Veitch v Director of Housing

[2008] VSC 442

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5755 of 2008

KERRIE-ANNE VEITCH	Appellant
v
DIRECTOR OF HOUSING	Respondent

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2008
DATE OF JUDGMENT:	21 October 2008
CASE MAY BE CITED AS:	Veitch v Director of Housing
MEDIUM NEUTRAL CITATION:	[2008] VSC 442

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ADMINISTRATIVE LAW – Appeal from VCAT – Residential Tenancy – Termination of tenancy for using or permitting the use of the rented premises for drug trafficking – Notice to vacate – Contents – Basis of jurisdiction to issue order for possession – Valid notice must be given or no jurisdiction – Notice valid – Appeal dismissed

Victorian Civil and Administrative Tribunal Act (Vic) s 148; Residential Tenancies Act 1997 (Vic) ss 59, 250(1), 319(d), 330(1)(a) & 322; Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71 & 71AC

Smith v Director of Housing [2005] VSC 46, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hopper	PILCH Lawyers
For the Respondent	Mr M Champion	Legal Services Branch, Department of Human Services

HIS HONOUR:

1. On 6 April 2006 Victoria Police executed a search warrant at certain premises in Port Melbourne.  They found there drugs and other items suggesting drug trafficking.  On that day the occupant of those premises, Ms Kerrie-Anne Veitch, was charged with offences including trafficking a drug of dependence, namely methylamphetamine, possession of a drug of dependence, namely cannabis, and possession of a drug of dependence, namely amphetamine.

1. Ms Veitch is the tenant of the premises in Port Melbourne where the search warrant was executed.  The landlord of those premises is the Director of Housing.

1. In late 2007 the Director’s staff became aware of the charges against Ms Veitch. Under s 59 of the Residential Tenancies Act 1997 (Vic) a tenant is prohibited from using rented premises, or from permitting the use of rented premises, for any purpose that is illegal. Under s 250 of the Residential Tenancies Act a landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises, or has permitted their use, for any purpose that is illegal.

1. By a notice served on Ms Veitch in December 2007 the Director of Housing required Ms Veitch to vacate.

1. Under s 319(d) of the Residential Tenancies Act such a notice is not valid unless it specifies the reason or reasons for the giving of the notice.

1. The notice given to Ms Veitch specified the following reason:

“Section 250(1)

You have used the premises, or permitted their use, for an illegal purpose.

On or about 6 April 2006 you used or permitted the rented premises to be used for the purpose of trafficking amphetamines and cannabis, a drug of dependence, contrary to subsection 71(1) of the Drugs, Poisons and Controlled Substances Act 1981.”

1. Under s 322 of the Residential Tenancies Act, a landlord who has given a notice to vacate may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a possession order.  Under s 330, VCAT may make a possession order requiring the tenant to vacate if satisfied that the landlord was entitled to give the notice. The Director of Housing applied for such an order.

1. In the application the Director detailed the claim in the same terms as had been given in the notice.  At the hearing of the application in VCAT, evidence was given by a police officer involved in the execution of the warrant concerning the drugs and other items found, and certificates of a botanist and an analyst were tendered, as were the relevant charge sheets and a document entitled “Summary of Charges”.  This material revealed that the quantities of drugs found at the premises were 7.4 grams of impure methylamphetamine and 45.4 grams of impure cannabis.  It also revealed that among other items found were what were described as “deal bags”, brewer’s sugar (said to be used as a cutting agent) and a notebook containing a record of commercial transactions.

1. There was no contest at the hearing in VCAT concerning these relevant facts. 

1. On 20 February 2008 VCAT made a possession order. Ms Veitch now appeals to this court under s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic). The appellant was given leave to appeal on 20 May 2008. The possession order was stayed by consent by an order made by VCAT on 2 April 2008.

1. Under s 148 of the Victorian Civil and Administrative Tribunal Act a party may only appeal on a question of law.  The questions of law here are:

1.Did the notice to vacate given on or after 18 December 2007 comply with the requirements of s 250(1) and s 319(d) of the Residential Tenancies Act;

2.Alternatively to 1, did the tribunal err in finding under s 330(1)(a) of the Residential Tenancies Act, as it must have done, that the respondent was entitled to give the notice?

1. It is conceded by the Director of Housing that the notice contains an error. There is no s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981.  There is a s 71 which deals with trafficking in a quantity of a drug of dependence which is not less than a “large commercial quantity”.  The quantities of drugs found at the premises here were not large commercial quantities within the meaning of the Drugs, Poisons and Controlled Substances Act.  There is also a s 71AC which deals with trafficking in a drug of dependence.

1. On behalf of Ms Veitch it was contended that the reference to s 71(1) in the notice must be read as being a reference to s 71 so that the reason specified in the notice is trafficking in a drug of dependence in a quantity which is not less than a large commercial quantity.

1. It was then submitted that the VCAT order should not have been made because the basis upon which it was sought as revealed in the hearing was not the reason specified in the notice - trafficking in a large commercial quantity - but another reason - trafficking per se.  Put another way, the submission was that the facts proved at the hearing did not and could not establish trafficking in a large commercial quantity, which is the reason specified in the notice.  In this respect the appellant relied upon Smith v Director of Housing.[1] Both counsel before me submitted that the applicable principles are set out in that decision.

   [1][2005] VSC 46. Hereinafter referred to as “Smith”.

1. In Smith a notice was given purportedly relying on s 244 of the Residential Tenancies Act.  This section entitles a landlord to give a notice where a tenant endangers the safety of occupiers of neighbouring premises.  The notice which was given in Smith did not refer to an incident which endangered the safety of occupiers of neighbouring premises, but rather to an incident which endangered the safety of housing workers who were visiting the premises. At the hearing the landlord had been permitted to amend the application to allege different incidents which did concern endangerment of occupiers of neighbouring premises. A possession order was made and the tenant then appealed under s 148 of the Victorian Civil and Administrative Tribunal Act.

1. Bongiorno J allowed the appeal. He did so because the reason given in the notice was not a reason that fell within s 244 of the Residential Tenancies Act, as it did not concern neighbours, and because the other incidents relied upon had not been the subject of the notice. Thus, s 319(d) of the Residential Tenancies Act had not been complied with.

1. In addressing the requirements of s 319(d) Bongiorno J said:[2]

“The requirement laid down in s 319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question “Why is this notice being given?” A basic facility for communication in plain English is enough.”

[2]Ibid, at [17].

1. On behalf of the appellant, Ms Veitch, it was also submitted that this legislation should be construed strictly and in a manner which favours the tenant.  In that respect the appellant relied upon Bundy v Alberts & Anor.[3]

   [3][2007] VSC 90, at [13].

1. On behalf of the Director of Housing it was contended that the notice here complied with the principles set down by Bongiorno J in Smith in that it did give the tenant a sufficient degree of detail to enable her to understand the facts being alleged as the basis for terminating the tenancy.  It was submitted that the notice is not to be read as alleging that trafficking in a large commercial quantity was the reason for demanding possession.  It was submitted that whilst there was clearly an error in the reference to section “71(1)”, there was no warrant for reading that as necessarily being a reference to section “71”.  More importantly, it was submitted, the notice gave the date of the conduct in issue, alleged that trafficking had occurred, and set out the drugs involved.  The submission was that the notice read as a whole was perfectly adequate to enable the tenant to understand the facts alleged.  The Director submitted that this was not a case such as Smith where the conduct proved at the hearing, which was the basis upon which the possession order was made, was different conduct to that specified in the notice.

1. Counsel on behalf of the Director conceded that if the notice was to be read as specifying the relevant conduct as being trafficking in a large commercial quantity then the appeal would have to succeed.

1. Counsel for the Director also relied upon a decision in an unrelated context being State of State of New South Wales v Corbett.[4]  That case concerned a search warrant.  The search warrant in question had referred to repealed legislation.  In the High Court, Callinan and Crennan JJ (with whom Gleeson CJ agreed) said that this did not invalidate the warrant, observing that the relevant enquiry was whether the warrant disclosed the nature of the offence, and that reference to an incorrect section did not invalidate an otherwise intelligible warrant.[5]  They did suggest that the position would be different if the reference to an incorrect legislative provision meant the warrant did not specify any offence, or made the warrant ambiguous so that it was not possible to tell what offence was referred to.  In that particular case they held that the incorrect reference to legislation was mere surplusage which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous.[6]

   [4](2007) 230 CLR 606.

   [5]Ibid, at [103].

   [6]Ibid, at [107].

1. I accept the appellant’s submissions that the applicable principles are those set out in Smith and I approach the legislation in a similar manner to Curtain J in Bundy v Alberts & Anor. However, my conclusions on the questions of law raised by this appeal are that the notice did comply with the requirements of s 250(1) and s 319(d) of the Residential Tenancies Act and that the tribunal did not err in finding under s 330(1)(a), as it must have done, that the Director was entitled to give the notice.

1. My reasons for reaching these conclusions are these:

1.The notice clearly sets out the provision of the Residential Tenancies Act relied upon and the incident upon which the Director relied.  It gives a date. It alleges drug trafficking. At the hearing before VCAT evidence was given concerning drug trafficking on that date. The VCAT order was made upon the basis of that evidence.  This case is unlike Smith, where the incidents relied upon at the VCAT hearing as the basis for the order were different to the incident that had been specified in the notice.

2.I do not read the reference to the non existent section “71(1)” as being an allegation that the trafficking alleged was trafficking in a large commercial quantity. Clearly there has been an error. In my view that error does not mean that the notice fails to specify a matter within section 250 of the Residential Tenancies Act. It does not render the notice unintelligible or ambiguous.  The facts set out in the notice are that on or about 6 April 2006 the appellant used or permitted the rented premises to be used for drug trafficking.  The reference to a non-existent section does not invalidate the notice because the facts relied upon are clearly set out and those facts entitled the landlord to give the notice.

1. In the particular facts here the conceded error did not sufficiently detract from what was in the notice to render the notice invalid.  Accordingly this appeal should be dismissed.