Podhaski v Bennett
[2000] VSC 197
•11 April 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4214 of 2000
| H. ALLEN PODHASKI | Applicant |
| v | |
| BERNIE BENNETT & LYNN BENNETT | Respondents |
| and VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL RESIDENTIAL TENANCIES LIST |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2000 | |
DATE OF JUDGMENT: | 11 April 2000 | |
CASE MAY BE CITED AS: | Podhaski v Bennett & Anor | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 197 | Revised 21 November 2000 |
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Appeal from Master – ex parte application for review – Administrative Law Act – decision of Victorian Civil and Administrative Tribunal – Residential Tenancy Act – jurisdiction under The Administrative Law Act – jurisdiction restricted – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr W. Gillies | Pro Bono |
| For the Respondents |
HIS HONOUR:
This is an appeal from an order made by Master Wheeler on 15 February 2000 dismissing an ex parte application by the applicant H. Allen Podhaski for an order to review a decision pursuant to the Administrative Law Act 1978.
The decision in question is one made by a member of the Victorian Civil and Administrative Tribunal, Ms J. Good, sitting in the Residential Tenancies List on 11 January 2000.
The applicant, Mr Podhaski, made an application to the Tribunal, dated 24 November 1999, as a tenant, seeking a decision that a notice to quit served upon him by his landlords was of no effect under s.266 of the Residential Tenancies Act 1997.
The landlords are the first and second respondents to the present application, Mr Bernie and Mrs Lynn Bennett. The premises in question are located in this State.
The premises were leased to the applicant in November 1998. The letter evidencing the tenancy is dated 1 November 1998 and was signed by the parties.
Although the agreement refers to a five-year term, in my opinion the tenancy was from year to year because of the wording in the letter to the effect that the term was subject to annual renewal.
In mid-1999, the applicant wrote to the landlords and complained about his neighbour who was also a tenant of the same landlords. All told, he wrote three letters. Not only did he complain about the tenant, but raised issues about the state of his premises.
On 9 September 1999, he delivered a notice to his landlords requiring repairs to be carried out. The complaints were in respect to the stove which needed repair, a bedroom window and frame, either necessitating repair or replacement, and ant infestation. He required the matters to be attended to. He followed this by notices to the landlords, dated 9, 16 and 24 September 1999, alleging breach of duty. He asserted the breach as "not allowed quiet enjoyment" and required as a remedy "evict tenants in flat downstairs". As an alternative he asked for compensation, initially the sum of $680, and thereafter in the last two notices of $3,680.
On 20 September 1999, the landlords gave written notice to the applicant to vacate at the expiration of 90 days. No reason was given.
Section 263 of the Residential Tenancies Act 1997 provides -
"(1) A landlord may give a tenant notice to vacate rented premises without specifying a reason for the giving of the notice.
(2) The notice must specify a termination date that is not less than 90 days after the date on which the notice is given".
It was the notice which the applicant challenged by his application under s.266(2) of the Act. Section 266(2) provides -
"(2) A notice under section 261 or section 263 is of no effect if it was given in response to the exercise, or proposed exercise, by the tenant of a right under this Act. "
It can be seen that what the applicant was putting in issue was whether or not the notice to quit was given in response by the landlords to a right that he had exercised under the Act, namely, giving the notices alleging breach of duty.
The applicant in his two affidavits referred to what occurred before the Tribunal.
The order of the Tribunal is in these terms -
"The tribunal found that:
1.The landlords gave the tenants not less than 90 days notice under s.263 of the Residential Tenancies Act 1997.
2.The tenant applied to the tribunal challenging the validity of the motion within the time provided in s.266(3) of the Act.
The tribunal orders that:
1.The application by the tenant challenging the validity of the notice to vacate given by the landlords is dismissed for the reason that the tribunal is satisfied that:
The notice was not given in respect to the exercise, or proposed exercise, by the tenant of a right under the Residential Tenancies Act 1997. "
The applicant applied to Master Wheeler under the Administrative Law Act for an order to review this decision by the Tribunal and the application was dismissed. Master Wheeler did raise the question whether the applicant had the right to apply under the Act, taking into account the detailed provisions of s.148 of the Victorian Civil and Administrative Tribunal Act 1998, which gives a right to appeal to this court, but only with leave of the court.
The argument is that the section in the Victorian Civil and Administrative Tribunal Act provided an exclusive code with respect to appealing decisions. See by way of example Waters v. Public Transport Corporation (1991) 173 CLR 349 at 415.
I am satisfied that the applicant is entitled to exercise the jurisdiction under the Administrative Law Act, but the right to review is very restricted when a review is sought of an order of the Victorian Civil and Administrative Tribunal under the Residential Tenancies Act 1997.
I am satisfied the court does have jurisdiction under the Administrative Law Act because the Tribunal is expressly mentioned in the Act. It follows that the definition of "Tribunal" in s.2 of that Act does not stand in the way of an application being made against a decision of the Tribunal.
Section 2 defines "Tribunal" as meaning "a person or body of persons (not being a Court of Law or a Tribunal constituted or presided over by a Judge of the Supreme Court) ..."
On a plain reading of the definition it could be argued that the Administrative Law Act was not available for anybody seeking to review a decision of the Victorian Civil and Administrative Tribunal on the ground that the Tribunal is presided over by a Judge of this Court. However, it is clear from the provisions of s.4(3) and (4) of the Act that the Legislature intended that the Act be available to review a decision of the Victorian Civil and Administrative Tribunal.
Section 4(4) of the Administrative Law Act provides -
"If an application for review relates to a proceeding in the Victorian Civil and Administrative Tribunal or a determination or order of this tribunal under the Residential Tenancies Act 1997, the court must refuse the application unless it is satisfied that the applicant has made out a prima facie case for relief under s.7 on the ground that -
(a) the tribunal had or has no jurisdiction in relation to the matter; or
(b) there has been a denial of natural justice to the applicant or to a party in the proceeding before the tribunal."
It can be seen from the wording of that sub-section that this court must refuse an application unless the applicant makes out a prima facie case either there was no jurisdiction or there had been a denial of natural justice.
Before considering the jurisdiction of this court under that Act, I interpolate to note that the applicant was late in bringing his appeal on for hearing - see rule 77.05(3) of the Rules of Court. That sub-rule requires an appeal in a proceeding that has been heard ex parte must be brought on for hearing within five days of the decision appealed from. However, the court does have power to extend time, see Rule 77.05(6), and I did extend time during the hearing. I did so because the applicant was acting for himself, he did not receive the authenticated order for a number of days after it was pronounced, and the period of delay was indeed small.
Justice, in the circumstances, demanded that I extend the time to enable him to bring this appeal before the court, and I did so.
Coming back to the jurisdiction, Mr Gillies of counsel, who appeared pro bono for the applicant, informed the court that the applicant's ground of complaint was that the decision of the Tribunal was so unreasonable that no reasonable tribunal could have made the decision and, accordingly, it should be set aside.
The principle upon which a court will set aside a decision on the ground of unreasonableness was established in its current form by a Court of Appeal decision of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation 1948 1 KB 223. However, it is important to note what that decision established.
In my view the Wednesbury principle is confined to attacking a discretion which has been exercised on the ground that it was an unreasonable exercise of the discretion.
This is made very clear by a consideration of not only the facts in the Wednesbury case, but also the observations made by Lord Greene, MR.
In that case a section of the Sunday Entertainments Act of 1932 authorised the local municipality to grant licences for cinema performances and the question was whether it was entitled to impose conditions. The Act in fact did give power to the municipality to impose conditions. The local authority did grant to the plaintiffs, who operated a picture theatre, leave for Sunday performances, subject to the condition that no children under the age of 15 years should be admitted to Sunday performances.
The question of imposing conditions was a matter for the discretion of the local municipality. So the case is concerned with the exercise of a discretion and whether the exercise was unreasonable in the circumstances. This is made clear by what Lord Greene, MR, said at p.230. He said this -
"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it was proved to be unreasonable, really meant it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of the local authority on matters of high public policy of this kind ... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere."
The decision has been followed in this country and established a principle often described as the "Wednesbury Principle". In my opinion the principle applies to an exercise of discretion. That is not the case here.
This is made clear by what Lord Scarman said in The Queen v. Secretary of State for the Environment ex parte Nottingham Shire CC 1986 AC 240 at 249 when he said -
"Wednesbury principles is a conveniently legal 'shorthand' used by lawyers to refer to the classical review by Lord Greene, MR, in the Wednesbury case of the circumstances in which the courts will intervene to quash as being illegal the exercise of administrative discretion".
(Emphasis added.)
In my opinion, this case is not concerned with the exercise of any discretion by the Tribunal. The Tribunal was confronted with an issue which had to be decided on the material before it. It was not purporting to exercise a discretion. In my view, the unreasonable principle could not possibly apply in the present case.
Having said that, it is clear that O'Bryan, J. in the case of Robbins v. Harness Racing Board [1984] VR 641 took the view that it was open on an application under the Administrative Law Act to prove that no reasonable tribunal could have come to the decision under review which it did.
In that case the court was concerned with an administrative law attack upon a decision of the Harness Racing Board. It appeared that the applicant, Mr Robbins, saw the chief steward in the stewards' room and he expressed criticism of the way in which the Board had carried out its functions of controlling harness racing. As a result, he was charged under the Rules of the Board with improper or offensive behaviour. He was found guilty and he was penalised. His appeal to the Board was dismissed. He obtained an order nisi pursuant to the Administrative Law Act to review the decision. Mr Justice O'Bryan considered whether or not any reasonable board could have come to the decision which it had come to. He said at page 646 -
"In my opinion, the words spoken by the applicant at the place were and in the circumstances when they were spoken are not capable of being regarded as improper or offensive behaviour within the meaning of the rule by a reasonable tribunal. I must emphasize that my function is to determine whether the tribunal could reasonably have made the decision it did. I am not entitled to substitute my own opinion for the decision of the tribunal".
And then later at p.647, His Honour said –
"I have pondered over the conversation for several days and I am clearly of the opinion that the words are incapable of being found to constitute improper or offensive behaviour by a reasonable tribunal. No reasonable tribunal acting fairly and confining itself to relevant matters could have arrived at the conclusion reached by the Harness Racing Board. In my opinion, a serious injustice has been caused to the applicant by the decision and I would uphold the grounds".
Mr Justice O'Bryan did not refer to the Wednesbury principle. It appears to me that he was of the opinion that the court did have a jurisdiction under the Administrative Law Act to consider whether or not a decision was reasonable, in the sense whether there was any basis for it. However, as he pointed out, the court was not substituting its opinion for the decision of the Tribunal, and the test is very similar to a test when an attack is made upon a jury verdict on a question of fact, namely, that the verdict is so perverse no reasonable jury could possibly have come to that decision on the evidence. O'Bryan, J. held that there was jurisdiction to set aside an order under the Administrative Law Act if it was so unreasonable that no reasonable tribunal could possibly have arrived at it. But the Act has been amended since that decision and the jurisdiction to review a decision of the V.C.A.T. is limited.
In my view, the issue here is whether this court has jurisdiction which is clearly limited by the terms of s.4(4) to review the decision here on the grounds put forward. The sub-section is expressed in terms which show that the court must dismiss the application unless the applicant does establish either no jurisdiction or a denial of natural justice.
Mr Gillies did not submit that the Tribunal did not have jurisdiction in relation to the matter. He conceded it did. In my opinion, that concession was correct. In my view, the Tribunal did have the jurisdiction to consider the issue raised by the application filed by the applicant, challenging the validity of the notice to quit.
The next question is has there been a denial of natural justice? The principles of natural justice involve two basic general rules, namely -
"(i) the audi alteram partem rule - the right to know the allegations put and an opportunity to be heard;
(ii) the rule against bias - the body making the decision should be free from bias, actual or perceived.
The ultimate question is whether the decision-making process ensured procedural fairness. As has often been put, the Tribunal hearing is and must be "fair play in action". See Ridge v. Baldwin, 1993, 1 QB 539 at 578 per Harman, J.
The attack made upon the present decision does not fall within what is understood and commonly known as the principles of natural justice, and in my view there is no basis for suggesting that Mr Podhaski was denied natural justice.
Coming back to the Wednesbury principle, which is somewhat analogous on the point made by O'Bryan, J. in Robbins, it is clear that that principle has never been part of the law relating to natural justice.
In Administrative Law, sixth edition, by Sir William Wade, the learned author stated this at p.398 -
"Its contribution (the Wednesbury principle) to administrative law on the substantive side is equal to that of the principles of natural justice on the procedural side".
As that observation makes clear, as indeed do all the cases, any attack upon a decision on the unreasonable ground does not involve a question of natural justice or a denial thereof. In my opinion the principle applied by O'Bryan, J. also is concerned with substantive law and not procedural law.
So it follows that the applicant has been unable to bring his grounds of complaint within section 4(4) of the Administrative Law Act 1978.
However, if the principle which O'Bryan, J. was prepared to apply was otherwise available, in my view, the material does not persuade me that there is any demonstrable error made on the part of the Tribunal member.
It may be argued that if a tribunal fails to give full effect to all the evidence before the Tribunal and proceeds to make a decision which cannot be supported in any way, that in those circumstances the Tribunal is not exercising its jurisdiction. But I must point out that s.4(4)(a) does not talk about performing the jurisdiction; it is a question whether the Tribunal had jurisdiction "in relation to the matter", and it may be that the sub-section confines any attack upon the jurisdiction to a question whether or not the Tribunal did have jurisdiction.
But for present purposes I am prepared to further consider this matter to determine whether or not there was evidence which supported the Tribunal member's decision. It is arguable that the decision was perverse and so unreasonable that the member did not properly exercise the jurisdiction.
In my view, clearly there was evidence which supported her decision. The affidavits of the applicant refer to what took place before the Tribunal, and I also have the benefit of the reasons which are set out in the order.
The issue which confronted the Tribunal was whether or not the notice to quit was given because of what the tenant had done in delivering his notices. That was the issue that the Tribunal had to decide. The member saw both the applicant and the landlords. She had the benefit of hearing evidence and considering material before her. She had to make a decision on the facts as to whether or not the notice to quit was in response to the fact that the tenant had served a number of notices.
The tenant relied on the evidence of coincidence, namely he had written a number of letters, followed by notices, and then eventually he is given a notice to quit. His point is, as night follows day, it must be that that was the cause of the notice to quit. But in his affidavit, he records that Mrs Bennett asserted to the Tribunal that she was under considerable mental stress because of what had taken place and the fact that the tenant, that is the applicant, was unhappy and this was creating enormous problems to the relationship of landlord and tenant.
In the end, the Tribunal had to make a decision, and in my view the evidence supported her finding; in other words, it was a finding that was available to her, so even if I had been of the view that an unreasonable decision could be a basis for saying that the Tribunal had no jurisdiction, in my view, clearly the decision was a reasonable one, or, to put it another way, it was open on the evidence.
That is not saying that this court would have made exactly the same decision, and it is not saying for one moment that the applicant did not have some basis for complaint. But the fact was that in the end he and the landlords appeared before a Tribunal, the Tribunal heard them out and made a decision and, in my view, he could not say that this decision was unreasonable in the sense that the Tribunal was not properly exercising its jurisdiction. I wish to emphasise that I have considered the submission that the issue of unreasonableness may go to jurisdiction but I have not found that s.4(4)(a) does permit such an argument.
So for those all those reasons, I will dismiss this appeal.
I will make the following orders -
1.That the time specified in Rule 77.05(3) of the Rules of Court be extended to 11 April 2000.
2.That the applicant's appeal dated 25 February 2000 is dismissed.
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