Appellant v Respondent

EVIDENCE - Evidence gathered pursuant to notice of entry of premises - Whether notice of entry validly served - Whether evidence obtained illegally or improperly - Whether tribunal member erred in admitting evidence - Whether real prospect of success on appeal - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Evidence Act 2008 (Vic) s 138 considered - Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 referred to.

RESIDENTIAL TENANCIES ACT - Premises contaminated by methamphetamine residue - Whether premises 'unfit for human habitation' - Whether premises dangerous in their ordinary use - Whether real prospect of success on appeal - Residential Tenancies Act 1997 (Vic) s 245 considered - Summers v Salford Corporation [1943] AC 283; Gray v Queensland Housing Commission [2004] QSC 276; Price v Johnson [2014] VCAT 581 referred to.

1 Mr Mark Handler (the 'Appellant'), a self-represented litigant, seeks leave to appeal against a possession order made by the Victorian Civil and Administrative Tribunal ('VCAT') and, if leave is granted, to have that order overturned.

2 The possession order was granted in favour of Ms Maxine Casey (the 'Respondent'), on the basis that the premises were no longer fit for human habitation, having been contaminated with methamphetamine residue.

3 The Appellant says that he was denied a fair hearing before VCAT because he was not warned of the oral evidence of a key witness upon whose evidence the Member relied, nor was he given adequate opportunity to cross-examine that witness. He also submits that he was not given key documents until the day of the hearing and points to what he considers a manifest error in one of them.

4 This case raises issues concerning the proper role and obligations of judges and tribunal members when faced with self-represented litigants, as well as the dilemma of balancing the competing rights and interests of represented and unrepresented parties.

5 The Appellant is the occupier of certain premises in Lake Wendouree, Victoria (the 'Premises'). He rents those Premises from the Respondent pursuant to a lease agreement dated 29 November 2017.

6 On or about 26 June 2018 Victoria Police entered the Premises and discovered a clandestine laboratory for the production of methamphetamine. The Appellant was arrested and is currently awaiting trial for charges associated with the manufacture of illicit substances.

7 On 29 June 2018 the City of Ballarat issued an improvement notice to the Respondent. The improvement notice required her to do the following by 1 September 2018:

(a) prohibit access to the Premises;

(b) engage an occupational hygienist to investigate the Premises to determine what remediation, if any, was necessary to ensure that residual chemical contamination did not render the affected area unfit for its intended purpose; and

(c) engage a professional cleaning contractor to gain access to the Premises and prepare a remediation plan.

8 In compliance with the improvement notice, the Respondent arranged for Mr Peter Guerin of Bio-Clean, a company that specialises in trauma cleaning services, to enter the Premises and conduct testing for chemical contamination. A notice to enter was purported to be served upon the Appellant on 3 July 2018. The following day, 4 July 2018, Mr Guerin entered the Premises and took contamination samples of every room and the garage, which samples were sent to the United States of America for analysis. The Appellant says that he was remanded in custody at the time the notice was given and when the samples were taken, and therefore had no notice of the entry into the Premises.

9 Mr Guerin produced a report to the Respondent (the 'Report') which indicated that levels of methamphetamine residue in all rooms of the Premises except the garage were at levels which exceeded safe levels prescribed in the Clandestine Drug Laboratory Remediation Guidelines produced by the Commonwealth government. The Report stated that the Premises were unsafe for human habitation and recommended that entry without appropriate protection equipment should be prohibited.

10 It may be useful at this point to refer to the evidence of Mr Guerin, given at the VCAT hearing, with respect to his inspection of the Premises and his Report:

MR FULLERTON: Do you recognise that document?

MR GUERIN: I certainly do.

MR FULLERTON: Is that the report that you prepared after you inspected the property?

MR GUERIN: Correct.

MR FULLERTON: And can you give just briefly summarise the outcome of that report?

MR GUERIN: Basically the - sorry, the summary of - samples were taken in the front lounge room, the kitchen, the meals/family room, which is off the kitchen, laundry, bathroom, central bedroom - which was off the hallway opposite the bathroom - a rear bedroom to the right south-west of the end of the hallway, and a main bedroom at the south-east end of the hallway, central in the hallway and the rear garage.

The readings were measured in micrograms per hundred centimetres squared, bearing in mind the threshold is .5 micrograms per 100 centimetres squared. The front lounge room contained 28 micrograms. The kitchen had 58 micrograms. The meals/family room, 28 micrograms; the laundry 3.8 micrograms. The bathroom - - -

MEMBER: It's all right, I'm reading it, too, so that's all right.

MR GUERIN: Sorry.

MEMBER: We've got all that.

MR FULLERTON: Just to be clear, the guidelines that you refer to set out that there is an extent of contamination that is safe?

MR GUERIN: Yes.

MR FULLERTON: In the rooms that you referred to do they exceed that level?

MR GUERIN: Correct.

MR FULLERTON: And is that all levels of the house except for the garage?

MR GUERIN: Correct.

MR FULLERTON: Can you please describe when you first inspected the property and when you entered the property, just give a description of what you observed in the property itself.

MR GUERIN: To be quite honest, I thought I'd walked into a laboratory. There were chemical vessels and reactions. Some part had been operating and stopped. A lot of chemicals, a lot of storage of chemicals, and a number of processes had been ongoing, of which I had no idea what they were.

MR FULLERTON: Were you able to identify all of the chemicals?

MR GUERIN: Not all of them. I'm sorry, but not everybody has this. It's just a - chloroform; 2, 4-dimethylaniline 99%; Acetonitrile; Butyl methyl ether; Omnisolve; hydrogen peroxide in various percentages up to 50%; caustic soda; Phthalic anhydride; Melamine at 99%; acetone; Diethyl ether; silica - a number of these are brand names off labels that were fairly hard to read, some of which were unlabelled. Hydrochloric acid at 33%; Trisodium phosphate - look, this isn't a detailed list. This was a list that was being prepared to hand over to a chemical company for removal and disposal.

MR FULLERTON: In your opinion, is the premises fit for human habitation?

MR GUERIN: No way.

MR FULLERTON: Is it - in your opinion, is the house safe?

MR GUERIN: No.

MR FULLERTON: What risk would there be to a person who enters the premises?

MR GUERIN: The first risk is chemical cross-contamination which may trigger any form of explosion or reaction or whatever. But, sticking with the methamphetamine residues, the threshold above .5 micrograms is hazardous to human health and those readings say for themselves that they were well and truly above those thresholds and therefore it is unsafe for human health.

MR FULLERTON: Does a person need to do anything in particular to the property or they are at risk just by being inside the property?

MR GUERIN: The risk is purely by standing in there and breathing.

11 On 31 August 2018 the Respondent issued a notice to vacate the Premises upon the Appellant. The notice to vacate was mailed to the Appellant by way of priority registered post, which also enclosed a copy of the Report. The basis of the Respondent's notice was pursuant to s 245 of the Residential Tenancies Act 1997 (Vic), that the Premises were no longer fit for human habitation due to the dangerous levels of methamphetamine residue. Pursuant to the notice, the Appellant was required to vacate the Premises on or before 6 September 2018.

12 The Appellant refused to vacate the Premises and the Respondent applied to VCAT for the possession order on 7 September 2018.

13 The Respondent's application was heard by Senior Member Buchanan of VCAT on 10 October 2018. The Respondent was represented by her solicitor, Mr Fullerton, at the hearing. The Appellant was unrepresented, but had the assistance of Mr Willshore, who he described as a 'housing advocate', and who Mr Fullerton believed was a representative of Tenants Victoria, who gave some submissions on his behalf. There is no evidence before me as to whether or not Mr Willshore is legally qualified.

14 The Appellant's response to the application focused upon a letter from the Respondent's solicitors to him dated 24 August 2018, one week before the notice to vacate was served. That letter requested that the Appellant temporarily vacate the Premises whilst the necessary remedial work was completed. The letter contemplated that the works would take 'at least seven days, and may take longer.' The Appellant contended at the VCAT hearing that the letter indicated that the required remedial works were in fact not so drastic as suggested by the Respondent. The Appellant alternatively proposed that any order for possession be postponed until 29 November 2018, at which time the fixed term tenancy would come to an end.

15 The Respondent called Mr Guerin to give expert evidence regarding his experience, his testing methodology, the results of his testing, his opinion as to the safety of the Premises, and the necessary remediation work. The crux of Mr Guerin's oral evidence is contained in the extract above.

16 The Appellant says that he was not made aware that Mr Guerin would be giving evidence until immediately before the hearing, and had no meaningful opportunity to prepare for cross-examination. Nonetheless, the Appellant cross-examined Mr Guerin to the best of his ability. He did so in person, as Mr Willshore did not feel that he was sufficiently familiar with the matter to engage in cross-examination on the Appellant's behalf. The Appellant says that he was not provided with an opportunity to fully cross-examine Mr Guerin as it was cut short by Member Buchanan.

17 At the conclusion of the hearing Member Buchanan granted the possession order sought by the Respondent, effective immediately. In his oral reasons Member Buchanan accepted and relied upon Mr Guerin's evidence as support for his conclusion that the Premises were no longer fit for habitation. Member Buchanan rejected the Appellant's suggestion that there may be some remedial works which could be undertaken without the grant of a possession order. He accepted that it would be necessary for the plaster to be removed from at least three rooms in the house, which would take a substantial amount of time and would render the Premises inhabitable throughout that period.

The Appellant's grounds of appeal and submissions

18 In his notice of appeal filed 25 October 2018, the Appellant identified two grounds of appeal:

(a) firstly, that Member Buchanan erred in taking account of the evidence of Mr Guerin, which he says was inadmissible; and

(b) secondly, that Member Buchanan erred in failing to take account of the fact that the notice to vacate was not validly served upon him 14 days prior to the possession order being sought.

19 In oral submissions the Appellant also developed an argument that contamination by illicit substances does not fit within the meaning of 'unfit for human habitation' for the purposes of s 245 of the Residential Tenancies Act. This is, in essence, a third ground of appeal.

20 The Appellant's oral submissions focussed upon his first ground of appeal. That ground was developed on two bases:

(a) firstly, that Mr Guerin's evidence was inadmissible as it had been obtained on the basis of a notice of entry which was not properly served upon the Appellant; and

(b) secondly, that irregularities in the presentation of Mr Guerin's evidence amounted to a denial of procedural fairness, and that greater assistance should have been provided to him as a self-represented litigant.

21 The Appellant alleged two irregularities in the manner in which Mr Guerin's evidence was taken:

(a) he was not made aware of the fact that Mr Guerin would give oral evidence until immediately before the VCAT hearing, and therefore had no opportunity to prepare for cross-examination; and

(b) he was not afforded adequate time to fully cross-examine Mr Guerin.

22 The Appellant submitted that the failure to allow more time to prepare for and conduct cross-examination denied him a fair trial.

23 As a result of those alleged irregularities the Appellant says that he was not given an opportunity to challenge Mr Guerin's evidence by reference to a 'chain of custody' document which, he says, raises concerns about the data upon which Mr Guerin relied. The document in question comprises a 'CDL Sampling & Custody Form' for the samples taken by Mr Guerin. The Court has viewed the document, which on its face records a 'sampling date' of 4 June 2018, that is one month before the samples were purported to have been taken. The Appellant says that cross-examination of Mr Guerin on this document would have established the unreliability of his evidence. As it relied heavily upon that evidence, the Appellant says that the conclusion reached by Member Buchanan would not have been open to him.

24 The Appellant further submitted that the chain of custody document was deliberately withheld from him by the Respondent's solicitor. He says that the document only came into his possession by accident when the Respondent's solicitor gave him a spare copy of the Report on the day of the hearing. Those are very serious submissions which have not been substantiated in the evidence and do not go to the question of whether Member Buchanan erred in law.

25 An appeal from the decision of a member of VCAT is pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). Section 148(1) provides:

(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

26 Section 148(2A) provides that the Trial Division of the Supreme Court may grant leave to appeal 'only if it is satisfied that the appeal has a real prospect of success.' Section 148(2A) was inserted into the VCAT Act by the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, and took effect from 1 May 2018. In Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd, Croft J observed that the effect of the amendment was as follows:

This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists, sometimes referred to as the Hulls test. Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[1]

27 The effect of the amendment is to bring the test into line with that which applies to applications for summary judgment under s 63 of the Civil Procedure Act 2010 (Vic). In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[2] Warren CJ and Nettle JA (Neave JA agreeing) described the relevant test under s 63 as follows:

It follows that, for present purposes, the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success; that the "real chance of success" test is to some degree a more liberal test than the "hopeless" or "bound to fail" test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.[3]

28 Notwithstanding their recognition that the test to be applied in this jurisdiction was more liberal than the 'hopeless' or 'bound to fail' test, the Court of Appeal nonetheless observed:

[I]t must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[4]

29 The same considerations ought to be borne in mind when considering whether leave is to be granted in an appeal pursuant to s 148 of the VCAT Act.

30 A large part of the Appellant's appeal concerns Mr Guerin's evidence. Although it is presented as a single ground of appeal in the notice of appeal, this ground covers two separate allegations of error on the part of Member Buchanan, as identified above at paragraph 20. I will deal with each of those allegations separately, as though they were separate grounds of appeal.

31 The Appellant's first assertion with respect to Mr Guerin's evidence is that it was inadmissible, and Member Buchanan erred in taking account of it. The Appellant says that the samples taken by Mr Guerin on 4 July 2018 were illegally obtained, as a notice to enter the Premises was not validly served upon him. The Appellant accepts that a notice was delivered to the Premises on 3 July 2018, however he says that he was in remand at the time - a fact which was known to the Respondent. Notably, this issue was not raised by the Appellant at the VCAT proceeding.

32 Whether the Appellant was in remand at the time that the notice was delivered is not determinative, personal service only being one of the permissible methods of delivery of the notice upon the Appellant. For this reason, I do not consider the Appellant's submission on this point (which was unsubstantiated) to bear any relevance to the present matter.

33 Section 85 of the Residential Tenancies Act 1997 states:

Entry of rented premises

A landlord or the landlord's agent has a right to enter rented premises together with any persons who are necessary to achieve the purpose of the entry -

(a) at any time agreed with the tenant if the tenant has consented not more than 7 days before the entry; or

(b) for a purpose set out in section 86, at any time between 8 a.m. and 6 p.m. on any day (except a public holiday) if at least 24 hours notice has been given to the tenant in accordance with section 88.

34 Section 86 provides several grounds for entry of rented premises, including where entry is required to enable the landlord to carry out a duty under the Residential Tenancies Act, or any other Act. Section 88 of the Act sets out the relevant notice requirements:

What must be in a notice of entry?

A notice requiring entry must -

(a) be in writing; and

(b) state why the landlord or landlord's agent wishes to enter; and

(c) be given -

(i) by post; or

(ii) by delivering it personally to the tenant between the hours of 8 a.m. and 6 p.m.; and

(d) if entry is pursuant to section 86(1)(g), and the landlord has been given the name and contact details required under that paragraph, state the name of the excluded tenant's representative (if any).

35 Mr Fullerton's affidavit, filed by the Respondent in this appeal, deposes that the notice of entry was hand delivered to the Premises by an agent of the Respondent. Delivery in that manner is not consistent with the requirements of s 88(c) where the notice is not served personally upon the tenant.

36 Even if I accept that Mr Guerin's entry into the Premises was otherwise than in accordance with the Act, that fact does not itself render Mr Guerin's evidence inadmissible. At common law, impropriety in the collection of evidence does not render that evidence inadmissible per se, rather the Court maintains a discretion to exclude such evidence as a matter of public policy.[5] This discretion has often been termed the 'Bunning v Cross' discretion, named for the judgment of Stephen and Aickin JJ in that case.

37 The Bunning v Cross discretion is reflected in the terms of s 138 of the Evidence Act 2008 (Vic):

Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

...

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

38 Section 138 of the Evidence Act does not distinguish between criminal and civil proceedings. Although it is more commonly applied in the context of criminal proceedings, the provision has been relied upon in several civil cases in this jurisdiction.[6]

39 Although s 138 is drafted in terms that the evidence 'is not to be admitted', the provision has been accepted by the Court of Appeal as being applied in a manner that 'did not essentially differ from that at common law', albeit with a reversed onus.[7] The application of s 138 involves a two stage process:

(a) firstly, the applicant for exclusion must establish that the evidence was obtained improperly or unlawfully; and

(b) secondly, the party relying upon the evidence must establish that the Court's discretion weighs in favour of admitting the evidence.[8]

40 Of course, s 98 of the VCAT Act provides that the Tribunal is not bound by the rules of evidence. Those rules, however, nonetheless remain a relevant consideration and are not to be entirely ignored.

41 Upon the assumption that the Appellant has established that the data supporting Mr Guerin's evidence was obtained improperly or unlawfully I nonetheless consider, in my opinion, that the Member Buchanan did not err in admitting that evidence. I say that for the following reasons:

(a) the Tribunal is not bound by the provisions of the Evidence Act, or the underlying common law principles, in the same manner as would bind this Court or another court of this state;

(b) although the notice to enter was not served strictly in accordance with the requirements of s 88 of the Act, there is no evidence that the contravention was deliberate or reckless;

(c) that contravention is at most a unmeritorious technicality, as the outcome would have been practically no different had the notice been served by mail in accordance with s 88(1). Indeed, it may be observed that hand delivering the notice to the Appellant's address was a more secure means of ensuring the delivery of the notice compared with service by ordinary post;

(d) the evidence of Mr Guerin holds significant probative value, and importance to the case, as reflected in the reliance placed upon it by Member Buchanan; and

(e) no objections to the admissibility of Mr Guerin's evidence were raised at the hearing before VCAT.

42 In those circumstances, in my opinion, the evidence of Mr Guerin was properly admitted and I do not consider that there is a real prospect of success with respect to this aspect of Ground 1.

43 The Appellant's second assertion with respect to Mr Guerin's evidence is that he was not informed that oral evidence would be given until immediately before the hearing and therefore had no opportunity to properly prepare for cross-examination. The Appellant further asserts that Member Buchanan ought to have informed him of the opportunity to seek an adjournment in order to allow him further time to prepare. He says that the failure to afford him a proper opportunity for cross-examination amounted to a denial of procedural fairness.

Legal principles - denial of procedural fairness

44 It is a fundamental obligation of all courts and tribunals to ensure that parties before them are given a fair hearing. That obligation has been described by the High Court of Australia as 'an essential attribute of a court's procedures'.[9]

45 Whether procedural fairness has been properly afforded in any given case is primarily a practical question. As was observed by Gleeson CJ in Re Lam:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[10]

46 The practical question in a case of this kind is whether the party in question was given a reasonable opportunity to present their case, and to know the case to be advanced by the opposing party.[11] What is 'reasonable' in any given case will vary. In Roberts v Harkness, the Court of Appeal of Victoria recently identified several matters to be taken into account by the court, including:

(a) the nature of the decision to be made;

(b) the nature and complexity of the issues in dispute;

(c) the nature and complexity of the submissions which the party wishes to advance;

(d) the significance to that party of an adverse decision; and

(e) the competing demands on the time and resources of the court or tribunal.[12]

47 The basic question remains the same where a party is self-represented, namely, whether the litigant was afforded opportunities reasonably required to advance their own case and to respond to their opponent's case.[13] The only difference where a party is self-represented is that the Court should make its own assessment of that litigant's ability to formulate and articulate their own case when deciding what is reasonable.[14]

Legal principles - self-represented litigants

48 Although the legal principles pertaining to procedural fairness do not markedly differ where a litigant is self-represented, it is nonetheless necessary to give some consideration to the role of judges and tribunal members in those circumstances. That issue is relevant, in particular, to the central question of whether there was some obligation upon Member Buchanan to inform the Appellant of the possibility of an adjournment to enable him to better prepare for cross-examination of Mr Guerin.

49 The Court finds itself in a difficult position when a proceeding before it involves one or more self-represented litigants. As was said by the High Court in Neil v Nott:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[15]

50 It is the Court's overarching obligation to ensure a fair trial. On the one hand, the interests of justice require the Court to take some responsibility in guiding a self-represented litigant in order to ensure that proceedings are efficiently dealt with in a fair and just manner. On the other hand, it is important for the Court's assistance not to stray so far that an opposing party's right to a fair hearing, or the perception of a fair hearing, is diminished. This tension has been referred to as giving rise to a 'judge's dilemma'.[16]

51 The disadvantages faced by self-represented litigants are well recognised and well traversed in the authorities. Those disadvantages were detailed by Bell J of this Court in his decision in Tomasevic v Travaglini ('Tomasevic'),[17] a decision to which I will return in greater detail below. His Honour identified two critical qualities possessed by qualified lawyers, the absence of which places self-represented litigants at what he termed a grave disadvantage:

(a) firstly, professional skill and ability resulting from an education in, and understanding of, the relevant law and procedure; and

(b) secondly, objectivity and emotional distance from their client's case.[18]

52 The absence of those qualities is common to almost all self-represented litigants, regardless of whether they appear unrepresented by choice or as a result of their personal circumstances.

53 The extent to which the Court must assist a self-represented litigant depends upon the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[19] The Court's assistance must be proportionate to the circumstances before it, and must extend only to that which is necessary to ensure a fair trial. It is not the role of the Court to act as advocate for the self-represented litigant, but to ensure that all parties are afforded a fair hearing. The Court must maintain judicial neutrality, and the appearance of judicial neutrality, at all times and to all parties.[20]

54 The Court's assistance must not provide the self-represented litigant with some advantage over a represented opponent.[21] It was said by Samuels JA of the Supreme Court of New South Wales in Rajski v Scitec Corporation Pty Ltd that the assistance provided by the Court:

[S]hould 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.[22]

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.[23]

56 There is a balance to be struck between the rights of both represented and self-represented litigant, a balance that often places the Court in a difficult position. The manner in which that balance is exercised must be 'influenced by the need for intervention to ensure a fair and just trial'.[24]

57 In Tomasevic, Bell J quoted with approval the following observations of Smith J in Panagopoulos v Southern Healthcare Network with respect to the manner in which the Court might reconcile the duty to provide a fair trial with the obligation to maintain the appearance of impartiality:

In my view, the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial.[25]

58 I now return to Tomasevic, in which case the duty of a judge to assist a self-represented litigant was considered in some detail by Bell J. In that case his Honour considered an application for judicial review of a decision of a Magistrate. The applicant had been self-represented at first instance and alleged, inter alia, that the Magistrate had breached the rules of natural justice by failing to provide him with certain guidance and assistance. The application was allowed

59 Justice Bell engaged in a detailed examination of the duties of the Court, and their interaction with the International Covenant on Civil and Political Rights 1966. His Honour considered that the potential injustice occasioned upon a self-represented litigant was addressed by the Court's powers to ensure a fair trial and a duty to assist. His Honour observed that:

As part of their overriding obligation to ensure a fair trial, trial judges have a positive duty to give proper assistance to self-represented litigants, both in criminal and civil trials and also in interlocutory proceedings, such as in applications to strike out pleadings. The same duty applies to masters, magistrates, commissions and tribunals, but of course the application of the duty would have to take into account the particular demands of those jurisdictions.[26]

60 Justice Bell considered that the law in this state required the Court to ensure that the self-represented party is 'fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed'.[27] His Honour identified several guidelines, by reference to those enunciated by the Family Court of Australia, for the type of assistance that the Court might provide, including:

(a) drawing attention to the law to be applied by the court in determining the issues before it;

(b) questioning witnesses;

(c) identifying applications or submissions which may be put to the court;

(d) suggesting procedural steps that may be taken by a party; and

(e) clarifying the particulars of orders that the self-represented litigant seeks.[28]

61 Justice Bell considered that the trial judge had not adequately performed his duty to assist the applicant as a self-represented litigant. The applicant was a teacher, with little to no knowledge of the legal issues or procedures raised in his application before the court below. His Honour considered that, in the circumstances, the Magistrate had a duty to recognise that the applicant was a self-represented litigant, explain to him the procedures that would be followed in the hearing and determination of the application, explain to him the legal requirements that he had to satisfy, encourage him to make submissions on relevant issues, discourage him from making submissions on irrelevant issues, ask appropriate questions to confirm that he was fully putting forward matters he wished to rely upon, and before deciding the application asking him if there was anything further to add.[29] Justice Bell considered that the Magistrate had not fulfilled those duties, which failure constituted a breach of the rules of natural justice.[30] The application for judicial review was allowed on that basis.

62 The observations and guidance detailed by Bell J in Tomasevic have been met with subsequent approval on several occasions.[31] It remains to be determined how those principles ought to be applied in the present case.

63 Although it was not formally put as a ground of appeal, much was made at the hearing of this matter by the Appellant of a perceived 'unfairness' in relation to his late access to the Report and evidence of Mr Guerin, and consequently his ability to prepare for a cross-examination of Mr Guerin. Much was also made of the Appellant's self-represented status. It is to be noted however that the Appellant did have assistance from a 'housing advocate' who, as I have noted, gave some submissions on his behalf. Although the Respondent believed that the Appellant's housing advocate was a representative of Tenants Victoria, there was no conclusive evidence before me to establish this fact.

64 There is no evidence that any adjournment was sought or any issues raised before the Member pointing to any unfairness were the matter to proceed on the day.

65 This scenario is a common one where self-represented litigants are concerned. I have outlined above the principles which the Courts have applied when dealing with self-represented litigants. It is clear that the balance needs to be struck between judicial or tribunal assistance proffered to a self-represented litigant and the rights of an opposing party who may indeed be legally represented.

66 The Court cannot and should not, as the authorities support, take on the role of legal advisor to a self-represented litigant. To do so would be completely contrary to the expectations of an independent judiciary or tribunal member in the adjudication of matters before courts or tribunals.

67 Striking the balance to which I have referred is always a vexed question. However, I do not consider that there is any basis in this matter to suggest that the Appellant was denied procedural fairness in the circumstances in which Mr Guerin's evidence was heard and documents provided. The Appellant had been in possession of the Report since 31 August 2018, when a copy was provided to him alongside the notice to vacate. The Appellant had the opportunity to seek an adjournment of the matter. He might have taken some guidance from the 'housing advocate' who assisted him; he may or may not have done so, that is not clear upon the evidence, but certainly on the evidence he was supported on the day. Although there is some obligation upon the tribunal member to assist a self-represented litigant, he cannot be expected to assist where the Appellant did not raise the concerns now complained of before him.

68 In any event, even if an adjournment had been sought and granted it appears on the face of the Report that there would be little if any utility in further cross-examination of Mr Guerin. The Appellant has pointed to what is clearly a discrepancy between the date borne by the CDL Sampling & Custody Form (being 4 June 2018) and the surrounding evidence which establishes that the Premises were not entered into until 4 July 2018. This discrepancy, given the surrounding evidence, is not troublesome to the Court and is easily explained. Having regard to the surrounding evidence the Court can comfortably draw the inference that the date on the CDL Sampling & Custody Form was most likely recorded in error. Accordingly, in relation to this fact alone the Court cannot find any procedural or other unfairness having been visited upon the Appellant as a result of the failure of Member Buchanan to raise the possibility of an adjournment.

69 For these reasons, to the extent that the appeal in relation to Ground 1 extends to issues of procedural fairness (noting, as I have, that this was not a ground articulated on the Notice of Appeal, but was suggested before me) leave to appeal is denied.

70 The Appellant's second ground of appeal relates to the validity of the notice to vacate. The Appellant says that the notice must be served by registered mail, 14 days prior to any possession order being sought. He says that he never received the notice to vacate. No challenge to the validity of the notice to vacate was pursued before Member Buchanan. In fact, at the VCAT hearing, the Appellant conceded that notice had been validly served.

71 This ground can be dealt with quickly. I do not consider that there is a real prospect of success in establishing that the error alleged by the Appellant exists. On the evidence before me it is apparent that the Respondent's solicitor mailed the notice to vacate, alongside a copy of Mr Guerin's report, to the Appellant on 31 August 2018. The Respondent's solicitor also telephoned the Appellant, sent a copy of the notice by email and sent a text message to the Appellant informing him that the notice to vacate was awaiting collection at the local post office.

72 There is no requirement that a landlord must allow 14 days to pass before making an application to VCAT for a possession order. The Appellant referred to a requirement contained in unspecified 'VCAT guidelines'. Sections 322 and 326 of the Residential Tenancies Act are clear in their terms:

322 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).

(2) A landlord may apply to the Tribunal for a possession order for rented premises if -

(a) the landlord has given the tenant a notice to vacate the premises under section 261 or section 263; and

(b) the tenant has not delivered up vacant possession of the premises.

(3) A landlord may apply to the Tribunal for a possession order for rented premises if -

(a) the tenant has given the landlord a notice of intention to vacate the premises; and

(b) the tenant has not delivered up vacant possession of the premises.

...

326 Time for application

(1) An application under section 322(1), 323(a), 324(1), 324(2) or 324A(1) may be made at any time after the notice to vacate is given but not later than 30 days after the termination date specified in the notice.

(2) An application under section 322(2), 322(3), 323A or 325 must be made after the termination date specified in the notice to vacate but not later than 30 days after that date.

(3) An application under section 323(b), 324(3) or 324A(2) must be made after the end of 7 days after the date on which the notice of intention to vacate is given but not later than 30 days after the termination date specified in the notice.

73 The effect of those provisions is clear. A landlord may apply for a possession order at any time after notice to vacate is given. In those circumstances, leave to appeal on the basis of the Appellant's second ground of appeal is denied.

74 An alleged error in the meaning given by Member Buchanan to 'unfit for human habitation' pursuant to s 245 of the Residential Tenancies Act is not explicitly stated in the Appellant's notice of appeal. Nonetheless, some time was dedicated to this issue at the hearing of the appeal. Taking into account the Appellant's status as a self-represented litigant, I will consider the alleged error as though it were a third stated ground of appeal. I do not consider that this decision would cause prejudice to the Respondent, particularly given their non-appearance before the Court at the hearing.

75 In essence, that ground of appeal is that the Member erred in accepting that contamination with methamphetamine falls within the meaning of 'unfit for human habitation' under s 245 of the Residential Tenancies Act.

76 Section 245 of the Residential Tenancies Act provides:

Condition of premises

(1) A landlord may give a tenant a notice to vacate rented premises if the premises -

(a) are unfit for human habitation; or

(b) have been destroyed totally or to such an extent as to be rendered unsafe.

(2) The notice may specify a termination date that is the date on which the notice is given or a later date.

77 There is little authority on the scope and application of s 245. The Appellant directed the Court to the decision of VCAT in Price v Johnson[32] which, although not binding upon me, provides a useful starting point. In that case Senior Member Steele dismissed an application for a possession order which had been brought by the landlord to enforce a notice to vacate on the basis of s 245. The notice to vacate had been issued as there was no firewall between the premises and an adjacent unit.

78 Considering the meaning of 'unfit for human habitation', Member Steele referred to the decisions of the House of Lords in Summers v Salford Corporation,[33] of the Supreme Court of Queensland in Gray v Queensland Housing Commission[34] and of the High Court in Jones v Bartlett,[35] to which I will return below. The Member observed by reference to those cases that the question of whether premises were unfit for human habitation turned upon consideration of whether they are dangerous when in ordinary use.[36]

79 Member Steele considered that a house fire was not to be expected from ordinary use of the premises. As there was no risk of immediate danger, the absence of a fire wall was not considered sufficient to render the premises unfit for human habitation and justify the notice to vacate.

80 In Summers v Salford Corporation, the House of Lords considered the requirement under s 2 of the Housing Act 1936 (UK) that a landlord keep rented premises reasonably fit for human habitation. The case involved a house in which a window had become jammed due to a broken sash cord, which was not repaired. The window subsequently caused damage to the tenant when it fell on her hand while she was cleaning. The House of Lords held that this did involve a breach of the requirement as it impaired the normal use of the premises.

81 The members of the House of Lords spoke with one voice as to the meaning of 'fit for human habitation' in that context.[37] Lords Atkin, Russell, Wright and Romer (Lord Thankerton agreeing) each approved the description given to that phrase by Atkin LJ (as he then was) in Morgan v Liverpool Corporation[38], as follows:

If the state of repair of a house is such that by ordinary user [sic] damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.[39]

82 The tenant's appeal was allowed. The Court considered that, following the breaking of the first sash cord, it was only a matter of time before the second cord broke. Such a break would likely cause damage in the ordinary use of the house, and would otherwise render the window unusable. Where the premises relied upon its windows for proper ventilation, the failure to repair was considered to breach the requirement to maintain premises in a manner that is reasonably fit for human habitation.

83 Gray v Queensland Housing Commission was also a negligence case in which a tenant alleged that her landlord had failed to maintain the premises in a reasonable state of repair. The gravamen of the plaintiff's allegation was that the landlord had installed kitchen tiles which were slippery when wet and posed danger to tenants. Chesterman J recited the test approved by the House of Lords in Summers v Salford Corporation, and paraphrased it as follows:

If the state of repair of a house is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation.[40]

84 His Honour also considered the duty owed at common law by a landlord to take care of the safety of the tenant, discussed in Jones v Bartlett. In that case, Gummow and Hayne JJ of the High Court summed up the authorities as follows:

The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries ... However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.[41]

85 Chesterman J considered that the ordinary use of the premises would involve walking only on dry floors, and promptly mopping up any liquid that was spilt. In those circumstances his Honour concluded that the ordinary use of the house would not cause danger to tenants and therefore that it was fit for the plaintiff to inhabit. His Honour gave judgment for the defendant.

86 The Appellant submitted that contamination by methamphetamine residue did not fall within the meaning of 'unfit for human habitation' in the Residential Tenancies Act. More particularly, the Appellant submitted that the tribunal should not have had regard to the Clandestine Drug Laboratory Remediation Guidelines when determining whether the Premises were fit for human habitation as he says that such a use is not the purpose for which the guidelines were drafted and that they, in any event, were not definitive.

87 I disagree with that submission for the following reasons:

(a) the authorities establish that premises will be unfit for human habitation where there is a danger posed to occupants which would naturally flow from their ordinary use. As was stated by Mr Guerin in oral evidence, the danger to occupants of the Premises in this case is 'purely by standing in there and breathing';

(b) clearly, the levels of contamination at the Premises were dangerous and posed a danger to occupants through their normal use;

(c) the Guidelines stand as an independent document classifying the extent of contamination which falls within an acceptable level or a dangerous zone, in the absence of any contrary expert evidence the Court properly has regard to the Guidelines in relation to safe or acceptable levels of contamination;

(d) the mere fact that the purpose of the guidelines may not have been at all concerned with issues such as eviction from premises under the Residential Tenancies Act is, in my opinion, irrelevant. They provide an objective standard to which the Courts may properly have regard in determining issues of habitability.

88 Based on the evidence before me, leave to appeal on the basis of what I have described as Ground 3 is denied.

89 Given my reasons and conclusions above, the appeal is dismissed in its entirety.

90 There being no reason to depart from the usual course, I order that the Appellant pay the Respondent's costs of the appeal to be taxed on a standard basis if not agreed.

[1] [2019] VSC 41, [10].

[2] [2013] VSCA 158; (2013) 42 VR 27.

[5] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 334-5 (Barwick CJ); Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75 (Stephen and Aickin JJ).

[6] See, for example: Refaat v Barry [2017] VSCA 362 (Whelan and Beach JJA); Matthews v SPI Electricity Pty Lrd & Ors (Ruling No 31) [2013] VSC 575; (2013) 42 VR 513 (J Forrest J); Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 4) [2011] VSC 269; (2011) 32 VR 568 (Vickery J).

[7] Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 445 [17] (Warren CJ, Buchanan and Redlich JJA). See also: Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236, [45] (Priest, Beach and Kaye JJA).

[8] DPP v Natale (Ruling) [2018] VSC 339, [56] (Bell J); R v Mokbel [2012] VSC 86; (2012) 35 VR 156, 184 [309] (Whelan J).

[9] Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 99 [156] (Hayne, Crennan, Kiefel and Bell JJ).

[10] Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [37].

[11] Roberts v Harkness [2018] VSCA 215, [48] (Maxwell P, Beach and Niall JJA).

[15] [1994] HCA 23; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[16] Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446 [29] (Sackville, North and Kenney JJ); Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 123 [113] (Bell J).

[17] [2007] VSC 337; (2007) 17 VR 100 ('Tomasevic').

[19] Garrett v Legal Services Commissioner [2015] VSC 465, [15] (Derham AsJ); Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445-446 [27]-[29] (Sackville, North and Kenney JJ); Platcher v Joseph [2004] FCAFC 68, [104] (Emmett and Weinberg JJ); Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 (Bell J).

[20] Garrett v Legal Services Commissioner [2015] VSC 465, [15] (Derham AsJ).

[21] Garrett v Legal Services Commissioner [2015] VSC 465, [15] (Derham AsJ); Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 [141] (Bell J).

[22] Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, 16 June 1986), 14.

[24] Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446 [29] (Sackville, North and Kenney JJ), citing Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Victoria, Smith J, 15 September 1997).

[25] Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Victoria, Smith J, 15 September 1997), 9.

[26] [2007] VSC 337; (2007) 17 VR 100, 119 [89].

[27] Ibid, 127 [131]-[132] (citing R v White [2003] VSCA 174; (2003) 7 VR 442, 454 [34] (Chernov JA)).

[28] Ibid, 128-129 [136]-[137] (citing Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 Fam LR 517).

[31] See, for example: Harkness v Roberts (No 2) [2017] VSC 646, [20] (Bell J) (reversed on other grounds on appeal [2018] VSCA 215); Garrett v Legal Services Commissioner [2015] VSC 465, [15] (Derham AsJ); Ragg v Magistrates Court [2008] VSC 1; (2008) 18 VR 300, 308 [37] - [40] (Bell J).

[32] [2014] VCAT 581.

[33] [1943] AC 283.

[34] [2004] QSC 276.

[35] (2000) 205 CLR 166.

[36] [2014] VCAT 581, [18].

[37] [1943] AC 283, 289-290 (Lord Atkin), 291 (Lord Russel of Killowen), 293-294 (Lord Wright), 297-298 (Lord Romer).

[38] [1927] 2 KB 131.

[40] [2004] QSC 276, [11].

[41] (2000) 205 CLR 166, 217 [178] (Gummow and Hayne JJ).