribunal is required to ensure a fair hearing for the parties whose rights and obligations it is adjudicating. In Doughty – Cowell (Victoria Police) v Kyriazis, the Court of Appeal made a number of points about how this fundamental obligation is carried out in practice:
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include [list of matters follows but omitted here].
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of the unrepresented person to formulate, and articulate, the case they wished to present.[17]
[17]Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216 [63].
The transcript shows that this is precisely the manner in which the hearing was conducted. The Tribunal Member:
(a) Understood Mr Mendes was arguing that the Notice to Vacate was retaliatory and therefore invalid.[18]
[18]VCAT Transcript (n 5) 2.
(b) Understood Mr Mendes’ argument that his letter to the High Court dated 19 June 2019 was sufficient proof that his asylum claim was not yet finalised and that he was therefore eligible for the Sanctuary program.[19]
(c) Explained to Mr Mendes that Baptcare did not accept the letter was adequate proof[20] and invited him to respond to that evidence and submission.
(d) Asked Mr Mendes if he had further documents he wished to rely on or any further comments he wished to make to support his argument that Baptcare had retaliated because tenancy concerns were raised.[21]
[19]Ibid 3, 8.
[20]VCAT Transcript (n 5) 5.
[21]Ibid 6, 7.
The transcript also shows that the Tribunal was aware that an adjournment had previously been granted by her to allow Mr Mendes an opportunity to provide further information about his visa status. This adjournment caused the production of the letter to the High Court. The hearing was conducted with adequate opportunity to both parties to outline their case, present those documents they wanted the Tribunal to consider, and to comment on the submissions of their opponent. The Tribunal Member was well cognisant of the obligation to ensure that Mr Mendes as a self-represented litigant understood the issues and had an opportunity to present his evidence and speak to it.
A party dissatisfied with the outcome of a hearing may subjectively feel that because his or her argument or evidence was not accepted, it was not properly considered. However, the Tribunal Member conducted the hearing in such a way as to make clear that she understood the different arguments of the parties on the issues raised and she accorded Mr Mendes ample opportunity to present his case and advance his arguments. I am not satisfied that an appeal based on either an apprehension of bias or of actual bias or of some other failure to accord natural justice in the conduct of the hearing have a realistic prospect of success.
Adequacy of Reasons
On the day after the Orders were made Mr Mendes sought written reasons. His request erroneously relied on s 45 of the VCAT Act which had no application to his situation. His request was based upon s 117(2) as the Tribunal had given oral reasons. By s 117(3) the Tribunal must comply with the request within 45 days after receipt. He was informed that his request for written reasons was refused by an emailed letter dated 22 October 2019, outside the 45 day period.
Although no reasons were given for the refusal, clause 76 of Schedule 1 of the VCAT Act provides that the Tribunal is not obliged to give written reasons in a proceeding under the Residential Tenancies Act unless the request was made before or at the time of notification of the Tribunal’s decision.
First, Mr Mendes complains that the refusal to provide written reasons amounts to a failure to observe natural justice.[22] In circumstances where the request for written reasons was made after the giving of the Tribunal’s decision and not at the time or before, no obligation to provide written reasons arises. There can therefore be no failure to accord procedural fairness by the refusal.
[22]Amended Notice of Appeal, dated 24 October 2019, (‘Amended Notice of Appeal’) [3(a)].
Mr Mendes’ written submissions only detailed his ’reasons’ ground of appeal as a denial of natural justice. The other way that the reasons ground was addressed in oral submissions by the respondent was whether or not the oral reasons that were given were inadequate.
The Tribunal’s oral reasons were as follows:
“The landlord has said that the reason given for the notice was that you didn’t fulfil the required criteria that is specified by Baptcare in relation to your tenancy. Now, sir you’ve said that that’s not the case, that it was given in response, in effect it was retaliatory, that it’s given in response to you having exercised your rights as a tenant under the legislation. I’m not satisfied you’ve proven that matter. I’m not satisfied that it’s been established on the balance of probabilities that the notice was given in response to the exercise or perceived exercise of the right under the legislation. There may have been issues in relation to your status as to whether you are an asylum seeker …but the reality is that the landlord’s entitled to serve a notice for no specified reasons provided it is not retaliatory. And I’m not satisfied on the evidence that it in fact is retaliatory.”
The case was conducted on the basis of two competing reasons for the Notice to Vacate. Baptcare accepted that at times Mr Mendes raised issues of concern with the landlord. Its representative gave evidence that Baptcare reacted “like we would react to anyone who raises a concern”.[23] Mr Mendes accepted that there was a request for proof of his continuing visa status. He disputed the fact that he had not complied with the request and disputed that he had exhausted his legal options. He described the landlord’s reliance on these matters as “a subterfuge”.[24]
[23]VCAT Transcript (n 5) 4 – 5.
[24]VCAT Transcript (n 5) 8.
Although he is unhappy with the outcome, Mr Mendes could clearly understand from the reasons given, why the Tribunal decided the case against his interests.
The Notice to Vacate
Mr Mendes raised as a ground of appeal that he did not receive the 120 day Notice to Vacate.[25] This was also asserted in the submissions dated 7 November 2019[26] where Mr Mendes submitted that the Tribunal Member “expressed doubts about the validity of Baptcare’s application 120 days’ notice to vacate without specified reason”[27]. In his further submissions dated 22 November 2019 Mr Mendes described Australia Post as not having access to tenants’ doors and that post is delivered to the landlord for distribution to the tenants. He said he had no knowledge of receiving the registered post.
[25]Amended Notice of Appeal (n 21) [1].
[26]Submissions dated 7 November 2019 (n 2) [15].
[27]Ibid [12].
A letter dated 27 December 2018 was sent by registered post. The letter concluded:
With this letter please find a copy of the 14 day notice to vacate for rent arrears and a copy of the 120 day Notice to Vacate as a result of no longer meeting the eligibility criteria for Baptcare Sanctuary. These notices have also been sent by registered post.
The case notes exhibited to the Tribunal recorded a request by Mr Mendes for a meeting on 28 December 2018 to discuss his letter of 27 December 2018.[28] There was also a letter dated 31 December 2018 written by Mr Mendes that began “I am writing with reference to a meeting between you and me on Friday 28 December 2018 and concurrently responding to a letter of notice to vacate.” His letter concluded “Good luck with VCAT proceedings”.[29]
[28]Andrews Affidavit (n 3) Exhibit 12.
[29]Andrews Affidavit (n 3) Exhibit 13.
There is no requirement that a Notice to Vacate be served on an individual by registered mail, although this may be one method of proving service in accordance with s 506 Residential Tenancies Act. There was clear evidence before the Tribunal that the Notice had been received by Mr Mendes even if the registered post copy had not come to his attention. There was no error in the Tribunal’s finding that the notice was validly served.
For the reasons outlined above I am not persuaded that any of the Applicant’s grounds of appeal have a real prospect of success and I refuse leave to appeal.
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