Applicant v Respondent

1 This is an application for leave to appeal and, if leave is granted, an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act'), from the Order of the Victorian Civil and Administrative Tribunal (the 'Tribunal') made on 23 January 2014 granting the respondent possession of the premises occupied by the applicant and ordering the applicant to vacate the premises immediately.

2 For the reasons that follow, leave to appeal is refused and the proceeding is dismissed.

3 On 20 February 2013, the applicant entered into a tenancy agreement with the respondent for a two bedroom flat at 808/1A Surrey Road, South Yarra (the 'premises'). The applicant's carer, Mr Wayne Harland, resided with the applicant at the premises.

4 On 22 May 2013, the applicant advised the respondent that he intended to travel overseas for up to 12 months. He was informed that the maximum absentee period permitted would be six months, and that he was required to complete a temporary absence and rent rebate application form. Temporary absence was approved for six months from 30 June 2013 to 30 December 2013.

5 The applicant left the premises to travel overseas in mid June 2013. He gave his sister a power of attorney. On or about 17 June 2013, the applicant's sister informed the respondent that a man called 'Wayne' was living at the premises. On 19 June 2013, officers of the respondent carried out a home visit. They spoke to Mr Harland and were informed that he was living at the premises while the applicant was away. Mr Harland was told that he would need to have his income verified for rental rebate purposes. Mr Harland said he would not do this and that he would let the applicant know that he would need to find someone else to look after the premises while he was away.

6 About four weeks prior to his departure, the applicant had placed a notice on the website known as 'Couchsurfing', apparently advertising the availability of his room at the premises. That notice was not in evidence and is no longer available. As a result of the notice, on about 16 June 2013, two Estonian women on a working holiday, Ms Peterson and Ms Rikken (the 'travellers'), contacted the applicant by email and subsequently moved into the premises and started paying rent to him. Banking records show that rental payments were made to the applicant on a weekly basis over more than ten weeks from 1 July 2013 onwards.

7 On 2 September 2013, officers of the respondent conducted a further home visit and spoke with Ms Peterson, who told them she was renting a room in the premises and that two other people were living there.

8 The Residential Tenancies Act 1997 (Vic) (the 'Act') relevantly provides for the sub-letting of residential premises as follows:

(a) s 81 contains a prohibition against sub-letting the whole or any part of the rented premises without the landlord's written consent;

(b) s 82 allows a tenant to challenge unreasonable withholding of consent, empowering the Tribunal to make a determination that such consent is not required;

(c) s 253 entitles a landlord to give a tenant notice to vacate if the tenant has assigned or sub-let, or purported to assign or sub-let the premises; and

(d) s 330 requires the Tribunal to make a possession order if it is satisfied that the landlord was entitled to give the notice, and the notice has not been withdrawn.

9 On 30 September 2013, the respondent served on the applicant a notice to vacate under s 253(1) of the Act, requiring him to vacate the premises by 17 October 2013. The reason given for the notice to vacate was as follows:

[Y]ou have sub-let or purported to sub-let the whole or any part of the premises without the landlord's consent to the following persons: Mr Wayne Harland, Ms Marika Peterson and Ms Rikken.

10 The respondent then applied to the Tribunal under s 322(1) of the Act for a possession order.

11 The respondent's application was heard by the Tribunal on 22 October 2013 and on 28 November 2013.[1] The applicant gave evidence, along with two officers from the respondent. Affidavits made by Ms Peterson were filed and relied upon by the respondent.

12 On 23 January 2014, the Tribunal held that the respondent had proven the grounds for giving the notice to vacate. The Tribunal ordered that the respondent was entitled to a possession order and that the applicant had to vacate the rented premises on that day.

13 The respondent's application for a possession order required the Tribunal to determine whether the respondent was 'entitled' to give the notice to vacate on the ground that the applicant had sub-let or purported to sub-let part of the rented premises without the respondent's consent to Mr Wayne Harland, Ms Marika Peterson or Ms Rikken.

14 There was no challenge to the validity of the notice to vacate, and it was not contended that the notice to vacate had been withdrawn. The critical question was whether the respondent was entitled to give the notice. This, in turn, depended on whether the alleged sub-letting had taken place.

15 In its reasons for decision,[2] the Tribunal observed that it was not in dispute that the rented premises were in fact occupied for a period of time by persons other than the applicant and that tenants can and do allow other people to stay in their houses without breaching the prohibition against sub-letting in s 81 of the Act. The principal question was whether such occupation was pursuant to a lease or whether it was by virtue of a mere licence to occupy.[3]

16 The Tribunal identified the distinguishing feature of a lease to be the grant of exclusive possession,[4] which carries with it the right to exclude all others, including the grantor. It acknowledged that while the principle was well established, a satisfactory statement of the criteria by which such a grant may be identified was elusive.[5] Nonetheless, the Tribunal set out 'some useful directions' as to what the criteria for the grant of exclusive possession might be, including the following:

(a) a person may retain legal possession (that is, exclusive possession) even though another person has sole physical occupation of the premises;

(b) the words used by the parties are not conclusive; and

(c) an intention to create the relationship of landlord and tenant is not necessary in the formation of a lease.[6]

17 None of this legal exegesis by the Tribunal is challenged.

18 The Tribunal then moved to outline and consider the facts. It did so after recording that most of the facts were not in dispute and in the following terms.

19 The applicant owned a dog which he had arranged for his sister to look after while he was away. When that arrangement fell through, the applicant placed an advertisement on the Couchsurfing website seeking someone to live in his flat and look after the dog. The Couchsurfing website indicates that it is not intended to confer any legal rights or obligations on the parties to the arrangements that it facilitates and that, unlike similar accommodation services offered on the internet, its intention is to facilitate a social relationship between 'hosts' and tourists or 'guests' who wish to stay on a couch, air mattress or in a spare room.

20 However, according to the Tribunal, the evidence indicated that the ultimate arrangement reached between the applicant and the travellers did not have these characteristics. The applicant did not ever play a role of 'host' to the occupiers of the premises, nor did they assume the role of 'guests'. All communication between the applicant and the travellers occurred by email and text messaging.[7]

21 The Tribunal found that the applicant made arrangements with the travellers, Ms Peterson and Ms Rikken, to occupy a room in his apartment. It set out the substance of Ms Peterson's 'not generally disputed' evidence that the travellers agreed to move into the premises on certain conditions, relevantly:

(c) the rent was to be $108 per person per week if two people occupied the room, and $150 per week if one person occupied the room;

(d) rent was to be paid directly to the applicant's bank account;

(f) Ms Peterson and Ms Rikken were to share the apartment with Mr Harland, who occupied the other bedroom;

(g) Ms Peterson and Ms Rikken were to walk and feed the applicant's dog, and to deduct the cost of dog food from the rent; and

(h) the applicant was prepared to move all of his personal possessions from his bedroom into a storage shed.[8]

22 The Tribunal found that these arrangements were made by way of emails and text messages between the parties, although the text messages were not in evidence. It found that the email correspondence provided the clearest objective evidence of the arrangement between the parties. In this context, the Tribunal set out verbatim some of that email correspondence. Among other things, an email from the applicant invites the travellers to arrange to look at the apartment, get the keys 'and so on' through the applicant's sister, and informs the travellers that the applicant has left a bank payment book behind so that the travellers can pay the rent. The applicant asks the travellers to feed and take the dog for a couple of walks a day, and gives an assurance that he will supply all the food. He tells them that his possessions are still in the room but can be placed in storage. Another email from the applicant exclaims, 'a 6 month stay at my Apartment would be Perfect!!'. For their part, the travellers tell the applicant that they have been sub-leasing elsewhere, but the tenant is returning and that 'a permanent place we can call home would be great.'[9]

23 The Tribunal then referred to the (unchallenged) evidence that the travellers paid rent in nine instalments of approximately $108 each and that when Ms Rikken moved out on 1 September 2013, Ms Peterson paid a further four instalments of around $150 per week, the last payment being made on 30 September 2013.[10] All payments were made directly to the applicant's bank account.

24 The Reasons record that at the time of the initial agreement with the travellers, the applicant was charged rent by the respondent of $99.55 per month. That amount was later increased because the applicant failed to lodge a rental rebate form with the respondent. The Tribunal found that the moneys paid by Ms Peterson alone exceeded the costs of electricity, internet and cable television services supplied to the rented premises.[11]

25 The applicant returned to the rented premises on 30 September 2013 because he had to deal with complaints regarding the dog barking. The Tribunal found that Ms Peterson was very surprised, as she was not expecting him to return then. She stayed in the room, with the applicant sleeping on the couch, until she left a few days later on 5 October 2013, having secured new accommodation.[12]

26 Having outlined this factual basis for its decision, the Tribunal said that this was not a straightforward case of the applicant sub-letting to the travellers or, indeed, to Mr Harland. Most of the indicia of a conventional lease were not present: the property was never advertised as a sub-lease, no documents were signed, no bond was paid, the term of the lease was 'somewhat uncertain', the premises were still full of the applicant's possessions, all utilities remained in his name and there were no locks on the bedroom doors. Furthermore, the Tribunal accepted that the applicant's primary motivation for renting his room was to ensure that his dog was looked after and that 'he did not necessarily intend to become a "landlord" as defined by the Act, nor to create a formal lease at law. Ms Rikken and Ms Peterson similarly may not have seen themselves as "tenants" with the rights given to them by the Act; indeed it was hard to imagine them taking proceedings to enforce their legal rights.'[13]

However, I am satisfied, particularly on the basis of the emails referred to above, that regardless of his subjective intentions, the tenant in fact granted Ms Rikken and/or Ms Peterson the right to exclusively occupy his room for up to six months to the exclusion of all others (including himself) in return for periodic rent payments and for looking after his dog.[14]

28 The Tribunal said that the position was less clear in relation to Mr Harland, but that it was not necessary to decide whether there was a sub-lease to him. It found that the respondent had established on the balance of probabilities that the applicant had sub-let or at the very least purported to sub-let the premises to Ms Peterson and/or Ms Rikken.

29 The applicant has identified the following questions of law arising from the Tribunal's decision:

(1) Did the Tribunal err in law by, subsequent to fully finding the facts and stating the law correctly, drawing a conclusion that was not reasonably open to it, namely that the applicant had sub-let or purported to sub-let the rented premises to Ms Peterson and/or Ms Rikken?

(2) Did the Tribunal err in law by failing to provide adequate reasons for its orders?

30 The questions of law are therefore directed to whether the Tribunal's conclusion that the applicant sub-let part of the premises to the travellers was 'reasonably open' on the facts, and whether the Reasons are adequate to disclose the Tribunal's path of reasoning on a particular matter.

31 The grounds of appeal are, in substance, as follows:

(1) the Tribunal erred in law in holding that the applicant granted exclusive possession of the premises (or part thereof), or that he purported to do so;

(2) the Tribunal erred in law in finding that the applicant and Ms Peterson and/or Ms Rikken intended to create legal relations; and

(3) the Tribunal erred in law in failing to disclose its path of reasoning in concluding that the applicant 'purported' to sub-let the premises to Ms Peterson and/or Ms Rikken.

32 The Tribunal found that the applicant had granted to the travellers exclusive possession of one of the bedrooms in the premises and had therefore sub-let part of the rented premises without the respondent's permission contrary to s 81 of the Act, entitling the respondent to serve a notice to vacate.

33 The applicant challenges the Tribunal's finding that there was a grant of exclusive possession as 'irrational, illogical, not based upon inferences supported by logical grounds and/or a misapplication of the law to the facts found'. He submits that while the Tribunal correctly applied an objective test with respect to the construction of the disputed agreement, it erred (on the facts as correctly found and on the law as correctly described) in finding there was a grant of exclusive possession and therefore a lease.

34 The applicant submits that the facts as correctly found by the Tribunal are 'wholly inconsistent' with a grant of exclusive possession because, as the Tribunal also found, most of the indicia of a conventional lease were not present. Furthermore, there was no determination of Mr Harland's interest in the premises in establishing the role of the common areas or consideration of the fact that when the applicant returned, he exercised his right of ingress by entering the bedroom and the remaining traveller, Ms Peterson, left the premises on demand.

35 For its part, the respondent submits that this is an attempt to re-agitate the merits of its application for a possession order and that it is, in substance, a complaint about the sufficiency of the evidence to support the finding that the applicant conferred exclusive possession on the travellers in respect of his room.

36 As the respondent correctly submitted, a finding of fact will be overturned on appeal on a question of law only if that finding was not open to the Tribunal. The question is not whether the finding of fact is regarded as unreasonable, but rather whether the finding of fact was open.[15] An attack on the evidentiary basis for a finding by the Tribunal is only an error of law if it is shown that there was no evidence to support the finding.[16]

37 There was plainly evidence upon which the Tribunal could find that the applicant had granted exclusive possession of his room to the travellers during the period of his absence. The Tribunal referred to the content of the emails between the applicant and the travellers as evidencing the grant to the travellers of a right to exclusively occupy the applicant's room for a period of six months in return for looking after his dog and paying him rent. The applicant offered the travellers his room for a substantial period of time and made arrangements for the travellers to pay significant sums described as 'rent' directly into his bank account. The travellers said that their existing sub-lease was coming to an end and that they were looking forward to having a 'home'.[17] It cannot be said that there was no evidence of an arrangement for the travellers to have possession of the applicant's room to the exclusion of all others, including the applicant, even if there was also other evidence that might arguably support a different finding. In my view, the finding that there was a grant of exclusive possession was reasonably open to the Tribunal on the facts as found.

38 However, the applicant also challenges on technical grounds the Tribunal's conclusion that there was a lease, on the basis that the Tribunal acknowledged that the agreement between the parties lacked at least one of the essential elements of a lease. He submits that as a matter of law, for an agreement to be construed as a lease, it must clearly identify the following things: the parties to the agreement, the land to be let, the commencement date of the agreement, the duration of the agreement, and the rent to be paid pursuant to it.[18] In this case, the Tribunal found that 'exact commencement and termination dates were never set'. In the absence of an exact commencement date, so the applicant contends, there simply could not have been a lease.

39 It is true that the Tribunal described the term of the lease as 'somewhat uncertain (in that, although initially for a period of 6 months, exact commencement dates were never set)'.[19] However, the requirement for a lease to contain or specify an 'exact' commencement date is not unqualified.

40 The commencement date for a lease may be inferred having regard to the circumstances of the agreement, and/or the language used by the parties in reaching that agreement.[20] Thus, for example, the commencement date for a lease has been ascertained by reference to the date a purchaser took possession of a property. In Whitlock v Brew,[21] a case in which a purchaser of land agreed to lease the land to a third party upon entering into possession of the land, Kitto J said:

As regards the term of the lease, it sufficiently appears, I think, that the commencing date is to be the date when the purchaser obtains possession.[22]

41 In Selever v Klaskova,[23] Powell J said:

... It is true to say that an agreement for lease, to be valid and enforceable, must mention the term, and from what day it is to commence, otherwise there is no complete agreement ... However, it is not impossible to limit the commencement of the contemplated term upon a contingency; it is sufficient if the date of commencement should be capable of being definitely ascertained at the time the proposed lease takes effect in interest or possession.[24]

42 On the facts in this case, it is tolerably clear that the exclusive possession of the room (and the lease) was to commence as soon as the travellers had visited the premises, found the room to be suitable for their needs and been given the key to enable them to move in. The email messages make clear that the applicant anticipated that the travellers would move in immediately upon the conclusion of these steps. So far as he was concerned, it remained only for them to make rental payments. The travellers appear to have had the same or similar understanding. In fact, they did move in and, on the findings of the Tribunal, took exclusive possession of the room, upon inspecting the premises and being given the keys.

43 It was open to the Tribunal to identify the commencement date for the lease on this basis. If it did not do so (or if the words in paragraph 47 of the Reasons mean that it positively found there was no commencement date), that is not a vitiating error. The commencement date for the lease could have been identified.

44 As a result, both the challenge to the reasonableness of the finding that there was a grant of exclusive possession and the challenge based on an essential element of a lease being absent must fail.

46 The applicant submits that in addition to being satisfied that all of the essential elements of an enforceable lease are present, the Tribunal was required to find an intention by the parties to create legal relations and that it failed to do so.

47 According to the applicant, it is possible to have an arrangement that satisfies the formal requirements for a lease, but if the parties do not intend the arrangement to be subjected to adjudication by the courts, it is not a contract and therefore not a lease. He relies on Ermogenous v Greek Orthodox Community of SA Inc,[25] in which the High Court confirmed that circumstances - such as the subject-matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding circumstances - may demonstrate that the parties did not intend to subject their agreement to the adjudication of the courts.

48 The applicant submits that the Tribunal fell into error by failing to distinguish between 'the concept of the parties intending to create a particular relationship within a contract and the concept of the parties intending to create any legal contractual relationship at all'. In this context, he refers to the Tribunal's observations in paragraph 48 of the Reasons that the applicant did not necessarily intend to become a 'landlord' as defined by the Act or create a formal lease at law, that the travellers may not have seen themselves as 'tenants' with rights given to them by the Act, and that it was hard to imagine the travellers taking proceedings to enforce their legal rights. These observations, so the applicant says, amount to a finding that the parties did not intend to create legal relations.

49 I reject this submission. It involves a misconstruction of what the Tribunal said. The Tribunal in fact held that whether there was an intention to become a landlord and/or an intention to become a tenant was not relevant to the legal characterisation of the relationship between the applicant and the travellers. The fact that the applicant may not necessarily have intended to become a 'landlord' and the travellers may not necessarily have intended to become 'tenants' in the sense used in the Act had no legal consequence for the Tribunal.

50 The Tribunal correctly stated that one does not look to the intention of the parties as to the legal consequence of their agreement but to the rights and duties they have in fact created. It found that 'regardless of his subjective intentions, [the applicant] in fact granted [the travellers] the right to exclusively occupy his room for up to six months to the exclusion of all others'.[26] This is consistent with Radaich v Smith,[27] in which Windeyer J stated that 'whether the transaction creates a lease or licence depends upon intention, only in the sense that it depends upon the nature of the right which the parties intend the person entering upon the land shall have in relation to the land'.[28] There was no error in the Tribunal proceeding on the basis that it was unnecessary to identify the parties' intention to create the relationship of landlord and tenant. The Tribunal found that the parties intended that there be a particular arrangement between them and that this arrangement involved a grant of exclusive possession. If the arrangement between the parties amounts to a grant of exclusive possession, the grant itself creates legal relations between them.

51 This is not a case where, despite the existence of an arrangement that on its face creates a legal relationship, particular circumstances, such as the existence of 'family relationships, charity or hospitality',[29] militate against a finding that there was a legally binding arrangement between them. The parties were not in any kind of special relationship - indeed, they did not previously know one another - and they entered into an arrangement for the room on what were largely commercial terms involving the payment of rent in return for possession of the room.

52 The Tribunal did not err by failing to find that there was no intention to create legal relations and therefore no lease; nor did the Tribunal err by finding that the parties had created a legal relationship - a lease - arising from the grant of exclusive possession.

55 The applicant contends that the Tribunal determined that the applicant sub-let or purported to sub-let the premises to Ms Peterson and/or Ms Rikken, and that the 'purported' sub-lease involves an alternative finding to the finding that there was an actual sub-lease. According to the applicant, it is a way of saying, in effect, 'If I am wrong in finding that there is a sub-lease, then I find that the applicant has purported to sub-let part of the premises'.

56 In this context, the applicant complains that the Tribunal has provided no explanation or analysis of the ambit of 'purported' in the context of s 253 of the Act. Having regard to the Oxford Dictionary definition, 'purport' could cover 'shams' or 'pretences'. The applicant submits that a narrower or more reasonable approach would be to confine 'purport' to arrangements which would otherwise be leases but which fail because of a technicality, and he invokes s 13(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (and, presumably, the interpretative obligation in s32 of the Charter) to advance a narrow interpretation of 'purport'.

57 In my view, the Tribunal's finding that the applicant 'sub-leased or at the very least purported to sub-lease the premises' picks up on the actual wording of s 253 of the Act, which provides that a landlord may give a tenant a notice to vacate rented premises if the tenant has assigned or sub-let or purported to assign or sub-let the whole or any part of the premises without the landlord's consent. That formulation is referrable to s 81 of the Act, which provides in sub-s (1) that a tenant under a tenancy agreement must not assign or sub-let the whole or any part of the rented premises without the landlord's written consent. Section 81(3) then provides that an assignment or sub-letting of the whole or any part of the rented premises without the landlord's consent is invalid unless the Tribunal has determined that consent is not required.

58 A reference to a 'purported' assignment or sub-letting in s 253 of the Act therefore reflects the fact that an assignment or sub-letting without the consent of a landlord will be invalid and can therefore only be a 'purported' assignment or sub-letting.

59 The Tribunal referred to a 'purported' sub-lease having regard to the scheme in the Act and in the sense for which the Act provides. This did not require explanation. In my view, there is no deficiency in the Tribunal's reasons because it did not explain the meaning of 'purport'.

60 A second attack on the Reasons was made during argument concerning their alleged inadequacy regarding the nature of Mr Harland's occupancy of the premises.

61 The Tribunal did not deal with the nature of Mr Harland's occupancy of the premises other than to say that while it accepted that Mr Harland lived at the premises during the relevant period, it did not have sufficient evidence to make a finding regarding the nature of his occupation. It will be recalled that the notice to vacate specified that the applicant had sub-let or purported to sub-let the whole or part of the premises to Mr Harland, as well as to Ms Peterson and Ms Rikken. In effect, the Tribunal held that the respondent had not established that it was entitled to give the notice to vacate based on the occupancy of Mr Harland.

62 The applicant could not point to any particular aspect of Mr Harland's occupancy of the premises that the Tribunal was required by law to consider but failed to consider when determining whether there was a lease to the travellers. There is no ground of appeal alleging a failure to take into account a relevant consideration. The applicant simply made a general submission that the Tribunal had failed to consider all of the circumstances in the premises at the time the travellers were living there, including Mr Harland's occupancy.

63 In the circumstances, there is no deficiency in the Reasons.

65 The criteria for the grant of leave to appeal under s 148 of the VCAT Act were considered in Secretary of the Department of Premier and Cabinet v Hulls.[30] Relevantly, the applicant must identify a question of law arising out of the Tribunal's decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the decision of the Tribunal is attended by sufficient doubt to justify the grant of leave or that there is a real or significant argument to be put that error exists. The public or general importance of a question may also be a relevant consideration. Whether leave should be granted must always depend on the justice of the particular case.

66 In this case, for the reasons that have been given, the decision of the Tribunal is not attended by sufficient doubt to justify the grant of leave.

67 I observe that the decision has very harsh consequences for the applicant in that he loses his home for doing no more than what renters commonly do (at least in the private rental market) when they go on extended holidays. However, given that it was open on the evidence for the Tribunal to find an entitlement to give a notice to vacate and the Court has no jurisdiction to 'remake' this decision on the merits, and given that an appeal would inevitably fail for the reasons set out above, the justice of the situation does not require the grant of leave.

68 Leave to appeal is refused and the proceeding is dismissed.

[1] Further submissions were filed on 30 October 2013 and 6 November 2013.

[2] Director of Housing v Janusauskas [2014] VCAT 42 (23 January 2014) (Member Klingender) ('Reasons').

[4] Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209, 223 ('Radaich').

[5] KJRR Pty Ltd v Commissioner of State Revenue [1999] VSCA 2; [1999] 2 VR 174, [10] ('KJRR').

[15] S v Crimes Compensation Tribunal [1998] 1 VR 83, 91.

[16] Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 59-60; Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647, 653; S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-90; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 335-6 (Mason CJ).

[18] Referring to Harvey v Pratt [1965] 2 All ER 786, 788; NZI Insurance v Baryzcka [2003] SASC 190, [31].

[20] Harvey v Pratt [1965] 2 All ER 786.

[21] (1968) 119 CLR 445.

[23] (Unreported, Supreme Court of New South Wales, Powell J, 15 March 1988) [7].

[25] (2002) 209 CLR 95.

[27] [1959] HCA 45; (1959) 101 CLR 209.

[28] Ibid 222; KJRR [1999] VSCA 2; [1999] 2 VR 174, [6].

[29] Radaich [1959] HCA 45; (1959) 101 CLR 209, 222 (Windeyer J); KJRR [1999] VSCA 2; [1999] 2 VR 174 [6].

[30] [1999] VSCA 117; [1999] 3 VR 331 as reaffirmed in Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55-6.