Sayed v Salvation Army Housing

Case [2023] FCA 1298

FEDERAL COURT OF AUSTRALIA

Sayed v Salvation Army Housing [2023] FCA 1298  

File number(s): VID 411 of 2023
Judgment of: HORAN J
Date of judgment: 23 October 2023
Date of publication of reasons: 27 October 2023
Catchwords: PRACTICE AND PROCEDURE – Decision by Registrar not to accept interlocutory application for filing under rr 2.26 and 2.27 of the Federal Court Rules 2011 (Cth) – application under r 3.04 for order directing Registrar to accept application for filing – whether interlocutory application is frivolous or vexatious or abuse of process, either on its face or by reference to other documents filed – whether in the interests of the due administration of justice to direct Registrar to accept interlocutory application for filing – application allowed subject to conditions
Legislation:

Federal Court Rules 2011 (Cth) rr 1.37, 2.26, 2.27, 3.04

Residential Tenancies Act 1997 (Vic) ss 86, 91ZL, 91ZM, 322(1), 448

Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 77, Part 3A

Cases cited:

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Cristovao v Registrar Scott [2013] FCAFC 92

DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575

Ferdinands v Registrar Cridland [2022] FCAFC 80

MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197

Nyoni v Murphy (2018) 261 FCR 164

Qantas Airways Ltd v Lustig (2015) 228 FCR 148

Re Pickering [2009] FCA 809

Sayed v Salvation Army Housing [2023] FCA 526

Somasundaram v Luxton [2020] FCA 1076

Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; (2022) 407 ALR 187

Walton v Gardiner (1993) 177 CLR 378
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 53
Date of hearing: 20 October 2023
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: The Respondents did not appear

ORDERS

VID 411 of 2023
BETWEEN:

MUHAMMAD ALI SAYED

Applicant
AND:

SALVATION ARMY HOUSING (ACN 608 346 934)

First Respondent

SALVATION ARMY HOUSING (VICTORIA) (ACN 133 724 651)

Second Respondent

CHIEF EXECUTIVE OFFICER, HOMES VICTORIA (ABN 88 139 482 080) (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HORAN J

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:

1.The Registrar be directed under rules 1.37 and 3.04 of the Federal Court Rules 2011 (Cth) to accept for filing the Interlocutory Application lodged for filing on 5 October 2023, on the conditions that:

(a)first, the Interlocutory Application be amended either to name the Victorian Civil and Administrative Tribunal (VCAT) as a respondent to the Interlocutory Application or to state that the Interlocutory Application is to be served on VCAT; and

(b)second, the Interlocutory Application be accompanied by either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or…

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Details
AGLC
Sayed v Salvation Army Housing [2023] FCA 1298
Case
[2023] FCA 1298
Decision Date

CaseChat Overview and Summary

The applicant, who had entered into a rental agreement with the Salvation Army Housing (Victoria) (SAHV), sought an order from the court for the Registrar to accept for filing an interlocutory application in relation to proceedings which arose out of the rental agreement. The applicant's interlocutory application was initially rejected by the Registrar for filing. The court had to decide whether the interlocutory application was frivolous or vexatious or an abuse of process, either on its face or by reference to other documents filed, and whether it was in the interests of the due administration of justice to direct the Registrar to accept the interlocutory application for filing.

The court held that the interlocutory application was not frivolous or vexatious or an abuse of process. It noted that the applicant's case raised arguable issues of law and fact, which the court should be entitled to hear and determine. The court also held that it was in the interests of the due administration of justice to direct the Registrar to accept the interlocutory application for filing, subject to conditions. The court held that the applicant should either name the Victorian Civil and Administrative Tribunal (VCAT) as a respondent to the interlocutory application or state that the interlocutory application is to be served on VCAT. The court also held that the applicant should accompany the interlocutory application with either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or other documents on which the applicant relies, in support of the interlocutory application.

The court allowed the applicant's application for an order directing the Registrar to accept the interlocutory application for filing, subject to the conditions set out in the orders. The Registrar was directed to accept for filing the Interlocutory Application lodged for filing on 5 October 2023, on the conditions that the Interlocutory Application be amended either to name VCAT as a respondent to the Interlocutory Application or to state that the Interlocutory Application is to be served on VCAT, and that the Interlocutory Application be accompanied by either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or other documents on which the applicant relies, in support of the Interlocutory Application.

Orders

Orders of the court

1. The Registrar be directed under rules 1.37 and 3.04 of the Federal Court Rules 2011 (Cth) to accept for filing the Interlocutory Application lodged for filing on 5 October 2023, on the conditions that:

(a) first, the Interlocutory Application be amended either to name the Victorian Civil and Administrative Tribunal (VCAT) as a respondent to the Interlocutory Application or to state that the Interlocutory Application is to be served on VCAT; and

(b) second, the Interlocutory Application be accompanied by either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or other documents on which the applicant relies, in support of the Interlocutory Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Reasons were delivered orally following the making of those orders on 23 October 2023. The applicant was informed that written reasons would follow. I now publish those reasons.BACKGROUND The proceedings in which the current application arises have a lengthy and rather complicated background, some of which was addressed in the first instance judgment of O’Callaghan J in Sayed v Salvation Army Housing [2023] FCA 526 at [11]-[39] (Sayed). I will attempt to summarise some of the key aspects in so far as they are relevant to the present application. In February 2020, the applicant entered into an agreement to lease premises from the second respondent, Salvation Army Housing (Victoria) (SAHV), under the Residential Tenancies Act 1997 (Vic) (RTA). SAHV operates in Victoria as a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It provides housing services pursuant to a Service Agreement entered into with the State of Victoria. Under the rental agreement, SAHV let the premises in question to the applicant for a period of 16 weeks commencing on 6 February 2020 and ending on 28 May 2020 or until terminated in accordance with the RTA. The premises were let for the purpose of providing transitional housing to the applicant whilst he was in housing crisis. Notwithstanding the limited term of the lease, it is apparent that the applicant currently remains in occupation of the premises. There were terms of the rental agreement that SAHV must make sure the premises are maintained in good repair and were in a reasonably clean condition on the day on which the applicant entered into occupation, and that the applicant must keep the premises in a reasonably clean condition during the period of the agreement and must not use or allow the premises to be used in any such manner as to cause a nuisance. On 28 October 2022, the applicant made a complaint to a Commissioner of the Salvation Army, copied to a director of SAHV, in relation to the condition of his apartment. Following this complaint, SAHV issued a notice of inspection of the rented premises under s 86(1)(e) of the RTA. On 9 November 2022, representatives of SAHV conducted an inspection during which they took photographs of the inside of the premises. The inspection and the taking of photographs gave rise to further complaints made by the applicant, who claimed that he had not given his consent either to the entry to the premises or the taking of photographs. I note that it does not appear that the applicant had a right to refuse entry by SAHV in so far as it was exercising a right of entry under the RTA. On 11 November 2022, SAHV issued the applicant with a notice to vacate under s 91ZL of the RTA on the basis that the premises were unfit for human habitation, or had been destroyed totally or to such an extent as to be rendered unsafe. The reasons for the notice referred to the applicant’s letter raising concerns and providing pictures depicting the state of the property, the inspection that was conducted on 9 November 2022 by representatives of SAHV, and the photographs that were taken during that inspection. The notice asserted that the premises were unsafe due to health and safety issues caused by the accumulation of rubbish and failure to maintain the property by the tenant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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