Tsolacis v Pappas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 02890

GEORGE TSOLACIS	Appellant
v
THEODORA (DOROTHY) PAPPAS	Respondent

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2016 (Final written submissions 2 September 2016)
DATE OF JUDGMENT:	13 September 2016
CASE MAY BE CITED AS:	Tsolacis v Pappas
MEDIUM NEUTRAL CITATION:	[2016] VSC 549

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (‘VCAT’) – Application for leave to appeal to the Supreme Court – Whether questions of law – Challenges to findings of fact – Whether real or significant argument that VCAT fell into error – Significant argument on some questions of law – Leave granted – Victorian Civil and Administrative Tribunal Act1998 (‘VCAT Act’), s 148(1)(b).

ADMINISTRATIVE LAW – VCAT – Appeal on a question of law – Whether VCAT made an error of law – Whether finding of fact open on the evidence – Finding open on the evidence considered as a whole – Whether appellant denied procedural fairness – Whether Tribunal must warn the tenant of the need to apply for reasons – Whether Tribunal unfairly sided with the landlord by adducing evidence – No denial of procedural fairness in the circumstances – Appeal dismissed.

LANDLORD AND TENANT – Notice to vacate – Landlord to occupy rented premises immediately after the termination date – Whether notice to vacate validly given – Residential Tenancies Act1997, ss 258, 319, 322 and 330.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Mr D Epstein	Phillips & Wilkins

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavits............................................................................................................................................. 1

Background......................................................................................................................................... 1

Applicable Law................................................................................................................................... 6

Self-Represented Litigant............................................................................................................ 6
VCAT - Leave to Appeal.............................................................................................................. 7
Appeal............................................................................................................................................ 9
Nature of the Appeal.......................................................................................................... 9
Questions of Law vs Questions of Fact.......................................................................... 10

Residential Tenancies Act.......................................................................................................... 11

Proposed Notice of Appeal............................................................................................................. 13

The Evidence in the Tribunal........................................................................................................ 14

Submissions and Consideration................................................................................................... 17

No Proper Basis for Notice........................................................................................................ 18
Tenant’s Submissions........................................................................................................ 18
Landlords Submissions.................................................................................................... 20
Consideration..................................................................................................................... 21

Denial of procedural fairness.................................................................................................... 26
Tenant’s Submissions........................................................................................................ 26
Landlord’s Submissions................................................................................................... 26
Consideration..................................................................................................................... 27

Reasons for final Orders............................................................................................................ 27
Tenant’s Submissions........................................................................................................ 27

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

The appellant (‘Tenant’) applies[1] for leave to appeal, and, if leave is granted, appeals the decision of Member Kefford of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made 28 June 2016. The Tribunal found that the respondent (‘Landlord’), as Landlord of the bungalow at the rear of 8 Henry Street Kew, Victoria (‘Rented Premises’), was entitled to a possession order and the Tenant’s application for an adjournment was refused. The Tribunal ordered that the Tenant must vacate the Rented Premises by 28 July 2016.
[1]Originating motion filed on 22 July 2016.

The Tribunal also ordered that the Principal Registrar of the Tribunal issue a warrant for possession of the Rented Premises at the Landlord’s request.

Affidavits

The Tenant relied on his affidavits sworn 20 July, 25 July, 17 August and 26 August 2016.

The Landlord relies on her affidavits sworn 12 August and 1 September 2016.

Background

The Rented Premises consist of a bungalow at the rear of a house at 8 Henry Street, Kew, Victoria. The main house on the land is a California Bungalow which is solid brick at the front and has four bedrooms, an internal bathroom and an external bathroom and toilet at the rear used by the occupant of the bungalow. The bungalow is a few feet from the rear of the house and is made of fibro-cement. It has a bed-sitting area with a separate kitchenette. The bungalow was built by the Landlord’s father about 60 years ago.[2] The Tenant has resided in the Rented Premises for 16 years. He commenced occupation under a verbal agreement with the original landlords, who lived in the house at the front of the property. The original landlords’ daughter, Mrs Pappas, now owns the property and as a result is the current Landlord.[3] She moved into the house at the front of the property in April 2016 with her son and ex-partner. Her son is 35 years of age and her ex-partner is 64.
[2]VCAT Transcript, 28 June 2016, p 7-8, evidence of defendant.
[3]Reasons for decision in Tsolacis v Pappas (Residential Tenancies) [2016] VCAT 982 per Member D Galvin paragraph [4].

The Landlord has made a number of attempts to gain possession of the Rented Premises from the Tenant, and they have failed for various reasons. The most recent attempt is by the Landlord serving on the Tenant a notice to vacate (‘Notice’) pursuant to s 258 of the Residential Tenancies Act 1997 (Vic) (‘RTA’). That section is reproduced below. Essentially it turns on the condition that the Rented Premises are, immediately after termination, to be occupied by the Landlord or her family.[4]
[4]Ibid [5]-[6].

The Notice claimed that:[5]
[5]Exhibit GT-2 to the affidavit of George Tsolacis affirmed 20 July 2016.

9. Reason for Notice to Vacate
The premises are to be occupied by me, my partner, son, daughter, parent, parent’s partner or a person who normally lives with and is dependent on me immediately after the termination date.
Specifically, to be occupied by the Landlord/Owner, Ms Theodora (Dorothy) Pappas and her children

The termination date stated in the Notice was 15 June 2016, 66 days after the date the Notice was sent by registered post and by post.[6]
[6]Ibid and Tsolacis v Pappas (Residential Tenancies) [2016] VCAT 982, [7]-[8].

On 11 May 2016, the Tenant made application to the Tribunal pursuant to s 321B of the RTA. That section entitles a tenant or resident to challenge the validity of a Notice given under, amongst other provisions, s 258 of the RTA. The application has to be made, and in this case was made, within 30 days after the Notice is given.[7]
[7]Ibid [8]-[9].

The Tenant claimed that the Notice was invalid on five bases:[8]
[8]Ibid [12].

(a) the form of the Notice was not known to the law, in that it was not in the prescribed form as required by s 319(a) of the RTA as it was issued under regulations that had been revoked on 28 June 2008, specifically reg 4(a) and even if the correct form was used, it did not state that the Tenant had a right to attend a hearing and give evidence if the Landlord seeks an order for possession;

(b) the Tribunal had no jurisdiction to hear and determine the application in that the invalid Notice could not be amended so as to give the Tribunal jurisdiction and it cannot be amended under s 127 of the VCAT Act;

(c) that service of the Notice was invalid as the Notice served by post was received on 13 April 2016 and the Notice served by registered post was received on 14 April 2016 and therefore service was not effected in accordance with the RTA;

(d) that the issue of the Notice is evidence of retaliation by the Landlord for the Tenant exercising rights under the RTA and was an attempt to avoid the tenancy agreement, and the agent for the Landlord deceptively claimed to act for him; and

(e) the lease of the Rented Premises is neither fixed nor periodic and the Tenant could stay as long as he wanted and could only be required to vacate upon receiving six months’ notice.

The Tenant’s application challenging the validity of the Notice was dismissed by the Tribunal on 17 June 2016 and reasons were given.[9]
[9][2016] VCAT 982.

The Landlord applied under s 322(1) of the RTA for a possession order. That hearing came on before Member Kefford on 28 June 2016. The orders made on that day, which are referred to above in summary, were as follows:

The Tribunal orders and directs that:
1.The landlord is entitled to a possession order. The tenant has requested a postponement of 30 days to which the landlord consents.
2.The tenant must vacate the rented premises by 28 July 2016.
3.The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall on or after 28 July 2016 issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 28 December 2016).

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

By originating motion and summons[10] the Tenant applied both for leave to appeal the Tribunal’s orders made on 28 June 2016 and for a stay of the order pursuant to which the Landlord is entitled to possession of the Rented Premises. The application came on before me on 26 July 2016 on the basis that there was some urgency in the application. On that occasion, it was ordered that the Tribunal’s order made on 28 June 2016 by which the Tenant was ordered to vacate the Rented Premises was stayed until the hearing and determination of the Tenant’s application for leave to appeal, or further order. In short reasons for the making of that order it was noted that it appeared that there were grounds to conclude that there is, on a preliminary basis, a seriously arguable question of law whether it was open to the Tribunal to find the Notice given under s 258 of the RTA was properly given.
[10]Filed 22 July 2016.

At the time the stay was granted, directions were given for the Tenant to file any further affidavits (including reasons for the Tribunal order and, if possible, transcript of the hearing) and a further amended proposed Notice of Appeal. The application was adjourned to 18 August 2016.

In the meantime, because the Tenant was self-represented, enquiries were made by my chambers as to whether requests for reasons and transcript had been made. These enquiries revealed that on 29 July 2016, the Tribunal Member made an order declining to provide reasons on the basis of the exception made by clause 76, of Part 17 to Schedule 1 of the VCAT Act.[11] That clause provides:
[11]A copy of the order is in exhibit GT-9 to the plaintiff’s affidavit made on 17 August 2016.

Reasons must be requested at time of decision
Despite anything to the contrary in section 117(2), the Tribunal is not obliged to give a person written reasons for an order made in a proceeding under the Residential Tenancies Act 1997 unless the person has made a request to the Tribunal for written reasons for orders that may be made in the proceeding before or at the time of the giving or notification of the Tribunal’s decision in the proceeding

Given that there was to be no further reasons given for the decision, my chambers obtained from the Tribunal an audio recording of the hearing and had it transcribed and sent it to the parties on 8 August 2016. At the same time, the parties were notified that I proposed to make orders for the Landlord to file any affidavit on which she desired to rely in opposition to the grant of leave to appeal, and if leave is granted, in opposition to the appeal, by 12 August 2016, and for the Tenant to respond by any further affidavit by 17 August 2016 with a view to the application for leave and the appeal being dealt with expeditiously and being heard on 19 August 2016. The parties were informed that unless they raised objection to the proposed orders by 10 August 2016, they would be made.

The reason for so informing the parties was that any delay in the determination of the question of the validity of the Notice was counterproductive for both parties. They were entitled to know the position under the disputed Notice promptly and delay would render the giving of the Notice ineffective from a practical perspective. To effectuate the prompt determination of the application and appeal, Justice J Forrest referred to hearing and determination of the proceeding to me pursuant to r 77.05 of the Rules.[12]
[12]Order made 9 August 2016.

The proposed orders were made on 10 August 2016. In consequence, the hearing of the application for leave to appeal, and if leave is granted, the hearing of the appeal, was fixed for hearing on 19 August 2016, and was substantially heard on that day.

In the course of the hearing the Tenant complained that he had not been served with the Landlord’s affidavit in compliance with my orders. He stated, and confirmed by subsequent affidavit, that they had not been in his letter box on the date and by the time ordered. The Landlord, in contrast, stated, and later confirmed by affidavit, that her affidavit sworn on 12 August 2016 and submissions (which were exhibited to her affidavit) were placed in the letter box before 4pm on 12 August 2016 as required, and that she observed that it remained there in the letter box on Saturday, 13 August 2016 and Sunday, 14 August 2016. There is but one letter box at 8 Henry Street Kew and it is shared between Tenant and Landlord.

In these circumstances, I did not anticipate that a clear conclusion could be reached as to when the Tenant received the documents. Because the Tenant complained that he had insufficient time in which to respond to the Landlord’s affidavit and submissions, I allowed the Tenant time to file and serve a further affidavit and/or submissions by 26 August 2016. I also allowed the Landlord to respond by 2 September 2016. After hearing argument and submissions, I reserved my decision. This was a course I consider was in the interests of the just, efficient, timely and cost-effective resolution of the matter.

Applicable Law
Self-Represented Litigant

A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the hearing or trial is conducted fairly and in accordance with law.[13] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[14] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[15] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant: per Justice Bell in Tomasevic v Travaglini.[16]
[13]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v R (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[14]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].
[15]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[16](2007) 17 VR 100, 130.

In Rajski v Scitec Corporation Pty Ltd[17] Justice of Appeal Samuels said:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

[17]Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.

In this case it became apparent that the Tenant was well equipped to conduct his case without assistance. He is intelligent and reasonably well informed about legal principle and practice. The main disadvantage suffered by the Tenant was one he shared with the Landlord’s lawyer, namely, that they each approached the matter as if it were a merits review, despite acknowledging that it was an appeal in the nature of a judicial review.

VCAT - Leave to Appeal

The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.

The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[18] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria.[19] That summary is:
[18][1999] 3 VR 331.
[19](2007) 18 VR 48 at [28].

(a) whether leave is granted or not must always depend upon the justice of the particular case;

(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;

(c) the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings. [footnotes omitted]

Appeal
Nature of the Appeal

Where the statutory right of appeal is restricted, as here, to a question of law, the Court is concerned with the legality of what the tribunal has done and decided. In those circumstances the appeal is not an appeal in the strict sense but is equivalent to a judicial review.[20]
[20]Roy Morgan Research v The Commissioner of Revenue, (1976) 135 CLR 616 at 620-1; Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSC 248, [31].

The legislative policy underlying the restriction on the right of appeal is that:[21]
VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal.
It follows that ‘[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal.’[22]
[21]Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515, referring to Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5], in turn, referring to Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335–6; Myers v Medical Practitioners Board (Vic) [2007] VSCA 163, [28].
[22]Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21 at 26 [15], referring to Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.

In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Kirby J in Roncevich v Repatriation Commission, said:[23]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[24] The focus of attention is on the substance of the decision and whether it has addressed the “real issue” presented by the contest between the parties.

[23](2005) 222 CLR 115 at 136 [64].

[24]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597. Cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348 [74].

This Court should not examine briefly stated reasons by the Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error. The user should be taken to mean what the words say. The Court is not entitled to interfere with the Tribunal’s decision unless it is satisfied that there was in fact a vitiating error of law.[25] Additionally, on appeal this Court ‘must recognise the forensic realities of the way in which the case was put to the tribunal. It is these realities to which a tribunal must respond in its reasons.’[26]
[25]Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) at 13; Cited in Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515, [10].
[26]Gombac Group Pty Ltd v Vero Insurance Ltd (2005) 23 VAR 460 at 470 [59].

So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[27]
[27]Australian Broadcasting Tribunal v Bond, (1990) 170 CLR 321 at 356 (emphasis in original), referred to with approval by Osborn J in Lucas v Transport Accident Commission [2003] VSC 97, [10] and by Croft J in Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515, [11].

Questions of Law vs Questions of Fact

As will be seen below, the Tenant has sought to raise questions of law that involve a direct challenge to the Tribunal’s factual finding. In Rugolino v Howard,[28] Bell J set out the principles which the Court applies in the exercise of its appellate jurisdiction in relation to findings of fact. Remembering the tribunal is not bound by the rules of evidence and can base its findings on any probative material, those principles apply equally here:[29]

In Roads Corporation v Dacakis,[30] Batt J held ‘the question whether there is any evidence of a particular fact is a question of law.’ Therefore a finding of fact is open to challenge as ‘erroneous in law’, but only if ‘there is no probative evidence to support it’.[31] Similarly, in S v Crimes Compensation Tribunal,[32] Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if ‘it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.’ His Honour emphasised that the question was not whether the finding was ‘reasonably open’, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria,[33] Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was ‘not open’. After endorsing[34] the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries[35] that it was ‘critical’ to making findings of fact that they be based on the evidence, but there would be no error of law ‘unless it can be shown that there was no evidence’ to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council.[36]After approving the ‘not open’ test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman[37] where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was ‘any evidence’ to support it.[38]
In State of Victoria v Subramanian,[39] Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.
[28](2010) 57 MVR 178; [2010] VSC 590.
[29]Ibid [10]-[12]; See also IDirector of Liquor Licensing v Kordister Pty Ltd [2011] VSC 590 at [247].
[30][1995] 2 VR 508, 517.
[31]Ibid, 520.
[32][1998] 1 VR 83, 90.
[33](2007) 18 VR 48, 59.
[34]Ibid [43]-[44].
[35](1985) 4 NSWLR 139, 151.
[36](2008) 20 VR 447.
[37][1989] VR 197, 199.
[38](2008) 20 VR 447, [65].
[39](2008) 19 VR 335, [32].

Residential Tenancies Act

In s 3 of the RTA ‘rented premises’ is defined, in relation to a tenancy agreement to which the RTA applies, to mean the premises let under the tenancy agreement; and ‘tenancy agreement’ is defined to mean an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence. The word ‘premises’ is not, however, defined. In its natural and ordinary meaning, ‘premises’ is defined by the Macquarie Dictionary to mean, so far as relevant:

b. a house or building with the grounds, etc., belonging to it.
Usage: the use of premises to mean the building or grounds derives from its use to refer to the people and items listed as the preliminary to a conveyancing deed. Therefore premises is plural in form and takes a plural verb when used in the context of a single building…

Section 258 of the RTA provides:

Premises to be occupied by Landlord or landlord’s family
(1)A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be occupied–
(a) by the landlord; or
(b) in the case of a landlord who is an individual–
(i)by the landlord’s partner, son, daughter, parent or partner’s parent; or
(ii)by another person who normally lives with the landlord and is wholly or substantially dependent on the landlord;

(2)The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.

Section 319 of the RTA provides:

Form of notice to vacate
A notice to vacate given under this Part is not valid unless—
(a) it is in the relevant prescribed form; and
(b)it is addressed to the tenant, resident or site tenant (as the case requires); and
(c)it is signed by the person giving the notice or by that person's agent; and
(d)except in the case of a notice under section 263, 288, 314, 317ZF or 317ZG, it specifies the reason or reasons for giving the notice; and
(e)it specifies the date by which compliance is required (the termination date).

Section 322 of the RTA provides, so far as relevant:

Application for possession order by landlord
(1)A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under section 261 or section 263).

Section 330 of the RTA provides, so far as relevant:

Order of Tribunal
(1)The Tribunal must make a possession order requiring a tenant … to vacate rented premises … on the day specified in the order if the Tribunal is satisfied—
(a)in the case of an application where notice to vacate has been given, that—
(i)the landlord …was entitled to give the notice; and
(ii)the notice has not been withdrawn; and

(b)[not relevant];
(c)that the landlord … has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and
(d)that the tenant … is still in possession of the rented premises … after the termination date specified in the notice to vacate…; and
(e)[not relevant]

Proposed Notice of Appeal

The Tenant’s affidavit of 26 August 2016 put forward an Amended Proposed Notice of Appeal identifying the following questions of law:

(a) the Tribunal erred in finding the Landlord has proven the grounds set out in the Notice under section 258 of the RTA (‘Question 1’);

(b) the Tribunal erred in failing to comply with section 117(2) of the VCAT Act 1998. In the course of the hearing the Tenant added and element to this ground, namely that the Tribunal denied the Tenant procedural fairness by not warning him to request written reasons before she made the decision, so as to comply with paragraph 76 of Part 17 of Schedule 1 to the VCAT Act (‘Question 2’);

(c) a breach of the rules of natural justice happened relating to the making of the decision (sic) (‘Question 3’);

(d) the fact(s) which have been found for its decision are not supported by sufficient probative evidence in the record, to the standards required under section 258 of the RTA (‘Question 4’);

(e) the Tribunal erred in its decision by misdirecting itself acting upon a view of the primary facts which cannot reasonably be justified (‘Question 5’); and

(f) the Tribunal erred in finding the Landlord has proven the grounds set out in the Notice because the Landlord was not entitled to give notice under section 330 of the RTA (‘Question 6’).

The grounds of appeal, however, travel over a much wider field than the questions of law. They seek to raise matters dealt with in the course of the Tenant’s prior application challenging the validity of the Notice under s 321B of the RTA. That application was the subject of an order of the Tribunal made 2 June 2016 dismissing the application, reasons for which were published on 17 June 2016. There is no application for leave to appeal from that order. I will therefore not entertain the grounds that relate to that decision, which are:

(a) that the Notice was invalid as it was issued under regulations that had been revoked;

(b) the Tribunal had no jurisdiction to hear and determine the application because of the invalid Notice; and

(c) that service of the notice was invalid.

I will deal with the grounds for each question as set out in the proposed Notice of Appeal when considering the questions raised and the submissions.

The Evidence in the Tribunal

In the course of the hearing, which was conducted with an appropriate lack of formality and technicality,[40] the Landlord, her estate agents (Ms Katie O’Dwyer and Ms Shannon Tipene), and Tenant were all sworn and gave evidence and made submissions. In summary the material presented was as follows:
[40]In conformity with s 98 of the VCAT Act.

(a) in the course of dealing with an application by the Tenant to adjourn the hearing, the Landlord’s agent gave as a reason for opposing an adjournment that ‘[t]here has (sic) been numerous applications made by the respondent for delays in having the hearing. The Landlord has moved into the front house at the premises and wants the exclusive use of the whole premises;’

(b) Ms Pappas gave evidence as to the physical layout of the house and bungalow at 8 Henry Street, to the effect summarised above in paragraph 5, and showed the Member photographs. Ms Pappas also gave evidence of her intentions by tendering a letter dated 29 March 2016 and signing a copy of it before the Tribunal. That letter was as follows:[41]
[41]The letter is exhibit GT-3 to the plaintiff’s affidavit made 20 July 2016.

29/3/2016
To Whom It May Concern
I have inherited 8 Henry St Kew from my parents and being my family home when I was young, I plan to live there with my family. I would also like it to be a private family home with no tenants.
I plan to renovate the backyard as it is quite old and has been neglected, therefore it would be necessary to remove both the inhabited and storage bungalows which sit directly in the middle of the backyard. The inhabited bungalow is parallel to the backdoor and the tenant uses the shared utilities connected to the house.
I would like to enjoy my family home with privacy, with no restrictions from tenants residing in bungalow so close to the back door.
I do not believe there has been a bond paid by George as there is no receipt, my understanding of the situation was that George was to be a temporary tenant.
Regards
Theodora Pappas

(c) Ms O’Dwyer gave evidence that the property at 8 Henry Street was originally in Ms Pappas’ parents’ names but is now, both parents having died, in Ms Pappas name. Various other documents were produced, including a rate notice, the agents management authority and an enduring power of attorney given by Ms Pappas’ mother, which it was noted had been revoked by her death;

(d) the Tenant then asked the Landlord what she intends to do with the bungalow, to which she responded ‘I plan to demolish it’;[42]
[42]Transcript, 28 June 2016, p.14.

(e) the Tenant then contended that the Landlord’s true intentions are not under s 258 of the RTA, possession, but demolition, and the application should have been made under different section of the RTA. In order to demolish the bungalow, Ms Pappas has to obtain the necessary council permit for demolition and there is a contrast between the evidence given by the Landlord on the 2 June 2016 and the evidence she has given now;[43]
[43]Ibid, p. 15.

(f) in response, Ms O’Dwyer gave evidence that the Landlord gave instructions to issue the Notice in February 2016 and at that stage a Notice was given to the occupants of the house at 8 Henry Street and also on the Rented Premises. It was the Landlord’s intention to move into the premises, so then she and her family could take the opportunity to assess their living conditions, enjoyment of the premises, what they would do with the bungalow, if they would use that as a barbecue area or the like. This was delayed for considerable months so in June, the Landlord moved into the actual house, and was keen to use the whole yard. The Landlord has dogs and prefers to have access to the entire back yard. At the point of issuing the Notice, the Landlord simply sought to exercise her right to occupy the Rented Premises;

(g) the Tenant contended that Ms O’Dwyer’s evidence was simply wrong and that the intention from the beginning, according to the letter, was to demolish the bungalow;[44]

(h) the Landlord responded ‘the main thing is that I’d like to enjoy my family home with privacy, with no restrictions with a tenant residing in the bungalow so close to my back door. I plan to renovate the back area. The bungalow – the toilet and bathroom area, extend the house and eventually do the bungalow. But I can’t do that if there’s a tenant living there. So I want the freedom to choose when and how I do it. I think that’s a fair enough’;[45] and

(i) in response to questions from the Tribunal about when Landlord proposed to demolish, she responded that she has no plans to demolish at the present, but that it is going to happen and in the meantime it might be used for storage or a spare bedroom whilst renovating the main house.[46]

[44]Ibid, p. 16.

[45]Ibid, p. 17-18.

[46]Ibid, p. 18.

At the conclusion of the evidence, and discussion, the Member announced that she was going to make an order for possession and gave the following short reasons:

The request of the tenant to adjourn this hearing is opposed by the landlord and is denied, including because the tenant’s expressed intention of applying to the Supreme Court can be accommodated by either a stay order of the Court, or a postponement of possession under this order.
The Tribunal finds that:
1.The landlord gave the tenant not less than 60 days’ notice to vacate under section 258 of the Residential Tenancies Act 1997.
2.The landlord has proven the grounds set out in the notice to vacate.
3.The application for possession should be granted.

Submissions and Consideration

There are 6 questions of law raised. They can, however, be grouped into three broad categories, as follows:

(a) there was no proper basis for the Notice proved by the Landlord. This involves the Tenant establishing that there was no probative evidence adduced to support the Notice (Questions 1, 4, 5 and 6);

(b) the Tenant was denied procedural fairness in that the decision that the Landlord had proven the grounds set out in the Notice was against the probabilities (Question 3); and

(c) the Tribunal breached s 117(2) of the VCAT Act by not giving written reasons on request following the delivery of oral reasons given at the time the orders were made, or denied the Tenant procedural fairness by not warning him to request written reasons before she made the decision, so as to comply with paragraph 76 of Part 17 of Schedule 1 to the VCAT Act (Question 2).

I will deal with the questions of law under short headings in these three categories.

No Proper Basis for Notice
Tenant’s Submissions

The first question of law concerns whether the Tribunal was in error in finding the Landlord has proven the grounds set out in the Notice under section 258 of the RTA. The Tenant’s primary contention is, essentially, the Landlord’s evidence at the Tribunal was that she wished to demolish the Rented Premises rather than occupy them and that in her affidavits and submissions in this Court she was redefining or reinterpreting the evidence given at the Tribunal or perjuring herself.

The Tenant submitted that:

(a) the letter signed at the time of the hearing but dated much earlier (as set out above) showed her true intent was to demolish the Rented Premises;

(b) that intent was confirmed by the evidence given in response to a question from the Tribunal ‘…if you were granted possession what would happen immediately?’ To which the Landlord responded: ‘I would probably start demolishing’; and

(c) to a fair minded observer, the Landlord’s intention was to demolish the bungalow immediately upon obtaining possession.

The Tenant also submitted that the Landlord failed to prove that the Rented Premises were to be occupied by those specified in the Notice. The Notice identified who would be occupying the Rented Premises, specifically, ‘the landlord/owner, Ms Theodora (Dorothy) Pappas and her children’. The Tenant contended that the Landlord must also prove these facts at the time of the application for a possession order and that this did not occur. The Tenant says that there was no evidence whatsoever about the Landlord’s children occupying the Rented Premises and thus no proof of the grounds of the Notice. It was necessary for the Landlord to prove that both her and her children were to occupy the Rented Premises. There was also no evidence that the Landlord would occupy the Rented Premises herself or that the occupation would be immediate.

The Tenant accepted that the form of the Notice satisfied the requirement of s 319 of the RTA, referring to the decision of the Tribunal in NS v CH.[47] For present purposes, the effect of that decision was that s 319 of the RTA did not require the Landlord to stipulate the precise identity of the person who is to occupy the Rented Premises immediately after the tenancy ends. It is sufficient that the Landlord specify the reason for giving the notice and by setting out reasons in terms of the section the notice is not invalid.[48]
[47][2008] VCAT 971.
[48]Ibid at [47]; see also Csanyi v Miller (Residential Tenancies) [2016] VCAT 104.

The Tenant submitted however, that in this case:

(a) the Landlord had expressed in very precise terms who was to occupy the premises by including in the Notice the words ‘specifically, to be occupied by the Landlord/Owner, Ms Theodora (Dorothy) Pappas and her children’;

(b) by making this statement in the Notice the Landlord must also prove these facts at the time the application for possession is made;

(c) when an application for possession based on an Notice is heard, the tenant can require the Landlord to prove that the facts stated in the notice are true;

(d) as such, the Landlord must prove who is to occupy the premises and that they fall within the designated category of persons specified in the Notice.[49] Additionally, the Landlord was required to prove that the premises were to be occupied by her and her children;
[49]Csanyi v Miller (Residential Tenancies) [2016] VCAT 104 at [17]; NS v CH (supra) at [45] and [48].

(e) this was not permitted by s 258, which deals with the Landlord or her children, not both. Alternatively, that if occupation by the Landlord and her children is permitted under s 258 of the RTA, both legs of the claim must be proven;

(f) the Landlord gave no evidence that the Rented Premises would be occupied by herself nor that the occupation would be immediate; and

(g) the purpose of obtaining an order for possession was clearly in order for the Landlord to demolish the Rented Premises and not in order to occupy them. The Landlord has therefore not satisfied the requirement of s 330(1)(a)(i) of the RTA.

Landlords Submissions

In response the Landlord submitted that:

(a) the Landlord and her agents gave evidence at the Tribunal hearing that she and her family intended to occupy the Rented Premises immediately after gaining possession of it and this is clearly stated in the transcript. Reference was made to several passages in the transcript to make this good;[50]
[50]Revised written Submissions of the Landlord received 18 August 2016, [5]-[6].

(b) the Tenant has incorrectly drawn the conclusion that for the Landlord to occupy the Rented Premises means that she must immediately and exclusively occupy the bungalow. The bungalow is not on a separate title to the remainder of the property and does not constitute a separate property in any factual sense. Therefore, the Landlord is entitled to issue a notice to vacate on the grounds that she intends to occupy the entire premises. It is not possible for the Landlord to occupy the entire premises without having free and unlimited access to every part of it, including the bungalow;

(c) the evidence given by the Landlord that she intended to demolish the premises is evidence of a plan and it is made clear that this is not to happen immediately by the fact that she had not obtained demolition permits. The Landlord’s intention was to occupy the entire property including the Rented Premises and then make a decision as to when and how to demolish the premises. Whether the Landlord intends to demolish the bungalow or not is not material to the fact that she intends to occupy the entire premises. This is exemplified by her evidence that:

…the main thing is that I’d like to enjoy my family home with privacy, with no restrictions with a tenant residing in the bungalow so close to my back door. I plan to renovate the back area. The bungalow – the toilet and bathroom area, extend the house and eventually do the bungalow. But I can’t do that if there’s a tenant living there. So I want the freedom to choose when and how I do it. I think’s a fair enough.[51]

(d) The Landlord’s evidence that she ‘plans’ to demolish the bungalow needs to be understood in the context of all her evidence as a whole and the fact that the evidence as a whole supports the conclusion that the immediate intent is to occupy the Rented Premises with her son and ex-partner.

[51]Transcript, 28 June 2016, p. 17-18.

Consideration

It is common ground that the form of the Notice satisfied the requirement of s 319 of the RTA.[52] Section 330 of the RTA then comes into play and imposes a mandatory requirement on the Tribunal to make a possession order if it satisfied of the matters set out in paragraphs (a) to (e) of ss 330(1). The only requirement of that section in issue was whether the Landlord was entitled to give the Notice.
[52]NS v CH, [2008] VCAT 971.

There is a curious aspect of the decision under review in this case that arises out of the peculiar circumstances that the Rented Premises are a bungalow in the back garden of the property at 8 Henry Street, Kew. The Tenant proceeds on the unstated assumption that the Rented Premises is the bungalow and occupation of it requires actual occupation of the bungalow. The Landlord proceeds on the assumption that occupation of the premises encompasses the Rented Premises and the land on which the they stand, which is the critical matter.

The definition of Rented Premises (to which I have referred above), in its effect, leaves the matter to an interpretation of the defined meaning, having regard to the natural and ordinary meaning of the term ‘premises’, in the context of the facts of the case at hand.

In this case, the Rented Premises is the bungalow on the land on which it stands. In accordance with ordinary concepts, a tenancy of the bungalow gives to the Tenant exclusive possession against all the world of the bungalow and the land on which it is situated. Implied in the tenancy agreement in this case is also a right or licence to use the toilet and bathroom at the rear of the main house. Both Landlord and Tenant proceeded on the footing that because of the prior usage and the nature of the accommodation provided in the bungalow, it was a necessary concomitant of the tenancy that the Tenant has a right to use the toilet and bathroom in, but at the rear of, the main house.

In this case, in my view, therefore, the Rented Premises is, as the definition of premises referred to above indicates,[53] the bungalow, with the grounds belonging to it. This must, as a matter of law, includes the land on which the bungalow sits.
[53]Meaning b. in the Macquarie Dictionary meaning quoted above, being a house or building with the grounds, etc., belonging to it.

The letter written by the Landlord and dated 29 March 2016, relied on by the Tenant to show an intent to demolish immediately, in fact shows the relevant immediate intent of the Landlord as to enjoy her ‘family home with privacy, with no restrictions from tenants residing in bungalow so close to the back door.’ As the letter also makes clear:

I plan to renovate the backyard as it is quite old and has been neglected, therefore it would be necessary to remove both the inhabited and storage bungalows which sit directly in the middle of the backyard.

The Landlord’s evidence at the hearing is consistent with this. It was the Landlord’s intent to obtain possession and then at a later stage to demolish. But in context, this was quite reasonably seen by the Tribunal as a matter to happen after, perhaps well after, occupation of the whole of the land by the Landlord and her family. The relevant occupation is that of the land on which the bungalow sits. In order to enjoy the backyard free of the intrusion by the Tenant’s occupation of the bungalow, the Landlord must of necessity occupy the bungalow and the land on which it sits. This does not mean that the Landlord must use the bungalow as the Tenant does. There is no need for her to actually use it, say for accommodation or storage, as the Member asked, pending her decision to demolish.

It is enough that she has the right to use the bungalow free of any right of use by the Tenant. Free to enter the bungalow without restriction, free to have the whole of the land, including her toilet and bathroom at the back of the main house, for use by her and her family without the restriction. That she planned to demolish the bungalow is in many respects inherent in her desire to have the private use of her own backyard. But it does not mean that she has not provided a factual basis for the finding by the learned member that the Landlord was entitled to give the Notice, as required by s 330(1)(a)(i) of the RTA. All the elements required to be proved and established by s 330(1) were clearly established.

The Tenant’s challenge to the Tribunal’s factual findings turn upon both the proposition that there was no evidence to support a particular finding or that the finding was not reasonably open on the evidence. The former might amount to a question or questions of law but the latter will not. In an overall sense, the attack on the Tribunal’s findings is based upon what might loosely be called a merits review, in the sense that to succeed the Tenant must establish that the central finding attacked was not reasonably open on the evidence before a Senior Member.

The view I take of the evidence before the Tribunal is that this is not a case where there was no evidence to support the Member’s finding that the Landlord had proven the grounds set out in the Notice. In order to explain the way in which the evidence before the Tribunal does in fact support the finding, I may appear to have ventured into the fact finding exercise which the legislature has deliberately entrusted to the Tribunal and not to this Court. But I only do so to elucidate what appears to have been the misconception under which the Tenant has laboured.

My focus in relation to these proposed questions of law is on the substance of the decision below and whether it addressed the ‘real issue’ presented by the contest between the parties. Understood in the way I have explained it, the decision is a perfectly rational result of quite unusual circumstances. The finding of fact was that the Tribunal found that the Landlord had proven the grounds set out in the Notice. In that sense, there was evidence upon which the Tribunal could, and did, find the grounds proven, and it was open on the evidence for the Tribunal to make that finding.

It remains to deal with another aspect of the attack on the proof of the grounds set out in the Notice, that is submission by the Tenant that to satisfy the terms of s 258 of the RTA the ground of the Notice had to be that the Landlord or her children were to occupy the Rented Premises immediately after the termination date and, even if that submission is wrong, that the was no evidence that the Landlord and her children were to occupy the Rented Premises immediately after the termination date.

This submission arises from a misunderstanding of the meaning of s 258 of the RTA, and one which is probably explained by the fact that the Tenant is a litigant in person. The use of the disjunctive ‘or’ between the persons listed in paragraph 258(1)(b)(i) does not mean that if one is nominated by the Landlord the others are excluded. In my view, it means that any one or more of those persons may be specified. The word ‘or’ is expressive of the categories of person who are to occupy the premises immediately after the termination date.[54]
[54]See for example Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481-2.

Further, there was evidence that the Landlord and her son were living in the main house and desired to use the whole of the land including the land on which the bungalow sits. That there might be other persons living in the house does not detract from the fact that there was evidence before the Tribunal capable of supporting a finding that the particular individuals mentioned in the Notice were intended immediately to occupy the land on which the bungalow stands, in the sense in which I have explained it.

There was no issue of construction of s 258 dealt with in the course of the hearing before the Tribunal. The question posed assumes a certain construction, and I have dealt with that construction. It is settled law that whether particular circumstances fall within a particular statutory description is essentially a question of fact.[55] This is particularly so where the statute in question involves ordinary words. As Nettle J observed in Central Bayside v Commissioner of State Revenue:[56]

When a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question of whether they do or not is ordinarily a question of fact.

[55]S v Cimes Compensation Tribunal [1998] 1 VR 83, 89.

[56][2003] VSC 285, [5].

It was open to the Tribunal on the evidence before it to find, as it did, that – in the wording of s 330(1)(a)(i) of the RTA – the Landlord was entitled to give the Notice. Whether a conclusion reached by the Tribunal was contrary to the weight of the evidence is not a question of law.[57]
[57]Bulasa Pty Ltd v Baytown Properties [2003] VSC 248, [40]; and Crick v Bunnings Group Ltd [2011] VSC 298, [48].

For these reasons, I am satisfied that no questions of law are raised under this heading by the proposed notice of appeal. The argument advanced for and against the questions of law, however, show that they raised a real or serious argument that error exists in the decision below in relation to which leave to appeal – if considered separately – should be given. But, after consideration of that real and serious argument I am satisfied that no error of law has been established, and the appeal will be dismissed.

Denial of procedural fairness
Tenant’s Submissions

The Tenant contends that the Tribunal failed to afford him procedural fairness in that the decision that the Landlord had proven the grounds set out in the Notice was against the probabilities, given that the evidence given by the Landlord indicated that the bungalow was not to be occupied immediately after obtaining possession but was to be demolished.

It was also a question in the Tenant’s first proposed notice of appeal that the Tribunal member had denied the Tenant procedural fairness by herself attempting to elucidate different responses from the Landlord by way of suggesting the evidence the Landlord should give. It seems that in the most recent proposed amended notice of appeal that this question of denial of procedural fairness has been abandoned (‘abandoned question’).

Landlord’s Submissions

The Landlord refers to s 98 of the VCAT Act and that the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, and is entitled to elucidate evidence in a manner of its choosing. Although the Tribunal is bound by the rules of natural justice,[58] it is not every breach of the rules of natural justice that will render a decision invalid. The Court may refuse relief if satisfied that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.[59]
[58]VCAT Act, s 98(1)(a); Francis-Wright v VCAT (2001) 17 VAR 306, 313; Collection House Limited v Taylor [2004] VSC 49, [20].
[59]Stead v State Government Insurance Commission (1986) 161 CLR 141 145-6; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 121, 143 and 153; Collection House Limited v Taylor [2004] VSC 49, [20].

The Landlord also points to the fact that she was not represented by a legal practitioner at the hearing, but by her estate agents. In those circumstances, the Tribunal was entitled to ask questions of a kind that might not be expected in a court.

Consideration

The first element of this so called question of law is merely putting the previous questions of law considered above under the rubric of ‘no proper basis for the Notice’ in the guise of a denial of procedural fairness. I refer to my reasoning above. This question is not maintainable and there is no serious argument or basis for leave to appeal to be granted in respect of it.

If the abandoned question was not intended by the Tenant to be abandoned, I find no proper basis for it in my review of the transcript of the hearing. I add that I have listened to the audio recording of the hearing and consider that the Member merely sought to find out the facts rather than attempting to suggest the evidence that the Landlord should give.

In other respects, I agree with the Landlord’s submissions.

Reasons for final Orders
Tenant’s Submissions

The Tenant contends that by refusing to give reasons in reliance upon the exception in Schedule 1 to the VCAT Act the Member has breached s 117(2) of that Act. The Tenant says that he made a request for written reasons within 14 days after the making of the order and that the Member refused to give reasons, as I have set out above.

The Tenant submits that the case of Secretary to the Department of Treasury and Finance v Dalla-Riva[60] is authority for the proposition that the failure to give reasons is a separate error of law on the basis of which the Court may set aside the order of VCAT. In particular the Tenant relies on the undoubted proposition that:

It is necessary that a tribunal’s reasons disclose the findings and reasoning upon which the tribunal’s conclusion is based. Failure to provide such reasons, which frustrates the ability to review the tribunal’s decision, constitutes an error of law.[61]

[60][2007] VSCA 11.

[61]Ibid, [23], citing, for example, Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Palmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154 at 163-4 per Malcolm, C.J.; Hunter v. Transport Accident Commission [2005] VSCA 1 at [28] per Nettle, J.A.; Franklin v. Ubaldi Foods Pty. Ltd. [2005] VSCA 317 at [38] per Ashley, J.A.; Dwyer v. Calco Timbers Pty. Ltd. [2006] VSCA 187 at [16]-[18] per Maxwell, P.

Presumably the Tenant also contends, although he did not expressly say so, that the Tribunal in its oral reasons for decision did not make express findings as to the critical factual issue, and it is therefore not possible to discern the basis upon which the Landlord satisfied the Tribunal that she intended to occupy the Rented Premises immediately after the termination date.

Reading the transcript of the hearing as a whole, there is a clear line of reasoning exposed leading to the pithy conclusion that the Landlord has proven the grounds set out in the Notice, although that reasoning is not brought together in a compendious way. That is no doubt a product of the way in which, under the operation of the RTA as modified by Part 17 of Schedule 1 of the VCAT Act, proceedings under the RTA are to be conducted.

That Part introduces a number of changes to the operation of the VCAT Act for proceedings under the RTA. The changes accommodate a range of matters, including modifying the operation of s 62(1) of the VCAT Act so that a professional advocate may represent a party to a proceeding for a possession order under the RTA,[62] modifying the operation of s 72 of the VCAT Act in the case of applications under s 414 of the RTA,[63] enabling an applicant to withdraw an application made under the RTA without leave of the Tribunal,[64] varying the restriction under s 88(6) of the VCAT Act on a member who mediates a proceeding from hearing the proceeding,[65] making alternative arrangements for the giving of evidence[66] varying s 124 of the VCAT Act so as to allow any member to make a declaration[67] and, of course, varying the operation of s117(2) of the VCAT Act in relation to the requirement to give written reasons.
[62]Schedule 1, Part 17, Paragraph 67.
[63]Schedule 1, Part 17, Paragraph 68.
[64]Schedule 1, Part 17, Paragraph 69.
[65]Schedule 1, Part 17, Paragraph 70.
[66]Schedule 1, Part 17, Paragraph 73B.
[67]Schedule 1, Part 17, Paragraph 75.

One of the purposes of the RTA is to provide for the inexpensive and quick resolution of disputes.[68] It seems to me that at least some of the variations of the operation of the VCAT Act to proceedings under the RTA are designed to further this purpose.
[68]RTA, s 1(d).

There can, in my view, be no complaint that in accordance with the VCAT Act, as varied by paragraph 76 of Part 17 of Schedule 1, the Tribunal has declined to give written reasons. That is a right given by the VCAT Act (the Schedule is a part of the Act) and cannot be the subject of complaint on appeal.

Lastly, the Tenant complained that he should have been warned by the Tribunal that it was not bound to give written reasons unless they were requested before the order was made, as that is the effect of the variation in paragraph 76 of part 17 of Schedule 1.

In my view, there has been no breach of the requirements to afford the Tenant procedural fairness by not warning him of the variation made by paragraph 76. Both parties before the Tribunal were, effectively, unrepresented. A fair reading of the transcript reveals that the Tenant was familiar with the provisions of the RTA, and experienced in representing himself. It was plain that he had represented himself in the Tribunal previously, at least once. Just like the position facing a Judge, what the Tribunal must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[69]
[69]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.

Given that the procedure before the Tribunal in matters under the RTA is varied to enable an inexpensive and quick resolution of disputes, so too must the requirements of procedural fairness be adjusted to accommodate and take into consideration the speed and summary nature of such proceedings before the Tribunal. This Court, in an appeal in the nature of a judicial review, is required to take into account the fact that the requirements of procedural fairness vary according to the circumstances.[70]
[70]Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 522-3; Judicial Review of Administrative Act, Aronson & Groves, 5^th Ed. [8.50].

In my view, the absence of a warning about the operation of paragraph 76 does not in the circumstances of this case constitute a denial of procedural fairness. If it did, there would still be no impact on the outcome of this application for leave to appeal, or in the appeal, for the reasons I have given in my rejection of the first questions of appeal.

Conclusion

For the foregoing reasons, there is a real or significant argument that in relation to Questions 1, 4, 5 and 6 (considered as one question) the Tribunal fell into error, so that leave to appeal should be granted. However, in relation to those questions, for the reasons given above, the appeal should be dismissed.

In relation to Questions 2 and 3, there is no real or significant argument that the Tribunal fell into error and leave to appeal is refused.

The proceeding shall, accordingly, be dismissed with costs.

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Tsolacis v Pappas [2016] VSC 549

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[2016] VSC 549

13 September 2016