//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] VSC 441
Supreme Court of Victoria
2009-09-14
CAVANOUGH J
Original judgment source is linked above.
15 Pausing there, I notice that the order made by Member Good had a central heading, which was set out beneath the details of the parties and of the rented premises, as follows: "Application under Residential Tenancies Act 1997 compensation section 210". The body of the order made by Member Good on 17 November 2008 was as follows:
"The proceeding is adjourned to a date no later than 17 February 2009 to be heard by any Member of the Victorian Civil and Administrative Tribunal. The proceeding may be renewed by the tenant giving the principal registrar notice in writing but if the proceeding is not renewed on or before this date, it shall be considered withdrawn."
16 Returning to the affidavit of Ms Box, I note that in paragraph 8 she said this:
"The matter was heard on 15 December 2008 before Member O'Halloran. The member ordered the matter be adjourned to enable to [sic] proceeding to be heard together concurrently with another matter (R2008/46880)."[5]
17 Ms Box then exhibits the order of Member O'Halloran made 15 December 1998.[6] The title of the order indicates that it was made in proceeding R2008/42232. However, the central heading is different from that of the order previously made by Member Good. It reads: "Application under Residential Tenancies Act 1997 - renewal of proceedings". The body of Member O'Halloran's order was as follows:
"The proceeding is adjourned to a date and time to be fixed by the principal registrar to be heard by any member of the Victorian Civil and Administrative Tribunal.
The adjournment is granted to enable this proceeding to be heard with the proceeding in Tribunal file number R2008/42232 arising from the same tenancy agreement.
Direct that the principal registrar allow two hours for the hearing of this matter.
Direct that if the Director of Housing issues further proceedings against DJ, those proceedings are to be cross-referenced and listed for hearing with this matter.
Direct that DJ attends any future hearing of this matter and R2008/42232."
18 There is an apparent error in the body of Member O'Halloran's order. It refers to the proposed joint hearing of "this proceeding" with proceeding R2008/42232. Presumably the reference was intended to be a reference to R2008/46880.
"The matter was heard on 5 January 2009 before Member Moraitis. The defendant was assisted by Phillip Barrie [sic].[7] I attended the hearing on behalf of the Plaintiff. The Member assessed the breach of duty notices lodged by the Defendant and stated that the Plaintiff had acted accordingly. The Member further stated that the Defendant had acted in a timely manner and told the Plaintiff that 'unfortunately it is a timely process and these sorts of matter take time'. The Member then ordered as follows;
'On the evidence this application is dismissed'."
20 The affidavit of Ms Box of 2 April 2009 made no reference to any other proceeding involving Ms Andrew being heard on 5 January 2009. However, in a later affidavit dated 12 May 2009, which was sworn and filed after the grant of leave to appeal in this matter, Ms Box said:[8]
"2. On 5 January 2009 a hearing was held at the Victoria [sic] Civil and Administrative Tribunal ('VCAT') before Member Moraitis and which heard three matters concurrently as follows:
(a) R2008/46880/00 Director of Housing v Andrew,
(b) R2008/48497/00 Director of Housing v [DJ],
(c) R2008/42232/01 Andrew v Director of Housing.
21 It is noteworthy that in neither her first affidavit nor her second affidavit does Ms Box detail or even refer to any evidence being given or any submissions being made at all in that third proceeding (R2008/42232) itself, as distinct from evidence or submissions that might have been given or made in the (related) first and second proceedings. The third proceeding had been listed (and had presumably thus been expected) to last for two hours. I note also that the order in question simply stated that "the application" was dismissed. The nature of the (dismissed) application is not identified in the order, except that the heading (like the heading to the prior, interlocutory order made by Member O'Halloran) reads: "Application under Residential Tenancies Act 1997 - renewal of proceedings". No section is mentioned and there is no reference to compensation.
22 The respondent, Ms Andrew, has filed only one affidavit in this proceeding. It is not clear when it was sworn. It bears the date 29 April 2009, but the jurat is undated. The affidavit refers to the first of Ms Box's affidavits but not the second. In paragraph 9 of Ms Andrew's affidavit she deposes:
"On 5 January 2009, the matter came before Member Moraitis. I was unaware that the Director of Housing had issued an application seeking a warrant for possession on the basis of the Compliance Order. The Member issued a warrant of possession on the basis that DJ had failed to comply with the Compliance Order made in December, and required her immediate eviction. Given that I was satisfied that something had been done to alleviate the situation, my advocate agreed that my application was satisfied by the issue of the warrant of possession. The Member agreed, and the application was duly dismissed."
23 Two affidavits of Mr Pearce have been filed on behalf of the respondent. The first is dated 29 April 2009 but the jurat indicates that it was sworn on 27 May 2009. It refers to "the various affidavit's [sic] of Ms Cathy Box". Presumably Mr Pearce was referring to Ms Box's first and second affidavits. Under the heading "The first application to the Tribunal" Mr Pearce says:
"3. I assisted the Defendant during the hearing of her first application to the Tribunal on 5 January 2009 before Member Moraitis. On the same day, other related proceedings were also heard. I was unaware until attending the Tribunal that the Director had made an application for a warrant of possession against DJ.
24 The second affidavit of Mr Pearce is not presently relevant.
25 The third affidavit of Ms Box is dated 10 September 2009. It was filed in Court on the day of the hearing. Presumably, Ms Box had been made aware of what Ms Andrew and Mr Pearce had said many months before to the effect that, ultimately, they did not proceed with the first application at VCAT. She does not expressly contradict them. Indeed, she does not expressly refer to their affidavits at all. She concentrates on certain issues referred to in Ms Andrew's counsel's written submissions (being issues related more to the second question of law than to the first), namely whether the breach of duty notice of 9 October 2008 had been served, whether it was that notice or, rather, the notice of 27 October 2008 that was the subject of the first proceeding, and whether either notice had been the subject of the proceeding heard on 27 February 2009. Ms Box said:
26 In any event, there is direct evidence from Ms Andrew and Mr Pearce to the effect that they[14] ultimately did not proceed with the application for compensation once they discovered, to their surprise, that the Director had brought an application for the eviction of DJ and after they saw that that application had been heard and determined with an order that DJ leave the premises that very day.[15] As they explain in their affidavits, they took the view that, at last, there was some action happening, of a kind for which they had been calling for some time. Accordingly, they were ultimately prepared to leave things at that, at least for the time being. All of that fits in perfectly well with the evidence of Ms Box herself in her first two affidavits, neither of which mentions any evidence or submissions being made in proceeding number R2008/92232 itself. Neither does Ms Box's third affidavit directly contradict the assertions by Ms Andrew and Mr Pearce that, ultimately, the application for compensation was not proceeded with. I say this notwithstanding Ms Box's references to submissions having been made about the two breach of duty notices.
27 It is commonplace that courts and tribunals will make orders dismissing proceedings without prejudice to the ability of a party to bring a further similar proceeding. Often it is expressed as "Application [or Proceeding] struck out" or "Application [or Proceeding] dismissed without a hearing on the merits". In this particular case the order is not expressed in such a way but, of course, that is only one piece of the evidence as to what happened in fact and as to what the order really signifies.
28 The order was not personally signed by the member. The member's signature has been affixed by some person unknown (presumably a Tribunal officer) by a facsimile stamp. The three orders that were made that day have some further imprints on them which may indicate the times at which they were made. Each has a time imprint consistent with the order of the hearings referred to in Ms Box's second affidavit.[16] The third order bears an imprint of a time only a minute after the time marked on the second order. That indicates, on one view, that the third proceeding in effect petered out and was not heard on its merits. I recognise that there is another view in relation to the times of the printouts, namely that they were simply all produced at much the same time. However, the times that are shown on the printout are at least consistent with the affidavit material adduced by Ms Andrew, which was not contradicted and not cross-examined on.
29 In order for the Director to advance his first point of law, he must persuade me that the proceedings at VCAT in fact took place in the way he now submits they did. He has not discharged that onus. There are conflicting accounts of what happened in the proceedings below. Generally speaking, the principle to be adopted is that the Court should accept the version of the party that was successful below. As stated by Crockett J in Aherne v Freeman:[17]
"The general rule is that an answering affidavit (i.e. a party affidavit) is regarded as conclusive on questions of what occurred in the court below. But it is no more than a 'useful working rule (and) is not to be taken too absolutely or it would lend itself to abuse' per Mann C.J., Thomson v. Lee[1935] VicLawRp 65; , [1935] VLR 360 at 362. '[The practice] ought to be departed from in proper cases. The Court cannot, by a mere practice based on convenience, be relieved of, and still less can it be precluded from, fulfilling its duty to decide where the truth lies': per Sholl, J., Thompson v. Cross[1954] VicLawRp 89; , [1954] V.L.R. 635, at p636."
30 Here the Director faces the dual difficulty of trying to persuade the Court of the necessary facts in the face of conflicting material not only from the respondent but also from his own deponent (as I read Ms Box's affidavits). I am simply not satisfied that VCAT proceeding number R2008/42232 was determined on its merits on 5 January 2009. That disposes of question 1 and the associated grounds.
32 The Director's argument is along the following lines. To the extent that the claim made by Ms Andrew is proceeding number R2009/5746 succeeded, it was based exclusively on an alleged breach by the Director of s 67 of the RTA, which provides:
"67. Quiet enjoyment
A landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement."
Section 67 is a "duty provision" as defined in s 207 of the RTA. The combined effect of ss 67, 207, 208, 209, 210 and 212 of the RTA is that an alleged breach of s 67 cannot be the subject of complaint or compensation in the Tribunal unless and until the complainant has given to the other party a "breach of duty notice" under s 208, being a notice requiring the other party, within 14 days, to remedy the breach if possible or to compensate the complainant, and the complainant has waited the requisite 14 days. Section 209 provides that, if a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order. Section 210(1) provides that a party to a tenancy agreement may apply to the Tribunal for compensation where, among other things, the other party fails to comply with that other party's duties under the Act; but s 210(2) provides that the section does not apply to a duty under a duty provision (such as s 67). Section 212(1) makes provision for various kinds of orders to be made by the Tribunal on an application made under s 209. Section 212(2) makes provision for the Tribunal to order compensation on an application made under s 210. Ms Andrew may have completed the "breach of duty notice" dated 9 October 2008 of which a copy is contained in the evidence, but she did not serve it on the Director at any relevant time. Ms Andrew did serve a (similar) breach of duty notice dated 27 October 2008. That notice was the subject of proceeding R2008/42332. It was the only notice the subject of that proceeding. Its operation was spent by virtue of the order of 5 January 2009 dismissing proceeding R2008/42332. No other breach of duty notice was available to found any application under s 209. Neither could any application be made under s 210. Therefore the compensation order under appeal, expressed to have been made pursuant to an application under s 210, was beyond power.
33 My finding on question of law number 1 has consequences for question of law number 2. The main consequence is this. Given that I am not satisfied that VCAT proceeding number R2008/42232 was heard and determined on the merits on 5 January 2009, I am likewise not satisfied that any breach of duty notices that had been previously served on the Director by Ms Andrew under s 208 of the RTA were not still on foot.
34 There is a dispute between the parties as to whether the first breach of duty notice dated 9 October 2008 was ever served but that is a matter that I cannot, of course, determine. There is material both ways and, in any event, it was a matter for the Tribunal.
35 I notice that paragraph 9 of Ms Box's first affidavit refers to the Tribunal having assessed "the breach of duty notices" (plural) on 5 January 2009. One might be entitled to infer from that that the Tribunal was not persuaded by the Director that only one notice - namely, the notice of 27 October 2008 - had been served. Accordingly, it might be inferred (contrary to the Director's submission) that the notice of breach of 9 October 2008 was at least part of the subject matter of the proceeding before the Tribunal on 5 January 2009. Ms Andrew goes further and submits that the only subject matter of that proceeding was the notice of 9 October 2008. She submits (with much merit) that it would have been inappropriate for the Tribunal on 5 January 2009 to be entertaining, also, a notice that was dated 27 October 2008, being the same day as the day on which the application was commenced. That would have been inappropriate because, by virtue of s 209 of the RTA (read with s 208 and the definition of "required time" in s 207) a party should not commence a proceeding in relation to non-compliance with a breach of duty notice until the expiry of 14 days after service of a notice. However, in the end, these things do not matter. On the basis of the findings I have already made, as at the time of commencement of VCAT proceeding number R2009/5746 (namely, 10 February 2009), the notice of 27 October 2008 (which is acknowledged to have been duly served) can be regarded as having been still on foot. I am not satisfied that it merged into, or was dealt with by, the order of 5 January 2009.
36 Further, Mr Robins very properly conceded that there is no evidence that Ms Box took this point below. That is to say, Mr Robins conceded that there is no evidence that Ms Box submitted on 27 February 2009 that Ms Andrew was precluded from pursuing her second application because of the absence of a prior breach of duty notice. I am not satisfied that Ms Box ever did take that point. In fact I am satisfied that she did not. Hence, it seems to me that it would be inappropriate to allow the Director to rely upon any suggestion now that the jurisdiction of the Tribunal was absent because of the non-service of a notice.
37 In any event, the plain fact is that the proceeding that was heard on 27 February 2009 was, as the Director himself submits, at least similar in nature to the proceeding that had come before the Tribunal on 5 January 2009. In both cases, section 67 was obviously intended (at least initially) to be relied upon.[18] It does not matter, in my view, if in fact (as Ms Box now says) there was no express oral reference to any notice at the hearing on 27 February 2009. It is a clear enough that, at least implicitly, one or other if not both of the notices continued to be relied upon by the claimant, Ms Andrew, and it seems plain that that would have been understood on all sides.
38 Accordingly, I consider that there was a basis for an application under s 209 and a jurisdictional foundation for an order under s 212(1) of the RTA. Mr Robins very fairly conceded that, if that was my view, he could not seek to set the decision aside on the technical basis that there was an erroneous reference to s 210 in the heading to the order. I note that it is by no means clear exactly how an order should be headed. Probably, if anything, the appropriate reference would have been to s 212 rather than to s 209. In any event, that is a mere unimportant technicality once one arrives at the view as to jurisdiction that I have arrived at. So question of law 2 and the grounds under that question do not avail the Director.
39 I turn to ground 3. It can be quickly disposed of. I am simply not satisfied that VCAT held the Director liable solely - I emphasise "solely" - by reason of placing a person with a mental disability in an adjacent tenancy to the respondent. Rather, there was, clearly, evidentiary material before the Tribunal on which, if it so determined, it was entitled to act to the effect that the Director had had prior knowledge not only of Ms Johnstone's mental disability but also of her prior actual behaviour.[19] On the basis of that evidence, it was a matter for the Tribunal whether or not to take the view that liability could be sheeted home to the Director as from an early date. It is not entirely clear from the material just how the Tribunal calculated the compensation that it did award. However, I will briefly refer to the material that I discussed with Mr Robins this morning which seems likely to have been the foundation for the Tribunal's approach in this regard.
40 In her affidavit of 2 April 2009, in referring to the hearing on 27 February 2009, Ms Box deposed:
"23. Before the matter was stood down the Defendant started making comments that Housing Services Officer Cathy Whelan had told her that DJ was a long-term tenant and that she had previous issues with the Office of Housing. I advised that Ms Whelan was in the body of the court and could be sworn in to answer such accusations.
41 There are different ways of reading that passage. Mr Robins urged me to read it as though Ms Box was saying that Ms Whelan had denied that there had ever been any prior problems in the actual behaviour of DJ, at least as known to the Director. But it seems to me that the affidavit is unclear as to what Ms Whelan had allegedly been saying in her evidence to VCAT. In any event, in paragraph 26, Ms Whelan is stated to have declined to answer a question she was asked about this matter, relying on the Privacy Act. Quite fairly, Mr Robins conceded this morning, I think, that the Privacy Act had nothing to do with it and that VCAT's question was by no means irrelevant and should have been answered.
42 That alone, it seems to me, would be some material on which the Tribunal could act (when added together with the allegations that had been made by Ms Andrew herself). In addition, in Mr Pearce's written submission lodged with VCAT in conjunction with Ms Andrew's second application, Mr Pearce had drawn attention to certain evidence that had apparently been given on 5 January, being, I would infer, evidence that had been given in the two prior hearings that had proceeded substantively on that day. This was evidence that VCAT, not being bound by the rules of evidence, could legitimately have had regard to. Mr Pearce said this:[21]
"It is unlikely that DJ's anti-social and defamatory language and behaviour manifested itself only after she was placed at [the relevant address] in May 2008, therefore on the evidence of both the Office of Housing workers who attended the tribunal on 5th January 2009 and the SHASP's worker from Bethany, it is submitted they knew [DJ] was unlikely to observe the responsibilities outlined in the RTA under section 60 before she was placed in [the relevant address]. Therefore, the Director of Housing knowingly breached his obligation to Ms Andrew under section 67 of the RTA to take 'all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises'."
43 I am not in any position to make a judgment on the strength or weight of the evidence to which Mr Pearce was referring. It is not any part of my function to do so. However, the Director has the unenviable task of seeking to establish that there was no basis on which VCAT could reject the "discrimination" point. It is doubly difficult for the Director to do that because it was really a matter of defence on which the Director effectively had the burden of proof below.
44 Mr Robins concedes that there is no evidence that there was any reference below (by Ms Box or at all) to any particular provisions of the Equal Opportunity Act.[22] At best from the Director's point of view, Ms Box simply referred to "discrimination". In any event, where, in an appeal confined to a question of law, the appellant had the burden of proof on the relevant point below, it is extraordinarily difficult for the appellant to succeed on what amounts to a no evidence ground. The appellant has to show that the court or tribunal was constrained to make a finding or findings of fact that it did not make and to determine that the appellant had discharged its burden of proof on the relevant point.[23]
45 It seems to me that these considerations are sufficient to deal with question of law 3 and the grounds that were advanced under it. It was not suggested that it was not open to VCAT to find that, in particular circumstances, conduct by one tenant of a common landlord can amount to a breach of the duty on the landlord under section 67 to ensure quiet enjoyment on the part of the other tenant.[24]
[1] Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at [9] and cases there cited; State of Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335 at 340-341 [14].
[3] [2004] HCA 34; (2004) 220 CLR 363. See especially at 373.
[4] Certain formal references to exhibits have been omitted.
[5] It emerged subsequently that proceeding R2008/46880 was a claim brought by the Director against Ms Andrew under s.244 of the RTA. That section provides that a landlord may give a tenant a notice to vacate rented premises if the tenant or the tenant's visitor by act or omission endangers the safety of occupiers of neighbours' premises.
[7] It was later acknowledged by the deponent that the reference to "Phillip Barrie" was mistaken and that the person in question was Barry Pearce.
[8] CB 73-75. Formal references to exhibits omitted.
[9] The order made on that first matter was then referred to and exhibited.
[10] Ms Box exhibited the Director's application to VCAT in that regard.
[11] The possession order was then exhibited.
[12] The breach of duty notice and the application were then exhibited.
[13] A further copy of the order dismissing the application is exhibited.
[14] That is, Ms Andrew represented by Mr Pearce.
[15] In fact, DJ did not leave the premises that day or at all. The Director later found alternative accommodation for Ms Andrew and her daughter.
[16] 11.38, 11.44 and 11.45 respectively.
[17] [1974] VicRp 17; (1974) VR 121 at 123.
[19] Compare Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.
[22] Potentially, questions of fact or law might have arisen under any one or more of the following provisions of the Equal Opportunity Act ss 7, 8, 9, 10, 12, 49, 50, 69, 80.
[23] See Ericsson Australia Pty Ltd v Popovski [2000] VSCA 52; (2000) 1 VR 260 at 265; State of Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335 at 348 [32]; Johnstone v Matheson [2008] VSC 567 at [28]; DPP (on behalf of Smith) v Theophanous [2009] VSC 325 at [59].
[24] See Aussie Traveller Pty Ltd v Marklea Pty Ltd (1998) 1 Qd R 1; Ali v Hazim [2002] VCAT 274 at [25]. However, in all the circumstances, including the obscurity of the course of the proceedings at VCAT and the absence of any written reasons for VCAT's decision, the outcome of this appeal should not been seen as having any real significance at all in relation to the way in which any future claims of a like nature should be determined at VCAT.
Director of Housing
Andrew [2009] VSC 441