1. The tenant must vacate the rented premises on 10 June 2013
2. The principal registrar, at the request of the person who obtained the possession order

and on payment of the prescribed fee, shall issue a warrant of possession to be

executed within 30 days after the date of issue (Any request must be made no later

Warning to tenant: if you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

1. The rented premises are situated at 18 Iluka Place Mornington ("the premises"). The

tenant has resided there pursuant to a tenancy agreement with the landlord made on

1. The tenant, Ms Burgess, is single and 34 years old with a teenage son. She has had a long

history of drug use which has included periods of time where she has been 'clean'.

1. On October 2011, police executed a search warrant at the rented premises which

resulted in charges against Ms Burgess, including trafficking in heroin. It appears that

she was held on remand for at least 10 months. She subsequently pleaded guilty and

this resulted in a lengthy jail sentence, the severity of which was the subject of an

1. Ms Burgess was eventually released on parole from the Dame Phyllis Frost Centre,

where she had been serving her sentence, on 18 December 2012.

1. She is currently on parole until October 2013. Between her release and the time of the

hearing, as part of her parole conditions, she has undergone regular and intensive

screening for drug use. None of these tests have detected any evidence of current or

ongoing drug use by Ms Burgess. She has also continued to attend counselling.

1. At the end of her incarceration and since her release, Ms Burgess has received support

including case management and advocacy from Flat Out Inc. with her case worker being

1. Upon her release from jail, the tenant discovered that the premises had been damaged

by squatters and some of her possessions had been stolen. She undertook cleaning of

the premises and had resumed occupation there at the time of the hearing.

1. A notice was given to the tenant by the landlord by registered post on 3 August 2012

pursuant to Section 263 (1) of the Residential Tenancies Act 1997. It specified a vacation

date of 6 December 2012. Although it was a 'no reason' notice, it included various

details of alleged contact between the landlord and the tenant which included initial

advice to the Office of Housing that Ms Burgess was incarcerated and would be absent

from the premises for a period of 3 months. However, after this initial advice, further

enquiries revealed that she had still not been released culminating in the Office of

Housing being advised as at 6 June 2012 that her release date continued to be

1. The landlord then issued an application on 7 December 2012 for a possession order

pursuant to the no reason notice but also noting that due to her incarceration, Ms

Burgess had not resided at the premises since 20 October 2011. However, it appears

1. By registered post on 31 January 2013, the landlord gave notices to vacate to the tenant pursuant to Section 250 (1) and Section 250A (1) of the Residential Tenancies Act 1997. The notices required Ms Burgess to vacate on 18 February 2013. She did not vacate and the landlord then issued an application for a possession order which was struck out by the Tribunal on 18 March 2013 without prejudice to the right of the landlord to make and serve fresh proceedings against the tenant. The application was struck out as the notices had not provided the 14 clear days required under the sections after having regard to the proper legislative interpretation.

2. Therefore, the application the subject of this proceeding has now been heard by the Tribunal pursuant to a fresh notice to vacate given by the landlord pursuant to Section 250 (A) (1) of the Residential Tenancies Act 1997.

1. Counsel for the respondent has conceded that there are no issues raised on behalf of the tenant about the format and service of the notices. Additionally, he does not raise any concerns pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic).
2. Section 59 of the Residential Tenancies Act 1997 provides:

"A tenant must not use the rented premises or permit their use for any purpose that is illegal at common law or under any Act."

It is not a 'duty' provision and as such a breach of Section 59 cannot be the subject of any compliance or compensation order, nor can it be remedied. Additionally, the offence has to be shown to arise out of the use of the premises and not just "on" the premises.

3. Section 250 (A) (1) of the Residential Tenancies Act 1997 relevantly provides:

"The Director of Housing may give the tenant a notice to vacate rented premises of which the Director of Housing is the landlord if the tenant has, on the rented premises or on a common area, illegally-

(a) trafficked or attempted to traffic a drug of dependence; or

(c) possessed a preparatory item with the intention of using the item for the purpose of trafficking in a drug of dependence."

As already noted, Counsel for the respondent has conceded that the notice is in an appropriate format. Sufficient particulars specifying the illegal act(s) are attached to the notice. Their substance will be referred to in more detail below.

4. Section 330 of the Residential Tenancies Act 1997 relevantly provides:

"(1) The Tribunal must make a possession order requiring a tenant to ... vacate rented premises ... on the day specified in the order if the Tribunal is satisfied-

(a) in the case of an application where notice to vacate has been given, that-

(i) the landlord ... was entitled to give the notice, and

(c) that the landlord ... has complied with Section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and

(d) that the tenant ... is still in possession of the rented premises ... after the date specified in the notice to vacate."

Again, as noted above, Counsel for the respondent effectively concedes compliance by the landlord with Section 72 of the Victorian Civil and Administrative Tribunal Act 1998.

1. The landlord called Senior Constable Michael Yates ("Yates") from Frankston Police to give evidence about the particulars of the illegal acts at the premises, attached to the Section 250 A (1) notice. ("the particulars")

1. Yates produced information from various police documents. The particulars included allegations that drug paraphernalia, lists of monies owed by persons who had purchased heroin and a quantity of cannabis were located at the premises during the execution of the search warrant on 18 October 2011. Yates produced police photographs from this search and the items referred to in the particulars were evident. Additionally, in his evidence, Yates described many of the items found. According to Yates, including cannabis found in separate bags, thirty-three items were seized and stored in the Property Seizure Record.

1. The particulars relating to the October 2011 search alleged that Ms Burgess trafficked heroin from the premises or she permitted a male visitor to traffic heroin from the premises. That male visitor was alleged to be Brett Haslem. The police photographs confirmed that personal identification items relating to Ms Burgess and Mr Haslem were also found at the premises. Upon questioning by the Tribunal, Yates confirmed that he had been inside the house at the premises and it was evident that it was well lived in and all bedrooms were in use.

1. The particulars attached to this notice also alleged that police surveillance of the premises, conducted on two days earlier in October 2011 and prior to the search, detected a female attending the premises and purchasing heroin. On one of these occasions, Yates was part of the surveillance team and described what occurred.

1. The final allegations of substance in the particulars were that Ms Burgess pleaded guilty to trafficking a drug of dependence and when so pleading, she had done so to a Summary of Charges which included an assertion that users would attend the premises, which was the home address of the tenant and Mr Haslem, to purchase heroin. The Summary of Charges, provided to the Tribunal, also included details of police investigations conducted between April and October 2011 which revealed Ms Burgess and Mr Haslem also dealing in heroin in different areas of Frankston and the Mornington Peninsula but away from the premises.

1. It was apparent that some amendments were made to the Summary of Charges before Ms Burgess finally pleaded guilty. The Summary provided to the Tribunal did contain some deletions. Although Yates was named as informant, he was cross-examined about his knowledge of the Summary of Charges in its final form. He remained firm in his evidence that the Summary provided to the Tribunal, which included reference to the use of the premises, was the final Summary to which Ms Burgess pleaded. He also gave evidence that it was not a condition of the tenant's parole that she continue to live at the premises.

1. Yates was the only witness called by the landlord. Ms Burgess gave evidence and supporting evidence of her current position and plight was given by her case-worker, Ms Villanueva. Mr Howard, Counsel for the respondent, also called Ms Bronwen Campbell, an employee of the Office of Housing, who was in attendance at the hearing, to give evidence about her knowledge of the written Protocol which is in place between Victoria Police and the applicant for notification of unlawful activity in Office of Housing tenancies.

1. Counsel for the landlord provided written submissions that the evidence given by and through Yates satisfies the onus required for the Tribunal to find that the illegal acts relating to and in connection with the trafficking of heroin occurred at the premises. First, they were used as a known address for the sale of drugs. Secondly, they were used to prepare the heroin for sales as they were a secluded and secure place to do so.

2. Section 250 A (1) was inserted in the Residential Tenancies Act 1997 on 1 June 2011. It would appear that these provisions give the Director of Housing additional remedies to the remedy set out in Section 250. Ms Evans referred to the second Reading Speech of the Bill resulting in the inclusion of Section 250 A (1) where the Minister, Mr Delahunty, noted:

"Public housing is in high demand. At all times, the director must balance the needs of existing tenants with those who are waiting to be housed. Therefore, it is crucial that the director has effective means of managing the public housing program. This includes mechanism to end a tenancy agreement, in a timely manner, where that tenant is engaged in certain illegal activity, particularly drug trafficking, manufacturing or cultivation, in their premises or on the common areas of public housing estates, since that illegal activity impacts on the safety, security and wellbeing of the director's tenants and their families."

It was therefore the landlord's position that in all the circumstances it was entitled to serve the notice pursuant to Section 250 (1) and, because of the wording of Section 330 of the Residential Tenancies Act 1997 earlier referred to, the Tribunal has to make the possession order.

3. Mr Howard for the tenant submitted that the Tribunal could not be satisfied on the evidence that the illegal acts had been committed at the premise. However, he then effectively submitted that even if this was established to the satisfaction of the Tribunal, a possession order should not be made. The first argument for this position was that on the basis of Majala Pty Ltd vs. Ellas [1949] VicLawRp 19; (1949) VLR 104, by continuing to seek and accept rent after knowledge of the tenant's incarceration, the landlord had made an election and had essentially waived the right to then subsequently seek possession in this manner. The second argument was that given its position of being such a large landlord, it had a discretion as to how to proceed in relation to the tenant but it had a duty to exercise that discretion reasonably and responsibly. Mr Howard contended that in these circumstances once it made the application for a possession order pursuant to the "no reason" notice, it effectively forfeited the right to proceed with an application of the nature of this proceeding.

4. Finally, more from the perspectives of the tenant herself and her case worker, the Tribunal was asked, even if it found that a possession order could be made, to exercise discretion in favour of the tenant and not make the possession order on the basis that to do so would cause unnecessary hardships to Ms Burgess and her son and would severely and adversely impact her recovery.

1. The Tribunal accepts the evidence of Yates. A significant further problem for the tenant was that under cross-examination she admitted some trafficking from the premises.

2. Further, the Tribunal accepts the submissions of Counsel for the applicant and accordingly grants the possession order.

3. In relation to the submissions of Counsel for the respondent based on Majala Pty Ltd v Ellas, quite apart from any considerations of "election" and "waiver", it was apparent in that case that a landlord could only be regarded as properly making a decision on how it would proceed when it had full knowledge of all the relevant facts and circumstances. In this proceeding involving Ms Burgess, the Tribunal was satisfied on the evidence that the landlord only became fully aware of the reasons for the tenant's incarceration on 4 December 2012 as a result of receiving from the Victoria Police a letter dated 27 November 2012 sent pursuant to the notification Protocol referred to earlier.

4. The Tribunal does not accept the argument of Counsel for the respondent that the landlord could not maintain this application after it had made the earlier application on the basis of the notice to vacate given pursuant to Section 263 (1). In this regard, Section 320 of the Residential Tenancies Act 1997 clearly contemplates a landlord being able to give two or more notices to vacate. Finally, the Tribunal regards the issue of the tenant's hardships as a potential matter only for possible discussion between the landlord and tenant. As noted earlier, the Tribunal accepts the contention of Counsel for the applicant about the effects of Section 330 and the requirement to make a possession order once it is satisfied as to all elements set out in that Section.