Applicant v Respondents

1. The effect of the May orders was to change the frequency of payment to weekly rather than monthly_._
2. The request to renew the possession proceeding was lodged at 9.15am on 10 March 2023. Ms Kler's affidavit in support of her proposed appeal says she had complied with the February orders in their entirety.[7] Ms Kler said it was with surprise she was notified of a further hearing.[8]
3. The hearing on 3 May 2023 proceeded by telephone call. The transcript is exhibited to the affidavit of Eva Filippelli, the first respondent. The member records at the outset that 'there has been substantial compliance with the payment plan' (that is payments since the February orders) noting that payments were currently up to date.[9] Having regard to the timing of the payments made by Ms Kler and by Launch Housing on her behalf since the February orders, the member observed:

I note it seems easier for the renter ....to pay it [the rental amount] weekly...[10]

1. Ms Kler agreed and the member then said to the rental provider:

...I won't beat around the bush. I think there has been substantial compliance with that order.. Ms Kier [Kler], the order of Member Brock on 16 February 23 requires you to pay no less than $1,495 per month. Okay? Now, one way you could do it is hold that money in your bank account and pay once a month, but the aim of the orders was (1), to ensure that the rental provider is not put in financial hardship, but more particularly that, in the very difficult times, that you retain a roof over your head, you retain your home. It's where you lived since August 2013.

Now, this order of Member Brock lasts until 3 March 2025. Ms Chisholm has a duty to her rental provider. If, in any month, less than $1,495 is paid, then she will have to bring the matter back to VCAT. There seems to be a few options open to us today. Ms Chisholm, I could dismiss the renewal but confirm that Member Brock's order of 16 February, which runs till March 2025, is still on foot. Alternatively, I could change the order to require weekly rent to be paid. Do you have - what's your preference, Ms Chisholm?

MS CHISHOLM: Well, speaking to Launch Housing, they did ask if the rent payments could be reduced by $10 a week and made weekly, and I would be happy to accept that.

MEMBER: Okay.

MS CHISHOLM: That's why I brought the matter to VCAT.

MEMBER: Great. Would that suit you, Ms Kier [Kler]? Paying weekly?

MS KIER [KLER]: Yeah.[11]

1. There was then discussion as to when the new weekly plan would commence. Ms Kler noted a monthly payment was made approximately two weeks ago and submitted in effect that the new arrangement should not commence until the end of that monthly period. The Tribunal noted that although the payment for the present month had been made, there were arrears still outstanding. Ultimately the Tribunal proposed new weekly arrangements to commence on 18 May 2023 and adjourned the application until a date no later than 3 March 2025.
2. In the absence of evidence on the question, and in light of the proximity of 3 March 2025 being the last date for any application to renew, I asked the parties about compliance with the rental plan imposed by the May orders. The applicant said that while there have been occasions where strict weekly compliance has not been met, overall there has been ongoing compliance to the best of her financial capacity. She remains in the rental premises and indicated no further communication from the rental provider's agent on the issue. Counsel for the respondents indicated that arrears were still owing but that no steps had been taken while this Court was seized of the application for leave to appeal.

1. In summary the applicant alleges that, having complied with the February orders in their entirety, there was no basis for the respondents to have renewed the possession proceeding. She alleges that the application to relist was frivolous and lacked any factual basis and should not have been entertained by the Tribunal. She alleges that the variation to weekly payments occasioned a payment one week earlier than had been required under the February orders created hardship for her and was made in bad faith. She alleges that the May hearing was conducted in breach of s 120A of the VCAT Act. She wants the May order to be set aside and the matter remitted for a new payment plan together with declarations concerning the unwarranted listing of the hearing.
2. The applicant identifies ten proposed grounds of appeal that are set out in her amended notice of appeal dated 20 May 2024. That document identifies the order set out at paragraph [7] above as the order under appeal.
3. The applicant's 10 grounds of appeal are set out in brief below:
   1. The May order was affected by legal error as a precondition to the resumption of the adjourned hearing was not met.
   2. The Tribunal failed to have regard to the applicant's compliance with the February order which was a relevant mandatory consideration.
   3. The Tribunal failed to accord procedural fairness by failing to provide her with an opportunity to be heard on the question of resuming the adjourned hearing.
   4. Section 120A of the VCAT Act provides that an order may only be re-opened if it has been breached. There were no grounds to re-open the order under s 120A of the VCAT Act.
   5. Rule 4.24A(3)(iv) of the VCAT Rules had not been complied with as there had been no breach of the February orders.
   6. The Tribunal acted outside its jurisdiction as it re-opened the order in the absence of grounds to do so.
   7. The Tribunal acted unlawfully when it ordered rental to be paid one week earlier than would have become due.
   8. The Tribunal acted in bad faith conducting a hearing in the absence of breach of the standard order.
   9. Alternatively the May order was made frivolously or vexatiously and so acted under dictation.
   10. The May order is unreasonable.[12]
4. The applicant identified seven questions of law as giving rise to her grounds, in brief as follows:
   1. Whether s 120A of the VCAT Act was breached by re-opening a hearing concerning a valid order that had been complied with?
   2. Whether the changes to the payment plan were lawful when no grounds existed for making these changes?
   3. Whether the May orders are valid when made after a hearing that proceeded in breach of s 120A of the VCAT Act?
   4. Should the proceeding have been dismissed under s 75 of the VCAT Act [providing for summary dismissal of an application]?
   5. Should the member have exercised her discretion under s 78 of the VCAT Act to dismiss the hearing?
   6. Does a VCAT member have jurisdiction to exercise discretionary powers in favour of an applicant where conduct is non-compliant with statutory provisions?
   7. Was the May order lawful in making rent payable one week earlier than it was otherwise due under the February order?
5. The grounds may be summarised as raising three distinct considerations:

(a) Jurisdictional questions: whether the Tribunal lacked jurisdiction to hear an application to further vary the payment plan and make the May orders (grounds 1, 4, 5 and 6).

(b) Error in exercising jurisdiction: whether the applicant was accorded procedural fairness, and whether the Tribunal failed to have regard to relevant considerations (grounds 2 and 3).

(c) Error in the nature of the decision made: whether the member acted unlawfully in ordering payment earlier than the February orders, acted in bad faith, frivolously or unlawfully in varying the orders, or acted under dictation in making the May orders (grounds 7, 8, 9 and 10).

1. The possession proceeding was commenced following service of a Notice to Vacate the premises for non-payment of rent pursuant to s 91ZM(1)(a) of the RT Act. Non-compliance with the Notice to Vacate by failing to pay the outstanding rent gave the rental provider a right to apply to the Tribunal for a possession order. The powers of the Tribunal as set out in s 91ZM include:

(1) On the first, second, third and fourth occasion of non-payment of rent -

(d) on an application for a possession order, if the Tribunal has made an assessment under section 331 in respect of the application, the Tribunal -

(i) may place the renter on a payment plan and adjourn the application for the possession order; or

(3) If the Tribunal places a renter on a payment plan under subsection (1)(d)(i) and the renter complies with the terms of the payment plan and has paid the unpaid rent -

(a) the Tribunal is to dismiss the application for the possession order; and

(b) the residential rental agreement continues despite any notice to vacate that has already been given to the renter.

(4) If the Tribunal places a renter on a payment plan under subsection (1)(d)(i) and the renter does not comply with the terms of the payment plan, the Tribunal may make a possession order.

1. Section 331 is found in Part 7 of the RT Act dealing with regaining possession. It provides for circumstances in which an application for a possession order may be dismissed or adjourned. Dismissal of an application is governed by s 331(4). A dismissal or adjournment may also be ordered in the following circumstances:

331(1) Subject to subsection (4), the Tribunal may dismiss or adjourn an application for a possession order if -

(a) the application is supported with -

(i) in the case of rented premises, a notice to vacate given under section 91ZM;...

(b) the Tribunal considers that satisfactory arrangements have been or can be made to avoid financial loss to the residential rental provider...

(2) An adjournment may be on any terms the Tribunal thinks fit, including an order that the renter undergoes an assessment and enters into and complies with a payment plan for the payment of any arrears of rent.

1. The applicant also relies on s 120A of the VCAT Act. While section 120 provides for re-opening an order on substantive grounds in certain circumstances, section 120A was introduced in 2018 for a different purpose.[13] It provides:

s 120A Re-opening an order for enforcement reasons

(1) A person in whose favour an order of the Tribunal is made, may apply to the Tribunal for review of the order to remedy a problem with enforcing or complying with the order.

(2) An application under subsection (1) is to be made in accordance with, and within the time limits specified by the rules.

(4) The Tribunal may vary the order, or revoke the order and make another order... (as the case requires).

1. Rule 4.24A(3)(iv) of the VCAT Rules 2018, also relied on by the applicant, provides:

(1) An application for review of an order under section 120A of the Act must be made within 3 months after the order is made or a later date with the leave of the Tribunal.

Sub-sections (2), (3) and (4) then provide for the details to be provided with an application and the notification to be given to parties by the principal registrar on receipt of an application to re-open.

1. The applicant's submissions commence with the proposition that she had complied with the February orders and so there was no basis to re-open or renew the possession proceeding. The applicant challenges the validity of VCAT's decision on 3 May 2023 to reopen its prior order. She submits that VCAT could not have reopened the matter under s 331(2) of the RT Act unless there had been a breach of the previous order. She relies on s 331 of the RT Act and s 120A of the VCAT Act. Both provisions require a breach of the earlier order before a further hearing can occur. In the absence of a breach of the payment plan, the jurisdiction of the Tribunal and its power to amend the existing payment plan is not enlivened.
2. She submits that the Tribunal, having expressed the conclusion that the renter was in substantial compliance with the payment plan, should have dismissed the renewed proceeding and could not vary the payment plan. Nor was the Tribunal able to order a further payment of rent sooner than had been required under the February orders. In doing so the Tribunal had acted contrary to law.
3. In her submissions, the applicant argues that the May hearing also violated her rights under s 13(a) of the Charter of Human Rights and Responsibilities 2006 (Vic) (Charter), which prohibits unlawful interference's with one's home.
4. The applicant submits that she was not accorded procedural fairness in conducting the May hearing because the act of 're-opening a VCAT order' was inherently arbitrary considering there were no grounds to do so.[14] The applicant analogised her own case to the 'capricious and unpredictable'[15] factual circumstances of Commissioner for Social Housing v Kennedy [2018] ACAT 22. Ultimately, she argued that the arbitrariness of the decision meant that the Tribunal had breached her rights under s 13(a) of the Charter which prohibits unlawful interference with one's home.

1. The respondents submit that the applicant had breached the payment plan because of the lateness of the eventual payment. When the request to renew the hearing was made on the morning of 10 March 2023, payment was one week in arrears, even though payment was made the same day. The late payment gave the Tribunal a basis to renew the possession proceeding. The condition in order [2] of the February orders was met in that the applicant had failed to follow the payment plan set out in order [1] of the February orders. Although payments had been made by the time of the May hearing, not all payments had been made in the timeframe imposed.
2. The respondents submit that, having requested another hearing, the Tribunal could have refused the request, in which case the February orders would stand. Alternatively it could (and did) renew and further adjourn the proceeding. The respondents did not press for possession. The renewal permitted the Tribunal to amend the payment plan to require weekly rather than monthly payments and to lower payments by $10 per week as had been requested by Launch Housing on behalf of the applicant.[16] This course of action was consented to by the applicant.
3. The respondents submit therefore that there is no error in application of s 331(2) of the RT Act.
4. The respondents submit that orders under s 331(2) adjourn a proceeding. The orders do not create enforceable rights or problems of enforcement that may arise and require re-opening of an order under s 120A of the VCAT Act. During the adjournment of a possession proceeding and while a payment plan is in place, a rental provider is entitled to seek renewal of the proceeding and the Tribunal may vary the terms of the payment plan and further adjourn the matter. There is no requirement to lodge an application to re-open the order pursuant to s 120A.
5. The respondents accept that compliance with the February orders was a relevant consideration for the Tribunal. The capacity for adherence to a payment plan was also relevant to the Tribunal in deciding to further adjourn the proceeding. The respondents submit that the transcript demonstrates that the Tribunal did have regard to these matters. The weight to be given to those matters, particularly in determining any variation of the payment plan, was a matter for the Tribunal. The respondents submit that, viewed fairly, the varied payment plan due to commence on 18 May 2023 took into account the various matters including the timing of rental payments under a plan, the tenant's capacity to pay and the arrears owing to the rental provider. The applicant had an opportunity to, and did, consent to a variation that permitted weekly rather than monthly payments as being more convenient to her. She was given an opportunity to make submissions as to the commencement date for new arrangements. In the circumstances she was accorded procedural fairness.
6. As to an error in ordering a payment to be made one week earlier than provided for in the February orders, the respondents submit that the Tribunal was not bound by the terms of the February orders but was engaged in making new orders. It did so in the context that significant arrears remained owing.
7. The respondents submit that the ground of bad faith raises a serious matter requiring evidence of personal fault by the decision maker. No evidence is identified going to this. The transcript shows that the Tribunal acted in a manner that accommodated both the tenant and the rental provider. Similarly, the ground alleging that the Tribunal acted under dictation is not borne out as the transcript demonstrates a concern to find an outcome that accommodated concerns expressed by all parties. The member made an independent decision.
8. The respondents submit that the Tribunal decision did not lack an intelligible justification for changing the terms of the payment plan. The transcript demonstrates that the change was made to accommodate the applicant who agreed that a weekly rather than a monthly amount was better or 'easier' for her.[17]

1. I do not accept the applicant's fundamental submission that she was 'at all times current under the terms of the February order'.[18] The first payment due on 3 March 2023 was not paid on time. Although this deficit was remedied, there was a basis to request renewal of the proceeding. As a result of this a number of the applicant's arguments, in particular the jurisdictional arguments, fall away.
2. The Tribunal acknowledged there had been substantial compliance by the time of the May hearing.[19] Substantial compliance is not a statement that there had been no breach of the February orders. To a limited extent the renter had 'fail[ed] to follow the payment plan'.[20] The Tribunal outlined the options available to it.
3. The proposed reduction requested by Launch Housing on behalf of the applicant was acceptable to the rental provider and provided one basis for variation of the payment plan.[21] The change from a monthly to a weekly payment plan was also proposed to the Tribunal to assist the tenant and was agreed to by the Tribunal and both parties.
4. Section 331 of the RT Act governs the ability of the Tribunal to adjourn the proceeding, and to renew then further adjourn. Orders imposing a payment plan are not final orders in a possession proceeding. The RT Act provides a procedural avenue to seek interim relief - the imposition of a payment plan where this may avoid financial hardship to the rental provider - where appropriate. This also has the effect of avoiding precipitous eviction of the tenant. The rental provider does not need to have recourse to 120A of the VCAT Act where a payment plan has been imposed. This is because the proceeding remains current before VCAT and s 331 of the RT Act in particular provides a specific mechanism for management of possession disputes. The February orders make explicit reference to a right to seek a further hearing. The Tribunal retains jurisdiction over the possession dispute for the duration of the payment plan.
5. For similar reasons, rule 4.24A of the VCAT Rules 2018 does not take matters any further. That rule prescribes requirements where there is no other mechanism to re-open an order of the Tribunal. Where a further hearing is sought during the currency of an ongoing payment plan, the RT Act and orders made under s 331 provide the mechanism.
6. It may be that both s 331 of the RT Act and s 120A of the VCAT Act address the Tribunal's capacity to look again at orders that have been made.[22] However, it does not follow that renewal under s 331 must also comply with s 120A of the VCAT Act. The Tribunal's order adjourning the possession proceeding sets the parameters within which the hearing can be brought back before the Tribunal. It was not necessary to have recourse to s 120A.
7. For these reasons there is no error in the Tribunal's renewal of the possession proceeding. The application for renewal was properly before the Tribunal.
8. As to the ground that the Tribunal failed to have regard to Ms Kler's compliance with the payment plan, it is clear that the Tribunal's observation of substantial compliance - alongside the difficulty of the applicant to make the monthly payments - demonstrates that the member did have regard to Ms Kler's effort to comply. Therefore there was no failure by the Tribunal to have regard to a relevant consideration.
9. The imposition of a further order for a payment plan reflects the satisfaction of the Tribunal of arrangements that can 'avoid financial loss' to the rental provider. [23] The Tribunal's state of satisfaction may change for a variety of reasons. An adjournment with a right to renew the application for possession reflects an ability to revisit the arrangement that has been put in place. A renewed application remains subject to the considerations in s 330 and 330A of the RT Act if a possession order is to be made. It is also subject to the continued satisfaction of arrangements for an adjournment pursuant to s 331 of the RT Act. Those arrangements are that a payment plan reflects satisfactory arrangements to avoid financial loss to the rental provider.
10. It follows from what I have said above that the possession proceeding was not re-opened on grounds that were arbitrary or capricious. Although the applicant alleged that the request for a further hearing was made at a time that the rental provider's agent knew there were no grounds to do so, no evidence supported that allegation. The transcript of the hearing, including the extract above, indicate the reasons given by the rental provider. The evidence does not demonstrate that the agent had knowledge of the payment on 10 March on the morning when the renewal application was filed with the Tribunal.
11. The Tribunal entertained the application for renewal and appreciated that, because the renter was now compliant with the February orders, one option available to the Tribunal was to refuse the renewal application. The Tribunal therefore raised the prospect that the application could simply be dismissed. It is unlikely that recourse would have been needed to s 75 of the VCAT Act to dismiss the application in those circumstances. Having raised the possibility of such an outcome, the Tribunal was not asked to take this course by either party. There is no merit in the argument that the Tribunal erroneously failed to do so.
12. The rental provider raised two matters regarding the payment plan at the hearing. One was a request that the rental provider reduce the amount payable by $10 per week, and the other was to make payments to be made by the renter personally to be paid weekly rather than monthly. Both variations favoured the applicant. The rental provider consented to these changes.
13. The applicant also agreed with this but raised two questions regarding the 'new order'.[24] First whether the end date of 3 March 2025 would be affected, and secondly, when the new payment plan would take effect. The applicant resisted any payment earlier than the next date due under the previous order. It is not clear on the material before me what that date would have been, although the applicant submits it was one week after 18 May 2023.
14. The last date that payment was made by the applicant herself was 13 April 2023 in the sum of $345.[25] The Tribunal ordered the operative date to be 18 May 2023. The Tribunal noted that despite a monthly payment having been made some three weeks ago (a payment made by Launch Housing on 14 April 2023), the rent was still 'far behind' in arrears.[26] The Tribunal was not compelled to accept the renter's submissions as to the date of the next payment. In that regard, the Tribunal was concerned with the timing of the applicant's payments and her financial circumstances, not the timing of payments made on her behalf which assisted in reducing the arrears.
15. It is not correct to say, as the applicant does, that she was required to pay rent 'one week before it was next due pursuant to the terms of a standing order from VCAT'.[27] The payment plan was directed not only to current rental obligations but to the applicant's outstanding obligations to pay overdue arrears. The Tribunal heard and acted on the renter's submissions as to the financial consequences for her. I reject the applicant's characterisation of the May orders as requiring payment of rent before it was due. There was no legal error in the timing of the payments due under the May orders.
16. At the hearing, the rental provider's agent stated they did not seek an order for possession, that they accepted variations that were favourable to the worker, and told the Tribunal that they would accept an arrangement that would put 'something in place that will stay in place'.[28] These matters are detailed above. In those circumstances, I do not accept the submission that the agent of the rental provider made, or persisted with, an application that was either frivolous or was deliberate and vexatious.
17. In a similar vein the applicant identifies as a question of law whether the Tribunal ought to have exercised their discretion under s 78 of the VCAT Act to dismiss the proceeding. Section 78 provides:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

[examples as listed in (a)-(g)].

1. This was not elaborated on in the written submissions and appears to have been subsumed under the general grounds that the hearing was conducted in unconscionable circumstances. As explained above, the Tribunal was entitled to reconsider the payment plan arrangements in the context of ongoing arrears of rent and to adjust the payment plan as it thought appropriate. The availability of s 78 of the VCAT Act to the Tribunal required it first to form a relevant belief about the conduct of a party and then exercise a discretion. The consideration of s 78 did not arise before the Tribunal.
2. The ground of bad faith is based upon the Tribunal continuing with the hearing despite there being 'no breach of the standing order' and therefore no lawful grounds for proceeding.[29] As already explained 'substantial compliance' at the time of the hearing does not preclude there having been an earlier failure to follow the payment plan.[30] There was a basis upon which to commence the hearing and, given the request for variation that had been made on the applicant's behalf, a basis to continue with the hearing. Although the affidavit of the applicant sworn 20 September 2023 refers to unexplained silences that may be revealed by the recording,[31] no evidence of bad faith nor of the Member's acting under dictation was provided. Rather, the transcript clearly demonstrates the Tribunal member listening to and adjusting the terms of the order based upon the applicant's own submissions. Such an approach was entirely appropriate.
3. Although the grounds of the proposed appeal do not mention the Charter, by her written submissions the applicant alleged that in re-opening the February orders in the absence of a breach of those orders, the Tribunal was acting in a way that was contrary to her right not to have her home unlawfully or arbitrarily interfered with as provided by s 13(a) of the Charter_._ I accept the respondent's submissions that in conducting the hearing the Tribunal was not a 'public authority'.[32] The Tribunal was acting judicially and not in an administrative capacity in considering the application to renew the proceeding and then to further adjourn it. In these actions the Tribunal is excluded by s 4(1)(j) from the application of the Charter.
4. I am not satisfied that any of the grounds of the proposed appeal have a real prospect of success. Leave to appeal under s 148(2A) of the VCAT Act is refused. Subject to agreement or submissions of the parties, costs of the proceeding would ordinarily follow the outcome. Any minute of consent, or submissions regarding contested matters concerning the appropriate orders should be provided by no later than 4 April 2025.

DIVINA EVA FILIPPELLI and FRANCESCO LEO PALERMO (in their capacity as the legal personal representatives of the Estate of EDUARDO PALERMO, deceased)

[3] Transcript of Proceedings, Kler v Filippelli (Supreme Court of Victoria, Forbes J, 4 February 2025) ('T') 9.7-18.

[4] Respondent, 'Respondent's Outline of Submissions' filed 20 September 2024 [7].

[5] Applicant's Index and Courtbook, 'E-Court Book' filed by email 29 January 2025 ('CB') 124-125 (emphasis omitted). The parties did not file a joint court book.

[7] Affidavit of Isabelle Kler sworn 20 September 2023 ('Kler Affidavit').

[13] Inserted by s 67 Justice Legislation Amendment (Access to Justice) Act 2018 (Vic).

[16] It is unclear whether the $10 per week reduction requested by Launch Housing on behalf of the applicant was applied or not in the May orders.

[18] CB 23. See also Kler Affidavit [8].

[20] In accordance with order [2] of the February orders, CB 124-125.

[32] S 4(1)(j) of the Charter excludes Courts or Tribunals from the definition of 'public authorities' bound by the Charter, except where acting in an administrative capacity.