Myers v Lim

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 01078

JOHN MYERS	Applicant
v
MENGLANG LIM	First Respondent
- and -
ARMIN HUSSEIN	Second Respondent

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2024
DATE OF JUDGMENT:	13 December 2024
CASE MAY BE CITED AS:	Myers v Lim & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 770

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RESIDENTIAL TENANCIES – First respondent owner of premises – Second respondent was tenant – Sub-letting between second respondent and applicant – Second respondent vacated premises and applicant thereafter claimed to be ‘renter’, not ‘occupant’ – Whether first respondent ‘consented’ – Proceedings variously commenced in the Victorian Civil and Administrative Tribunal (‘VCAT’) – Proceedings returned before VCAT – Orders made by VCAT member, particularly that the first respondent was ‘entitled to a possession order’ – Application for leave to appeal on questions of law – Restricted jurisdiction of the Court – Applicant applied for a stay of possession order – Stay refused – Applicant no longer in the premises – Applicant discontinued proceeding against first respondent – Stance adopted by applicant – Importance of context – Whether applicant’s statements and material are reliable – Extent to which any of the purported questions of law arise – Almost entirely questions of fact – Whether applicant materially denied natural justice – Whether real prospects of success demonstrated – Whether leave to appeal ought be granted – Futility – Whether proper exercise of judicial power – Victorian Civil andAdministrative Tribunal Act 1998 (Vic), s 148 – Residential Tenancies Act 1997 (Vic), ss 81, 82, 91R, 91S and 346 – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7, Roberts v Harkness (2018) 57 VR 334, Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, Chopra v Department of Education and Training [2019] VSC 488, Bashour v ANZ[2020] VSC 478, Anderson v Sharpe [2024] VSCA 166, considered – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent
For the Second Respondent	No appearance

HIS HONOUR:

A. Introduction

For several years, the applicant seems to have been an active litigant in the Victorian Civil and Administrative Tribunal (‘VCAT’). He has also had proceedings in the Supreme Court and Court of Appeal.[1]
[1]The applicant referred to aspects of his history of litigation in the course of oral argument. He said that he has had ’50 hearings at VCAT over the past five years’ and that he had to have hearings ‘continually’: Transcript (‘T’) 5 and 18. He referred particularly to a recent decision of VCAT, which he provided to the Court (Myers v Grimison (Residential Tenancies) [2024] VCAT 335 (‘Grimison’), as well as to recent proceedings heard by Gray J (Myers v Satheeskumar (Appeal from VCAT) [2023] VSC 747; Myers v Satheeskumar (Judicial Review) [2024] VSC 12). During the last year, the applicant appears to have had other proceedings in the Trial Division, as well as in the Court of Appeal: Myers v VCAT [2024] VSC 109, Myers v Victorian Civil and Administrative Tribunal [2024] VSC 412, Myers v Victorian Civil and Administrative Tribunal [2024] VSCA 206.

In the present instance, he seeks leave to appeal in respect of questions of law said to arise from two orders made by a member of VCAT on 6 March 2024.

That hearing related to residential premises at 5 Garnet Court, Hampton Park (‘Premises’).

There seems to be no dispute that –

(a) at all material times, the first respondent was the owner of the Premises; and

(b) pursuant to the terms of a ‘residential rental agreement’, the second respondent was a ‘renter’ until he vacated the Premises and returned the keys on 3 January 2024.[2]

[2]The terms ‘residential rental agreement’ and ‘renter’ are terms defined and used in the Residential Tenancies Act 1997 (Vic) (‘RT Act’).

In that connection, among other things, the applicant claims that –

(a) on 16 September 2023, he made an oral agreement with the second respondent pursuant to which he sub-let a room at the Premises;

(b) he made certain payments to the second respondent in respect of a ‘bond’ and utility charges;

(c) the ‘bond’ was not lodged with the Residential Tenancies Bond Authority;

(d) the second respondent ‘acknowledged … that the owner [first respondent] knew he [the second respondent] had sub-renters … and was cool with it’;[3]
[3]Court Book (‘CB’) 12 [3].

(e) upon the second respondent vacating the Premises, the applicant ‘officially became the renter of the property as per s 91R’ of the Residential Tenancies Act 1997 (Vic) (‘RT Act’);[4]

(f) the agent of the first respondent, LJ Hooker, had been ‘hostile’ and had refused to accept that he was a ‘renter’;[5] and

(g) certain notices to vacate were not valid (at least in respect of the applicant).

[4]CB 13 [8].

[5]CB 13 [10].

In that general context, at least the following applications were made to VCAT—

(a)on 3 January 2024, the applicant filed proceedings against the second respondent seeking orders in respect of a ‘written Residential Rental Agreement’, the ‘bond’, a refund of utility charges, notice to the owner that the second respondent ‘sublet a room to the applicant’ and a determination that consent to sublet the room was ‘not required’ (proceeding R2024/313);[6]
(b)on 30 January 2024, the first respondent filed an application against the second respondent and ‘all other occupants’ of the Premises claiming ‘possession – assignment or sub-letting without consent’ (proceeding R2024/3288);[7] and
(c)on 14 February 2024, the applicant filed a further proceeding against the first and second respondents seeking, among other things, the creation of a ‘new residential rental agreement as per either ss 91R, 91S’ [of the RT Act], a restraining order and the lodgement of the ‘bond’ with the Residential Tenancies Bond Authority (proceeding R2024/6344).[8]

[6]CB 27.

[7]CB 31.

[8]CB 37.

The first respondent’s claim for possession (proceeding R2024/3288) came before Member Curie on 23 February 2024.

The order made on that occasion records that the first respondent’s agent appeared, as did the second respondent (described in the order as ‘former renter’) and the applicant (described as ‘occupant’).[9]
[9]CB 42-43.

The order records the following findings and orders –

VCAT finds:
1.The premises have been rented premises under a residential rental agreement within the period of 12 months before the date of the application.
2.There are reasonable grounds for believing that the premises are occupied solely by a person (not being a renter under a residential rental agreement) who entered into or remained in occupation of the premises without licence or consent.
3.The applicant is a person who is entitled to possession of the premises.
4.Mr John Myers, occupant, appeared in the hearing and insisted he be given consent to record the proceeding. Although consent was not granted to Mr Myers to record the proceeding, Mr Myers was cautioned that his conduct and refusal to answer questions may be referred for contempt. It is an offence to record a proceeding without permission.
5.The respondent vacated the rented premises on 2 January 2024 and returned keys the to the agent of the respondent the following day.
6.The applicant opposes any application by Mr Myers for the creation of a new rental agreement.
7.Mr Myers is strongly encouraged reconsider his conduct in any future hearings he intends to appear in and to seek legal advice before taking any steps to issue an application in the Victorian Supreme Court in respect of any matters arising from today’s hearing.

VCAT orders and declares:
1.The request for conset [sic] to record the proceeding is refused.
2.Leave to the Rental Provider to amend the application.
3.The applicant is entitled to a possession order subject to the following directions:
4.Pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) John Myers is joined as an interested party in the proceeding.
5.The applicant shall, without delay, serve a copy of this order and the notice issued by the principal registrar, as is noted below, on all persons for the time being occupying the premises, by affixing the documents to a door giving access to the premises.

VCAT directs the principal registrar to
1.Amend the register to record the interested party as:
- John Myers
2.Provide to the applicant without delay a copy of this order and a notice in the prescribed form directed to all persons for the time being occupying the premises requiring them –
(a)to appear before the Tribunal as notified by the principal registrar; and
(b)to show cause why a warrant of possession should not be issued.

3.List this application for hearing in accordance with section 346(b)(i) of the Residential Tenancies Act 1997 (Vic), before any Member of the Tribunal.

Although the applicant’s material advances a degree of complaint concerning that hearing, no notice of appeal was filed in respect of it, and no transcript or recording of that hearing has been produced.

Following the hearing on 23 February 2024, a notice dated 4 March 2023 (which date seems to have been a typographical error) seems to have been posted at the Premises on about 4 March 2024 which, among other things, stated –

Take notice that the Victorian Civil and Administrative Tribunal has ordered the occupants of the above premises to appear before the Tribunal by teleconference on the 6^th day of March 2024 at 9:30am to show cause why a warrant of possession should not be issued.[10]

[10]CB 44 (emphasis in original).

All three applications came before Member Curie on 6 March 2024.[11] Orders were made in each proceeding.[12] Written orders were likely provided after the hearing.[13]
[11]I note that the applicant’s material refers to a further application, which, the applicant says, was adjourned. The Court Book does not contain any orders of VCAT or other such documents pertaining to that application or the adjournment said to have occurred on 6 March 2024.
[12]CB 45-48.
[13]That seems to be implicit in the affidavit of the applicant dated 18 March 2024 [24]: see CB 15.

The written order in respect of proceeding R2024/3288 records, relevantly –

VCAT finds:
Preliminary matters:
1.Mr Myer (Occupant) sought consent to record the audio of the hearing on the following basis, that he:
(a)cannot afford the $50.00 to $70.00 fee required by the Tribunal when requesting a copy of the audio;
(b)is not able to apply for fee relief;
(c)needs to be able to explain to his legal representatives what took place during the hearing; and
(d)will be disadvantaged if seeking to appeal becuase [sic] the Supreme Court will delay any application in the absence of the audio.

2.The request to record is refused for the reasons given during the hearing.
Return hearing
3.The proceeding relates to proceeding R2024313, issued by the Occupant.
4.The Occupant issued an application in the Tribunal pursuant to ss 91R and 91S of the Residential Tenancies Act 1997 (Vic) (Act) in respect of the rented premises;
5.Section 91R of the Act, relevantly provides:
(1)A person becomes the renter of the residential rental provider in respect of rented premises if:
(a)...;
(b)the head residential rental agreement terminates or is terminated; and
(c)the sub-residential rental agreement does not terminate or is not terminated in accordance with this Act; and

6.The Occupant does not press his application issued under s 91S of the Act,
7.In accordance with s 91R, I am satisfied that the sub-residential rental agreement (Sub-lease) terminated between the parties due to the below events having occurred [sic]:
(a)Mr Hussein (Sub-leasor) vacated the rented premises, permanently, and return the keys to the rented premises in his possession on 2 Jauary [sic] 2024;
(bi)The Occupant ceased paying rent to the Sub-leasor in December 2023, and did not pay any rent to any other person;
(c)The Sub-Leasor returned the bond to Occupant; paid in respect of either rent or utilities or both;
(d)The Occupant, without any rights whatsoever, granted a licence to an unnamed couple who paid to the Occupant the sum of at least $140.00 per fortnight in exchange for occupying the premises, in the absence of consent by the Rental Provider and or the Sub-leasor; and
(e)the above described events took place before the head agreement between Sub-leasor and the Rental provider came to an end.

8.Thus, the Occupant is in possession, with out consent of the Rental Provider as the Sub-lease terminated for the reasons provided above. For completeness, s 91R of the Act is not enlivened in the circumstances.
9.If the Occupant pressed his applcation [sic] under 91S of the Act, which he did not, he would be unsuccessful [sic] as he clearly does not have capacity to pay market rent or close to market rent for a four bedroom home as he is in financial distress (see application for fee relief - judgement debt entered in the sum of $14,586.00). Further, the Occupant has not demonstrated an understanding of the, duties of a renter in so far as the need to seek consent to sub-let or pay rent, inter alia.
10.Upon hearing the from the the [sic] parties why a warrant of possession should not be issued, I am, therefore, satisfied the applicant (Rental Provider) is entitled to possession and a warrant of possession should be issued.
11.In other matters, the Occupant, prima facie, made a misleading statement to Registry when seeking fee relief in two proceedings he brought against the Rental Provider. The Occupant is not a protected person who is the applicant in a residential tenancies case arising from family violence. Such acknowledgements may give rise to a criminal offence and should be made with more care.
VCAT orders and directs:
1.Pursuant to s 82(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the proceding [sic] will be heard together with proceeding R2024313.
2.Mr Myers request to record the hearing is refused.
3.The applicant is entitled to a possession order.
4.The principal registrar shall issue without delay a warrant of possession against all persons for the time being occupying the premises to be executed within 14 days after the date of issue.
5.The orders are made in proceeding R2024313.

It will be evident that the member considered the proceeding and orders to relate also to the determination of proceeding R2024/313. In that connection, the written order in respect of proceeding R2024/313 relevantly states –

VCAT finds:
1.The applicant issued an application pursuant to ss 91P, 91R, 91S and 472(1)(a) of the Residential Tenancies Act 1997 (Vic) (Act).
2.The proceeding relates to proceeding R20243288.
3.See detailed findings in respect of applications issued pursuant to s 91R and 91S of the Act in proceeding R20243288.
4.The applicantion [sic] is misconceived.
VCAT orders:
1.The proceeding is dismissed.
2.The order is made in proceeding R20243288.

Similar orders were made in respect of proceeding R2024/6344.[14]
[14]CB 48.

On 9 March 2024, the applicant commenced the present application against the first and second respondents.

B. The application for leave and related steps

By notice of appeal filed 9 March 2024, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act (Vic) (‘VCAT Act’) the applicant sought leave to appeal on a question of law from –

(a) order 3 made in proceeding R2024/3288 (ie, ‘The [first respondent] is entitled to a possession order’); and

(b) order 1 made in proceeding R2024/313 (ie, ‘The proceeding is dismissed’).[15]

[15]CB 3-5. See also CB 8-9 and 47.

The notice of appeal states the following seven purported questions of law —

1.Did the presiding Member err and put the appellant in great disadvantage, by not adjourning the matter for possession before making a final decision, considering the requirements of s 346(b)(i) of the RT Act were never met, and as such rendering the possession order invalid due to not meeting such requirements?
2.Was the appellant denied natural justice when he was not allowed to provide all reasons and details to explain himself in full in response to newly raised statements, many times over, and was ultimately muted by the presiding Member?
3.Was the application for possession (as per s344 of the Rt Act), erroneously ordered, treating the appellant wrongly as if they were an occupant instead of their rightful status as a renter?
4.Did the appellant actually have legitimate status as a renter (previously as a sub-renter), once the head-renter vacated the premises?
5.Did the sub-residential rental agreement terminate, as per s 91B of the RT Act?
6.Was the appellant’s application to require an order to direct the head-renter to lodge the bond paid, with the RTBA, wrongly dismissed?
7.Was the appellant’s application to require an order to direct the head-renter to refund utility charges to his renter that he had unlawfully charged, wrongly dismissed?

Thereafter, the notice of appeal advances arguments in respect of each of the purported questions of law.[16]
[16]CB 4-5.

By way of relief, the notice of appeal seeks –

1. Quashing of the VCAT possession order.

2. Armin Hussien [the second respondent] to lodge bond with the RTBA [Residential Tenancies Bond Authority].

3. Refund of $148.50 from Armin Hussein.

The notice of appeal seems to have been accompanied by a short affidavit directed to seeking a stay of ‘this unjust and unlawfully made possession order’.[17]
[17]CB 6-7.

The applicant filed a summons seeking such relief on 13 March 2024,[18] and subsequently filed a more extensive affidavit dated 18 March 2024 which exhibited several documents.[19]
[18]The summons was not included in the applicant’s Court Book. However, that document, as well as several other documents appearing on the Court file contextual to the documents included in the Court Book, were identified prior to the hearing. The applicant referred to several such documents in the course of the hearing: see, for example, T2-3, at which the applicant referred to the affidavit of Alistair Shearer dated 21 March 2024 and the first respondent’s outline of submissions dated 25 July 2024.
[19]CB 12-48.

The first respondent seems to have responded with written submissions in which it was stated, among other things –

(a) the first respondent agreed with the orders made on 6 March 2024 as well as the member’s ‘reasoning in making the relevant Orders’;[20]
[20]Response to Application/Appeal dated 21 March 2024 [1]-[2].

(b) any ‘verbal assignment or sub-letting arrangement’ entered into between the applicant and second respondent was ‘invalid’ pursuant to s 81 of the RT Act;[21]
[21]Ibid [3].

(c) in that regard, having not sought or obtained the first respondent’s written consent, the second respondent was not ‘in a position to grant a valid sub-residential rental agreement’;[22]

(d) an issue had been raised at the hearing concerning, in effect, short notice, and the member had offered to adjourn, but the applicant had ‘waived the requirement’;[23] and

(e) the applicant had been advertising the Premises for sub-lease, which he was not legally entitled to do, and the first respondent would seek that all monies collected by the applicant from third parties as a result of any sub-lease arrangement be refunded.[24]

[22]Ibid [5].

[23]Ibid [19]-[20].

[24]Ibid [21] and [24].

In that connection, the first respondent may have relied upon an affidavit sworn or affirmed by her, as well as an affidavit sworn by Alistair Shearer of LJ Hooker.[25]
[25]Affidavit of Menglang Lim dated 21 March 2024 and Affidavit of Alistair Shearer dated 21 March 2024.

The stay application came before Gray J on 21 March 2024. No transcript of that hearing is evidently available.

In any event, it is plain from his Honour’s order that –

(a) the applicant, first respondent and second respondent all appeared;

(b) his Honour delivered oral reasons for the order made; and

(c) his Honour ordered that –

The appellant’s application by summons filed 13 March 2024, for a stay of the orders made on 6 march 2024 by the Victorian Civil and Administrative Tribunal in proceeding reference number R2024/3288, is dismissed.[26]

[26]CB 49-50.

Timetabling and other such orders were later made, including a grant of leave to the applicant to file and serve an amended notice of appeal – which does not seem to have occurred.[27]
[27]CB 51-54. See also CB 69-71.

In that general context –

(a) the applicant filed an outline of submissions dated 28 June 2024;[28]

(b) the first respondent filed an outline of submissions dated 25 July 2024;[29] and

(c) the applicant prepared short affidavits directed to the ‘service’ by him of particular documents upon the second respondent by email.[30]

[28]CB 57-65.

[29]Outline of submissions – first respondent dated 25 July 2024.

[30]CB 55-56 and 72.

On 26 August 2024, the applicant was granted leave to file and serve a notice of discontinuance as against the first respondent, and such a notice was filed the following day.[31]
[31]CB 66-68.

The application for leave to appeal was not reached on 8 October 2024 and was relisted for hearing on 3 December 2024.

At trial, the applicant appeared remotely. The second respondent did not appear.

In that context, among other things, the applicant said –

(a) he had ‘pretty much put everything in his [written] submissions’;[32]
[32]T1-2.

(b) there was ‘an abundance of evidence’ that the first respondent had given consent to the sub-leasing arrangement between the second respondent and applicant;[33]
[33]T3-4. See also T30-38.

(c) albeit that he was no longer resident at the Premises, the point of his application was that ‘these things need to be clarified’ for ‘next time’ as ‘things keep on reoccurring’ and he needs precedents to be ‘set’ in order that he can ‘submit those sorts of things as [sic] in evidence’;[34]
[34]T5-7, T18 and T40. See also T29-30.

(d) as to his failure to obtain a transcript of the hearing below, he said that the respondents ‘could have put something in’ and that he had ‘put an affidavit in as evidence’;[35]
[35]T8. In that connection, he later said that there was ‘nothing saying to the contrary [of] what I’ve said’: T16.

(e) the member said that the applicant had agreed not to adjourn, which was ‘not true’;[36]
[36]T8. In that general connection, the applicant later referred to his contentions in respect of s 91S of the RT Act (n 2) and said that ‘he [the member] argued that I had no money’ – which the applicant took issue with: T28-29.

(f) in order to address his points, he would ‘need someone to point it out to me, like a respondent, to point out any flaws’;[37]
[37]T10. Later, the applicant said, in substance, that the Court should point out whether there was anything ‘missing’ in his material in order that he might be able to advance his submissions: T22-26.

(g) he believed that he had asked the member to provide reasons, although it later appeared that he had not made such a request because he had tried in the past and ‘the law doesn’t allow someone to put in written reasons afterwards’;[38]
[38]T11-13.

(h) he had not been able to speak at the hearing below, and had been muted (presumably by the member) ‘a number of times’, although he had evidence of bank receipts and the member had said that the payments had been refunded;[39]
[39]T13. In that regard, the applicant also said that he felt ‘disrespected at the Tribunal’ and that ‘Google reviews’ suggested that ‘a lot of people feel the same way’. Later, he said that denial of natural justice ‘happens a lot in VCAT and it just hasn’t been my experience alone’ and that he had been muted ‘from the beginning … in both those hearings’ (T27) – which I took to be a reference to the hearings on 23 February 2024 and 6 March 2024. See also T41: ‘… this last hearing I never got an opportunity to put my matter for 91S and 91R’.

(i) the problem with obtaining a recording of the hearing below (and, implicitly, a transcript) is that, among other things, he is ‘broke’, ‘in financial hardship’, could not work, had not made ‘a cent in so many years’ and had ‘not declared a single dollar of revenue’;[40]
[40]T14-15.

(j) an order has since been made for ‘them to lodge the bond’, although he did not know what had happened with that;[41]
[41]T31.

(k) either the agent or second respondent had ‘lied’ when saying that there had been no bond;[42]
[42]T34.

(l) the issues relating to the bond and utility payments depended upon whether he was a ‘renter’;[43]
[43]T35.

(m) the agent for the first respondent had said that the first respondent wanted to sell the property because, it was said, ‘they didn’t understand the law’, and the applicant also said that the claim that the first respondent had financial difficulties seemed ‘illogical’;[44]
[44]T46-48.

(n) he is now in a premises in Berwick and is not trying to regain possession of the Premises, but his questions of law are directed to ‘correcting’ and ‘clarifying the facts of the matter’;[45] and
[45]T39 and T49.

(o) more broadly, he said that VCAT members ‘follow like sheep assuming that they’re all correct’ and, accordingly –

[it’s] important for me for future things [to have the purported questions of law determined]. I don’t want to keep on getting possession orders made against me. It’s happened too many times. Too many years, too many places. It wasn’t like where I was at one place for 15 years. I wish I was still living there.[46]

[46]T51-52.

C. Provisions and principles concerning leave to appeal on a question of law

Section 148 of the VCAT Act provides, relevantly —

148Appeals from the Tribunal
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

…
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

Section 148(2A) was introduced in 2018. It has since been plain that the Court may grant leave to appeal only if it is satisfied that the appeal has ‘a real prospect of success’.

That said, it remains relevant for the Court to consider discretionary factors in respect of the question of leave. In that regard, the question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant’s prospects of success. Further, where discretionary considerations exist, but are insufficient to alone justify a refusal of leave, refusal may nevertheless be warranted where the discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[47]
[47]Bashour v ANZ [2020] VSC 478, [29]–[36]. Cf Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147 [96], Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32, [18] and Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110]-[113].

In that general context, in Chopra v Department of Education and Training, Richards J confirmed that –

(a) an applicant for leave to appeal need not demonstrate that it is likely that the appeal will succeed – only that his or her prospects of success are not fanciful;

(b) a real prospect of success does not dictate that leave must be granted;

(c) in that regard, considerations may bear upon whether leave should be granted – including whether the proposed appeal would be futile;

(d) the ‘overriding consideration’ is ‘the justice of the case as it appears to the Court’, meaning justice to all parties, not only the applicant for leave; and

(e) in that instance, even if her Honour had formed the view that the applicant had a ‘real prospect of succeeding on a question of law of some importance’, she would have refused leave for reasons including that the proposed appeal was pointless.[48]

[48][2019] VSC 488, [22]-[28].

In addition to the question of leave to appeal, it will be evident that the existence of a question of law founds the jurisdiction of the Court in an appeal under s 148 of the VCAT Act. That is, such a question constitutes the subject matter of any such appeal.[49]
[49]Fraser v Sperling [2017] VSCA 53, [55]-[56] and McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [4]-[6].

In Patsuris v Gippsland and Southern Rural Water Corporation,[50] Garde AJA, with whom Tate and Kyrou JJA agreed, stated –
[50][2016] VSCA 109.

[43] … Section 148 does not confer a general right of appeal on the merits of the case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.

[44] The ‘question of law’ requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.[51]

[51](citations omitted).

More recently, in Anderson v Sharpe, Emerton P and Kaye JA confirmed –

In determining an appeal under s 148(1), the Court may only conclude that the Tribunal made a legal error in making of fact if, on the evidence, it must be concluded that it was not open to the Tribunal to find the particular fact or draw the particular inference under consideration.[52]
[52][2024] VSCA 166, [79].

D. Consideration

There are numerous features of the present application that make it difficult to determine whether it could conform with the principles to which I have referred.

I have earlier extracted the seven ‘questions of law’ which the applicant seeks leave to advance on appeal.[53] In oral argument, the applicant confirmed that he relies upon all seven.[54]
[53]See above at [18].
[54]T7.

As I have noted, it is necessary that each such question be one of law, not fact. It is also necessary for each such question to have arisen below.

In the present instance, it is not easy to be sure whether and precisely in what form several of the questions sought to be advanced might have arisen, as well as whether or not any such question might have been determinative of any issue.

In that regard, the applicant has not obtained any transcript or recording of the hearing on 6 March 2024, or requested that the member provide written reasons for the orders made. As I indicated during the hearing, such materials seem to be able to be obtained by parties in other such proceedings, when required.[55]
[55]T14.

In response to the general issue, the applicant initially responded by asserting that the respondents ‘could have put something in’. He also referred to his own affidavit and then referred to his request to the member to record the hearing personally.[56]
[56]T8.

As to written reasons, the applicant initially said that he had made such a request; however, it subsequently became clear enough that he had not. From that point, he said that ‘the law doesn’t allow someone to put in written reasons afterwards’ and referred to Schedule 1 of the VCAT Act. He said that he had tried to obtain such reasons ‘in the past’ and that it was not allowed.[57]
[57]T11-13.

Later, and again in respect of the issue of a transcript or a recording of the hearing, the applicant said that there was a fee and that he was ‘broke’, ‘in financial hardship’ and had not ‘made a cent since so many years’.[58]
[58]T14-15.

This is perhaps one example of several instances during the hearing in which the applicant’s arguments took on a perplexing and rather opaque quality. In that regard, his arguments tended to be advanced in a manner somewhat oblivious to the inconsistencies and other errors apparent within them. Fundamentally, such argument seemed directed to distracting the Court from the issue. It is possible that the applicant was himself distracted by error and insightlessness. Whatever might be said to be the internal wellspring of the course and manner adopted, it emerged as fundamentally unhelpful and largely unreliable.

In that regard, it was no answer for the applicant to seek to allocate responsibility to the respondents. Plainly enough, it is and has always been his application to bring.

Further, the first respondent, at least, seems to have ‘put something in’ in connection with the stay application. That material took issue with the applicant’s claim, and both respondents are recorded as having appeared before Gray J. It is clear from his Honour’s order that the application was determined against the applicant. In short, the circumstances do not suggest that the respondents did not take issue with the applicant’s claims. Indeed, the result of the application suggests that at least some elements of the applicant’s claims must then have been rejected.

In addition, it is hardly persuasive to seek to suggest that the respondents could relevantly have ‘put something in’ when it seems that, after the failure of his stay application and in the lead up to trial, the applicant sought and obtained leave to remove the most active of the respondents from the litigation. That is a point to which I will later return.

Separately, in respect of the applicant’s request to record the proceedings personally, it is plain that the member was entitled to determine that request. In any event, there is presently no purported question of law directed to that issue.

As to the provision of reasons, clause 76 of Schedule 1 of the VCAT Act modifies s 117(2) of the VCAT Act. However, it does not state that such reasons may not be requested; merely that they must be requested at the time that the decision was made. Plainly enough, that does not seem to have occurred.

As to the applicant’s claims of being ‘broke’ and the like, his affidavit affirmed prior to the hearing of the stay application described him as being in receipt of a disability support pension and said that he ‘can not [sic] afford a motel’.[59] However, elements of his subsequent submissions are not easy to reconcile with at least the latter claim.
[59]CB 6 [3].

In that regard, the applicant referred to his claim made under s 91S of the RT Act, which the member’s order records as not having been pressed.[60]
[60]CB 8 [6].

The applicant took issue with that finding in his written submissions, as well as with the member’s finding that the applicant ‘does not have capacity to pay market rent’ by reason of his ‘financial distress’.[61]
[61]CB 8-9.

In that connection, the applicant stated –

31.The only thing supposedly hindering the approval by the Member to make an order under s 91S of the RTA, was the believe [sic] the Appellant would not be able to afford the rent for the premises. The Appellant was not given an opportunity to advise that he had previous [sic] rented a property for 5 years and in which the rent in 2021-2022 was $350pw (the same price for the rented premises in the proceeding). Furthermore, the Appellant’s income was greater in 2024 then [sic] it was in 2022. The [sic] was no reasonable ground to suggest that the Appellant could not [sic] be able to meet rental payments and the financial distress the Member refers to is only orders of debt against the Appellant in past VCAT proceedings in which he is yet to make counter claims. As the Appellant is on a Centrelink income with no sizeable assets by a sheriff in debt collection, his debts can not have any effect on his ability to pay any rent that is required.
32.To consider how much income a person would require to afford the rent at 5 garnet [sic] Ct Hampton Park, one would only need to observe how the previous renter, the Second Respondent did so. He was on a centrelink [sic] income and occupied the master bedroom (expected price to rent the master bedroom would be approximately $200pw). He rented out 3 of the spare bedrooms for $445pw. He was making not only $95pw profit for renting the house, he was also getting to live there rent free while occupying the master bedroom. If the Second Respondent was able to do that while meeting all his rental payment on time thought [sic] his rental agreement for the previous 18 months, there is no reasonable grounds to think that the Appellant could not manage to do the same (even if the Appellant was to rent out only a single spare bedroom).

The applicant pursued the issue further in oral argument; in the course of which he took issue with, as he put it, the member having ‘argued’ that ‘I had no money’.[62]
[62]T27-28.

At the very least, it is difficult to reconcile the applicant’s statement in the present hearing, he is ‘broke’ and has not made ‘a cent since so many years’ with the statement in his written submissions that his ‘income was greater in 2024 then [sic] it was in 2022’.

More generally, there is more than a mere flavour in all of this of the applicant claiming ‘financial hardship’ when it suits him, but taking issue with the basis for a practically identical finding of ‘financial distress’ when it does not.

In any event, all of the various gambits to which I have referred are essentially a distraction from, and no proper answer to, the problem created by the failure of the applicant to seek and obtain the transcript, a recording or written reasons in order that it may be determined precisely what occurred at the hearing on 6 March 2024.

That said, it became clear enough that the applicant was fundamentally of the view that the answer should lie in his own affidavit and other material. On that basis, it seemed, the Court should simply accept that errors of law had occurred, essentially on the say so of the applicant. In that connection, he submitted –

… there’s no party here to dispute. [No party] [h]as put in anything disputing what I have said. … There’s no evidence to say otherwise … in the submissions and affidavit, things that were submitted. There’s nothing saying to the contrary [of] what I’ve said, you know, as I had said it or how it occurred.[63]

[63]T16.

Of course, the mere fact that an affidavit might broadly be described as uncontested does not require that all of its contents be accepted without question.[64]
[64]Bulstrode v Trimble [1970] VR 840, 848-849.

In the present instance, as I have earlier indicated, it is also not strictly correct to say that ‘things’ were never submitted to the contrary. Until the claim against her was discontinued, the first respondent, at least, seems to have taken issue with significant aspects of the applicant’s account.

In any event, parts of the applicant’s affidavit are directed to assertions about the underlying facts and circumstances, including the history of the proceedings at VCAT. Obviously enough, those matters are not directly informative of the events that occurred at the hearing on 6 March 2024.

The only paragraphs in the applicant’s affidavit that are directed squarely to what happened at and following the hearing on 6 March 2024 read as follows –

21.At the VCAT hearing on 6 March 2024, I felt I was denied natural justice many times over due to that I was only allow [sic] to speak in full once near the beginning of the hearing. Whenever another party would make a claim that I wished to address, I was denied a rebuttal to address in full, the issues and claims raised by the other parties.
22.When I had an opportunity to speak freely in the beginning, I mentioned the error the Acting Registrar had made by listing the hearing far too early then [sic] legally allowed by s 346(b)(i) of the RT Act and that I did not have sufficient time to prepare for the hearing. The member acknowledged the error and asked if I wish [sic] for the proceeding to continue with the other cases listed for the same day. I was under the impression that the matter would only be heard in part and would be adjourned for a later date to comply with s 346(b)(i) for me to submit all my evidence and properly prepare, however this did not happen and a final decision was made that day, without me given an opportunity to address the claims the applicant had made. My counter application R2024/6344 that was primarily for s 91R of the RT Act, was listed for hearing on the 15 March 2024, but was relisted for 6 March 2024 on 4 March 2024, resulting with insufficient time to be able to prepare in time. (Exhibit 9)
23.When Armin claimed he had returned my bond, I was shocked to find that the member accepted it as a fact without question, especially considering that no evidence was provided by Armin to support his claim, such as a receipt of bank transfer funds, and the member dismissed my application to require an order for the lodgement of the bond to the RTBA.

It is plain enough that the above paragraphs could not stand as any kind of complete record of what occurred at the hearing on 6 March 2024.

Further, that account is not easy to reconcile with the findings and other contents of the member’s orders, as well as aspects of the present proceeding.

In that general connection –

(a) in oral argument the applicant claimed to have been muted at VCAT ‘from the beginning’;[65] albeit that in the passage extracted above he stated that he had been permitted to ‘speak freely in the beginning’ and, implicitly, to some extent in reply (albeit not ‘in full’);
[65]T27.

(b) in respect of his complaint concerning short notice and the alleged failure of the member to adjourn the hearing, as I have noted the first respondent seems earlier to have submitted that the member offered to adjourn and, in response, the applicant ‘waived the requirement and agreed to the hearing proceeding’;[66]

(c) in respect of his present contention that he ‘never got an opportunity to put my matter for s 91S and 91R’,[67] the detailed findings appearing in the orders of the member suggest that the applicant must have addressed both applications in at least some substance and detail during the course of the hearing; and

(d) in respect of his complaint that he sought to press his alternative application under s 91S of the RT Act ‘multiple times … but was not permitted to defend himself … and was ultimately muted’,[68] the member’s orders record that the applicant elected not to press that application.

[66]Response to Application/Appeal dated 21 March 2024 [20]. The same point appears at [68] in the Outline of submissions – first respondent dated 25 July 2024. The applicant took issue with a different aspect of those submissions during the hearing: T2-3. The applicant also said that the statement that he had agreed not to adjourn the matter was ‘not true’: T8.

[67]T41.

[68]CB 60 [30].

None of the above allows me to feel any real confidence in the statements made by the applicant during the hearing, or in the material prepared by him in connection with the application. In my view, the applicant’s affidavit and other statements and material cannot be relied upon to determine the critical issues in the application. To me, the application must be determined by reference to the circumstances more broadly apparent.

I should add that I am conscious that the applicant appeared in person and is not legally qualified. Indeed, that was a point emphasised by him more than once during the hearing.

That said, the applicant is a vastly experienced litigant and, to some extent, that was evident during the hearing. In that sense, he is not exactly in the category of ‘unwary and untutored’ litigants referred to in the authorities.[69]
[69]See generally Zhong v Melbourne Health [2015] VSCA 165, [67]-[68].

In the present instance, I also perceived that the applicant was seeking to assume a stance in which the Court might be lured into the role of advising him about the merits of his application en route to the Court deciding it in his favour.

To some extent, of course, I took up with the applicant the concerns which I then perceived in respect of his application. However, in doing so, I sought carefully to maintain the balance required and to avoid being drawn into a position in which the neutrality of the Court could not be maintained. That was particularly necessary, I felt, in circumstances in which no other party was present.

That brings me to the applicant’s purported questions of law, which I have earlier extracted.[70]
[70]See above at [18].

It is convenient to address the applicant’s more specific complaints (Questions 1, 3, 4, 5, 6 and 7) prior to addressing his claim to having been denied natural justice (Question 2).

Question 1 states –

Did the presiding Member err and put the appellant in great disadvantage, by not adjourning the matter for possession before making a final decision, considering the requirements of s 346(b)(i) of the RT Act were never met, and as such rendering the possession order invalid due to not meeting such requirements?

It will be evident from the form of the question that the issue really resolves into whether or not the applicant agreed to press on with the ‘matter for possession’.

As earlier noted, the applicant acknowledges that the issue of short notice arose before the member, but says that he thought that the ‘matter for possession’ would be adjourned. He says that it would ‘defy logic’ for a person in his position to have pressed on, and that the other applications should have been heard but the first respondent’s application for possession adjourned to a later date.[71]
[71]T26.

In written submissions, it was submitted, in substance, that notice had been given two days prior to 6 March 2024, which was contrary to the requirements of s 346(b)(i) of the RT Act, and rendered ‘invalid’ the possession order subsequently made.[72] The applicant also submitted that –

This did not provide the appellant a reasonable opportunity to prepare for the matter, and even moreso that the appellant was not home until the next day, leaving only a single day before the hearing to prepare. This put the appellant in a great disadvantage for such a matter that was of paramount importance. This error was brought to the attention of the Member that acknowledged the error and the appellant was under the impression that the matter would only be heard in part (as it could legally not be determined at that point due to legal requirements of s 346 not met) and it would conclude in an adjournment hearing the following week, that would also provide enough time for the evidence the appellant had to submit to support his arguments of defence.[73]

[72]CB 59 [19].

[73]CB 59 [18].

As I have earlier noted, however, in the present case it is not, in my view, possible to place any kind of decisive weight upon claims of that kind in the applicant’s material, including in the course of oral argument. The question is more reliably approached if primary weight is given to other sources, together with a consideration of the whole of the likely circumstances.

In that regard, it is plain enough that in the period commencing from about 3 January 2024 the applicant was asserting that, in the language of s 91R of the RT Act, the claimed sub-letting arrangement between himself and the second respondent was a ‘sub-residential rental agreement’ and that upon the termination of the ‘head residential rental agreement’ between the first and second respondents he had become ‘the renter of the residential rental provider’.

That said, in the present case, despite some elements of the applicant’s present written material which might be read to suggest the contrary,[74] the above question does not appear to have been presented to the member independently of the question whether, under s 81 of the RT Act, the first respondent did or should be taken to have given ‘consent’ to the sub-letting and, accordingly, the Tribunal should determine that consent was not required.[75]
[74]See, eg, CB 60 [26]: at which it is submitted that the applicant was ‘actually a renter as he transitioned to the title in accordance with s 91R … regardless if the First Respondent approved of it or not’. For the most part, however, the applicant’s written material directed to the issue whether he was a ‘renter’ under s 91R includes submissions to the effect that the first respondent had been ‘well aware’ that the second respondent had been sub-letting and, accordingly, had in substance consented to or conduced in the sub-letting arrangement between the second respondent and applicant: see, eg, CB 5. In light of those submissions, and the form of the member’s orders made on 6 March 2024, it seems considerably more likely that the issue was presented in that manner for the subsequent determination of the member on 6 March 2024.
[75]I should not be taken to suggest that such a stance was not consistent with a proper construction of the relevant provisions of the RT Act (n 2). Section 91R should plainly be construed with a view to maintaining the unity of the whole of the provisions of the RT Act, including s 81 (and s 82): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]-[70].

Sections 81 and 82 appear in Division 7 of Part 2 of the RT Act, which is entitled ‘Assignment and sub-letting’, and state as follows –

81Assignment and sub-letting by a renter
(1)A renter under a residential rental agreement must not assign or sub-let the whole or any part of the rented premises without the residential rental provider’s written consent.
(2)A residential rental provider must not unreasonably withhold consent to the assignment or sub-letting of the whole or any part of the rented premises.
(2A)For the purposes of subsection (2), it is unreasonable to withhold consent on the basis of an attribute set out in section 6 the Equal Opportunity Act 2010.
…
(3)An assignment or sub-letting of the whole or any part of the rented premises without the residential rental provider’s consent is invalid unless the Tribunal has determined that consent is not required.
…
82Renter may apply to Tribunal
(1)A renter may apply to the Tribunal for a determination that the consent of the residential rental provider to the assignment or sub-letting of the whole or any part of the rented premises is not required if—
(a)the residential rental provider withholds consent; and
(b)the renter believes that the withholding of the consent is unreasonable.

(2)If, after giving each party an opportunity to be heard, the Tribunal determines that consent is not required, the assignment or sub-letting may go ahead without the residential rental provider’s consent.

Section 91R appears in Subdivision 2 of Division 9 of Part 2 of the RT Act, entitled ‘Variations or creations of residential rental agreements’, and states –

91RNew residential rental agreement created where head residential rental agreement terminated
(1)A person becomes the renter of the residential rental provider in respect of rented premises if—
(a)the person is in possession of the premises under a residential rental agreement (a sub-residential rental agreement) granted to that person by a person who is a renter of the premises under another residential rental agreement (the head residential rental agreement) granted to the person who is the head renter by the residential rental provider; and
(b)the head residential rental agreement terminates or is terminated; and
(c)the sub-residential rental agreement does not terminate or is not terminated in accordance with this Act.

(2)The residential rental agreement created under subsection (1) is deemed to be a residential rental agreement on the same terms, as far as applicable, as the terms of the sub-residential rental agreement.
(3)Subsection (1) applies whether or not this Act applied at any time to the head residential rental agreement.

As I have earlier noted, on 3 January 2024 the applicant commenced proceeding R2024/313 against the second respondent in which, among other things, he referred to the agent’s claim that he was ‘not a renter’ and sought a determination that no consent was required for his tenancy. In that regard, his application asserts the ‘awareness’ of the first defendant, ‘since 2022’, that ‘their renter had sublet 3 spare bedrooms’. [76]
[76]CB 27.

That stance was largely reflected in an email sent the same day to the first respondent’s agent in which, among other things, the applicant –

(a) referred to the ‘head renter’ having given up possession of the Premises;

(b) described himself as ‘a sub-renter’;

(c) said that he ‘wanted to resolve the transition … peacefully’; and

(d) ‘strongly’ advised the agent to ‘seek a lawyer that specialises in the RTA [Residential Tenancies Act]’.[77]

[77]Affidavit of Alistair Shearer dated 21 March 2024, Exhibit LM-003; referred to by the applicant in the course of oral submissions: T2.

In the circumstances, it is clear enough that from an early time the applicant was either anticipating or responding to a contention that, by reason of s 81 of the RT Act, he had ‘no renter rights’.[78]
[78]Ibid. Indeed, in argument it was clear enough that, at all material times, the applicant understood that the position of the first respondent’s agent had been that ‘it’s not in writing so you don’t have a lease, and things like that’: T6.

Unsurprisingly, the contention that the claimed sub-letting was invalid for lack of consent was taken up by the first respondent in her own application made against the second respondent ‘And All Other Occupants’ lodged on 30 January 2024 (proceeding R2024/3288).[79]
[79]CB 31. Specifically, the first respondent’s claim is described as being for ‘possession – assignment or sub-letting without consent’.

The applicant then issued his further application against the first and second respondents on 14 February 2024 (proceeding R2024/6344).[80] In that regard, the applicant stated –

As the head-renter has vacated, I am legally entitled to have a new agreement created with the owner as my RRP [residential rental provider], under s 91R (if written consent proven or Tribunal determines that no consent required considering the evidence and circumstances); or 91S (if determined that written consent was not provided and VCAT does not order otherwise).[81]

[80]CB 32-41.

[81]CB 37.

As I have earlier noted, the first respondent’s proceeding (R2024/3288) came before the member on 23 February 2024. The applicant, first respondent’s agent and second respondent all appeared.

The findings recorded in the member’s order indicate that the related issues of consent and any creation of a new residential rental agreement must have arisen during the hearing. In particular, the member recorded –

2. There are reasonable grounds for believing that the premises are occupied solely by a person (not being a renter under a residential rental agreement) who entered into or remained in occupation without licence or consent.

…

6. The applicant [first respondent] opposes any application by Mr Myers [applicant] for the creation of a new rental agreement.[82]

[82]CB 42.

In respect of the latter finding, the position of the first respondent seems to have been that possession of the Premises was required because she was in financial difficulty and needed to sell the property.

In any event, the issue of possession was not then determined. In substance, the member relevantly ordered and directed that –

(a) the first respondent was entitled to a possession order, subject to joining the applicant to the proceeding and service of a notice issued by the principal registrar ‘on all persons for the time being occupying the premises, by affixing the documents to a door giving access to the premises’;

(b) the principal registrar should amend the register to record the applicant as an interested party;

(c) the principal registrar should provide the said notice to the first respondent ‘without delay’; and

(d) the principal registrar should list the application for hearing ‘in accordance with section 346(b)(i) of the Residential Tenancies Act’.

Section 346(b)(i) of the RT Act requires the said notice to be served on ‘all persons for the time being occupying the premises’ requiring them, relevantly, ‘to appear before the Tribunal on a day after the end of 7 days after the giving of the notice’.

In the present instance, however, the said notice is dated ‘4 March 2023’ (which should presumably read ‘4 March 2024’).[83] As earlier noted, all three applications, at least, came back before the same member on 6 March 2024.
[83]CB 44.

I have earlier referred to the member’s various findings and orders made on that occasion.

Of particular present relevance –

(a) it is evident that the member understood all three applications to be part of the same controversy;

(b) the member observed that it was a ‘[r]eturn hearing’ (of proceeding R2024/3288);

(c) the member refers to the applicant’s applications ‘pursuant to ss 91R and 91S’ – the latter of which the member records as having not been pressed, as well as that it would have been rejected if it had been pressed for reasons which he gave;

(d) the member found that the sub-lease had been terminated for reasons including that –

(i) the applicant had ceased paying rent to the second respondent in December 2023 and did not pay any rent to ‘any other person’;

(ii) the second respondent had returned the ‘bond’ to the applicant, which had been ‘paid in respect of either rent or utilities or both’; and

(iii) ‘without any rights whatsoever’ and for ‘at least $140 per fortnight’, the applicant had granted a licence to another couple to occupy the Premises ‘in the absence of [the] consent’ of both the first and second respondents;

(iv) all of which had occurred before the ‘head agreement’ between the first and second respondents had come to an end;

(e) the member found further that –

8. Thus, the Occupant is in possession [of the Premises], with out [sic] consent of the Rental Provider as the Sub-lease terminated for the reasons provided above. For completeness, s 91R of the Act is not enlivened in the circumstances.

9. … Further, the Occupant has not demonstrated an understanding [of] the, duties of a renter in so far as the need to seek consent to sub-let or pay rent, inter alia.[84]
[84]CB 46.

(f) the member thereafter stated –

Upon hearing from the parties why a warrant of possession should not be issued, I am, therefore, satisfied the applicant (Rental Provider) is entitled to possession and a warrant of possession should be issued.[85]

(g) consequently, the member made the two orders presently sought to be appealed by the applicant, particularly that ‘the applicant [first respondent] is entitled to a possession order’.

[85]Ibid.

It follows that the member found that –

(a) the ‘sub-lease’ had been terminated;

(b) the applicant was in possession without consent;

(c) section 91R was not ‘enlivened’; and

(d) the applicant had ‘not demonstrated an understanding of the… duties of a renter’.

In the circumstances described, the applicant seeks leave in order to contend that the member erred ‘by not adjourning the matter for possession’.[86]
[86]CB 3 [1].

It will be evident that the findings made by the member on 6 March 2024 do not directly address any suggestion that the ‘matter for possession’ should have been adjourned.

That said, the applicant presently says that the issue arose and I accept that it probably did. In that regard, of course, the member had been alive to the requirements of s 346(b)(ii) of the RT Act at the hearing on 23 February 2024 and it is likely that formal notice was not given until about 4 March 2024.

However, the fact that a notice period is specified in an enactment does not, of course, mean that the parties to a proceeding may not elect to proceed in any event.

In that regard, such notice was required to be given to ‘all persons … occupying the premises’. Having appeared before VCAT on 23 February 2024, however, the applicant could hardly have been in any doubt that the ‘matter for possession’ would shortly be coming back on for determination.

Indeed, in his case, whether the required notice was given or not –

(a) he was on notice from at least 23 February 2024 that he and any other occupants of the Premises would be required to ‘show cause why a warrant of possession should not be issued’;[87] and

(b) the later return of the matter on 6 March 2024 was, in fact, well beyond the 7 day notice period specified in s 346(b)(i) of the RT Act.

[87]RT Act (n 2) s 346(b)(ii).

In short, in the applicant’s case the giving of written notice could have had no more than a purely formal significance.

Further, in the circumstances to which I have earlier referred –

(a) the question whether or not consent to the sub-letting had been given, or should be found not to be required, seems to have been as central to the first respondent’s ‘matter for possession’ as it was to the applicant’s own applications;

(b) the applicant’s position in respect of those issues – and his enthusiasm for them – seems to have been evident from at least 3 January 2024;

(c) the applicant must have spoken to his position concerning those issues in the hearing on 23 February 2024; and

(d) there does not appear to have been any discernible change in the relevant circumstances between 23 February 2024 and 6 March 2024.

It follows that it is not easy to see how, as the applicant presently contends, he was placed at a ‘great disadvantage’ by the listing of the matters before VCAT two days after formal notice was given.

Nor, it seems to me, could the applicant realistically have gained an ‘impression’ that the member could have proceeded with and determined the applicant’s applications while adjourning the first respondent’s ‘matter for possession’ to a later date. As I have indicated, in one way or another all of those applications seem to have raised the common issue of ‘consent’.

In the circumstances, it seems much more likely that while the issue of short notice was mentioned at the hearing on 6 March 2024 – very likely at the outset – the applicant pressed on with his arguments anyway and the issue of ‘consent’ and all other issues in the applications thereafter came to be determined.

In that regard, the form of the member’s orders are much more consistent with such a course of events.

It follows that even if the present issue were a question of law, I would not accept that the member could have erred in the manner suggested.

In any event, it will be plain that the question whether or not the member erred in the manner alleged depends entirely upon what occurred at the hearing on 6 March 2024, and that, of course, is a question of fact. As I have earlier noted, the Court presently lacks any jurisdiction to determine an appeal on questions of fact.

In the circumstances, no leave to appeal should be granted in respect of question 1 and, even if it were, any appeal for which the Court has jurisdiction would necessarily fail.

Questions 3, 4 and 5 state –

3.Was the application for possession (as per s344 of the Rt Act), erroneously ordered, treating the appellant wrongly as if they were an occupant instead of their rightful status as a renter?
4.Did the appellant actually have legitimate status as a renter (previously as a sub-renter), once the head-renter vacated the premises?
5.Did the sub-residential rental agreement terminate, as per s 91B of the RT Act?

Each of the above questions depends, directly or indirectly, upon whether, via s 91R of the RT Act, the applicant had ‘transitioned’ to the status of ‘renter’.

As I have earlier noted, the question whether the applicant had been granted consent, or whether no such consent was required, seems to have been treated as relevant, if not central, to the determination of that issue.

In the present context, the applicant asserted that the question of ‘consent’ had to be determined ‘all on the circumstantial’.[88]
[88]T20.

In that connection, he variously referred to matters such as –

(a) claimed statements by the second respondent that the first respondent had given consent;

(b) a discussion said to have been had with the first respondent’s agent;

(c) mail from the agent to the second respondent and ‘all other occupants’ – which was said to indicate an awareness of ‘other people living there’;

(d) the rental of a four bedroom house by the second respondent – which was said to make it ‘abundantly clear’ that such a person was going to rent out rooms in the house to others (indeed, the contrary was said to be ‘illogical’); and

(e) the ‘illogical’ proposition that the first respondent was required to sell the Premises because of financial difficulties.[89]

[89]T2-4, T30-42 and T46-48.

In support of his arguments, the applicant also referred to a decision of VCAT which, he seemed to suggest, confirmed that such consent could be ‘verbal’.[90]
[90]T42. See Grimison (n 1).

It seems likely that the applicant had an opportunity to advance the general substance of his arguments before the member on 6 March 2024. In that connection –

(a) significant parts of the above are reflected in the applicant’s own written applications to VCAT;[91]
[91]CB 27 and CB 37. See also the applicant’s email to the agent dated 3 January 2024.

(b) despite the applicant presently stating that he was muted ‘from the beginning’,[92] it seems more likely that, as deposed in his affidavit, the applicant was able to speak ‘freely’ and ‘in full’, at least early on;

(c) that position is consistent with the member having come to be satisfied that the first respondent was ‘entitled to possession’ after ‘hearing from the parties why a warrant of possession should not be issued’;[93] and

(d) in the present application, the applicant advanced much of the above almost immediately upon the commencement of the hearing[94] and I tend to think that it is likely that he took a similar (if not even more urgent) approach in the hearing on 6 March 2024.

[92]T27.

[93]CB 46 [10].

[94]T2-4.

Further, the VCAT decision to which the applicant referred post-dates the hearing and orders made on 6 March 2024.[95]
[95]See above (n 91).

In any event, no part of that decision appears to state, directly, that ‘consent’ may relevantly be ‘verbal’, at least not for the purposes of s 81 of the RT Act.

In that regard, I note that the relevant decision of VCAT appears to have followed upon two decisions of Gray J, particularly Myers v Satheeskumar (Appeal from VCAT) in which his Honour appears to have accepted, on the evidence in that case, that the owners of the property had ‘consented in writing’ to a sub-lease to the applicant.[96] In those circumstances, it is hardly surprising that the subsequent decision of VCAT is, at best, Delphic, as to whether such consent may be given verbally.
[96][2023] VSC 747, [5].

In any event, in the circumstances of the present case, much of the above is apt to distract from the question whether, in accordance with s 81 of the RT Act, ‘written consent’ was ever given to a sub-lease as between the second respondent and the applicant. None of the above could be said to have amounted to ‘written consent’. Indeed, there does not appear to have been any evidence that ‘written consent’ was ever given by the first respondent.

In that context, the real issue before the member on 6 March 2024 seems to have resolved into the question whether the applicant should be taken to ‘transition’ to the status of ‘renter’ because the Tribunal should determine that the consent of the first respondent to the sub-lease was not required.

In respect of that issue, of course, it could well be relevant for the Tribunal to consider whether ‘verbal’ consent had earlier been given. That said, the statute invests a power that may be exercised by the Tribunal in all the relevant circumstances, including whether the consent of the owner has been unreasonably withheld.

In the present instance, it is evident from the member’s orders, as well as other circumstances to which I have referred, that –

(a) there was no evidence that written consent to the sub-lease had ever been given;

(b) the first respondent sought possession of the Premises, and contended that there had been ‘assignment or sub-letting without consent’;[97]
[97]CB 31.

(c) the member heard from the parties about why a warrant of possession should not be issued, and, in that regard, it seems likely that the member heard from each of the applicant, first respondent (or her agent) and second respondent;

(d) the member found that –

(v) the applicant was ‘in possession, with out [sic] [the] consent’ of the first respondent;

(vi) among other things, the applicant had ceased paying rent to the second respondent in December 2023, been returned his bond and any payments for utilities, and had purported to grant a licence to a couple to occupy the Premises without consent – all prior to the ‘head agreement’ coming to an end; and

(vii) the applicant also did not have a capacity to pay market rent and had also ‘not demonstrated an understanding of the … duties of a renter’;

(e) in the circumstances, the member concluded that –

(i) s 91R was not ‘enlivened’; and

(ii) the first respondent was ‘entitled to possession and a warrant of possession should be issued’.

In those circumstances, the question whether, pursuant to s 91R of the RT Act, the applicant should be taken to become a ‘renter’, was plainly determined against him by reference to a sequence of findings of fact, including whether any consent had been given by the first respondent.

In the present application, the applicant took issue, in writing, with several of the member’s findings of fact. In particular, in his notice of appeal, the applicant contends that ‘none of the events’ relevantly found by the member ‘actually occurred’.[98]
[98]CB 5 [5].

That said, in his written submissions, the applicant –

(a) agreed with the substance of the finding of the member that the second respondent had vacated the Premises;

(b) agreed that he last paid rent in December 2023, but said that his failure to pay any rent thereafter was not his fault as the first respondent’s agent had not given him a method to do so;

(c) might be said to acknowledge that the position of the second respondent was that the bond and other payments were returned,[99] but contends that this should not have been accepted because the second respondent did not provide bank receipts in respect of such payments;

(d) seems to have acknowledged that he did grant a licence to ‘someone’, but that he had not been required to obtain the consent of the first respondent before doing so;

(e) says that only the first of the above could be said to have occurred on or prior to the termination of the residential rental agreement between the first and second respondent, and then addresses a ‘hypothetical’ directed to the proposition that even if any such events did precede the termination of that agreement it would ‘by no means terminate the sub-residential rental agreement by default’.[100]

[99]In any event, it is clear enough from the findings of the member that he had heard from ‘the parties’ and that the position of the second respondent must have been that he returned the payments to the applicant: CB 46. See also, T13 in which the applicant referred to the suggest, during the hearing on 6 March 2024, that the amounts were ‘already paid – refunded’.

[100]CB 62-63 [41]-[46].

In all of the circumstances (including those to which I have much earlier referred) –

(a) I am not satisfied that any of the findings to which I have referred were not open on the material placed before the member;

(b) in any event, all of the above were, of course, findings of fact, not law;

(c) I am not satisfied that the member made any error of law in concluding, in substance, that the applicant was ‘in possession with out [sic] consent’ and, more broadly, that s 91R was not ‘enlivened’;

(d) in that regard, at the very least, it can hardly be unreasonable to conclude that no consent should be taken to be given in respect of a proposed tenant who has already purported to sub-licence occupancy to an unknown further person without seeking written or, indeed, any, consent; and

(e) it necessarily follows that the member must have accepted that the applicant was not and should not be taken to have been a ‘renter’.

In addition to the above, the question whether the applicant was a ‘renter’ was necessarily anterior to the question whether, pursuant to provisions appearing in Division 9 of Part 2 of the RT Act (including s 91B, appearing in purported question of law 5), a ‘residential rental agreement’ could have been or be said to be terminated.

It follows that in circumstances in which the member plainly did not accept that the applicant had been or should be treated as having become a ‘renter’, there could not presently be any issue whether the provisions to which the applicant now refers bore upon the finding of termination.

It follows that –

(a) it is not apparent that any relevant question of law arises;

(b) the jurisdiction of the Court would not be engaged, even if leave to appeal were granted; and

(c) leave to appeal should be refused in respect of purported questions 3, 4 and 5.

Questions 6 and 7 state –

6.Was the appellant’s application to require an order to direct the head-renter to lodge the bond paid, with the RTBA, wrongly dismissed?
7.Was the appellant’s application to require an order to direct the head-renter to refund utility charges to his renter that he had unlawfully charged, wrongly dismissed?

To say, merely, that an application was ‘wrongly dismissed’ does not articulate or identify any question of law. On that basis alone, leave to appeal could not be granted in respect of stated questions 6 and 7.

In any event, I have earlier referred to –

(a) the applicant’s application to VCAT, in which, in substance, he relevantly claimed a refund for bond and utility payments said to have been made to the second respondent;[101]

(b) the form of the member’s orders, in which it seems evident that he ‘heard’ from ‘the parties’, including, implicitly, each of the applicant and second respondent; and

(c) the member’s finding that the second respondent returned the bond and any payments for utilities to the applicant.

[101]CB 27.

From those matters it will be plain that the issues presently sought to be agitated by the applicant in connection with purported questions of law 6 and 7 are, in truth, questions of fact.

Further, as the applicant acknowledged, both issues depended upon whether he was or could be said to be a ‘renter’ which, of course, was an issue determined against the applicant without evident error.[102]
[102]T35.

In the circumstances, the application for leave to appeal in respect of questions 6 and 7 must be refused.

That brings me to question 2, which states –

Was the appellant denied natural justice when he was not allowed to provide all reasons and details to explain himself in full in response to newly raised statements, many times over, and was ultimately muted by the presiding Member?

Whether or not a party has been denied natural justice can be a question of law.[103]
[103]See, eg, GLS v PLP [2013] VSCA 127, [7].

That said, the applicant’s contentions in respect of question 2 seem to be directed to the proposition that the rules of natural justice should have permitted him to speak at the hearing ‘in full’ and the fact that he might have been muted at some point establishes that he must have been denied procedural fairness.[104]
[104]See, eg, CB 4 [2].

However, that is to rather overstate the relevant requirements of natural justice in any case, including the present.

In that connection, in Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal, the Court of Appeal identified that the content of natural justice ‘varies with the circumstances’ and stated that what will be necessary in any given case ‘cannot be prescribed in advance’.[105]
[105][2006] VSCA 7, [41].

Further, in Roberts v Harkness, the Court of Appeal identified the relevant concern as being to avoid ‘practical injustice’. It follows that a party must be afforded a reasonable opportunity of presenting their case, although what is ‘reasonable’ will depend upon the circumstances of the case.[106]
[106](2018) 57 VR 334, [47]-[49].

In light of the above, it cannot follow merely from the fact that the applicant might have been muted at some point or points in the proceeding that he was denied a reasonable opportunity of presenting his case.

In that context, I have already referred to the difficulty in attributing any decisive weight to the applicant’s various statements, affidavit and other material. It follows that I cannot simply accept his various rather bald assertions to the effect that he was denied natural justice at the hearing.

That said, the applicant variously asserts that he was –

(a) denied a ‘rebuttal many times’;

(b) ‘great[ly] disadvantaged by not being allowed an opportunity to address many essential legal arguments and advise of evidence he had to disprove things that were asserted as facts’; and

(c) unable to request an amount of days before the possession order would be executed because he was muted.[107]

[107]CB 4 [2]. See also CB 59 [21]-[22].

However, it is far from clear what the real substance of any such rebuttal or ‘essential legal arguments’ and ‘evidence’ could ever have been in addition to that which he is already likely to have advanced before the Tribunal.

In that connection, it will be apparent from what I have earlier said that it is likely that –

(a) the applicant had an opportunity to speak freely and in full, especially early in the hearing; and

(b) he took that opportunity to address the substance of all of his matters of concern.

So much also seems to be consistent with various findings recorded by the member, particularly that –

(a) the member ‘heard’ from ‘the parties’ concerning why a warrant of possession should not be issued; and

(b) the second respondent returned the bond and utility payments to the applicant – which suggests that the member must have heard the applicant’s complaint concerning those payments, and then turned to obtain the account of the second respondent before ultimately determining the question of fact.

In the circumstances, I cannot accept that the applicant was denied a reasonable opportunity to present his case in respect of all substantive issues falling for determination on 6 March 2024.

It follows that even if leave to appeal were granted, question 2 would be determined against the applicant.

In a sense, the matters to which I have referred should be sufficient to explain why it is that even if leave to appeal were granted in respect of any of the applicant’s purported questions of law, an appeal would necessarily fail.

However, in respect of at least questions 1, 3, 4 and 5, as well as question 2 to the extent to which it is directed to the order for possession, there are even more fundamental reasons why no leave to appeal could be granted.

In that regard, I have earlier referred to the fact that the applicant applied for a stay of the order for possession and that his application was refused by Gray J on 21 March 2024.

In those circumstances, the applicant presently acknowledged that he was no longer in possession of the Premises and, indeed, that he was not trying to regain possession.[108] Nonetheless, he broadly contended that ‘these things need to be clarified’[109] and that he needed precedents to be ‘set’[110] for ‘future things’.[111]
[108]T39 and T49.
[109]T6
[110]T18.
[111]T51.

I have also noted that in the period leading up to trial, the applicant sought and obtained leave to discontinue the present proceeding against the first respondent.

It follows that when the proceeding came to trial the first respondent was not a party, albeit the applicant sought to quash the following order of the member –

The applicant [first respondent] is entitled to a possession order.

In Bass v Permanent Trustee Co Ltd, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ stated –

45The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (99), Kitto J said:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.

46Similarly, Professor Borchard in his pioneering work, Declaratory Judgments (100) stated:
A judgment of a court is an affirmation, by the authorized societal agent of the state ... of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called 'judicial power,' is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights.[112]

[112](1999) 198 CLR 334, [45]-[46] (citations omitted).

Their Honours thereafter confirmed that the judicial process involves the final determination of ‘the rights of the parties to an action’, which is why courts have ‘traditionally refused to provide answers to hypothetical questions or to give advisory opinions’.[113]
[113]Ibid [47].

In light of the principles to which I have referred, not only is the present challenge to the order for possession futile, but it is tantamount to an abuse of process; as any appeal, if leave were relevantly granted, would be thereafter fall to be pursued in the absence of the person who has the benefit of the order sought to be quashed. No such action could possibly give rise to a proper exercise of judicial power and therefore any precedent that could bind or guide any future court or Tribunal.

For those further and most fundamental of reasons, no grant of leave to appeal could ever be made in respect of at least the questions to which I have referred.

E. Conclusion

For the reasons explained, the application for leave to appeal must be dismissed.

[2024] VSC 770

13 December 2024