Stewart v Good Shepherd Australia New Zealand
[2025] VSC 351
•18 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2023 00225
| CARINA STEWART | Plaintiff |
| v | |
| GOOD SHEPHERD AUSTRALIA NEW ZEALAND (ACN 135 641 217) | First Defendant |
| DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Second Defendant |
| SHERIFF’S OFFICE VICTORIA | Third Party |
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JUDGE: | Finanzio J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 & 26 March, 16 April 2025 |
DATE OF JUDGMENT: | 18 June 2025 |
CASE MAY BE CITED AS: | Stewart v Good Shepherd Australia New Zealand |
MEDIUM NEUTRAL CITATION: | [2025] VSC 351 |
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JUDICIAL REVIEW – Section 61 of the Civil Procedure Act2010 (Vic) - Appeal from decision of Associate Justice – Summary judgment – Real prospects of success – Dispute between residential rental provider and renter – Consideration of rights under Residential Tenancies Act 1997 (Vic) in temporary crisis accommodation – Failure to consider validity of notice to vacate - No error of law established – Leave to appeal refused.
Civil Procedure Act2010 (Vic) ss 61, 64; Residential Tenancies Act 1997 (Vic) ss 1, 3, 22; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 22, 77; Residential Tenancies Regulations 2022 (Vic) r 6; Supreme Court Act 1986 (Vic) s 17.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Lucy Kirwan | FCW Lawyers |
| For the Second Defendant | Jayr Teng | Norton Rose Fulbright |
| For the Third Party | – | Moray & Agnew Lawyers |
HIS HONOUR:
This is an appeal from the decision of an Associate Justice granting summary judgement in favour of the first defendant, Good Shepherd, and making orders to the effect that Ms Stewart, the plaintiff, deliver up possession of a property (‘the property’).[1]
[1]The location of the property is suppressed by order of this Court made 23 June 2023 pursuant to ss 17(b) and 18(1)(c) of the Open Courts Act 2013 (Vic).
The property is owned by the Department of Families Fairness and Housing (‘the Department’), the second defendant in these proceedings; leased to Good Shepherd; and presently occupied by Ms Stewart.
Ms Stewart first entered occupation of the property almost four years ago, when she was placed there as a victim of family violence seeking crisis accommodation. When Ms Stewart first entered the property in September 2021 she agreed to Good Shepherd’s terms, which included that her stay at the property would be temporary (to last between 6 and 8 weeks), following which Ms Stewart would move on to accommodation which Good Shepherd would assist in locating. These terms were in writing. Ms Stewart has repeatedly refused, and continues to refuse, to leave the property. She does not now, nor has she ever, paid rent.
On 17 January 2023 Ms Stewart commenced proceedings against Good Shepherd in this Court (‘Ms Stewart’s proceedings’) after many months of interactions between her and Good Shepherd. Ms Stewart’s proceedings remain on foot, but have not been progressed in any material way at this stage. Ms Stewart’s proceedings were not the subject of any application before the Associate Justice, nor are they for consideration before this Court. That said, Ms Stewart’s decision to commence proceedings in this Court provide context for the way in which the application for summary judgement came before the Associate Justice.
In Ms Stewart’s proceedings she made allegations including that:
(a) Good Shepherd and the Department breached a duty of care which she said was owed by Good Shepherd, and that as a result Ms Stewart had suffered harm (‘the duty argument’);
(b) Good Shepherd had made representations to Ms Stewart, upon which she had relied to her detriment, to the effect that Good Shepherd was obliged to provide her with alternative accommodation which would be suitable and secure (‘the estoppel argument’);
(c) Ms Stewart had made substantial contributions to the value of the property and claimed an equitable interest in the property which would give her a right to continue to occupy the property (‘the constructive trust argument’); and
(d) the Department had breached a statutory obligation to consider the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter argument’).
Ms Stewart’s proceedings were commenced after Ms Stewart had occupied the property for 16 months; after repeated refusals by Ms Stewart to accept offers of alternative accommodation sourced and arranged by Good Shepherd; and after Ms Stewart had commenced and then withdrawn a complaint against Good Shepherd in the Victorian Human Rights and Equal Opportunity Commission.
Good Shepherd and the Department filed defences denying Ms Stewart’s claims. For more than a year both Good Shepherd and the Department tried to negotiate an outcome with Ms Stewart, but in the end no agreement was reached.
Ultimately, Good Shepherd served Ms Stewart with a notice to vacate the property. Ms Stewart again refused to vacate the property.
On 28 May 2024 Good Shepherd made a cross claim seeking possession of the land in Ms Stewart’s proceeding.[2] Ms Stewart filed a defence to Good Shepherd’s claim for possession which amounted to little more than a bare non-admission.
[2]Good Shepherd had the option of separately commencing its own proceeding for possession. Its procedural choice is of no consequence. By commencing seeking possession in the way that it did, it became a plaintiff by cross claim in the proceedings commenced by Ms Stewart.
On 10 July 2024 Good Shepherd made an application to this Court for summary judgment on its claim for possession. The application was heard on 20 September 2024 and determined by Ierodiaconou AsJ on 23 September 2024. This proceeding is an appeal against the decision of Ierodiaconou AsJ.
Section 61 of the Civil Procedure Act2010 (Vic) (‘the CPA’) permits a plaintiff[3] like Good Shepherd to make an application for summary judgment on the ground that the defendant’s defence (or part of that defence) has no real prospect of success. Section 63 of the CPA provides that, subject to s 64, the Court may give summary judgment in a civil proceeding ‘if satisfied’ that a claim or defence has ‘no real prospect of success’.
[3]Section 60 of the CPA defines plaintiff as including a plaintiff by counterclaim.
Section 64 of the CPA provides that:
Despite anything to the contrary in this Part or any rules of court, 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—
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
An appeal from an Associate Judge is not a hearing de novo, instead it proceeds by way of a rehearing which, in the absence of further evidence or a change in the law. In such a hearing the appellant is ordinarily required to show error on the part of the Associate Justice.[4] Ms Stewart must show factual, legal or discretionary error on the part of the Associate Judge in order to enliven this Court’s appellate jurisdiction.[5] For completeness, an appeal from the decision of an Associate Judge is brought pursuant to s 17 of the Supreme Court Act 1986 (Vic) and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’). Rule 77.06.09 of the Rules provides that:
[4]Oswal v Carson [2013] VSC 355 (‘Oswal’) at [11]. Cited with approval by the Court of Appeal in Yin v Wu (2023) 73 VR 21 at [60].
[5]Yin v Wu (2023) 73 VR 21 at [60].
(1)On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
(2) The Judge of the Court shall have power to-
(a)receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;
(b) draw inferences of fact;
(c)give any judgment and make any order which ought to have been given or made; and
(d) make any further order as the case may require.
Central to the task of the Associate Justice was to first determine on the material before her whether Ms Stewart had a real prospect of success in defending Good Shepherd’s claim for possession. If the answer to that question was no, the Associate Justice was required to consider whether summary judgement should be denied in the interest of justice, or because the dispute was of such a nature that a full hearing was appropriate.
Before the Associate Justice Ms Stewart relied upon an affidavit filed by her dated 14 August 2024. In summary Ms Stewart submitted that she enjoyed a ‘lease’ of the property which attracted the operation of the Residential Tenancies Act 1997 (Vic) (‘the RTA’) and that, as a result Good Shepherd’s notice to vacate was invalid. Ms Stewart submitted that:
(a) the notice to vacate was not valid because the RTA applied;
(b) the notice to vacate acknowledged that Ms Stewart in fact has a lease, being the kind of tenancy to which the RTA applied; and
(c) at some point, Ms Stewart’s right to occupy the property became a sub lease by virtue of the actions of Good Shepherd, without specifying what those actions were.
Ms Stewart claimed that the situation was complex, and that for that reason the Associate Justice should be cautious in granting summary judgement. She maintained that her case enjoyed real prospects of success, but that in any event, the Associate Justice should decline the application in the interests of justice, or because in all the circumstances a full hearing should be regarded as appropriate.
Good Shepherd said the RTA does not apply to accommodation of the kind given to Ms Stewart, and for that reason the notice to vacate that it served on Ms Stewart was valid.
The Associate Justice found that:
(a) Ms Stewart’s defence enjoyed no real prospects of success because there was no basis upon which Ms Stewart could resist Good Shepherd’s claim for possession; and
(b) There was no reason under s 64 which would justify not granting the relief sought by Good Shepherd.
On the question of whether Ms Stewart had a real prospect of successfully defending Good Shepherd’s claim for possession, the Associate Justice found as follows:
… Ms Stewart remains in possession against their will and therefore wrongly remains in possession. She is either a trespasser or tenant at sufferance or possibly a tenant at will. Regardless, she was served with a demand for possession on 22 April 2024, and subsequently the counterclaim on 10 July 2024. There is no defence which might entitle her to possession. There is no matter or question which ought to be tried or which would provide some reason for there to be a trial of Good Shepherd's claim for possession.
And that:
I am satisfied that Good Shepherd provided Ms Stewart with ‘temporary crisis accommodation’ within this definition.
There was, on the proper construction of the RTA and having regard to the evidence before the Associate Justice, no other conclusion that her Honour could have reached. For the reasons which follow the appeal should be dismissed.
Residential Tenancies Legislation
In Victoria the RTA regulates residential tenancies. The stated purpose of the Act is to ‘define the rights and duties of residential rental providers and renters of rented premises’.[6] In particular, the RTA prescribes the circumstances in which a tenancy might be brought to an end by a landlord seeking to regain possession of the land. In most circumstances, where a landlord wants the tenant to leave the property a written notice to vacate the property must be provided to the tenant in a prescribed form, and it must allow the tenant the minimum prescribed time to vacate the property.[7] The tenant is entitled to challenge the notice to vacate on a number of grounds, including that the notice for possession is not reasonable or proportionate in the circumstances. Such a challenge can be initiated in the Victorian Civil and Administrative Tribunal (‘VCAT’).
[6]Residential Tenancies Act 1997, s 1.
[7]Ibid, s 91ZI – 91ZZQ.
The rights conferred on a tenant by the RTA are not universally available to all forms of residential occupation. The RTA specifies forms of residential occupation to which the Act does not apply. In this case 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.
Section 3 defines ‘temporary crisis accommodation’ as:
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;
At all relevant times no regulation under s 3(a) of the RTA existed.[8] Consequently, for the purposes of s 3 ‘accommodation’ fell within the meaning of ‘temporary crisis accommodation’ if it was not provided on a permanent basis, the provision of the accommodation did not generate profit, and the arrangement otherwise met the requirements prescribed by regulations made under s3(d) of the RTA.
[8]For a brief period the regulations made pursuant to s 3(a) prescribed a maximum period of six months, with the effect that accommodation provided for a longer period fell outside the meaning ‘temporary crisis accommodation’: Residential Tenancies Regulations 2021 SR No. 3/2021. This regulation was repealed before Ms Stewart’s occupation commenced: Residential Tenancies Amendment Regulations 2021 SR No. 21/2021. At the time of Ms Stewart’s occupation of the property commenced, and at all relevant times thereafter, ‘temporary crisis accommodation’ was not defined by reference to any period of occupancy.
Regulation 6(2) of the Residential Tenancies Regulations 2022 (‘Regulations’) prescribes additional criteria for the purposes of s 3(d) as follows:
(2) 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.
‘Accommodation’ meets the prescribed purpose under r 6(2) where it is provided by a person or body which receives funding (from specified sources) to persons experiencing homelessness (or at risk of experiencing homelessness), or persons being subjected to family violence (or at risk of being subjected to family violence). If all of these criteria are established on the evidence, then it must follow that the RTA does not apply. In this case, if Ms Stewart’s past and current occupation of the property is properly characterised as ‘temporary crisis accommodation’ then the RTA does not apply; the notice to vacate was validly served and Good Shepherd is entitled to possession.
Ms Stewart’s occupation of the property
On 1 September 2021, Ms Stewart, the plaintiff, was referred to Good Shepherd as a victim of family violence, and was therefore a person who fell within r 6(2)(a)(ii) of the Regulations at that time.
Upon her arrival Ms Stewart signed an agreement (‘the accommodation agreement’). The terms are set out in full as follows:
Accommodation Agreement and Exit Plan
Good Shepherd Australia New Zealand warmly welcomes you into our accommodation. We would like to make sure that you understand your rights, responsibilities and the type of support you can expect, for yourself and your children during your stay in our accommodation.
You should have received a copy of our “Service Participant Handbook” and an accommodation information booklet, which details the security measures in place to make sure that you are safe, and that other women and children using our service in the future, are also safe in our accommodation. If you don’t have a copy please ask your case manager for this.
Please see below conditions that apply to your stay in our accommodation.
I (name) _ _ _ _ _ _ _ _ _ CARINA STEWART _ _ _ _ _ _ _ _ _ understand that:
oThe accommodation is temporary crisis accommodation and I can stay for a maximum period of between 6 – 8 weeks.
oI can’t tell anyone the address of the accommodation.
oMy case manager will support me to access safe accommodation to live free from family violence, and I agree to accept the first offer of safe accommodation which is made to me.
oIf I choose not to take up an offer of safe accommodation, I understand that my case plan will need to be reviewed and the expectation is that I will still need to exit within the 6 – 8 week period.
oI understand that as part of my stay in accommodation the case manager needs to keep regular appointments with me and I will be available for these appointments.
oI understand that the case manager will work with me to develop a plan to support my family and that that will involve me in setting the goals I want for myself and my children, to support our recovery from our experience of family violence.
I understand that I may need to be exited from accommodation earlier that [sic] 6 – 8 weeks for the below reasons, but not limited to:
·Consistent non-engagement with my case manager
·Providing the address or suburb of the accommodation to any individual or service that is not authorised by Good Shepherd
·My behaviour (or the behaviour of anyone in my care) poses a risk to myself, other residents and staff. This includes verbal abuse, physical threats and abuse, illicit substance use
·Bringing into accommodation non-authorised IT equipment, vehicles and any other items from an unsafe location that weren’t identified in our initial contact prior to entering accommodation.
·Bringing any weapons into accommodation
I understand that I will be given an opportunity to give feedback about the service I have received from Good Shepherd.
If I am unhappy with the service I receive I know how to make a complaint.
I understand that I must take my personal belongings with me at the end of my stay in the accommodation to undertake fire safety checks and other required maintenance, and I will be provided notice that they will be attending.
I understand that as part of the service the Good Shepherd Family Violence Program provide, my case manager will work with each of my children to develop their own case plans.
I have been given the phone number for the After Hours Crisis Response Service and I will delete this number from my phone when I leave the accommodation.
I agree to keep the accommodation clean and tidy, and will report any damage to the property to my case manager as soon as possible.
I agree to leave the accommodation the way I entered it.
By signing and dating this form you are indicating that you understand all of this information.
Signed [SIGNED] Date 1/9/21
Signed [SIGNED] Date 1/9/21
(Case Manager)
Good Shepherd Australia New Zealand Pty Ltd (‘Good Shepherd’) is a charitable organisation which is concerned with providing temporary crisis accommodation. On 13 April 2018, Good Shepherd leased the property from the Department for the purpose of providing crisis accommodation to those affected by family violence. Good Shepherd is an accommodation provider within the meaning of r 6(2)(b) of the Regulations.
The terms of the accommodation agreement make it is explicitly clear that Ms Stewart’s stay fell squarely within the meaning of ‘temporary crisis accommodation’.
The evidence before the Associate Justice confirmed that, notwithstanding the length of her stay, and her persistent refusal to leave, Ms Stewart’s occupation continued to be temporary.
Ms Stewart was originally meant to leave the property in November 2021 (being 8 weeks after her occupation commenced). At around that time Ms Stewart contracted Covid. Out of concern for her welfare, Good Shepherd allowed Ms Stewart to stay on for a period to recover. After that initial period of convalescence Good Shepherd began to identify alternative accommodation to which Ms Stewart could be relocated, consistently with the terms of the accommodation agreement. Good Shepherd’s efforts to find alternative accommodation yielded options such as motels and caravan parks and other similar accommodation. Ms Stewart refused to accept those offers of alternative accommodation, preferring to remain at the property. She refused to leave until she was relocated to a location which she subjectively regarded as ‘safe’. Ms Stewart’s preference was to be relocated to long term accommodation in public housing, though it was evident that there was a considerable waiting period to access public housing.
Good Shepherd maintained at all relevant times that Ms Stewart’s stay was ‘temporary’ in the relevant sense, while at the same time attempting to assist Ms Stewart to find the kind of accommodation that she preferred. For example, on 22 April 2022 Good Shepherd wrote a letter supporting Ms Stewart’s desire for a long a term public housing placement:
To whom it may concern,
Good Shepherd Australia and New Zealand (GSANZ) is an organization that support women and children experiencing or escaping family violence. Family violence is defined as behaviour that is used to control, threaten, force or dominate a family member through fear. It includes physical abuse, sexual abuse, emotional or psychological abuse, financial abuse and stalking. It is often characterised by extreme controlling and coercive behaviours.
I am writing to confirm that Ms. Carina Stewart was referred to our Family Violence Program on 01/09/2021 to receive support for family violence. Ms. Stewart was assessed to be at high risk and in need of Immediate protection after disclosing significant controlling and abusive relationship. Due to the severity of the family violence Ms. Stewart is currently residing in emergency accommodation through Good Shepherd. As this accommodation is temporary and not a long-term option, Ms. Stewart requires safe long-term accommodation at an address unknown to the perpetrator of violence.
Ms. Stewart reports being on the Office of Housing priority waitlist since 2014, and as a family violence specialist I believe it is necessary for Ms. Stewart to be prioritised and supported to obtain secure long-term housing for her safety and recovery from family violence.
[Emphasis added]
Good Shepherd’s letter demonstrates that, at the time it was written, Ms Stewart remained at risk of family violence. It also demonstrates that the housing provided by Good Shepherd remained ‘emergency accommodation’ of a ‘temporary’ nature – continuing to fall squarely within the meaning of s 22 of the RTA.
Despite the efforts of Good Shepherd to assist her, in June 2022 Ms Stewart made a complaint about Good Shepherd to the Victoria Equal Opportunity and Human Rights Commission. The complaint was subsequently withdrawn and the substance of the complaints made are of no relevance to the present proceeding. The documents recording the complaint were in evidence before the Associate Justice. Ms Stewart’s complaint described her circumstances in her own words. She wrote of the complaint:
This is an urgent matter, as I am experiencing ongoing domestic violence and am at risk of being homeless.
Ms Stewart confirmed in the hearing before this Court that she continues to regard herself as being at risk of domestic violence and homelessness. It is patently clear that Ms Stewart is, and has always been someone to whom ‘temporary crisis accommodation’ could be provided under s 22 of the RTA.
On 9 September 2022, Good Shepherd wrote to Ms Stewart in the following terms:
Dear Carina,
Private and Confidential
…
The emergency accommodation which you are currently living in, is owned and funded by the Department of Families, Fairness and Housing (DFFH), and set up as a short-term crisis accommodation for a period of 6-8 weeks, for women and children who are impacted by family violence. This is a contractual arrangement and service agreement we have in place with the State government department, DFFH.
Carina, when you entered the accommodation on 1 September 2021, you were informed at the point of intake that you would be accommodated for a period of 6-8 weeks; and you signed the crisis accommodation agreement, which accompanies this letter.
You have acknowledged your understanding of the accommodation is short term for up to 8 weeks, in your letter.
“My understanding was that this service was to provide safe accommodation for an 8 week period.”
Good Shepherd supports women and children to access wraparound supports and services, including finding appropriate long-term accommodation. Engagement with your case manager is a critical part of this support and is part of the agreement you signed. This involves talking to and engaging with your worker and having conversations about accommodation options and supports available for you when you leave the property, which is what is meant by exit planning.
As you entered the crisis accommodation property at the height of the COVID pandemic lockdowns, the Good Shepherd Safety and Resilience program workers allowed for a longer stay at this challenging time, not expecting you to exit the property during this difficult period. Thus, conversations about housing and exit planning started in November 2021.
At the point of intake and throughout your 12 months of accommodation, our workers were not informed by you that you had a mental health condition, which is the basis of your complaint to the VOEOHR, related to Good Shepherd services, about discrimination against you due to a disability. Should our workers have known that you had been diagnosed with a mental health condition, they could have offered referrals and provided more specific support in alignment with your needs for mental health services and support.
Many documented attempts were made by our workers to engage you in our service as well as other specialised services, which would have included support, referrals and exit planning.
As a gesture of goodwill, Good Shepherd will offer you another two months of accommodation until the end of October 2022, which in good faith, is like starting all over again, with a fresh beginning. The Safety and Resilience team will offer services to assist you to leave the crisis accommodation. The team would like your transition to be smooth and to minimise the stress for you, to offer support respectfully and with a duty of care.
…
Good Shepherd and our works want to support you and assist you to make the transition from this property to safe, alternate accommodation. As such, I would again encourage you to fully engage in the case planning for your exit, so that you can move on to safe accommodation in the community.
…
To summarise:
· Good Shepherd is offering you another two months of accommodation at the crisis accommodation you are currently living in; We hope this gesture of goodwill and support is of assistance to you to help in your transition.
[Emphasis added]
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 if 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.
In the hearing before the Associate Justice, Ms Stewart submitted that although her tenancy had commenced on a temporary basis, during the course of her stay her occupancy had become permanent. On that basis, Ms Stewart said that the RTA applied, and in particular that the requirement for notice under that Act rendered invalid the notice given by Good Shepherd.
Before the Associate Justice Ms Stewart advanced no evidence or cogent explanation to substantiate her claim that she was entitled to remain on the property.
Alleged ‘Sublease’
In her submissions before the Associate Justice, Ms Stewart asserted that her interest was not merely that of someone occupying ‘temporary crisis accommodation’, but rather that she enjoyed a ‘sublease’. The genesis of the submission seems to have stemmed from the notice to vacate served on Ms Stewart dated 22 April 2024, which stated as follows:
On about 1 September 2021, you entered into a sub-lease (Sub-lease) with GSANZ to stay at [Address Suppressed] for the purpose of temporary crisis accommodation (Crisis Accommodation) for a period of six weeks which could be extended to a maximum of eight weeks.
[Emphasis added]
It is apparent from the transcript of the exchange between Ms Stewart and the Associate Justice that the reference to ‘sublease’ in the notice to vacate led Ms Stewart to the erroneous conclusion that her tenancy was something other than ‘temporary crisis accommodation’ as defined by the RTA, such that the RTA (and its notice provisions) applied.
Neither the terms of the notice read as a whole, nor a proper understanding of s 22 of the RTA support that contention. At all material times Ms Stewart’s occupancy of the property fell within the meaning of ‘temporary crisis accommodation’, thereby excluding the operation of the RTA. Whatever nomenclature is given to Ms Stewart’s occupation of the property, it was not one to which the usual protections afforded renters under the RTA attach. In truth, there is nothing about the notice to vacate which suggests that Ms Stewart has any interest other than that of a person occupying crisis accommodation on a temporary basis.
Alleged Agreement with Homes Victoria
Before the Associate Justice Ms Stewart relied upon her own affidavit sworn on 14 August 2024. In that affidavit she claimed as follows:
I am currently in negotiations with the department of Fairness and housing and have been offered a deed of release at the current property.
On 5th August 2024, I signed the deed of release at Frankston city Library with Justice of the peace “Anthony Ramsden”. I then sent a signed copy of the Deed to Aaron Wu Norton Rose Fulbright.
A copy of the signed deed was exhibited to the affidavit. The exhibited deed was signed only by Ms Stewart. The document had been drafted by the Department’s lawyers. The proposed parties to the release included Ms Stewart, the Department and Good Shepherd. In summary, the deed reflected the Department’s proposal that Ms Stewart’s proceedings could be settled without any admission of liability and in the interests of avoiding the further cost and inconvenience of protracted litigation, by the Department agreeing to provide a residential rental lease to Ms Stewart. Ms Stewart would be required to pay market rent for the property. Ms Stewart would also be required to release the Department and Good Shepherd in relation to any claims made against them in Ms Stewart’s proceedings. According to the proposed terms, Good Shepherd would release the Department from any claims.
The proposed deed of release was, on its face, an attempt to settle all proceedings in a way which might have resulted in Ms Stewart obtaining a leasehold interest to which the RTA would have applied. The Department relied upon sworn evidence before the Associate Justice to the effect that, despite having attempted to reach agreement with Ms Stewart to settle all proceedings, no agreement had, in fact, been reached. The uncontradicted evidence before the Associate Justice was that the Department had proposed settlement on more than one occasion on explicit terms. Ms Stewart had returned signed copies of the terms on each occasion, but with amendments proposed by her which were never accepted by the Department. In the result, no deed of settlement was executed by all parties. Indeed, in the course of the appeal in this Court, Good Shepherd made clear, correctly, that it would have been necessary for Good Shepherd to be a party to any such proposed settlement as it was Good Shepherd that had the existing leasehold interest. The deed exhibited by Ms Stewart in fact contemplates Good Shepherd as a necessary party. Good Shepherd confirmed in this Court that it had never so agreed. Ms Stewart did not contend otherwise.
In the result, there was no evidence of any form of residential rental agreement to which the RTA might have applied before the Associate Justice.
Conduct of Good Shepherd
Ms Stewart submitted that Good Shepherd’s conducted prevented it from seeking possession of the property. She said that she relied upon Good Shepherd’s assurances as to the provision of secure and safe housing to her detriment.
There is and was no evidence of any conduct on the part of Good Shepherd which would give rise to a right to possession.
The accommodation agreement which Ms Stewart signed at the commencement of her occupation provided as follows:
My case manager will support me to access safe accommodation to live free from family violence, and I agree to accept the first offer of safe accommodation which is made to me.
At its highest, this was an offer by Good Shepherd to assist Ms Stewart in finding accommodation which was safe from the violence which Ms Stewart was escaping. First, it was not an assurance as to any specific level of accommodation. It was not a promise to secure public housing, or housing of any particular standard. Nor was it a promise to secure housing which met the approval of Ms Stewart. Further, it was not a promise that alternative housing would necessarily be provided or sourced by Good Shepherd. It is, on the express language, an offer to assist Ms Stewart in finding safe accommodation. More to the point, this passage records an undertaking by Ms Stewart that she will accept the first offer of safe accommodation that comes along – whoever the provider might be, and however the opportunity arises. The undertaking by Ms Stewart is not qualified by any words which suggests that Ms Stewart must be satisfied with the standard of accommodation before she is obliged to leave the property. Nothing in this passage countermands the overarching acknowledgement and promise by Ms Stewart that the accommodation provided by Good Shepherd was ‘temporary’ and for a period of between 6 and 8 weeks. No part of the accommodation agreement, nor any of the evidence before the Associate Justice, could conceivably establish a factual basis for a claim that representations of any kind were made which entitled Ms Stewart to remain in crisis accommodation indefinitely, rent free and until such time as a form of accommodation was offered to her which she regarded (in her own subjective opinion) as ‘safe’.
Claims in Ms Stewart’s proceedings
The Associate Justice examined the claims made in Ms Stewart’s proceedings to determine whether any of the relief she sought in those proceedings could assist her in defending Good Shepherd’s counterclaim.
The Associate Justice correctly held that none of the claims made by Ms Stewart would give rise to a claim for possession.
The Associate Justice said:
As Ms Stewart is self-represented, I have also considered whether any claims in her statement of claim give rise to a right of possession of the property. I have concluded that they do not.
Ms Stewart's claim of constructive trust, which I have serious misgivings about, does not give rise to a right of possession, even if successful. Equitable tenants-in-common do not have a right to possession unless that right is specifically conferred. I refer to Frankle v Paterson [2015] NSWSC 1307 at [100] and Togias v New South Wales (2023) 31 BPR 44, 199 at [34].
Ms Stewart's claims under the Charter, even if successful, do not confer a possessory right. Nor does her negligence claim.
Ms Stewart has no right of possession. There is no real prospect of her defending the counterclaim.
I can discern no appellable error in the Associate Justice’s assessment of the claims made in Ms Stewart’s proceedings. No claim made in those proceedings would entitle Ms Stewart to possession.
Ms Stewart’s appeal to this Court
Ms Stewart appeared in this Court as a self-represented litigant, as she did before the Associate Justice. Orders were made (with her consent) referring Ms Stewart to the pro bono scheme administered by the Victorian Bar with mixed success. Ms Stewart appears to have had some assistance from counsel in the preparation of one set of submissions, but otherwise seems to have had the carriage of her own case.
In Trkulja v Markovic[9] the Court of Appeal gave guidance as to the role of a judge in presiding over litigation conducted by a self-represented litigant. Ms Stewart’s grounds of appeal have been approached with this guidance in mind.
[9][2015] VSCA 298.
Despite the fact that Ms Stewart is self-represented, in part, her grounds are directed, in broad terms, to the central issue for the Associate Justice’s determination.
Ms Stewart advances four grounds of appeal as follows:
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.
Ground 4 is the only ground which grapples with the central issue. It is framed as a failure to properly consider the validity of the notice. On its terms the ground must fail because it is abundantly clear that the Associate Justice did consider and decide that very question. That said, the ground is more easily understood as an attack on the Associate Justice’s decision that the notice to vacate was valid. The written submissions prepared by pro bono counsel assisting Ms Stewart and relied upon by her submit:
Central to her Honour’s reasons was her finding that Good Shepherd was not bound by the provisions of the Residential Tenancies Act 1997 (“RTA”). If it were, the Notice to Vacate, not being in the prescribed form, was invalid for the purposes of section 91ZZ0 of the RTA. Her Honour relied on a ‘carve out’ provision in section 22 of the RTA, which removes temporary crisis accommodation from the operation of the Act. Accordingly, the notice was not required to be in a form prescribed by the RTA and the question of Good Shepherd’s entitled to possession turned on the operation of the common law.
Ms Stewart advanced numerous peripheral attacks on the Associate Justice’s decision, but it is the attack on the Associate Justice’s finding that the notice to vacate was valid which is central to the success of Ms Stewart’s appeal.
Good Shepherd accepted before the Associate Justice and before this Court that if the RTA applied in this case, then notice under the provisions of that RTA would be required. It otherwise maintained before the Associate Justice and in this Court that the RTA does not apply as the accommodation was provided at all times as ‘temporary crisis accommodation’.
Good Shepherd submitted that at all times the basis upon which the accommodation was provided to Ms Stewart was that she was experiencing, or at risk of experiencing, family violence and/or homelessness. For the reasons already stated, I agree. Not only was the issue considered comprehensively by the Associate Justice, it was also decided correctly.
Grounds 1 to 3 do not provide any real sense of Ms Stewart’s complaint. As drafted the first three grounds appear to be different ways of saying the same thing, namely that the Associate Justice was wrong in finding that Ms Stewart’s claim to remain on the property enjoyed ‘no real prospects of success’. Addressing the grounds as drafted:
(a) Ground 1 asserts that the Associate Justice erred in applying the test of “no real prospects of success”. As drafted this ground could not be made out as the Associate Justice clearly articulated and correctly applied the test. More to the point, her Honour’s conclusions on the question are correct;
(b) Ground 2 asserts that the Associate Justice misapplied the relevant principles or precedents. Ground 3 asserts a failure to consider the real issue to be tried. For the reasons already stated these grounds cannot be made out as drafted.
For the avoidance of doubt, even if it could be said that the Associate Justice in some way misstated or misapplied the test of “no real prospects of success”, Ms Stewart had no arguable defence in fact or law to Good Shepherd’s claim for possession, thereby clearing the hurdle established by s 61 of the CPA.
Ms Stewart’s submissions
In addition to her stated grounds of appeal, Ms Stewart filed written submissions. In the hearing before the Court she preferred to rely upon the written submissions as filed and made no oral argument which departed from those written submissions. The submissions attempt to raise a number of bases upon which Ms Stewart now seeks to attack the decision of the Associate Justice. A number of these are peripheral or immaterial to the disposition of this appeal. In addition, the submissions raise matters which were not argued before the Associate Justice, and which were not the subject of evidence either before the Associate Justice or in this Court.
Right to cross-examine
Ms Stewart’s notice of appeal does not challenge the decision of the Associate Justice on the basis that she was denied procedural fairness. In her written submissions in this appeal, she now claims that that she was denied the opportunity to cross-examine witnesses on certain matters, and accordingly denied procedural fairness.
Cross-examining on affidavit material in the context of an application for summary judgement is rare and this court has held that it is something that should not be commonly ‘indulged’.[10] That is not to say that it cannot happen. The Rules provide that the court may order any party or maker of an affidavit to be cross-examined,[11] but it is important to observe that Ms Stewart did not seek to cross-examine any witness at the hearing before the Associate Justice. Ms Stewart’s desire to cross examine is raised for the first time on this appeal.
[10]Cassrich Nominees Pty Ltd v Griffıths (VSC, Fullagar J, No 1242/87, 13 October 1987, unreported).
[11]Rule 22.07, Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Rather than Ms Stewart having been denied the opportunity to cross-examine, this is a case where the real complaint is that the Associate Justice did not offer Ms Stewart the opportunity to cross-examine about matters which Ms Stewart did not raise. In substance, Ms Stewart asserts that not being offered the opportunity to cross-examine resulted in her being denied the opportunity to prove that she was legally in possession of the property. I do not accept that submission.
Ms Stewart had ample opportunity to demonstrate that she had a right to possess the property. Ms Stewart filed a defence to Good Shepherd’s claim for possession. Apart from admitting that she took possession of the property on 1 September 2021, Ms Stewart made no intelligible response to the Good Shepherd’s claim for possession. Apart from her single admission, each paragraph of Ms Stewart’s defence is a bare non-admission. She did not seek to articulate in that document the basis upon which she claimed a right to possess the property. She could have.
Ms Stewart received the affidavit material in support of Good Shepherd’s application for summary judgment on 10 July 2024. By orders of this Court, Ms Stewart was given the opportunity to file affidavit material in response. Ms Stewart filed affidavit material on 14 August 2024 which did not set out the basis upon which she claimed a right to possess the property, or any basis upon which it was said that she could defend Good Shepherd’s claim. In that affidavit Ms Stewart said that she had signed a deed of release with the Department. The assertion was not responsive to Good Shepherd’s claim. While not clear, Ms Stewart’s affidavit might be taken to suggest that by doing so she had established a legal entitlement to remain at the property. The Department responded by filing affidavit material which made clear that no agreement had been reached. That affidavit was filed in 17 September 2024 – five days before the hearing.
Ms Stewart also had the opportunity to make written submissions responding to Good Shepherd’s claim. Ms Stewart was also provided with the opportunity to make oral submissions to the Associate Justice in relation to the basis upon which she claimed a right to possess the property lawfully. Importantly, at the commencement of the hearing, leave was sought and granted for Good Shepherd to rely upon the affidavit filed on 17 September 2024. The Associate Justice described the process to Ms Stewart and asked Ms Stewart if she had any questions about the process. Ms Stewart confirmed that she had no questions. Ms Stewart made no complaint about the timing of the affidavit, nor did she seek to challenge in any way the content of the affidavit. Ms Stewart did not seek an adjournment at the commencement of the hearing before the Associate Justice. Neither did she make any complaint that she had not had sufficient time to consider material. Most importantly, Ms Stewart offered no evidence or submission which contradicted the evidence that no agreement had been reached between her and the Department and Good Shepherd which she said would have given her a right of possession. She could not have done so, because in truth no agreement had been reached.
Finally, Ms Stewart was given an opportunity to address the Associate Justice in the hearing directly on the issue of most importance – whether Ms Stewart could be said to have any basis to resist Good Shepherd’s claim for possession. During the hearing the Associate Justice gave considerable latitude to Ms Stewart to articulate the basis upon which she said she was legally entitled to possession. By the time Ms Stewart appeared before the Associate Justice she had been served with the affidavit material relied upon by Good Shepherd and the Department. She had every opportunity to explain to the Associate Justice whether, and if so to what extent, she disputed the accounts given in the affidavits relied upon by the Department.
Ms Stewart says she should have been given the opportunity to cross-examine in relation to the following matters:
(a) whether the deed of settlement signed by Ms Stewart (but no other party) transferred the property from Good Shepherd back to Homes Victoria, facilitating the grant of a lease in favour of Ms Stewart;
(b) whether Good Shepherd continued to lease the property from the Department; and
(c) whether Good Shepherd by its actions allowed Ms Stewart to stay in the property as a tenant.
None of those matters provided a fertile basis for cross-examination. Taking each in turn:
(a) For the reasons already explained, the deed of settlement did not mature into any agreement. The draft proposed deed of settlement contemplated that Good Shepherd would surrender its lease to the Department, and in turn the Department would grant a lease in favour of Ms Stewart. The uncontradicted evidence is that there was no agreement;
(b) Whatever the draft proposed deed of settlement contemplated, Good Shepherd remained as the head tenant at the time of the hearing before the Associate Justice and before this Court, such that any attempt to explore the subject in cross-examination would have been futile;
(c) At no stage did Ms Stewart articulate the aspects of the conduct of Good Shepherd which she said gave rise to a situation where Ms Stewart could defend Good Shepherd’s claim for possession. The documentary evidence before the Tribunal relied upon by Good Shepherd provides no apparent support for Ms Stewart’s submission on appeal. Nothing arising from the submissions made by Ms Stewart to the Associate Justice or now made to this Court suggest the possibility that cross-examination directed to the conduct of Good Shepherd might establish a factual basis from which it could be contended that Ms Stewart’s occupation of the property was other than temporary; or that she enjoyed real prospects of success in establishing some right to possession sufficient to defeat Good Shepherd’s claim.
In Ms Stewart’s submission on this appeal she now seeks to rely upon the following passage in Mutton v Baker[12] where Whelan JA observed:
Even if it is said that an issue is purely a question of law, the court should not strike out a claim on this basis if it is conceivable that some factual matter could emerge at trial which might alter the analysis.[13]
[12][2014] VSCA 43.
[13]Ibid at [55].
Though Whelan JA was there concerned with a ‘strike out’ claim, the principle is equally applicable in the treatment of a defence where summary judgment is sought. In this case, there is no basis upon which it could be said to be conceivable that some factual matter could emerge at trial, or in cross-examination which might alter the analysis.
The central question for determination was the nature of Ms Stewart’s occupation and whether she had a basis for resisting Good Shepherds claims for possession. None of the documentary evidence before the Associate Justice supported Ms Stewart in any way. It was for Ms Stewart to advance a cogent basis upon which she might be able to defend Good Shepherd’s claim. Ms Stewart did not provide any basis upon which it might be said that there could be a legitimate factual contest, let alone a contest in which she enjoyed ‘real prospects of success’.
Out of date regulations
Good Shepherd filed and served a copy of the Regulations in advance of the hearing before the Associate Justice. In the course of submissions before the Associate Justice counsel for Good Shepherd brought to the attention of the Associate Justice that the copy of the Regulations which had been circulated had been superseded (‘the superseded Regulations’).
The superseded Regulations circulated included reg 6(1) which was repealed before Ms Stewart commenced her occupation of the property. Before it was repealed reg 6(1) provided that:
(1)For the purposes of paragraph (a) of the definition of temporary crisis accommodation in section 3 of the Act, the prescribed period is not more than 6 months.
Regulation 6 was modified by the Residential Tenancies Amendment Regulations 2021 (Vic) which commenced on 29 March 2021. Good Shepherd supplied a copy of the relevant Regulations in the course of the hearing before the Associate Justice. The Associate Justice adjourned the matter to provide Ms Stewart an opportunity to consider the relevant Regulations. Ms Stewart now complains that she was not provided with an adequate opportunity to consider the applicable regulations. Again, Ms Stewart’s notice of appeal does not raise a complaint that she was not given enough time to consider the applicable regulations.
This complaint does not assist Ms Stewart on this appeal. Although Ms Stewart says that at the hearing before the Associate Justice she had relied on the superseded Regulations and was confused as to how the applicable regulations might have affected her position, she raises no matter of substance on this appeal stemming from the Associate Justice’s handling of the matter. By removing the time limit on ‘temporary crisis accommodation’, the regulations allowed for the possibility that the provision of crisis accommodation might continue to be provided on a temporary basis (and not be subject to the usual requirements of the RTA) in circumstances where it might be necessary to provide that accommodation for a period longer than 6 months. In the present case, the change to the regulation (occurring as it did before Ms Stewart commenced occupation) meant that Ms Stewart’s length of stay at the property could not be taken as evidence, by itself, that her occupation was not ‘temporary crisis accommodation’ for the purposes of s 22 of the RTA. Importantly, Ms Stewart does not now say that the Associate Justice was wrong to consider the applicable regulations. In fact, the Associate Justice was obliged to have regard to the applicable regulations, and in doing so, nothing about their content could have in any way altered the outcome of the proceeding before the Associate Justice.
Trident
In the submissions prepared for Ms Stewart by pro bono counsel, it was argued that Ms Stewart was entitled to the benefit of, and empowered to enforce, clause 5.4 of the lease between Good Shepherd and the Department on the authority of Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (‘Trident’).[14] Ms Stewart said that this was because she was part of a defined class of individuals entitled to the benefit of that clause. Trident was a case which concerned commercial insurance arrangements. Trident did not concern the RTA or residential tenancies arrangement broadly. It is not clear how the principles set down in Trident could have any application in this context. That said, clause 5.4 imposes an obligation upon Good Shepherd for the benefit of the Department to ‘take all reasonable steps to enforce the provisions of any sublease and the RTA including any amount payable by a sub-tenant under a sublease’. Even if Ms Stewart were entitled to the benefit of that obligation, it is an obligation which confers no greater benefit than the proper construction of the RTA would yield. The benefits conferred by clause 5.4 depend upon a sub lease arrangement which would enliven the operation of the RTA. For the reasons already stated, the accommodation provided to Ms Stewart fell within the meaning of ‘temporary crisis accommodation’ and was therefore a form of accommodation which lay outside the operation of the RTA.
[14](1988) 165 CLR 107.
Ms Stewart’s final submissions
The hearing of this matter was conducted on three separate days. The night before the matter resumed on 26 March 2025, the Department filed and served extensive legal submissions which it proposed to address the next morning. Ms Stewart had not received a copy of those submissions. Indeed, they had not made their way to the Court’s file until just before the commencement of the hearing. There were no orders requiring the Department to file submissions. The submissions were said to be filed to assist the Court with discrete arguments relevant to the overall legislative context, but otherwise were consistent with submissions already filed by Good Shepherd. There is no doubt that the preparation of the written submissions were well intentioned, but the delivery of submissions of this kind, so late and without warning could easily disrupt the running of a case in the ordinary course. When the opposing party is a self-represented litigant, the potential disruption to the proceedings is magnified.
On 26 March 2025 Ms Stewart was to address the Court on the substance of her appeals, having had the opportunity to consider the written submissions already filed by Good Shepherd. She was not prepared to address the Court on the Department’s submissions, which she had only received that morning.
Ms Stewart was given an opportunity to review the Department’s submissions. After doing so, she sought to have the matter adjourned. Rather than adjourn the proceedings, the Court suggested and all parties agreed that the defendant parties would present their case first, and that Ms Stewart would be permitted the opportunity to file a further written submission in reply to both the written and oral submission of the defendants. The Court set the matter down for a further hearing on 16 April 2025, at which point Ms Stewart was to make any further oral submissions, and if necessary the defendant parties would be given the opportunity to respond to any new matters if required.
Ms Stewart filed reply submissions in accordance with the orders of the Court made on 27 March 2025.
When this proceeding returned before the Court at 10:30am on 16 April 2025, there was no appearance for or by Ms Stewart. The hearing proceeded in her absence. The submissions that she filed were taken as read. Good Shepherd was granted leave to address matters raised in Ms Stewart’s reply. The hearing concluded at approximately 10:40am. Subsequently, the Court received notification that Ms Stewart had attended the wrong court in error and after inquiring as to the availability of all parties, the hearing was reconvened at 2:15pm. At the reconvened hearing Good Shepherd reprised the matters that it had raised earlier in the day. Ms Stewart sought leave to respond in further written submissions. Leave was granted to Ms Stewart to provide yet a further written submission, but confined to the matters which had been raised by Good Shepherd at 2.15 pm and any matter recorded in the transcript of the hearing which she failed to attend earlier that day.
On 22 April 2025 Ms Stewart provided further written submissions (‘the further reply submissions’). It is important to observe that the further reply was fourteen pages in length, and: raised a number of new arguments; advanced new material which was not before the Associate Justice and not argued in submissions advanced before this Court; and in part, reformulated some arguments earlier advanced. Ms Stewart’s submissions were not confined in the way required by the orders. Good Shepherd was given leave to make further submissions, but did not take up the opportunity.
In the result, none of the matters raised by Ms Stewart affect the outcome of this appeal. For completeness, it is appropriate to address them, but briefly.
Construction of s 22 of the RTA
Ms Stewart submitted, in substance, that s 22 of the RTA should be construed in a way that takes into account the vulnerability of a person who avails themselves of temporary crisis accommodation. There is nothing about the language of the provision or its context which supports that construction. The provision plainly says that the RTA does not apply if the accommodation is provided as ‘temporary crisis accommodation’. Looking to the context and purpose of the provision, it can be straightforwardly discerned that the provision allows organisations such as Good Shepherd the ability to offer short-term accommodation to people in crisis without attracting the operation of the RTA.
Availability of Alternative Accommodation
Ms Stewart’s final submissions asserted that the Associate Justice’s decision was based on a finding that Ms Stewart could ‘reasonably secure alternative accommodation within the one-month period fixed by the Court’. It is not clear how this assertion arises on the grounds of appeal, or written submissions made by Ms Stewart to that point in the proceeding. It appears to be a new argument advanced in reply. In support of this new argument Ms Stewart advanced a considerable amount of material which was not before the Associate Justice. The evidence includes statistics concerning housing availability generally, the provenance of which is unclear.
Leaving to one side the fact that this material and the contentions based upon it appear to be new, the Associate Justice’s reasons do not say what Ms Stewart says they say.
The dispositive part of the Associate Justice’s ruling begins at page 9 and concludes shortly thereafter. Her Honour’s decision was not based upon the availability or otherwise of alternative accommodation. The question before the Associate Justice was whether Good Shepherd had a proper claim for possession as a matter of law, and in turn whether Ms Stewart had any basis to resist that claim, and if so whether Ms Stewart enjoyed a real prospect of success at trial. Her Honour ruled on that question. No aspect of that question engaged her Honour in whether or not, or resulted in a finding that, Ms Stewart could reasonably secure alternative accommodation within one month.
In the course of discussion before her Honour, but after the substantive ruling was made, the parties made submissions as to the form of orders and costs of the proceeding. The effect of the orders was that Ms Stewart would be required to vacate the property. Ms Stewart submitted that it would not be feasible for her to relocate, if the Court provided Ms Stewart only a two week period before the order for possession took effect. The Court was sympathetic to Ms Stewart and to the difficulty of finding appropriate accommodation on short notice, but ultimately decided that Ms Stewart had been aware for some time that Good Shepherd wanted possession of the property, and so declined to provide more time.
Charter of Human Rights
Ms Stewart also submitted that certain provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) mean that the Court should use its discretion under s 64 to permit the matter to proceed to a full trial.
Ms Stewart submitted that s 24 (which provides for the right to a fair hearing) and s 17 of the Charter (which provides for the right to the protection of families and children) ‘buttress[es] the unconscionability of sudden eviction’.
At the outset, the Charter does not bind private organisations unless they act as public authorities. Significant doubt attends the assertion that Good Shepherd could be a ‘public authority’ for the purposes of s 4 of the Charter. Leaving that doubt to one side, the Charter does not assist Ms Stewart here for the simple reason that nothing contained in the Charter is sufficient to give her a right of possession. In short, the Charter does not furnish Ms Stewart with a defence to Good Shepherd’s claim for possession. Given the factual background already traversed, it could hardly be said that Good Shepherd’s desire to have Ms Stewart vacate the property amounted to ‘sudden eviction’.
Even if it could be said that the Charter applied here, the right to a fair hearing does not apply to any decision of Good Shepherd to seek possession of the property. Insofar as it is said that Good Shepherd was under some obligation arising from the Charter concerned with the right to the protection of families and children, those claims do not give rise to a right to possession, nor do they affect the proper construction of s 22 of the RTA – which lie at the centre of this matter. It is not necessary to decide, for obvious reasons, whether Good Shepherd has breached some obligation under the Charter, but at face value it would be difficult to imagine Ms Stewart establishing such a claim. Good Shepherd provided Ms Stewart with a substantially longer period of accommodation than was at first agreed. This accommodation has continued for the best part of four years, rent free. It is apparent from the material before the Court that Good Shepherd has, at all relevant times, given careful consideration to Ms Stewart and her rights. There is no evidence that in that time Good Shepherd has been anything other than a good provider of accommodation.
Representations
In substance Ms Stewart contends that there were ambiguities in the language used by Good Shepherd and because of that ambiguous language she was led to believe that she would not be summarily evicted. She claims that the ambiguities in the language of Good Shepherd required further examination at trial. In this Court’s view, Ms Stewart has looked for (and asserted) ambiguity where there is none. It was made clear from the outset that Ms Stewart’s stay with Good Shepherd was temporary. This was reiterated time and again by Good Shepherd to Ms Stewart. Good Shepherd’s good will, in indulging Ms Stewart by permitting her to stay longer than she should have is sought to be used by Ms Stewart as a basis for claiming rights over the property that she does not have.
Section 64 of the CPA
In the further reply submissions Ms Stewart again addressed the Associate Justice’s consideration of s 64 of the CPA. None of this fell within the orders made by the Court on 27 March 2025, and was no more than a restatement and further elaboration of arguments already advanced. Rather than disregard the arguments, they are dealt with here for completeness.
Section 64 provides:
Despite anything to the contrary in this Part or any rules of court, 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–
(a) it is not in the interests of justice to do so; or
(b)the dispute is not of such a nature that only a full hearing on the merits is appropriate.
In Yin v Wu[15] the Court of Appeal made the following observations about the proper construction of ss 63 and 64 of the CPA:
In De Saram, a submission that in every summary judgment application under s 63 it is necessary for the Court to consider the discretion under s 64 before granting summary judgment was left open.
… it is also unnecessary to decide that issue in this case. However, our view is that there is much to be said for a construction of s 63 which requires the court to consider whether the discretion under s 64 to order that a proceeding proceed to trial should be considered in every case where the court reaches the view that there is no real prospect of success. Otherwise, it is difficult to see the purpose of the introductory words to s 63(1) (‘Subject to section 64’). Reading the two sections together suggests that the discretion to give summary judgment under s 63 is subject to the court’s consideration of its discretion under s 64. On this basis, there is no requirement that express reliance be placed on s 64. Nevertheless, a person who wishes to rely on the matters in s 64 as a basis for resisting an application for summary judgment should, ordinarily, expressly rely upon them so that these matters can be addressed in argument.[16]
[15][2023] VSCA 130
[16]Ibid at [136]–[137].
The Associate Justice explicitly considered and declined to apply s 64. The Associate Justice said:
It would not be in the interests of justice. Contrary to Ms Stewart's assertions, the counterclaim and defence do not raise complex issues. The facts concerning possession are not in dispute. Allowing the counterclaim to proceed to trial would cause further delay and expense. It would not be in the interests of justice to deny Good Shepherd, a not-for-profit organisation, summary judgment in circumstances where it has demonstrated that Ms Stewart has no real prospect of success, and her continued possession of the property prevents Good Shepherd from using the property as emergency housing for people facing domestic violence consistently with its obligations under its lease with the Director of Housing.[17]
[17]Appeal book at 14.
It is apparent that in addressing s 64, her Honour explicitly turned her attention to the ‘interests of justice’. Her Honour’s assessment cannot be faulted. There is nothing in this case proceeding to a full hearing that would serve the interests of justice. Ms Stewart has taken advantage of the charity of Good Shepherd and its good will in permitting her to stay in the accommodation for a considerable period of time. Ms Stewart has no defence in law to Good Shepherd’s claim for possession. If anything, the injustice of the situation mounts the longer that Good Shepherd is denied its remedy.
Her Honour makes no explicit reference to the second limb of s 64, namely whether she was satisfied that the dispute was not of such a nature that only a full hearing on the merits is appropriate. Though not expressly addressed, it is implicit in her Honour’s reasons that she did not regard the proceeding as one which fell within s 64(b). Her Honour not only addressed whether Ms Stewart had a real prospect of success in defending Good Shepherd’s claim for possession, she looked further to the claims made by Ms Stewart to ascertain whether there were any features of those claims which might have a bearing on her decision to grant summary judgement. In substance, her Honour explored all ways in which it might be said that Ms Stewart’s defence of Good Shepherd’s claim for possession might require a full hearing on the merits, and concluded that summary judgement was appropriate. In doing so, her Honour can be taken to have addressed all available material as to whether or not a full hearing on the merits was required before concluding that it was not. There is no error of law which necessarily arises in her Honour not explicitly mentioning s 64(b) in the process of delivering her ex tempore reasons.[18]
[18]Such reasons may ‘sometimes have features that are unclear or uncertain, but which may readily be explained or clarified’: State of Victoria v Villan [2022] VSCA 106, [68], citing Makeham v Sheppard [2020] VSCA 242, [53]. See also Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 , 272, cited in Hanson v Director of Housing [2022] VSC 710, [47].
For the avoidance of any doubt, even if it could be said that not specifically addressing s 64(b) of the CPA amounted to an error, there is no basis on the evidence before her Honour, or on the material and arguments before this Court, which would support a conclusion that this matter should proceed to a full hearing on the merits for the reasons already advanced.
The proceeding is not one where the interests of justice require the matter to proceed to trial. Nor is it a dispute of such a nature that a full hearing on the merits is appropriate. As I have already canvassed in these reasons, there is no evidence that could be brought to bear at trial that would change the interpretation of s 22 of the RTA. The ordinary meaning of the words of the provision are clear.
Conclusion
For these reasons I would dismiss Ms Stewart’s appeal. The parties will be provided an opportunity to address the form of orders to be made in this proceeding and to address the question of costs.
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