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[2021] VSC 157
General information, not legal advice.
Supreme Court of Victoria
2021-03-25
Ginnane J
Original judgment source is linked above.
RESIDENTIAL TENANCIES - COVID-19 legislation - Appeal from possession orders made by VCAT under COVID-19 temporary measures - Whether Member had regard to mandatory considerations - Findings of fact - Whether notice of termination of lease required - Residential Tenancies Act 1997 ss 317, 319, 538, 544, 548, 549.
ADMINISTRATIVE LAW - Tribunals - Natural Justice - Self represented litigant - Finding adverse to party - No opportunity given to cross-examine witnesses - Natural justice not afforded - Victorian Civil and Administrative Tribunal Act 1998 s 102.
1 Mr Pushpinder Gautham applies for leave to appeal orders of the Victorian Civil and Administrative Tribunal granting the respondents possession of the room that he was renting in a house in Ringwood. For the reasons that follow, I grant leave to appeal and allow the appeal.
2 The respondents successfully applied to VCAT for an order under s 549 of the Residential Tenancies Act 1997 ('RT Act') terminating a tenancy agreement for the lease of the room. The second respondent, Mr Yogender Rawat owns the house and his nephew, Mr Laksh Panwar, the first respondent, leased it from him and, as sublessor, leased the room to Mr Gautham, who also had the right to use shared facilities. I will refer to Mr Rawat and Mr Panwar as the landlords as they both applied in that capacity to VCAT for the possession order. The landlords notified the Court through their solicitors that they would not be appearing at the hearing and 'are happy with any decision that the Court makes.' Be that as it may, the Court cannot set aside a decision of VCAT unless it is persuaded that the Tribunal's order involved a material error of law that affects its decision.
3 On or around 16 February 2020, Mr Panwar made a verbal agreement with the appellant, Mr Gautham, to sublease a room in the house for monthly rent of $700. Mr Panwar also subleased a room to Mr Rai.
4 On 2 June 2020, Mr Rawat sent a Letter of Eviction to Mr Gautham, citing a failure to pay rent for the previous two months as the cause for the eviction.[1] On 5 June, Mr Gautham wrote to Mr Rawat explaining that he requested the first month of unpaid rent be taken from his bond and that he offered to pay $500 for the second month, despite being unemployed. He referred to the COVID-19 Omnibus (Emergency Measures) Act 2020 ('Omnibus Act') and that it applied to his tenancy from 29 March 2020.
5 On 13 November 2020, Messrs Rawat and Panwar applied to VCAT for a termination order pursuant to ss 548 and 549(2)(c) of the RT Act. In addition to providing details of the unpaid rent, they alleged that Mr Gautham threatened Mr Panwar, causing him to vacate the premises for fear of his safety. Those sections were introduced as
COVID-19 temporary measures under the Omnibus Act_._ Under s 548 of the RT Act, a landlord can apply to VCAT for an order terminating a tenancy agreement, and the Tribunal can make such an order under s 549 if satisfied:
(1)(a) as to any of the matters set out in subsection (2); and
(b) that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make the order taking into account the interests of, and the impact on, each of the following in making the order -
(i) the landlord or mortgagee in respect of the rented premises;
(ii) the tenant;
(iii) any co-tenants or other residents;
(iv) any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(2) For the purposes of subsection (1), the matters are-
(c) that the tenant or any other person occupying or jointly occupying the rented premises has seriously threatened or intimidated -
(i) the landlord or the landlord's agent; or
(ii) a contractor or employee of a person referred to in subparagraph (i).
For the purposes of determining whether it is reasonable and proportionate to make an order under section 549, 551, 559, 561, 569, 571, 582 or 584, the Tribunal must have regard to the following -
(a) the nature, frequency and duration of the conduct of the tenant, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement;
(b) whether the breach is trivial;
(c) whether the breach was caused by the conduct of any person other than the tenant, resident or site tenant;
(d) whether the tenant, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order and -
(i) if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and
(ii) if a notice or order was made, whether it included an exclusion condition; and
(iii) any other matter in relation to family violence or personal violence the Tribunal considers relevant;
(e) whether the breach has been remedied as far as is practicable;
(f) whether the tenant, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the tenancy agreement, residency right or site agreement, as the case requires;
(g) the effect of the conduct of the tenant, resident or site tenant on others as a tenant, resident or site tenant;
(h) whether any other order or course of action is reasonably available instead of making the order sought;
(i) as the case requires, the behaviour of the landlord, the landlord's agent, the rooming house owner, the caravan park owner, the caravan owner or the site owner;
(j) any other matter the Tribunal considers relevant.
Landlord RAWAT leased property to PANWAR, leaseholder. Leaseholder PANWAR sublet a room to GAUTHAM. GAUTHAM moved into this property on 16/02/2020. GAUTHAM'S rent for his room is [$]700 [per month]. Last rent payment was in July 2020. Threatening bullying actions have taken place at the property by GAUTHAM against RAWAT PANWAR resulting in them feeling unsafe and uncomfortable dealing with GAUTHAM in relation to rent, payment of utilities damages. PANWAR vacated the property because he does not feel safe and has left his possessions in the property. I believe that the Sublet Tenant has gone on and sublet additional rooms. Gautham will not allow Panwar into the property [and] refuses to pay rent. Rawat seeks possession.[2]
9 On 27 November 2020, Mr Gautham sent to the landlords a 'Notice for breach of duty to landlord of rented premises', stating his belief that they had breached various provisions of the RT Act and the Crimes Act 1958. He stated that he had suffered loss or damage by the disconnection of the electricity to the property and his need to pay for a new connection; that a dangerous chemical liquid was thrown onto his car, which required repair; and loss of enjoyment of the premises.
10 On 4 December 2020, a member of VCAT heard the Application including short oral evidence from the owner, Mr Rawat, the tenant or sub-lessor Mr Panwar and the landlord's agent. He also heard evidence from Mr Gautham and from another tenant or sub-tenant, Mr Rai, who gave evidence supporting Mr Gautham's case.
11 The VCAT Member ruled in favour of the landlords, finding that Mr Panwar's evidence was far more convincing than Mr Gautham's and accepted that Mr Panwar had been intimidated and threatened. The Member delivered ex tempore reasons. The unrevised transcript version of the reasons contains a number of indistinct parts, no doubt due to the remote hearing, but the Member's reasoning remains clear. The transcript states:[3]
The landlord has applied for termination and possession of the premises pursuant to s 549(2)(c). That section empowers the tribunal to make orders for possession and termination of the tenancy agreement in circumstances where the tenant or another occupant has seriously offended or intimidated the landlord or an agent contractually employed as the landlord. This is a new matter which has been [inserted] into the Residential Tenancies Act pursuant to the COVID-19 emergency provisions. It is somewhat different from the other duties imposed upon tenants. In this evidence there is evidence that there are in effect two landlords. Firstly, Mr Yogender Rawat who leased the premises to Mr Laksh Panwar in or about 2018 and thereafter Mr Panwar sublet the tenancy to several people, including the person known as Andy and Mr Gautham. On the basis of payment of $700 per calendar month that (Indistinct) was not disputed by Mr Gautham. Subsequently Mr (Indistinct) told Ray gave evidence that he had lived in as a tenant. He said that he had agreed to pay his rent to Mr Yoge Rawat through a direct bank transaction and he moved in, in about July so it appears that there is a number of tenancies. Mr Rawat is clearly the head tenant but he's either the joint tenant with Mr Panwar or in a separate tenancy in relation to Mr (Indistinct) Rai.
The tenancies that Mr (Indistinct) Ray and Mr Andy Gautham have are clearly tenancies whereby they have exclusive possession only of their rooms. That's reflected in the amount of rent that they pay and the arrangements in respect of the dividing up the utility charges and the arrangements to the driveway which are not disputed by either of the tenancies Mr Gautham or Mr (indistinct) Rai. It seems I'm not sure what rental Mr Panwar owed or paid. That wasn't disputed that he was a tenant of Mr Yogender Rawat. In any event he seems as the head tenant, he seems to have exclusive possession of most of the premises and sub-let several rooms - two rooms whilst Mr Gautham and Mr Ray have had use of the shared facilities including the driveway, the kitchen and the like. Bathrooms, toilets but their rental is fixed to circumstances where they at best can only be expected to have exclusive possession of their individual bedrooms or rooms.
The nature of the application is that there have been serious threats or intimidation directed at the landlords and the landlords including Mr Yoge Rawat and he gave (indistinct) on any intimidation or serious threats against him but then in relation to Mr Panwar, there was evidence, initially given by the landlord's agent which indicate that (indistinct) on 4 August whereby it had been reported to her that those details were subsequently confirmed by Mr Panwar and there was not (indistinct) of accusations save that Mr Andy Gautham gave evidence that on that occasion his sister Pamela attended and was drunk and caused a disturbance late at night and he also gave evidence that and Mr Ray gave evidence that on or about 30 August 2020 Mr Panwar caused damage to a vehicle belonging to Mr Andy Gautham.
In respect to these matters, I find that the evidence given by Mr Panwar was far more convincing than the evidence given by Mr Gautham in respect of those circumstances and I certainly accept his evidence that he was intimidated and threatened. He gave detailed accounts and none of those details were denied and in fact when Mr Ray (indistinct) gave evidence he spoke in conclusions and he was not detailed in any way and having regard to all the circumstances I consider that his evidence was quite implausible.
In relation to the damage done to the car, I found Mr Ray's evidence was equally implausible if not more so. I don't know what was spilt on the car. It seems to be a caustic or acidic substance which caused damage but if that is the case no one seems to have acted in a manner that one would expect them to react. There have been various excuses given (indistinct) Mr Ray (indistinct) emotionally distraught state he wasn't thinking - possibly trauma. With all due respect that's (indistinct) and doesn't (indistinct).
In relation to the (indistinct) it is clear that there has been quite a falling out between Mr Panwar and Mr Gautham. I'm not suggesting that Mr Panwar did any damage to Mr Gautham's vehicle but it is clear by the nature of the accusations that there has been a break down and as a result of that break down I accept the evidence that Mr Panwar has moved out for his own safety to accommodation which is probably (indistinct) but accommodation which he feels safer and that would appear to be (indistinct) by (indistinct). On that basis, I find that the allegations made by the applicants in this case have been made out and I am going to make an order that possession and termination pursuant to sub-s 549(2)(c) and under regulations I am required to ensure that termination date is within 14 days so accordingly, I'm going to make an order that the tenancy arrangements such as they have been defined, are going to terminate on 18 December and thereafter the landlords can obtain a warrant to have the police remove anyone who is left (indistinct) those premises and there can be further claims in relation to any damage done to the premises upon further details of that but that's not relevant to this determination .
And if any of the parties wish to pursue their claims for the (indistinct) authorities then they of course are entitled to do so. That's nothing to do with me or the tribunal so accordingly, the tenancy will terminate as of 18 December and possession must be given up by that time or the police will be authorised to take action.
12 The Member made the following findings, orders and directions:
13 Those orders were stayed by order of this Court, but Mr Gautham was required to continue to pay rent.
14 Mr Gautham's proposed notice of appeal raised six questions of law. Some of his arguments do not clearly appear in the questions of law or the associated grounds. But, when they are read with his written submissions, his case is clear enough.
15 For example, Mr Gautham's first question of law alleges a jurisdictional error. In his written submissions, he stated:
A mere reference to the matters in [s] 538 of the Act does not appear to be sufficient to satisfy the requirement of [s] 549(4) whether there was a valid reason for making a termination and possession order.
It appears from the transcript that the learned Tribunal Member did not direct his attention to the question of whether it was 'reasonable and proportionate' to make the order, as required of him by s 538 of the RT Act. At pages 21 to 22 the learned Tribunal Member made a finding that the allegations made by the Respondents were proven, however, instead of then turning to consider whether the order would be 'reasonable and proportionate', the Member proceeded to make orders pursuant to s 549(2)(c).
Determination
It is ultimately a matter for this honourable Court to determine whether to grant this appeal.
17 I will next consider Mr Gautham's argument that the Member did not properly apply the provisions of s 538 of the RT Act.
18 Section 538 contains mandatory considerations that the Member must consider when they are applicable to the facts of the proceeding.[4] It will not always be the case that a failure to mention relevant considerations allows an inference to be drawn that a Tribunal has failed to have regard to them. The drawing of such an inference must always depend on a consideration of the reasons stated in the context of all the circumstances of the case.[5] However, the Member must actively engage with the mandatory considerations, and that engagement must be evident in his or her reasoning.[6]
19 I cannot infer that the Member did have regard to the considerations contained in s 538. At no place in the transcript or the unrevised ruling is there reference to s 538 of the RT Act or engagement with the matters that it required to be considered. It is true that the Member did state in paragraph 4 of the findings contained in his order:
Having regard to the matters in s 538 of the Act and taking into account the interests of the landlord, tenant, any co-tenants or residents, neighbours or any other person who has been or may be affected by the acts of the tenant, and the impact of these orders on them, it is reasonable and proportionate to make a termination and possession order.
20 But, I do not consider that this establishes that the Member gave the requisite consideration to the mandatory matters listed in s 538. Instead, it appears that the Member dealt with the factual question as to whether what he described as 'intimidation and threats' had been proved, but did not then weigh up the other considerations. Those other mandatory considerations included the nature, frequency and duration of the conduct of the tenant, whether any breach of the tenancy agreement was trivial, whether the breach was caused by any person other than the tenant, whether the breach had been remedied as far as practicable and the effect of the conduct of the tenant on others. The terms of finding 4 of the orders do not suggest that the Member considered those issues. Rather, it appears that having found that the landlords' allegations were proved, instead of then turning to consider whether the order would be reasonable and proportionate, the Member proceeded to make orders pursuant to s 549(2)(c).
21 I consider that Mr Gautham's first ground is established and establishes a material error of law which requires that the VCAT order be set aside.
22 I will next consider the ground of denial of natural justice.
23 Mr Gautham contended that he was refused the right to prove his innocence and denied the right to cross-examine witnesses. Section 102 of the Victorian Civil and Administrative Tribunal Act 1998 requires that the Tribunal allow a party a 'reasonable opportunity to call or give evidence, to examine, cross-examine or re-examine witnesses, and to make submissions to the Tribunal'.
24 The hearing appears to have occurred by telephone. Before delivering his ruling, the Member confirmed with the parties that they had told him everything that they thought was relevant and that he 'will not engage in any further discussion on the nature of this case'.[7] Much of the transcript of Mr Gautham's evidence is indistinct, but it is clear from the submissions filed that he disputed Mr Panwar's allegations of aggressive behaviour on 4 and 30 August 2020. Following the ruling, Mr Gautham attempted to raise something with the Member, but his words are indistinct on the transcript. In response, the Member said that he was 'not going to take any discussion of that sort'[8] and that he had already confirmed that the parties had told the Tribunal everything they thought relevant.
25 It is important first to acknowledge that VCAT hears thousands of residential tenancy cases a year and members are often required to hear a number of residential tenancy matters in a day, which can present a challenging task. Members cannot take the time to consider their decisions as is often available to a judge. Hearings conducted by telephone present their own problems. But that said, VCAT hearings are still subject to the requirements of natural justice.
26 What natural justice requires depends on the circumstances of the case. It does not give a party an unlimited right to cross-examine witnesses. For instance, s 102(2) of the VCAT Act permits the Tribunal to refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before it. But in many cases, particularly with a self-represented litigant, the Tribunal should inform them of their right to cross-examine and inquire, in effect, whether there are relevant questions that they wish to ask a witness. If they say yes, the Tribunal Member is not required to give them an unlimited right to ask questions or to permit repetitive or irrelevant questioning. But, the Member should permit relevant cross-examination.
27 Mr Gautham was self-represented at VCAT, and it may not have been apparent to him that he had a right to test Mr Panwar's evidence that was adverse to him by cross-examination. The Member's description of the procedure that he intended to follow did not make clear that Mr Gautham was entitled to cross-examine the witnesses as s 102 of the VCAT Act provides.
28 I consider this was a case where the Member should have informed the parties of their right to cross-examine witnesses whose evidence was adverse to them. The landlords and their witness gave short evidence, as did Mr Gautham and his witness. The allegation against him was grave; that he had seriously threatened or intimidated the landlords or the landlords' agents. The Member told Mr Gautham as he commenced his evidence-in-chief '[y]es, can you go to the relevant points. This is a matter concerning serious threats and intimidation.'[9]
29 When such conduct is in issue and findings have to be made about it, I consider that the person against whom those allegations are made should be informed of their right to ask relevant questions in cross-examination and given a reasonable opportunity to do so if they wish. To repeat, that is not to give a party a right to cross-examine at large, but it is a right to ask relevant questions. As I read the transcript, that right was not given. The witnesses' evidence in chief was brief as may often be appropriate in residential tenancy matters. But as this was a case brought under the COVID-19 emergency provisions that makes allegations of a serious nature against a tenant, in my opinion, some cross-examination should have been permitted. The purpose of procedural fairness and natural justice is to permit another side of the case to be presented which may reveal matters that give it a different and new complexion. Cases that appear to be open and shut often change their appearance after cross-examination.[10]
30 If cross-examination is not practicable in a telephone hearing, then another form of hearing will be required, whether a virtual hearing by audiovisual means or otherwise.
31 So, I do consider that Mr Gautham was not given the procedural right of natural justice required by s 102. That right exists whether or not the merits of the case appear to be clear.
32 I acknowledge that permitting cross-examination will lengthen the proceeding and may restrict the Member's ability to hear other cases allocated to them on that particular day. But, if that is the result, it is a result required by law.
33 For completeness, I now discuss the remaining grounds, which I do not consider establish any error of law by the Member.
34 The appellant contended the Member reached a conclusion that was not available on the evidence. Putting to one side the error identified by ground one to which I have referred, I consider the findings of fact reached by the Member were reasonably open to him on the evidence.[11]
35 I do not consider that Mr Gautham's argument that he had not been provided with a valid notice to vacate has merit.[12] In this case, an application to terminate the tenancy had been made to VCAT under s 548 of the RT Act.
36 The proceeding should be remitted to VCAT for rehearing by another Member. I will direct the landlord to inform VCAT and to inform Mr Gautham within 14 days whether or not they wish to proceed with the case.
[1] Affidavit of P Gautham dated 9 December 2020 (S ECI 2020 04663, Gautham v Panwar & Anor, Supreme Court of Victoria) 'Annexure A'.
[2] Some typographical errors have been corrected
[3] There was no revised transcript of the ruling so transcription errors have generally been kept.
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 ('Peko-Wallsend').
[5] Brady Constructions Pty Ltd v Everest Project Developments Pty Ltd [2009] VSC 622.
[6] See Peko-Wallsend Ltd (n 4) 39 (Mason J); Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451, 462 (Black CJ), 495, 497 (Kiefel J), 476-7 (Burchett J).
[7] Transcript of Proceedings, Rawat & Panwar v Gautham (VCAT, R2020/04037/00, 4 December 2020) 18 ('T').
[10] John v Rees [1970] Ch 345, 402 (Megarry J).
[11] CZG v Victims of Crime Assistance Tribunal [2019] VSCA 120, [72]-[74].
[12] See also Residential Tenancies Act 1997 s 544.
Gautham
Panwar [2021] VSC 157
(1986) 162 CLR 24
(1995) 57 FCR 451