Appellant v Respondent

1 Mr Myers commenced a proceeding at the Victorian Civil and Administrative Tribunal (Tribunal) in which he sought $341,400 as compensation for loss said to have resulted from the termination of his tenancy agreement with Sachendra Rao. Under s 447 of the Residential Tenancies Act 1997 (Vic) (RTA), the Tribunal only has the power to hear and determine applications for monetary compensation of $40,000 or less. On 30 October 2023 Acting Senior Member K Campana (A/Snr Member Campana) of the Tribunal struck out Mr Myers' compensation application and refused his request that his proceeding be referred to the County Court. On 27 November 2023 A/Snr Member Campana made a further order refusing Mr Myers' application to amend the order of 30 October 2023 to include Professionals Taylors Lakes real estate agency as a respondent to the VCAT proceeding.

2 Mr Myers has filed a notice of appeal in this Court seeking to appeal A/Snr Member Campana's orders made 30 October 2023 and 27 November 2023.

3 This judgment relates to Mr Rao's application, made on 16 July 2024, seeking orders that Mr Myer's application for leave to appeal be dismissed. Mr Rao's summary dismissal application is made under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) on the grounds that it has no real prospects of success, or alternatively, under r 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) on the grounds that the claims are scandalous, frivolous or vexatious, and/or an abuse of process.

4 On 20 September 2024 Mr Myers filed a summons seeking leave to amend his notice of appeal. This judgment also determines Mr Myers' application to amend.

5 For the reasons that follow I have decided to grant Mr Myers leave to amend his second question of law but otherwise to dismiss his application to amend his notice of appeal. I have also granted Mr Rao's application for summary judgment of the proceeding in relation to two of Mr Myers' three questions of law but have otherwise dismissed his application. As a result, Mr Myers' notice of appeal will proceed to a full hearing but limited to his amended question 2.

6 In support of his amendment application and in opposition to the respondent's dismissal application, Mr Myers relied upon:

(a) the notice of appeal filed 27 November 2023;

(b) Mr Myer's affidavit affirmed 13 December 2023;

(c) Mr Myer's affidavit affirmed 12 June 2024;

(d) written submissions filed 27 June 2024;

(e) Mr Myer's affidavit affirmed 11 July 2024;

(f) Mr Myer's affidavit affirmed 3 September 2024;

(g) written submissions in relation to the application for summary judgment filed 18 September 2024; and

(h) Mr Myers' summons filed 20 September 2024.

7 In support of the respondent's summary dismissal application the respondent relied upon:

(a) the respondent's summons filed 16 July 2024;

(b) the affidavit of Aneet Kohli sworn 15 July 2024;

(c) the affidavit of Sachendra Rao affirmed 29 May 2024;

(d) written submissions filed 16 September 2024; and

(e) the affidavit of Sivakumar Sadasivan affirmed 23 September 2024.

8 The facts relevant to the proceeding are summarised as follows.

9 Mr Rao is the owner of a residential property in Taylors Lake, Victoria (Property).

10 On 6 March 2015 Mr Myers entered into a residential tenancy agreement with Mr Rao. Professionals Taylors Lakes acted as Mr Rao's real estate agents in relation to the tenancy.

11 Mr Myers alleges that Adrian Kanyoonto, who resided at the property with Mr Myers, was added to the lease as co-tenant by Professionals Taylors Lakes without Mr Myers' written consent. The relationship between Mr Myers and Mr Kanyoonto broke down. Both were evicted due to non-payment of rent and the lease subsequently ended on 5 September 2015.

12 On 17 April 2021, Mr Myers filed an application for compensation in the residential tenancies list at the Tribunal, naming the respondent and Professionals Taylors Lakes as respondents. Mr Myers' application sought compensation in an amount of $341,400. Mr Myers' application states that it was brought pursuant to s 210(1A)[1] of the RTA and s 184 of the Australian Consumer Law and Fair Trading Act (Vic).

13 On 24 June 2022 the Tribunal's Registrar made an order striking out Mr Myers application, with right of reinstatement. In the narrative section of this order, the Registrar notes that on 17 May 2022, VCAT wrote to Mr Myers by email asking if his claim was still in dispute. Mr Myers did not respond. The Registrar notes that, in the absence of a response, 'it would appear that the parties have resolved the dispute'.

14 On 25 October 2022, following correspondence from Mr Myer dated 18 August 2022, the Registrar reinstated Mr Myers' application. The order states that the 'Tribunal will advise further as to the listing of the matter'.

15 It appears that Mr Myers' application was listed for hearing on 9 November 2022. However, on 7 November 2022 Acting Deputy President Warren, having reviewed the Tribunal's file, vacated the hearing that had been scheduled for 9 November 2022 and requested the Registrar to list Mr Myers' application for a directions hearing on a date to be fixed.

16 On 1 December 2022 Member Elmes ordered that Mr Myers' application be dismissed because neither party appeared at the hearing.

17 On 1 February 2023 Member Campbell made an order refusing Mr Myers' application for an adjournment. On 6 February 2023, on Mr Myers' application, Member Scott made an order adjourning Mr Myers' application to a date after 6 April 2023.

18 On 21 April 2023 A/Snr Member Campana revoked the order made on 1 December 2022 and adjourned the proceeding to a date no later than 30 November 2023. A/Snr Member Campana's order identified a number of issues that Mr Myers was required to address on or before 30 November 2023, noting that if Mr Myers did not write to the Tribunal addressing the issues by 30 November 2023 his application would be marked as withdrawn by the force of the order made on 21 April 2023. The issues identified by A/Snr Member Campana included:

(a) The first issue is the Real Estate Agency being a respondent to the proceeding. The claim has been made against two parties - the rental provider and the real estate agency. The applicant needs to establish the legal basis for making the claim against the real estate agency and the relevant statutory authority that gives the Tribunal power to make any orders against the agency directly. The Residential Tenancies Act 1997 deals with disputes, rights and obligations of renters and rental providers and not third parties, and there is no power to make orders against a third party. If the applicant wants to proceed against the real estate agency, the legal basis for the Tribunal to make orders against the agency will need to be provided in a written submission.

(b) The second issue is the value of the claim. Section 447 provides that the Tribunal MUST NOT hear and determine an application by a renter which involves a monetary claim for an amount exceeding $40,000, unless all the parties to the proceeding, consent to this in writing. There is no authorising document from the parties and so with the current claim being $341,400, the Tribunal is not actually able to hear the matter. Section 509 and 510 provide what may be considered to be the more appropriate forum for the matter because of the limitation on the Tribunal being able to hear the matter. If the applicant wants to proceed in the Tribunal, submissions will be required on the jurisdiction of the Tribunal to be able to hear and determine the claim as one above $40,000.

(d) The fourth issue is whether any of the loss is for pain and suffering. If any of the loss is more properly described as pain and suffering or personal injury then the Tribunal is also statute barred from making an order under section 447(2) of the Act. An item that could potentially be classified as personal injury might be the claim for $900 relating to ongoing harassment and threats by Mr Kanyo for three weeks. Written submissions will be required on whether any of the matters are related to pain and suffering.

...

In the circumstances the proceeding will be adjourned with a right of renewal to enable the applicant to consider the issues raised above and make any necessary submissions to the Tribunal in relation to the manner and form in which the applicant seeks to proceed with the claim.

19 It is apparent from Mr Myers' submissions that at some point, likely after the issue of Tribunal's jurisdictional limit was raised, he consulted the County Court self-represented litigant case managers. Mr Myers submissions state that:

He was instructed to apply to VCAT for a referral under s 77(4) of the VCAT Act, due to the issue that the event of the matter was based upon was now well over 8 years and a referral would solve that issue of re-applying for a new application past the expiration to commence action.

20 On 30 October 2023 A/Snr Member Campana made an order under s 77 of the Victorian Civil and Administrative Act 1998 (VCAT Act), striking out Mr Myers' application. The reasons given in the findings section of the order were as follows:

1. By correspondence dated 2 October 2023, in response to the order of the Tribunal dated 21 April 2023, [Mr Myers] has made the following request:

I request under s 77(4) of the VCAT Act that my case: R2021/12954 be referred to the County Court, as the claim amount well exceeds the jurisdictional limits of VCAT (s447 of the RTA) and that of the Magistrates Court.

1. Section 77 of the Victorian Civil and Administrative Tribunal Act 1998 enables the Tribunal to make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.
2. This is a matter that concerns the inability of the Tribunal to hear aspects of [Mr Myers'] case related to the provisions of section 447 of the Residential Tenancies Act 1997 and limitations placed on the matters that the Tribunal can hear and determine under this enabling legislation.
3. It is certainly a matter that is appropriate to be dealt with elsewhere. And for these reasons, it is appropriate that the matter be struck out.
4. However [Mr Myers'] request includes a request to refer the proceeding. This "referral" is discretionary, and only occurs if it is appropriate to do so.
5. The request of [Mr Myers] for a referral appears to be predicated on the applicant wanting to extend time. However such an extension of time being granted appears to be related to federal jurisdictional issues (under the Australian Constitution and the Tribunal not being a Court) and not issues arising from the limits of jurisdiction of the Residential Tenancies Act 1997:

_(4) If the Tribunal refers a mater to a court under subsection (3), the court may extend any limitation period that applies to the commencement of a proceeding in relation to that matter so as to allow the proceeding to be commenced and determined, if the court is satisfied that - _

(a) the proceeding involves the same subject matter as a proceeding in the Tribunal that was struck out under subsection (1) on the ground, or on grounds that included, that the Tribunal lacked jurisdiction to exercise judicial power to resolve controversies involving federal subject matter within the meaning of section 57A(1); and

(b) the late commencement of the proceeding is attributable to additional steps the person commencing it was required to take to have it determined by the court because the Tribunal proceeding was struck out; and

(c) it is fair and reasonable to extend the limitation period.

1. The basis for the referral being unclear, and there being no apparent need for such a referral with [Mr Myers] able to use sections 509 and 510 of the Residential Tenancies Act 1997 to invoke the entitlement to bring the application, along with a copy of this order, the Tribunal is of the view that there is no need for a referral and declines to make the same.

21 On 30 October 2023 Mr Myers requested, under s 119 of the VCAT Act, that the Tribunal correct its order of that date by including Professionals Taylors Lakes as a respondent to the application.

22 On 27 November 2023, A/Snr Member Campana refused Mr Myers' request to amend the order. The order made on 27 November 2023 records the Tribunal's findings as follows:

1. [Mr Myers] seeks for the Tribunal's order of 30 October 2023 to be corrected under section 119 of the Victorian Civil and Administrative Tribunal Act 1998 to include the real estate agent as a second respondent.
2. The power to amend an order arises only if there is a mistake made by the Tribunal. There is no mistake that needs to be corrected.
3. The Tribunal, in the Residential Tenancies List, under the Residential Tenancies Act 1997 only has power to make orders as between rental providers and renters. There is no power to make an order against the Real Estate Agent. Therefore the request to amend is refused.
4. This decision does not however prevent [Mr Myers] from joining the Real Estate Agency as a party to any Court proceeding and seeking to invoke the general jurisdiction of the Court to make any orders as appropriate and which the Court deems fit.

23 Mr Myers filed his notice to appeal in this Court on 27 November 2023.

24 The notice of appeal identifies three questions of law:

(a) Should VCAT have referred the matter to the County Court considering the matter sat at VCAT for years before it made a decision it did not have jurisdiction during which time the time limit in the Limitation of Actions Act 1958 (Vic) for the applicant to start over and file in another jurisdiction had expired?

(b) Should VCAT have asked the applicant to clarify the basis of the referral request if it did not understand it and given the applicant an opportunity to respond prior to refusing the referral request?

(c) Should VCAT have listed the second respondent in its orders?

(a) VCAT failed to act fairly and consider the consequences of its orders upon the applicant in breach of s 97 of the VCAT Act;

(b) VCAT falsely believed that the applicant could simply apply to the County Court under ss 509 and 510 of the RTA without considering the impact of the VCAT delay;

(c) VCAT's order of 30 October 2023 failed to take account of the fact that the Principal Registrar failed to reject the application in 2021 because the application did not fall within VCAT's jurisdiction because it sought compensation over VCAT's jurisdictional limit;

(d) The applicant was not made aware that VCAT would decide the referral application in the absence of the parties and so was unfairly denied the opportunity to clarify his referral request;

(e) VCAT should have listed the real estate agency in its orders and incorrectly claimed it did not have power to make orders beyond between rental providers and renters.

26 Mr Myers summons asks the Court to grant him leave to amend the questions of law in his notice of appeal.

27 My Myers' submissions contained his proposed reworded questions of law:

Question 1

Was the applicant denied Procedural Fairness, when the Tribunal did not alert the applicant that his application did not comply with s 447 of the RTA (and thus could not be heard and determined without the authorisation from the Respondent), prior to the expiration of 6 years from the date on which the cause of action accrued, to allow the applicant time to either file the matter with an alternative Tribunal (such as the Civil Claims List) or County Court?

Question 2

Did the Tribunal deny the applicant Natural Justice, by not allowing him an opportunity to clarify as to why he requested a referral, and furthermore by not allowing him until the 30 November 2023, to address the matters identified in the Order made 21 April 2023?

Question 3

Is the Tribunal able to list a Real Estate Agent (that manages the rental property), as a respondent and furthermore, make orders either for or against them?

Question 4

Is the Tribunal correct with it's (sic) view that - "with the applicant able to use sections 509 and 510 of the Residential Tenancies Act 1997 to invoke the entitlement to bring the application, along with a copy of this order", that the County Court is able to accept the application without issues concerning the validity of the application despite that the proceeding had been in the Tribunal's jurisdiction for approximately 30 months past the expiration of the 6 years from the date on which the cause of action accrued?

28 In relation to his proposed new Question 4, Mr Myers submitted that he sought a declaration from the Court to clarify whether the Court 'considers it true or not'.

29 The Court may, at any stage of a proceeding order that any document in the proceeding be amended or that any party have leave to amend any document, for the purpose of (a) determining the real question in controversy between the parties to any proceeding; or (b) correcting any defect or error in any proceeding; or (c) avoiding a multiplicity of proceedings.[2]

30 In Aon Risk Services Australia Ltd v Australian National University[3] the High Court considered the principles relevant to an application to amend a pleading. These include:

(a) whether there will be substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the state in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

31 Sections 8 and 9 of the CPA require the Court, to give effect to and in making any order, to further the overarching purpose, being the just, efficient, timely and cost-effective resolution of the real issues in dispute.[4] In doing so, the Court must have regard to, among other factors, the efficient conduct of the business of the court; the efficient use of judicial and administrative resources; the timely determination of the proceeding; and dealing with the proceeding in a manner proportionate to the complexity of the issues in dispute and the amount in dispute.[5]

Mr Myers' amendment application - consideration

32 Mr Myers freely conceded that he is not legally trained and that the questions of law articulated in his notice of appeal may be deficient. He submitted the Court should take into account his capacity and lack of experience. Mr Myers has a dispute that he wishes this Court to hear and determine. According to Mr Myers, the 'vibe of it' remains in both the questions of law and his grounds of appeal. Counsel for Mr Rao disputed that Mr Myers is a man with little experience of the law and litigation, pointing to four judgments of the Supreme Court in three matters commenced by Mr Myers in 2023.

33 It is tolerably clear from Mr Myers' submissions that the issue he seeks to agitate in his revised Question 1 is whether the Registrar of the Tribunal should have rejected his application at the time or shortly after it was filed on the basis that the compensation sum sought was beyond the Tribunal's jurisdictional limit. In my view this is not a question of law raised by the orders made by A/Snr Member Campana on 30 October 2023 or 27 November 2023. Rather it is a complaint about an action not taken by a different individual at the Tribunal. Accordingly, I will not allow this amendment.

34 In my view Mr Myers' revised Question 2 expresses with greater clarity the issue of whether the decision of the A/Snr Member on 30 October 2023, before the deadline of 30 November 2023 (contained in the order made on 21 April 2023), to strike out Mr Myers' proceeding and refuse his request that the proceeding be transferred, without providing Mr Myers with a further opportunity to be heard, breached the rules of procedural fairness. In my view there is no prejudice to Mr Rao in allowing this amendment and so I will do so.

35 Mr Myers' revised Question 3 is not in a form that can be allowed. It appears to raise legal questions of general application, not tied to the order made by A/Snr Member Campana on 27 November 2023. I will not allow this amendment.

36 Mr Myers' proposed Question 4 seeks an advisory opinion from this Court about whether the County Court would be obliged to allow Mr Myers' to commence a proceeding notwithstanding the expiration of limitation period. It is not a question of law for the purposes of s 148 of the VCAT Act. I will not allow this amendment.

37 Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

38 Section 63 of the CPA provides that, subject to s 64, the Court may give summary judgment in any civil proceeding if satisfied that a claim has no real prospect of success. Section 64 says:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because_ - _

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

39 The powers given to the Court under this part of the CPA are in addition to the powers of the Court under its rules in relation to summary disposal of any civil proceeding.[6]

40 The application of the test for summary judgment was explained by the majority of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[7] as follows:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;[8]

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might 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 success;

(d) at the same time, it 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.

41 The defendant's summons, in the alternative, seeks an order under r 23.01(1) of the Rules that Mr Myers' notice of appeal be dismissed on the grounds that the claims made are scandalous, frivolous or vexatious, and/or an abuse of the process of the Court.

42 Rule 23.01(1) provides that where a proceeding generally or any claim in a proceeding is scandalous, frivolous or vexatious; or is an abuse of the process of the Court, the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

43 The Court will not make an order under r 23.01(01) unless it is clear on the pleadings or from extrinsic evidence that the claim is unsustainable in fact or in law and that no proper amendment of the pleading can raise a good cause of action.[9] The prosecution of a claim which is unsustainable in fact or in law and which cannot be cured by proper amendment is vexatious within the meaning of the Rules.[10]

Respondent's submissions on the summary judgment application

44 The respondent submitted that Mr Myers' proposed appeal is without merit because the Tribunal's decisions were correct at law and to the extent Mr Myers says that he was not given an opportunity to be heard, Mr Myers has not shown that there was a 'realistic possibility' that a different decision could have been made had the A/Snr Member complied with the obligation to provide procedural fairness.[11]

45 The respondent submitted that s 447 expressly prohibits the Tribunal from hearing and determining an application for a compensation order which involves a monetary claim exceeding $40,000. In circumstances where Mr Myers' claim was for compensation in the sum of $341,400, it was clearly in excess of the Tribunal's jurisdictional limit. Having regard to the nature of Mr Myers' claims, it was open to the A/Snr Member to strike out Mr Myers' claim under s 77(1) of the VCAT Act.

46 Sections 509 and 510 of the RTA expressly provide that Mr Myers could have brought his claim in the County Court and did not require a referral from the Tribunal to do so. Mr Myers' request that his proceeding be transferred indicated that he wished to pursue his action in the County Court. Accordingly, there was nothing incorrect in the A/Snr Member's refusal to make the referral sought.

47 Mr Myer's application in the Tribunal was made under s 210 of the RTA, which provides:

(1) A party to a tenancy agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the tenancy agreement of compensation for loss or damage suffered by the applicant...

48 Section 26(1) of the RTA provides that a written tenancy agreement for a fixed term not exceeding 5 years must be in the prescribed form. The prescribed form is located at Schedule 1 of the Residential Tenancies Regulations 2021 (Vic) and relevantly states at its commencement, 'This agreement is between the residential rental provider (rental provider) and the renter listed on this form'. Residential rental provider is defined in s 3 of the RTA to include the person by whom premises are let under a residential rental agreement.

49 Mr Rao's counsel submitted that Professionals Taylors Lakes is not a party to the residential rental agreement.

50 Section 119 of the VCAT Act is in the following terms:

(1) The Tribunal may correct an order made by it if the order contains -

(a) a clerical mistake; or

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

51 Mr Myers' request that the 30 October 2023 order be corrected was misconceived because there was no basis for the Tribunal to make the amendment Mr Myers' sought having regard to the fact that Mr Myers' application had been brought under s 210 of the RTA and the real estate agency was not a party to the residential rental agreement under consideration.

52 Mr Rao's counsel submitted that there is no merit to Mr Myers' procedural fairness grounds because it is clear from the terms of the order made on 21 April 2023 that he was expressly told the issues with his application and provided an opportunity to respond. In response, Mr Myers wrote to the Tribunal on 2 October 2023 requesting that his proceeding be referred to the County Court 'as the claim amount well exceeds the jurisdictional limit of VCAT'. Counsel submitted that the reference to ss 509 and 510 of the RTA in the orders made by A/Snr Member Campana should be understood as providing Mr Myers with the statutory basis to commence his claim in the County Court independently of a referral from the Tribunal.

53 Counsel submitted that even if Mr Myers had been provided an opportunity to be heard further on the question of the referral of his matter to the County Court, it would not have made a material difference to the outcome.

54 Finally, counsel referred to an email sent by Mr Myers to Mr Rao's solicitor on 3 September 2024 in the following terms:

If your client ever wants to consider settling out of court, I'm only a phone call away.

I hope you have made him aware of the likelihood of recovering costs from an unemployed man with no sizeable assets, in the circumstances he wins.

55 Counsel submitted that the email revealed Mr Myers' proceeding is an abuse of process because it demonstrated Mr Myers was using his impecuniosity as leverage to obtain the compensation he pursued at the Tribunal.

56 The respondent submitted that the proposed grounds of appeal do not articulate any cogent basis for impugning the Tribunal's decisions and otherwise reflect Mr Myers' mistaken understanding of ss 447, 509 and 510 of the RTA; his own obligations as a litigant to pursue proceedings where he feels aggrieved and that otherwise he should obtain legal advice to assist him in considering whether he has a valid claim; and that the Tribunal and Court cannot offer litigants legal advice.

Mr Myer's submissions on the summary judgment application

57 In relation to his Question 1, Mr Myers submitted that the Tribunal did not notify him of its monetary limit at the time he filed his application and should have done so and rejected it. Once Mr Myers became aware of the jurisdictional limit issue, he consulted the County Court self-represented litigants case managers and was instructed to apply for a referral under s 77(4) of the VCAT Act because that would solve the issue of commencing a proceeding in the County Court after the expiration of the limitation period.

58 In relation to his Question 2, Mr Myers submitted that the Tribunal is required by s 97 of the VCAT Act to act fairly. The Tribunal failed to do so when it did not provide an opportunity to Mr Myers to make further clarifying submissions or alternative requests before striking out his proceeding on 30 October 2023. Had Mr Myers been provided with that opportunity he could have requested that his application be referred to a different section or list within the Tribunal or amended to reduce the amount of compensation sought to be within the Tribunal's jurisdictional limit. Mr Myers did not understand the Tribunal's order of 21 April 2023 to mean that the Tribunal might make orders in his proceeding before 30 November 2023 without further recourse to him or an opportunity to make oral submissions.

59 In relation to his Question 3, Mr Myers submitted that his application clearly identified Professionals Taylors Lakes as the second respondent to the proceeding. The owner of the property is not the only possible residential rental provider. The relationship between a real estate agent and the owner of a property is in effect a partnership, they both make money from the relationship and therefore both are accountable for any breaches committed under the residential tenancy agreement.

60 It is convenient to deal with Mr Myers' Question 3 first. I am satisfied that Mr Myers' Question 3 has no real prospect of success. Mr Myers' contention that the relationship between a landlord and his real estate agent is in effect a partnership is clearly wrong in law. A landlord and real estate agent are in a contractual relationship in which the real estate agent is acting as agent for the landlord. It is in no way akin to a partnership at law, which involves persons carrying on a business in common.

61 I accept Mr Rao's counsel's submission that the residential tenancy agreement is an agreement between the residential rental provider, in this case Mr Rao, and the tenant, in this case Mr Myers. The real estate agency is not a party to that agreement and therefore not an appropriate party to an application for compensation for breach of the agreement. It necessarily follows that I am satisfied Mr Myers' Question 3 has no real prospect of success.

63 Mr Myers submitted that when he became aware of the Tribunal's jurisdictional limit he consulted the County Court's self-represented litigant case managers. It is reasonably clear that Mr Myers was concerned about the lapse of time and the possibility that his compensation application, if recommenced in the County Court, would be out of time. He submitted that his request that his Tribunal proceeding be referred to the County Court was, at least in part, motivated by an attempt to address any issue about commencing a proceeding out of time. Understandably, as this motivation was not articulated in Mr Myers' referral request, it was not an issue addressed by A/Snr Member Campana in her orders of 30 October 2023 who simply referred to the statutory provisions that would permit Mr Myers to commence a proceeding in the County Court without a referral from the Tribunal.

64 By the terms of the order made 21 April 2023, Mr Myers was on notice of the issues with his proceeding, including the jurisdictional limit issue. While the order states that 'Any correspondence from the applicant is to be referred to Acting Senior Member Campana for further directions and orders as appropriate', nowhere in that order is Mr Myers put on notice that, if he did provide correspondence prior to 30 November 2023, his proceeding may be dismissed without further notice to him. Rather, Mr Myers was warned that if he did not respond within the time limit provided his application would be marked as withdrawn.

65 Mr Myers requested that his matter be referred to the County Court pursuant to s 77(4) of the VCAT Act. Section 77 is in the following terms:

(1) At any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.

(2) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

(3) If the Tribunal makes an order under subsection (1), it may refer the matter to the relevant tribunal, court, person or body if it considers it appropriate to do so.

(4) If the Tribunal refers a matter to a court under subsection (3), the court may extend any limitation period that applies to the commencement of a proceeding in relation to that matter so as to allow the proceeding to be commenced and determined, if the court is satisfied that -

(a) the proceeding involves the same subject matter as a proceeding in the Tribunal that was struck out under subsection (1) on the ground, or on grounds that included, that the Tribunal lacked jurisdiction to exercise judicial power to resolve controversies involving federal subject matter within the meaning of section 57A(1); and

...

(c) it is fair and reasonable to extend the limitation period.

(4A) To avoid doubt, a reference in subsection (4) to the commencement of a proceeding includes the joinder of a person who was not a party to the proceeding in the Tribunal referred to in subsection (4)(a).

...

66 Section 77(4) of the VCAT Act is not the source of the Tribunal's power to refer a matter to the County Court. The power to transfer a matter arises by virtue of s 77(3). Section 77(4) is a permissive provision relating to actions a court may take in relation to a limitation period once a matter is referred.

67 In Martin v Fasham Johnson Pty Ltd,[12] Kyrou J set out the requirements the Tribunal must meet before making an order under s 77:

Where the Tribunal is exercising a power under ss 75, 76, 77 or 78, its order (which, in accordance with s 117(6) of the VCAT Act, includes its reasons for decision) must expressly state that it is doing so. It cannot exercise such an important power "impliedly", "in passing" or in a latent manner. In compliance with the Tribunal's obligations to act fairly (s 97 of the VCAT Act) and to comply with the rules of natural justice (s 98(1)(a) of the VCAT Act), before an order is made under ss 75, 76, 77 or 78, reasonable notice must be given to the applicant that such an order may be made and the grounds for the foreshadowed order.

68 While the order of 21 April 2023 requires Mr Myers to provide submissions on the issues articulated in the order, it does not, in terms, foreshadow that the Tribunal may make an order under s 77(1) of the VCAT Act, dismissing Mr Myers' proceeding. Whether the requirement for the Tribunal to give reasonable notice was obviated by Mr Myers' request for his proceeding to be transferred to the County Court is a live question. This is made more complex in circumstances where Mr Myers' request was made under s 77(4) and not s 77(3) and where a referral under s 77(3) can only be made if the Tribunal strikes out a proceeding under s 77(1).

69 I accept Mr Myers submission as at least arguable that had he been informed that his matter may be struck out and a referral to the County Court not been made, he may have raised alternative suggestions for the future of his proceeding, including amending his claim to bring it within the Tribunal's jurisdiction.

70 Accordingly, I am not satisfied that Mr Myers' Question 2 has no real prospect of success.

71 Mr Myers' Question 1 seeks to raise the correctness of the Tribunal's decision not to refer his proceeding to the County Court in circumstances where Mr Myers filed his application on 17 April 2021 and the Tribunal first identified the jurisdictional issue in its orders made 21 April 2023. In my view this question has no real prospect of success. This is because the discretion reposed in the Tribunal by s 77(3) of the VCAT Act to refer a matter to a court is, by the terms of the statute, conditioned only by the Tribunal considering it appropriate to do so. In terms, the Tribunal has a very wide discretion in making a decision whether to refer a matter. Mr Myers' Question 1 seeks to argue that A/Snr Member Campana's very wide discretion to refer a matter miscarried because of the lapse of time. No further argument is made about why this lapse of time would necessitate the Tribunal exercising its very wide discretion in a particular way, such that a failure to do so constituted an error of law.

72 Finally, I do not accept the submission made by Mr Rao's counsel that Mr Myers' email to Mr Rao's solicitor on 3 September 2024 is evidence that Mr Myers' appeal is an abuse of process. In order to draw that inference I would have to be satisfied that it is more probable than other available inferences. In my view it equally likely that Mr Myers was encouraging Mr Rao to consider settlement by pointing out the potential commercial disadvantages of continuing to oppose his appeal. While perhaps clumsily expressed, this type of communication is not unusual or inherently unorthodox.

(a) grant Mr Myers' application to amend question of law 2 but otherwise dismiss his summons filed 20 September 2024; and

(b) grant Mr Rao summary judgment in relation to questions of law 1 and 3 of Mr Myers' notice of appeal but otherwise dismiss Mr Rao's summons filed 16 July 2024.

74 My preliminary view, subject to any submissions the parties may wish to make, is that the costs of both summonses should be the parties' costs in the proceeding. I ask the parties to confer on the question of the costs of the summonses. If the parties are unable to agree to the terms of any costs order within seven days of the date of this judgment, I will relist the proceeding for oral submissions on costs.

[1] I have taken this to be a reference to s 210(1)(a) of the RTA.

[3] [2009] HCA 27; (2009) 239 CLR 175.

[7] [2013] VSCA 158; (2013) 42 VR 27, [35] (per Warren CJ and Nettle JA).

[8] General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125.

[9] Annesley v Westpac Banking Corp [2016] VSC 323, [68]-[69].

[10] JB Aset Management v LBA Capital Pty Ltd [2023] VSC 183, [32].

[11] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [2]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599, [48] and [49].

[12] [2008] VSC 289, [34].