Stewart v Good Shepherd Australia New Zealand
[2025] VSCA 206
•29 August 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2025 0088 |
| CARINA STEWART | Applicant |
| v | |
| GOOD SHEPHERD AUSTRALIA NEW ZEALAND (ACN 135 641 217) & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | RICHARDS JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 29 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 206 |
| JUDGMENT APPEALED FROM: | Stewart v Good Shepherd Australia New Zealand [2025] VSC 351 (Finanzio J) |
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PRACTICE AND PROCEDURE – Summary judgment – Applicant living in property provided by first respondent intended as temporary crisis accommodation – First respondent counterclaimed for possession – Associate judge gave summary judgment on counterclaim – Appeal dismissed by judge – Construction of ‘temporary crisis accommodation’ in s 22 of Residential Tenancies Act 1997 – Discretion under s 64 of Civil Procedure Act 2010 – Whether applicant denied procedural fairness – Whether applicant’s claims in equity and under Charter of Human Rights and Responsibilities Act 2006 relevant to counterclaim for possession – Proposed grounds of appeal totally without merit – Application for leave to appeal dismissed.
Residential Tenancies Act 1997 ss 3, 6(2), 22; Civil Procedure Act 2010 ss 61, 63–4; Charter of Human Rights and Responsibilities Act 2006 ss 13, 17, 24, 32.
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RICHARDS JA:
In September 2021, Carina Stewart was referred to Good Shepherd Australia New Zealand (‘Good Shepherd’) as a victim of family violence. Good Shepherd, which is a charitable organisation that provides temporary crisis accommodation, placed Ms Stewart in a property that it leases from the Department of Families, Fairness and Housing (‘Department’). Ms Stewart signed an accommodation agreement stating that she understood that the accommodation was temporary crisis accommodation and that she could stay for a maximum of six to eight weeks.
Nearly four years later, Ms Stewart is still living in the property. She has refused all offers of alternative accommodation and has resisted all of Good Shepherd’s attempts to get her to leave the property. At no stage has Ms Stewart paid rent in respect of her occupation of the property.
On 17 January 2023, Ms Stewart commenced a proceeding against Good Shepherd and the Department in the Trial Division of the Supreme Court. In an amended statement of claim filed in September 2023, Ms Stewart alleged negligence on the part of both defendants, ‘detrimental reliance’, a constructive trust in respect of contributions she had made to the value of the property, and breach of statutory duties owed by the Department under the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). She sought orders for compensation, and the imposition of a constructive trust over the property in her favour. Against the Department, she sought an order that it provide secure, long-term housing for her and her children, and an order restraining it from any further action in breach of their Charter rights.
Both Good Shepherd and the Department denied any liability to Ms Stewart. Good Shepherd counterclaimed for an order for possession of the property, and in April 2024, it served Ms Stewart with a notice to vacate the property.
On 10 July 2024, Good Shepherd applied for summary judgment on its counterclaim under s 61 of the Civil Procedure Act 2010. That application was granted by Ierodiaconou AsJ, who ordered that Good Shepherd recover possession of the property and that Ms Stewart deliver up vacant possession of the property by 8 October 2024. A warrant of possession was issued on 8 October 2024, but has not yet been executed.
On 27 February 2025, Ms Stewart filed a summons against the Sheriff’s Office Victoria (‘Sheriff’) seeking, among other things, an injunction preventing the Sheriff from executing the warrant of possession. Subsequently, Finanzio J ordered a stay of execution of the warrant of possession until further order of the Court, and the Sheriff was added as a third party to the proceeding.
Ms Stewart appealed the associate judge’s orders. On 18 June 2025, Finanzio J dismissed the appeal and discharged the stay of execution of the warrant of possession.[1] On 7 July 2025, the judge ordered Ms Stewart to pay Good Shepherd’s and the Department’s costs of the proceeding, together with the Sheriff’s costs in relation to its involvement in the proceeding.
[1]Stewart v Good Shepherd Australia New Zealand [2025] VSC 351 (‘Reasons’); Order of Finanzio J in Stewart v Good Shepherd Australia New Zealand (Supreme Court of Victoria, S ECI 2023 00225, 18 June 2025).
Ms Stewart now seeks leave to appeal to this Court from the judge’s judgment and orders. She also seeks a stay of execution of the warrant of possession, pending determination of her proposed appeal. Her applications are opposed by Good Shepherd and the Department.
On 13 August 2025, the Registrar of the Court of Appeal referred Ms Stewart’s applications to me, to be considered and dealt with under r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). I did not consider it necessary or desirable to have an oral hearing, and have determined the matters referred to me on the papers.
For the reasons that follow, I have concluded that the application for leave to appeal is totally without merit and must be dismissed. The application for a stay therefore falls away.
Relevant provisions
Residential Tenancies Act 1997
The Residential Tenancies Act 1997 (‘RT Act’) defines the rights and duties of residential rental providers and rooming house operators, and renters of rented premises and residents of rooming houses. Division 2 of pt 1 makes detailed provision for the circumstances in which the RT Act does and does not apply. Among various exclusions from the application of the RT Act, s 22 provides:
This Act does not apply to a residential rental agreement or room if the rented premises or room are provided as temporary crisis accommodation.
The RT Act defines ‘temporary crisis accommodation’ to mean:
… accommodation provided—
(a) for a prescribed period (if any); and
(b) on a non-permanent basis; and
(c) on a non-profit basis; and
(d) which is prescribed to be temporary crisis accommodation;[2]
[2]RT Act, s 3(1) (definition of ‘temporary crisis accommodation’).
Regulation 6(2) of the Residential Tenancies Regulations 2021 (‘RT Regulations’) provides:
For the purposes of paragraph (d) of the definition of temporary crisis accommodation in section 3 of the Act, accommodation is prescribed to be temporary crisis accommodation if it is accommodation which is provided—
(a) for a person—
(i) experiencing homelessness or at risk of experiencing homelessness; or
(ii) being subjected to family violence or at risk of being subjected to family violence; and
(b) by a person or body which receives funding on the direction of the Minister for Housing or the Minister for Prevention of Family Violence for the purpose of providing such accommodation.
At the relevant times, no period was prescribed for the purposes of paragraph (a) of the definition of ‘temporary crisis accommodation’.
Civil Procedure Act
Part 4.4 of the Civil Procedure Act provides for summary judgement in civil proceedings.
Section 61 enables a plaintiff in a civil proceeding, including a plaintiff by counterclaim, to apply for summary judgment in the proceeding on the ground that a defendant’s defence or part of that defence has no real prospect of success.
Section 63(1) provides:
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
Under s 64, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because it is not in the interests of justice to do so, or the dispute is of such a nature that only a full hearing on the merits is appropriate.
Judge’s Reasons
The judge outlined the relevant provisions of the RT Act and the circumstances in which Ms Stewart came to be occupying the property, and set out the accommodation agreement that she signed upon arrival. He concluded that:
(a)Ms Stewart was referred to Good Shepherd as a victim of family violence and was therefore a person who fell within reg 6(2)(a)(ii) of the RT Regulations;[3]
(b)Good Shepherd is an accommodation provider within the meaning of reg 6(2)(b) of the RT Regulations;[4] and
(c)the terms of the accommodation agreement made it explicitly clear that Ms Stewart’s stay fell squarely within the meaning of ‘temporary crisis accommodation’.[5]
[3]Reasons, [28].
[4]Reasons, [30].
[5]Reasons, [31].
Next, the judge reviewed the evidence before the associate judge about Ms Stewart’s continued occupation of the property, and concluded:
The evidence before the Associate Justice was incontrovertible. At all relevant times:
(a) Ms Stewart was and remains a person who falls within the terms of r 6(2)(b) of the Regulations;
(b) Good Shepherd was offering a service at the property which fell squarely within the terms of s 22 [of] the RTA and r 6(2) of the Regulations; and
(c) Good Shepherd persistently maintained that Ms Stewart’s occupation remained ‘temporary’ despite her continued refusal to leave.[6]
[6]Reasons, [39].
The judge noted that, before the associate judge, Ms Stewart had submitted that her occupancy of the property had become permanent, so that the RT Act applied and the notice to vacate was invalid. However, the judge observed, Ms Stewart had advanced no evidence or cogent explanation to substantiate her claim that she was entitled to remain on the property.[7] In relation to three specific arguments advanced by Ms Stewart before the associate judge, his Honour said:
(a)The reference to a ‘sub-lease’ in the notice to vacate did not change the nature of Ms Stewart’s occupation of the property, which remained temporary crisis accommodation under the RT Act.[8]
(b)While the Department had made an offer to settle all proceedings in a way that might have resulted in Ms Stewart entering into a residential rental agreement, no deed of settlement had been executed by all three parties. There was no evidence of any form of residential rental agreement to which the RT Act might have applied.[9]
(c)There was no evidence of any conduct on the part of Good Shepherd which would give rise to a right of possession. At most, Good Shepherd had offered to assist Ms Stewart in finding accommodation that was safe from the violence from which she was escaping.[10]
[7]Reasons, [40]–[41].
[8]Reasons, [42]–[44].
[9]Reasons, [45]–[48].
[10]Reasons, [49]–[52].
The associate judge had held that none of the claims made by Ms Stewart in the proceeding would give rise to a right of possession, so that there was no real prospect of her defending the counterclaim. The judge said that he could discern no appellable error in the associate judge’s assessment of those claims.[11]
[11]Reasons, [53]–[56].
Turning to the appeal from the associate judge’s orders, the judge set out the four grounds of appeal advanced by Ms Stewart:
1. Error in applying the legal test: The Associate Judge incorrectly applied or interpreted the “no real prospect of success” test as outlined in sections 61 and 62 of the Civil Procedure Act 2010.
2. Incorrect application of legal principles: The Associate Judge misapplied relevant legal principles or precedents when assessing whether there was a real prospect of success.
3. Failure to consider material evidence: the Associate Judge failed to properly consider or give weight to evidence that demonstrated a real issue to be tried.
4. The Associate Judge failed to properly consider if the notice to vacate was valid. Issues with application and did not give significant to my position of Sublease.[12]
[12]Reasons, [60].
In the judge’s view, only Ground 4 grappled with the central issues of the application of the RT Act and the validity of the notice to vacate. Grounds 1, 2 and 3 were inarguable.[13] Even if it could be said that the associate judge had somehow misapplied the correct test, ‘Ms Stewart had no arguable defence in fact or law to Good Shepherd’s claim for possession’.[14]
[13]Reasons, [61]–[65].
[14]Reasons, [66].
The judge then addressed written submissions filed by Ms Stewart, which he said raised a number of matters not argued before the associate judge, which were not the subject of evidence, and were immaterial to the disposition of the appeal.[15] In particular:
(a)Ms Stewart had not sought to cross-examine the makers of affidavits before the associate judge. She had ample opportunity to articulate the basis on which she said she was entitled to possession of the property, and to dispute the accounts given in the affidavits relied upon by Good Shepherd and the Department. Procedural fairness did not require that she be given an opportunity to cross-examine on matters that were not in dispute.[16]
(b)Good Shepherd’s initial reliance on a superseded version of the RT Regulations was corrected during the hearing before the associate judge.[17] Ms Stewart’s complaint that she was not given an adequate opportunity to consider the applicable version did not raise any matter of substance. The associate judge was obliged to have regard to the applicable version of the RT Regulations.[18]
(c)Ms Stewart’s reliance on Trident General Insurance Co Ltd v McNeice Bros Pty Ltd[19] was misplaced. She did not have a sub-lease and was not entitled to the benefits of cl 5.4 of the lease between Good Shepherd and the Department.[20]
[15]Reasons, [67].
[16]Reasons, [68]–[79].
[17]The superseded version included reg 6(1), which had prescribed a period of not more than six months for the purposes of paragraph (a) of the definition of ‘temporary crisis accommodation’ in s 3 of the RT Act. Regulation 6(1) was deleted from the RT Regulations on 29 March 2021, before Ms Stewart’s occupancy of the property.
[18]Reasons, [80]–[83].
[19](1988) 165 CLR 107; [1988] HCA 44.
[20]Reasons, [84].
Finally, the judge considered a number of new matters raised by Ms Stewart in her final written submissions, which had not been put to the associate judge. He concluded that none of them affected the outcome of the appeal. In brief summary:
(a)The judge rejected Ms Stewart’s submission that s 22 of the RT Act should be construed in a way that takes into account the vulnerability of a person who avails themselves of temporary crisis accommodation. The provision plainly says that the RT Act does not apply if the accommodation is provided as ‘temporary crisis accommodation’.[21]
(b)The associate judge’s decision was not based on a finding that Ms Stewart could reasonably secure alternative accommodation within the one month period fixed by the Court. The effect of her orders was that Ms Stewart was required to vacate the property, and a two week period was set before the order for possession took effect.[22]
(c)The Charter did not assist Ms Stewart for the simple reason that nothing contained in the Charter was sufficient to give her a right of possession, or furnish her with a defence to Good Shepherd’s claim for possession. In addition, the judge doubted that Good Shepherd was a public authority for the purposes of the Charter.[23]
(d)Contrary to Ms Stewart’s submissions, there was no ambiguity in the language used by Good Shepherd that could have led her to believe that she would not be summarily evicted. It was made clear from the outset that her stay was temporary, and this was reiterated time and again by Good Shepherd.[24]
(e)Consistent with Yin v Wu,[25] the associate judge had explicitly considered and declined to apply s 64 of the Civil Procedure Act. Her Honour’s assessment of the ‘interests of justice’ could not be faulted, there being nothing in the proceeding that would serve the interests of justice. If anything, the injustice of the situation mounted the longer that Good Shepherd is denied its remedy. It was implicit in the associate judge’s reasons that she did not regard the dispute to be of such a nature that only a full hearing on the merits was appropriate, and no error resulted from the absence of an explicit reference to s 64(b) of the Civil Procedure Act in her ex tempore reasons.[26]
[21]Reasons, [92].
[22]Reasons, [93]–[96].
[23]Reasons, [97]–[100].
[24]Reasons, [101].
[25](2023) 73 VR 21, 66 [136]–[137] (Kyrou, T Forrest and Hargrave JJA); [2023] VSCA 130.
[26]Reasons, [102]–[109].
For those reasons, the judge dismissed Ms Stewart’s appeal.
In the final paragraph of his Reasons, the judge indicated that the parties would be provided with an opportunity to address the form of orders to be made and the question of costs. Ms Stewart did not appear when judgment was given on 18 June 2025, and could not be contacted by telephone. The orders made by the judge indicated his preliminary view that Ms Stewart should pay the costs of the proceeding on a standard basis, and gave her seven days to file written submissions on costs. Ms Stewart filed no submissions on costs. The judge subsequently ordered Ms Stewart to pay the other parties’ costs.[27]
[27]Stewart v Good Shepherd Australia New Zealand (No 2) [2025] VSC 495.
Proposed grounds of appeal
Ms Stewart’s application for leave to appeal raises four proposed grounds of appeal:
(a)Ground 1 is that the judge erred in law in construing the meaning of ‘temporary crisis accommodation’ in s 22 of the RT Act;
(b)Ground 2 is that the judge erred in affirming the grant of summary judgment, by failing to properly exercise the discretion under s 64 of the Civil Procedure Act;
(c)Ground 3 is that the judge denied Ms Stewart procedural fairness by delivering judgment in circumstances where she had not been afforded a reasonable opportunity to be heard in the delivery of judgement hearing; and
(d)Ground 4 is that the judge erred in law by incorrectly dismissing the relevance and application of the Charter and established equitable doctrines to the question of possession.
Ms Stewart, Good Shepherd, and the Department each filed a written case setting out their submissions on these proposed grounds of appeal. Ms Stewart also filed submissions in support of her application for a stay, which addressed the merits of her proposed appeal. After the applications had been referred to me, Ms Stewart sent some responding submissions to the Court of Appeal Registry. While these submissions were not required by the Rules, they were forwarded to me by the Registry. I have read and considered all of these submissions.
Proposed Ground 1 — Construction of s 22, RT Act
In her application for leave to appeal, Ms Stewart provided the following particulars of her first proposed ground of appeal:
(a)His Honour erred in finding that the Appellant’s continuous occupation of the property for a period 31 months, and nearly four years by the time of judgment, was “temporary” for the purposes of the RTA [, paras 32, 39(c)].
(b)His Honour erred by treating the First Respondent’s status as a funded provider under Regulation 6(2) of the Residential Tenancies Regulations 2022 as the sole determinative factor in characterising the accommodation, thereby failing to give any, or any adequate, legal weight to the ordinary and natural meaning of the word “temporary” in s 22 of the RTA and the requirement in s 3(b) that the accommodation be provided on a “non-permanent basis”.
(c)His Honour erred in law by concluding that the length of the Appellant’s stay “could not be taken as evidence, by itself, that her occupation was not ‘temporary crisis accommodation’”. In so doing, his Honour misdirected himself as to the relevance of a key factual consideration in the statutory construction exercise, which requires an assessment of all relevant context, including the objective reality of the duration of the occupancy, as mandated by authorities such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Ms Stewart expanded on these three points in her written case. She added a fourth point — that the judge’s error was compounded by his failure to give any or any adequate weight to Good Shepherd’s own characterisation of the agreement as a ‘sub-lease’ in its formal notice to vacate dated 22 April 2024. She argued that the judge was wrong to dismiss this as mere nomenclature that did not alter the legal reality. Rather, she said, it was a significant admission against interest and was evidence from which a competing inference could be drawn. At a minimum, she argued that it demonstrated a factual ambiguity that made the matter unsuitable for summary judgment.
In her responding submissions, Ms Stewart accepted that on its face, s 22 was capable of applying to her circumstances. However, she submitted that s 22 is not an automatic and indefinite exclusion. Rather, she said that its operation was conditional and had to be assessed in light of the ordinary meaning of ‘non-permanent basis’ in paragraph (b) of the definition in s 3, and the qualifier ‘to the extent that’ in s 22.
Ms Stewart referred to the requirement to interpret legislation to give effect to its purpose under s 35(a) of the Interpretation of Legislation Act 1984, and compatibly with human rights under s 32 of the Charter. She said that interpreting s 22 as a perpetual exemption without regard to lapsed time would not give effect to the RT Act’s core objectives of security, fairness, and regulation of rental relationships, and referred to the rights in ss 13 and 17 of the Charter.
Consideration of Proposed Ground 1
Despite its heading, this proposed ground of appeal does not really concern the judge’s construction of s 22 of the RT Act. Rather, it challenges the judge’s conclusions that the accommodation provided by Good Shepherd to Ms Stewart was ‘temporary crisis accommodation’ within the meaning of the RT Act and that, as a result, the RT Act did not apply. Ms Stewart’s submissions did not contend that there was any error in relation to those findings.
As to Ms Stewart’s first point, the judge was correct to find that the duration of her occupancy did not alter the character of the accommodation provided to her by Good Shepherd. Section 22 states clearly that the RT Act does not apply if the rented premises or room is provided as temporary crisis accommodation. The accommodation agreement signed by Ms Stewart on entering the property described it as temporary crisis accommodation, in which she could stay for a maximum period of six to eight weeks. Although Ms Stewart has stayed much longer than that, at all times Good Shepherd has maintained that it is providing her with accommodation that is ‘temporary’, ‘not a long term option’, ‘short-term’, and ‘for a period of six weeks which could be extended to a maximum of eight weeks’.
Contrary to Ms Stewart’s responding submissions, there is no ‘to the extent that’ qualification in s 22 of the RT Act. The exclusion applies if the rented premises or room is provided as temporary crisis accommodation, as it was in this case.
Also contrary to Ms Stewart’s responding submissions, the purposes of the RT Act are not to protect tenants and ensure security of tenure. The purposes are as provided in s 1 — relevantly here, to define the rights and duties of residential rental providers and renters of rented premises, and to define the rights and duties of rooming house operators and residents of rooming houses. The ordinary meaning of the words used in s 22 clearly exclude premises provided as ‘temporary crisis accommodation’ from the operation of the RT Act. The constructional choices suggested by Ms Stewart are not available.
As to Ms Stewart’s second point, it is simply not the case that the judge treated Good Shepherd’s status as a funded provider under reg 6(2) of the RT Regulations as the sole determinative factor in characterising the property as temporary crisis accommodation. The judge correctly considered whether Good Shepherd was an organisation of the kind described in reg 6(2)(b), and concluded that it was.[28] No complaint is made about that finding. The judge also considered the other components of the definition of ‘temporary crisis accommodation’ in s 3(1) of the RT Act, and made findings that the accommodation was provided:
(a)on a non-permanent basis, satisfying paragraph (b) of the definition;[29]
(b)on a non-profit basis, satisfying paragraph (c);[30] and
(c)to a person being subjected to family violence or at risk of being subjected to family violence, satisfying reg 6(2)(a)(ii) of the RT Regulations and hence paragraph (d) of the definition.[31]
[28]Reasons, [30].
[29]Reasons, [32]–[38], [39](c).
[30]Reasons, [30], [39](b).
[31]Reasons, [28], [39](a).
Ms Stewart’s third point remade her first point using different words. The point was unrelated to the proper construction of s 22 of the RT Act, and the reference to Project Blue Sky Inc v Australian Broadcasting Association[32] was misplaced. The judge was correct not to treat the duration of her stay as evidence on its own that the property was not provided as temporary crisis accommodation and on a non-permanent basis. Good Shepherd offered Ms Stewart temporary refuge in the property, on the clear understanding that she would stay no longer than eight weeks, and at no time changed the basis on which the accommodation was provided. I agree with the judge’s observations that Ms Stewart has taken advantage of Good Shepherd’s goodwill in permitting her to stay in the accommodation for longer than she should have.[33] I also agree that this indulgence did not alter the nature of the accommodation provided by Good Shepherd.
[32](1998) 194 CLR 355; [1998] HCA 28.
[33]Reasons, [101], [106].
Ms Stewart’s fourth point fails to recognise that characterising the accommodation agreement as a ‘sub-lease’ did not change the fact that it related to temporary crisis accommodation. What matters for the purposes of s 22 of the RT Act is whether the accommodation meets the definition of ‘temporary crisis accommodation’ in s 3(1). It does not matter whether the accommodation is provided pursuant to a sub-lease, an accommodation agreement, an exchange of letters, or on some other basis.
There is no merit in the first proposed ground of appeal.
Proposed Ground 2 — Discretion under s 64, Civil Procedure Act
Ms Stewart’s application for leave to appeal gave particulars of her proposed second ground of appeal, as follows:
(a)His Honour failed to take into account mandatory and material considerations, including:
(i)the Appellant’s manifest vulnerability as a self-represented litigant, a victim of family violence, a single mother of two children (one with significant special needs), and a person with limited financial means and health issues;
(ii)the catastrophic and irreparable prejudice to the Appellant and her children (homelessness) that would result from a possession order, rendering any subsequent success in her primary claims nugatory.
(b)In considering the “interests of justice” under s 64(a) (“the dispute is of such a nature that only a full hearing on the merits is appropriate”) of the CPA, his Honour gave excessive weight to the delay and expense to the First Respondent and insufficient weight to the aforesaid prejudice to the Appellant, thereby reaching a decision that was plainly unjust.
(c)His Honour erred by implicitly, rather than explicitly, considering whether the dispute was of such a nature that only a full hearing on the merits was appropriate under s 64(b) of the CPA. In so doing, his Honour failed to appreciate that the evolving nature of the 31-month occupancy, the First Respondent’s own characterisation of the agreement as a “sub-lease”, and the Appellant’s equitable claims raised complex questions of mixed fact and law unsuitable for summary determination.
On that basis, Ms Stewart submitted that the judge had made discretionary errors of the type identified in House v The King,[34] specifically failing to take into account a material consideration and reaching a result that was ‘unreasonable or plainly unjust’.
Consideration of Proposed Ground 2
[34](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
It is not entirely clear the basis on which Ms Stewart contends that the matters listed in her first point were mandatory considerations under s 64 of the Civil Procedure Act. It only became necessary for the judge to consider s 64 once he had determined that Ms Stewart’s defence to Good Shepherd’s counterclaim had no real prospect of success. Having concluded that Ms Stewart had no arguable claim to possession of the property, it is difficult to see how any of the matters she relied on might be relevant to whether the counterclaim should, in the interests of justice, proceed to a full trial.
To the contrary, delaying the inevitable would not do justice to any of the parties. Ms Stewart cannot remain in the property, and must relocate at some point. Allowing the counterclaim to continue to trial would involve all concerned, including the Court, in an ultimately pointless exercise. In the meantime, Good Shepherd would be unable to provide other vulnerable women and children with temporary crisis accommodation at the property, which it leases from the Department for that purpose.
Ms Stewart did not identify the evidentiary basis for all of the matters she says were material considerations for the judge. In particular, the evidence before the judge was not that Ms Stewart and her children would inevitably become homeless if she was required to leave the property. The evidence was rather that Ms Stewart had refused a number of offers of alternative accommodation, preferring to remain at the property unless and until long-term accommodation in public housing became available.[35]
[35]Reasons, [33].
It was not correct for Ms Stewart to say that the judge did not explicitly consider whether the dispute was of such a nature that a full hearing on the merits was appropriate. His Honour did so at [108] of the Reasons, finding that there was no basis on the evidence before the associate judge, or on the material and arguments before him, that would support that conclusion.
Again, the starting point for the judge’s consideration of s 64(b) was his conclusion that Ms Stewart had no real prospect of defending the counterclaim for possession of the property. The submission that Ms Stewart’s own claims in negligence, equity, and breach of statutory duty involve complex questions of mixed fact and law not suitable for summary determination was beside the point. Those claims were not summarily dismissed and, as things stand, may proceed to trial.
The second proposed ground of appeal lacks any merit.
Proposed Ground 3 — Procedural fairness
Ms Stewart’s third proposed ground of appeal related to the delivery of judgment in her absence. Her application for leave to appeal provided the following particulars of this ground:
(a)The notice provided to the Appellant of the judgment listing was manifestly inadequate and unreasonable, comprising a last-minute confirmation delivered at 1:59 pm on 17 June 2025 for a hearing at 10:00 am on 18 June 2025, embedded in a confusing email chain between multiple legal representatives.
(b)This inadequate notice, providing effectively one business day’s notice to a known self-represented litigant, directly caused the Appellant’s non-attendance at the delivery of judgment on 18 June 2025, thereby depriving her of the opportunity to be heard on the form of the orders and on costs.
(c)This failure breached the common law requirements of procedural fairness and the Appellant’s right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”).
These points were repeated in Ms Stewart’s written case, stay submissions, and responding submissions. In her written case, Ms Stewart submitted that the denial of a meaningful opportunity to be heard on the final form of the orders was a vitiating error that warrants the orders being set aside.
Consideration of Proposed Ground 3
The judge’s associate notified the parties by email at 1:37pm on 16 June 2025 that judgment would be handed down on 18 June 2025, and asked them to advise whether 10:30am or 4:30pm was preferable. An exchange of emails that afternoon identified that 10:00am was suitable to all of the practitioners involved; Ms Stewart did not respond. The time of 10:00am was confirmed by email sent by the judge’s associate to Ms Stewart and the practitioners at 1:59pm on 17 June 2025.
The hearing on 18 June 2025 was listed for delivery of judgment, and was not an opportunity for any party to make further submissions on the merits of Good Shepherd’s application for summary judgment on its counterclaim. In those circumstances, the notice given was reasonable.
Ms Stewart deposed that she did not see the email chain until after judgment had been delivered, owing to family responsibilities and the short notice. She did not elaborate on what those family responsibilities were, or why they prevented her from looking at her emails for two days. Given the significance of the judgment Ms Stewart was awaiting, she could reasonably have been expected to monitor her emails more closely.
Even so, it would clearly have been preferable had Ms Stewart been in court when judgment was given. There were two matters on which Ms Stewart might have been heard, had she been present: appropriate orders as to costs, and the timing of the discharge of the stay of execution of the warrant of possession.
In relation to costs, the judge indicated his preliminary view in ‘Other Matters’ in the orders, and gave Ms Stewart seven days to file brief written submissions she wished to make on the question of costs. This provided Ms Stewart with an opportunity to be heard on that question, although she did not avail herself of that opportunity. There is no merit in the contention that Ms Stewart was denied procedural fairness in relation to costs.
In relation to discharge of the stay, the judge heard submissions from counsel for Good Shepherd and the solicitor for the Sheriff about whether he had power to extend the stay. After taking time to consider the position, the judge determined to discharge the stay and to leave it to Ms Stewart to decide whether to appeal and, in that event, to take whatever steps were necessary to advance the appeal.
I accept that, had she been present, Ms Stewart would have urged the judge to maintain the stay pending an appeal, and that she might have persuaded the judge to delay discharging the stay for some or all of the appeal period. As matters transpired, the warrant of possession was not executed before Ms Stewart applied for leave to appeal and for further stay of execution. Good Shepherd has advised the Registrar that it has instructed the Sheriff to place on hold execution of the warrant until the application for leave to appeal is determined. The stay that Ms Stewart would have sought from the judge has, in effect, been agreed to by Good Shepherd.
In summary, Ms Stewart was given reasonable notice of the hearing on 18 June 2025, and the judge did not deny her procedural fairness by giving judgment in her absence. She was given a further opportunity to make submissions on costs, which she did not take, and remains living in the property for the time being. There is no merit to the application for leave to appeal on procedural fairness grounds.
Proposed Ground 4 — Charter and equitable claims
The fourth proposed ground of appeal concerned Ms Stewart’s claims based on the Charter and equity, and whether they were an answer to Good Shepherd’s claim for possession. The particulars provided for this ground were:
(a)His Honour erred in holding that the Charter did not furnish the Appellant with a defence to the claim for possession. In so doing, his Honour failed to properly consider the Charter’s interpretive role under s 32 and its direct application to the Court as a public authority under s 6(2)(b), which required the Court to give proper consideration to the Appellant’s rights to protection of family (s 17) and home (s 13) when exercising its discretion to make a possession order. Director of Housing v Sudi (2011) 33 VR 559 authority that Charter may be raised in possession matters.
(b)His Honour erred in dismissing the Appellant’s pleaded claims in estoppel and constructive trust as being incapable of conferring a right of possession. His Honour failed to consider that such equitable doctrines can create a personal equity that is sufficient to prevent or postpone the enforcement of a legal right to possession where it would be unconscionable to do so. [non-existent authority cited]
(c)His Honour erred in failing to give any, or any adequate, weight to the First Respondent’s own characterisation of the agreement as a “sub-lease” in its notice to vacate, treating it as mere “nomenclature” rather than as an admission against interest with significant evidentiary value relevant to both the statutory and equitable claims.
Ms Stewart’s written case, her submissions in support of her stay application, and her responding submissions also addressed this ground. Unfortunately, these submissions were not consistent with each other and were difficult to follow. In addition, the arguments put were in places supported by reference to non-existent authorities[36] and by reference to passages in real authorities that bore no relationship to the argument.[37]
[36]Application for leave to appeal, ground 4, particular (b); Applicant’s written case, [40], line 4; Applicant’s submissions (stay), [28], line 7.
[37]In particular, the references to Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 in application for leave to appeal, ground 4, particular (a); applicant’s written case, [40], [41].
It may be that Ms Stewart used artificial intelligence to help her prepare court documents, or there may be some other explanation for the phantom authorities and citations. If the former, she should have identified in her submissions that they had been prepared using artificial intelligence.[38] In either case, she is responsible for the accuracy of the documents she filed with the Court and should have taken greater care to ensure that they were not misleading and did not involve the Court and the other parties in wasted time and effort. The inclusion of fabricated authorities and citations in Ms Stewart’s written submissions did not help her cause.
[38]Supreme Court of Victoria, Guidelines for Litigants: Responsible Use of Artificial Intelligence in Litigation, May 2024, [1]–[5], [9]; see also May v Costaras [2025] NSWCA 178, [12]–[17] (Bell CJ), [49] (Payne JA).
The most coherent arguments in support of this proposed ground were in Ms Stewart’s submissions in support of her stay application, which set out the following:
Charter Rights (Privacy/Home – s13): The judgment made no attempt to reconcile the outcome with my Charter rights. I had a right to respect for my home under s 13(a) of the Charter (and the public authorities’ obligations under s 38). Good Shepherd and the Department of Families, Fairness and Housing were bound to act compatibly with those rights. The Court below ignored that my continued homelessness would interference with my right to home. I say the Court should have applied the proportionality analysis of s 7(2) Charter (see Director of Housing v Sudi). It was wrong to dismiss Charter arguments as irrelevant to possession without analysis.
Equitable Estoppel/Constructive Trust: I pleaded that I relinquished a prior tenancy in reliance on Good Shepherd’s assurances that I had a secure place here. If those representations are proved, equity may protect me (for example by postponing possession or imposing a trust for value of my rent-improvements). The judge brushed off these claims as not “conferring a right of possession.” That was an error of principle. Equity does not always give a possessory remedy, but it can create an equitable lien or trust to prevent unjust eviction [non-existent authority]. These equitable arguments were wrongly ignored.
Consideration of Proposed Ground 4
The claims made in Ms Stewart’s amended statement of claim filed 15 September 2023 have not been summarily dismissed. The claim for a constructive trust and the allegations of breach of Charter rights are made against the Department, not Good Shepherd. Ms Stewart makes no claim to be entitled to possession of the property as against Good Shepherd. At most, there is a claim for an order requiring the Department (but not Good Shepherd) not to contravene her Charter rights by removing her and her children from the property.
Ms Stewart’s defence to Good Shepherd’s counterclaim did not include any defence based on the Charter or an equitable claim to possession. On this basis alone, proposed Ground 4 has no prospect of success.
In addition, the arguments in support of this proposed ground had an air of unreality. They ignored the ‘incontrovertible’ evidence about the basis on which the property was made available to Ms Stewart in September 2021.[39] The judge found that Good Shepherd provided the property to Ms Stewart as temporary crisis accommodation for no more than eight weeks, and had consistently maintained that her occupancy was temporary. The fact that she had continued to live there, rent free, for nearly four years did not change the temporary nature of the accommodation acknowledged by Ms Stewart when she signed the accommodation agreement. Even if Ms Stewart had pleaded defences to the counterclaim under the Charter or in equity, there is no factual basis for a claim to be entitled to remain in occupation of the property.
[39]Reasons, [39].
The fourth proposed ground of appeal is without merit.
Disposition
The application for leave to appeal is totally without merit, and must be dismissed. As a result, the application for a stay falls away. The parties will have an opportunity to make submissions in writing about the costs of the applications.
SCHEDULE OF PARTIES
| CARINA STEWART | First applicant |
| and | |
| GOOD SHEPHERD AUSTRALIA NEW ZEALAND (ACN 135 641 217) | First respondent |
| DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Second respondent |
| SHERIFF OF VICTORIA | Third respondent |
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