Director of Housing v Pavletic [2002] VSC 438

5. The order of the Tribunal dismissed an application by the Director under s 322(1) of the Residential Tenancies Act 1997 ("the Act") for a possession order in relation to premises of which the respondent Mirgana Pavletic is the tenant. In seeking the possession order, the Director had relied upon a notice to vacate served by the Director on Ms Pavletic pursuant to s 244(1) of the Act. That sub-section permitted a notice to vacate to be given by the landlord -

"if the tenant or the tenant's visitor by act or omission endangers the safety of occupiers of neighbouring premises."

10. The Director had entered into a lease subject to the Act with Ms Pavletic in respect of premises at 9 Swanston Street, Heidelberg Heights. During the tenancy, in late last year and early this year, certain events occurred. The Tribunal's findings as to those events included the following -

(a) On 3 December 2001, a fourteen-year-old neighbour of Ms Pavletic, Ms E, complained to the police of sexual assault by Ms Pavletic's de facto partner, Mr G, on 24 November 2001. He was arrested on 7 December 2001.

(b) On 3 and 7 December 2001, Ms Pavletic abused and made serious threats to Ms E - such as "I'm going to get youse chopped up" and "Tell your slut friends they are dead".

(c) On 7 December 2001, the police obtained an interim intervention order against Ms Pavletic, which order was extended by consent to 18 December 2002.

(d) On 9 December 2001 she threatened Ms E that she was "going down".

(e) Ms Pavletic was charged on 24 December 2001 by the police with making a threat to kill, threatening serious injury and interfering with a witness.

(f) Ms Pavletic approached Ms E's mother on 3 January 2002 and told her, inter alia, that she would not be responsible for anything that happened to them.

(g) On 11 January 2002 Ms E and her mother and her younger sister were taken from their home and removed to temporary accommodation by the Director.

16. The Tribunal also found that the Director's notice to vacate the premises was to be taken to have been served on Ms Pavletic on 15 January 2002. It also found that the Director's possession order application[1] was forwarded to the Tribunal on 11 January 2002 and received by the Tribunal on 15 January 2002 when it was filed.

20. It is common ground that in applying the provisions of the Act to the facts of the case, the Tribunal took a particular view of the construction of the passage from s 244 quoted above. In particular, it took the view that the use of the present tense, "endangers", in s 244(1) required that the landlord must show that the danger to the safety of the neighbours was continuing at the time the notice to vacate was given. The appellant submits that the Tribunal also construed the quoted passage as requiring not merely conduct endangering the safety of occupiers but conduct seriously endangering their safety relying upon the following passage in the reasons-

"The behaviour complained of must seriously endanger the safety of occupiers of neighbouring premises."[2]

24. The Tribunal concluded that applying its construction of s 244(1), the conduct complained of was not continuing. It also held that the conduct of Ms Pavletic was not "endangering conduct" within the meaning of the provision.

28. The following questions of law have been raised -

(a) Is the landlord only authorised to give a notice to vacate premises under s 244(1) where the tenant or visitor, the subject of the notice to vacate, is continuing to endanger the safety of an occupier of neighbouring premises at the time when the notice is given; or is it sufficient that the tenant or visitor by one act or one omission has endangered the safety of an occupier of neighbouring premises?

(b) May a landlord only give a notice to vacate premises under s 244(1) where the act or omission on the part of the tenant or visitor, the subject of the notice to vacate, seriously endangers the safety of occupiers of neighbouring premises?

34. Submissions have been put by both parties relevant to those questions. In addition the respondent has raised an argument as to the competence of the appeal, arguing that the order from which the appellant seeks to appeal is invalid and a nullity for lack of jurisdiction. In the alternative, it is submitted on her behalf that the appeal should be dismissed because it would be futile to grant it and remit the matter to the Tribunal, as is sought by the appellant, because the Tribunal would have no jurisdiction to entertain the application. I propose to refer first to the issues raised by the appellant and then return to the jurisdiction issues.

38. Counsel for the appellant, the Director, submitted that s 244(1) of the Act did not require a continuing danger to exist at the time the notice to vacate was given.

41. Counsel submitted that an act or omission can be said to endanger the safety of others when the act or omission exposes them to a liability or risk of harm or injury. This argument relied upon the definition of "endanger" in the Macquarie Dictionary - "expose to danger, imperil." "Danger" is defined also in the Dictionary as "liability or exposure to harm or injury; risk; peril." Counsel submitted that the word "endangers" should be construed as meaning "has endangered". A number of arguments were advanced.

(a) Condition Precedent

Relying on the above definitions, counsel submitted that the reference to "endangers the safety of occupiers" prescribed a condition precedent to the giving of a notice to vacate and not a state of affairs that must exist at the time the notice is given.

This argument simply restates the Director's position. The issue is whether the words "endangers the safety of occupiers" includes a requirement that the endangerment must exist at the time the notice is given.

(b) Single Act or Omission

Next it was submitted that s 244(1) in referring to "act or omission" supported a reading that pointed to a single act or single omission as a sufficient basis for the giving of a notice.

Plainly this is so, but the quoted expression does not exclude a situation where several acts or omissions are involved. Further, a single act or omission can give rise to a situation of continuing danger.

(c) Sexual Assault

Counsel also submitted that where reliance was placed upon an allegation of sexual assault, the "continuing danger" construction would require the Director to prove that a person was subjecting the neighbour to continuous sexual assault or was likely to repeat the sexual assault at the time when the defendant received the notice to vacate.

If it be correct that the section requires that at the time the notice is given the safety of the neighbour is endangered, and the notice relies upon prior sexual assault of that neighbour, it would be necessary to establish on the basis of evidence of prior assault and other circumstances whether there was a continuing risk of assault such that a state existed of endangerment to the safety of the neighbour. The question to be resolved is whether that was Parliament's intention.

(d) Level of Risk

It was also submitted that the Tribunal's construction would require the occupier to live with the risk at the level of a real risk or probability of the repetition of the acts causing endangerment to safety. Again the question is whether, accepting that to be so, that was the intention of Parliament.

(e) Enhanced Protection

On the other hand, counsel for the Director submitted that to read the expression "endangers the safety of occupiers" as a reference to an act or omission which occurred in the past and then endangered the safety of occupiers enhanced the protective operation by reducing the risk of harm or injury by providing for the removal of the source of the risk. Counsel submitted that it did not give the section a punitive operation.

The difficulty with this argument is that there is no time limit - the act or omission relied upon could have occurred many years ago with the result that at the time the notice to vacate was given there was no need to protect.

(f) Drafting Issues

Counsel referred to the context in which s 244 appears and in particular to the two sections that precede and follow it - ss 243 and 245. Each provision entitles the landlord to give a notice to vacate to the tenant in certain circumstances and if the requirements of s 330(1) are satisfied, an order for possession must be made.

Section 243 enables a notice to vacate to be given by a landlord to a tenant -

"if by the conduct (by act or omission) by the tenant or the tenant's visitor damage is maliciously caused to the premises or common area."

Section 245 enables a landlord to give a tenant notice to vacate the premises if they -

"(a) are unfit for human habitation; or b) have been destroyed totally or to such an extent as to be rendered unsafe."

Attention was drawn to the fact that in s 243 the conduct in question is not required to be continuing whereas in s 245 the condition of the premises refers to a situation existing at the time that the notice to vacate is given. Counsel for the Director submitted that it showed the drafter was conscious of the distinction and when it was desired to ensure that regard was had to the state of affairs at the time of the notice, that was expressly indicated.

It seems to me that there might be some force in that argument if in s 244 the drafter , conscious of the distinction, had used an expression such as "has endangered" or "has and is endangering". The fact is that the expression "endangers" was used. One explanation is that it was used to create a composite expression covering circumstances where the act or omission has endangered and is continuing to endanger the safety of the occupier.

Counsel also submitted that a comparison of ss 243(1) and 244(1) and the expression in the former of "conduct (by act or omission)" and the reference in s 244(1) to "act or omission" without the brackets pointed to s 244(1) having a narrower focus and, therefore, a focus on a single act or omission.

I am unconvinced by this argument. In any event one can have a single act or omission which has the effect that, at the time the notice to vacate is given, the safety of occupiers of neighbouring premises is endangered.

Finally, it was submitted that where the Tribunal is considering an application for a possession order, and s 330(1) applies, the Tribunal is not expressly required by that provision to consider whether there is currently an endangering by the tenant or a visitor or the occupiers of neighbouring premises but merely whether the landlord was entitled to give the notice and that it had not been withdrawn.

It may be said, however, that the drafting of s 330(1) reflects the fact that it operates in respect of all applications where reliance is placed on a notice to vacate by the landlord and has to cover a variety of situations. One would not, therefore, expect express reference to be made to the requirements of s 244 in the section. Further, such reference is unnecessary. In determining whether the landlord was entitled to give the notice and whether the notice was given pursuant to s 244, the Tribunal will have to consider whether the precondition set out in s 244(1) was satisfied, and in particular whether there was an act or omission by the tenant or a tenant's visitor which "endangers the safety of occupiers of neighbouring premises".

56. Counsel for the respondent submitted that s 244 of the Act was open to two constructions. The first was that "endangers" means "is endangering" - the construction adopted by the Tribunal. Counsel also conceded that the other interpretation contended for by the appellant was also open - that is "has endangered".

59. Counsel submitted that in approaching the issue of construction well-known general principles should be applied. Firstly, the construction should be adopted which advances the objects and purposes underlying the Act in preference to one which does not[3]. Reference was also made to Cooper Brooks ("Wollongong") Pty Ltd v Federal Commissioner of Taxation[4] and the proposition that where the language of the provision is clear and unambiguous and consistent and harmonious with other provisions of the enactment and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary grammatical meaning even if that leads to inconvenient or unjust results. Counsel also referred to the proposition that a construction which produces a result which is absurd or unreasonable should be avoided.

62. Counsel for the respondent submitted that the purpose or object of s 244 was to assist landlords to protect themselves from liability which they might incur in respect of acts or omissions of tenants and their invitees[5] if such acts result in foreseeable personal injury to the occupiers of neighbouring properties. Counsel submitted that the construction adopted by the Tribunal advanced the purpose of the provision because it only applied where the dangerous consequences of the tenant's acts or omissions continue and where, therefore, it is necessary and useful to resolve the matter by using s 244. Counsel submitted that not to enable notice to vacate to be given where there was no continuing danger is not anomalous or strange; for the section does not need to give protection where it is not necessary or useful to provide protection.

65. Counsel also submitted that the construction advanced for the appellant would produce unreasonable and absurd results. In particular, it would give the landlord an unfettered discretion to evict a tenant in circumstances where there was no existing danger to safety. Counsel also submitted that on the appellant's construction it did not matter how long ago the act or omission occurred or how improbable or unlikely it was that the person, be it tenant or visitor, would repeat such act or omission. In the case of a visitor's act or omissions it would not matter that the visitor would never return - or was in prison. Counsel submitted that the section so construed would be punitive.

69. In my view, the prima facie interpretation of the phrase, "endangers the safety of occupiers", is that it refers to a danger to such safety existing at the time of the notice to vacate. The drafter chose the word "endangers" and if it had been intended to have a meaning other than "is endangering", some other form of language would have been used, such as "has endangered". The argument for the Director requires that the word "endangers" be read as an example of the historic present tense - the present tense is used to refer to the past. This is a device used to make a narrative more vivid.[6] It is unlikely that the drafter intended such a use.

72. The consideration of the purposes and scheme of the Act and the consequences of the construction advanced support the prima facie interpretation.

75. As to the purpose of the provision, there was common ground that a purpose of the provision was to protect a landlord from potential liability for the acts of tenants and tenants' visitors. There was disagreement as to whether there was also the purpose of protecting the safety of occupiers of neighbouring premises or whether the reference to such safety was simply a reference which identified the potential liability of the landlord to be protected. In my view, this issue should not affect, ultimately, the construction of the provision. The potential liability for the landlord would be one that would arise in circumstances where the landlord is aware of the acts or omissions of the tenant or the tenant's visitor and the fact that such act or omission endangers the safety of a neighbouring occupier. The landlord may be vulnerable to litigation if the landlord does not act in such circumstances where it would be reasonably prudent to do so. But what is required is to provide the landlord with protection where there is a reasonable basis for concluding that the safety of occupiers of neighbouring premises is endangered - that is, that the danger is continuing.

78. I am also persuaded that the alternative interpretation would lead to harsh, unfair and absurd results. First, it would not matter how long ago the alleged act or omission endangering the safety of occupiers of neighbouring premises occurred. The landlord could always issue a notice to vacate if all that was required was that the tenant or the tenant's visitor had by act or omission in the past endangered the safety of such people. It is true that, at any hearing, there might be an issue raised as to whether the landlord was entitled to give the notice; for an argument might be raised that it was not a bona fide exercise of power. But unless the tenant could identify some other reason, it would be very difficult to establish a lack of entitlement on that interpretation. In addition, the intention of the Parliament was to impose a mandatory obligation on the Tribunal to make a possession order where the landlord was entitled to give the notice and it had not been withdrawn. Bearing in mind the serious consequences that could flow from eviction for the tenant, and for any family the tenant might have, and the absence of any form of discretion or any opportunity to postpone the operation of the order which might ameliorate any harshness of the result, such an interpretation could produce unfair and harsh results.

81. It is one thing to empower a landlord with the power to give the notice and provide a blunt and speedy procedure where, at the time of the notice, acts or omissions of the tenant's visitor are endangering the safety of occupiers of neighbouring premises. It is another to give such a power and procedure where there is no such present endangerment but there was in the past.

84. For the foregoing reasons, I am satisfied that "endangers" means "is endangering". I note that this construction appears to have been applied by the Tribunal since 1999[7] and that Parliament has had ample opportunity to correct such an interpretation if it is erroneous.

88. I referred above to the appellant's contention relying on the passage in paragraph 78 of the Reasons for Judgment of the Tribunal that the behaviour complained of "must seriously endanger the safety of occupiers of neighbouring premises". Counsel has submitted, as noted above, that to add the word "seriously" is to change the test from that spelt out in s 244(1).

91. It is common ground, and correctly so, that if the Tribunal did intend to add a further qualification by using the word "seriously" then it was wrong to do so. The respondent argues, however, that the Tribunal was not intending to add a further qualification to the test. Further the respondent contends that in light of the findings, the alleged error in stating the test is of no controversy because the Tribunal found in respect of each of the acts or omissions relied upon a lack of necessary continuation of any endangerment. Further, in relation to the acts or omissions of the respondent being threats and verbal abuse, the Tribunal's view was that they did not in themselves raise any endangerment.[8]

95. As to the significance of the addition of the word "seriously" in para 78 and the reason for it, the alleged error would be in stark contrast to the otherwise thorough, careful and detailed reasons which otherwise showed a keen understanding of the legislation, facts of the case and the authorities interpreting the legislation. In my view, the Tribunal was merely attempting to emphasise the fact that the power to give a notice to vacate under s 244 required a real risk of danger to the physical or mental health of occupiers and not some remote or faint possibility of such. The Act in using the composite expression "endangers the safety" requires no less than that.

98. In addition, I accept the submission made on behalf of the respondent that the factual findings made by the Tribunal were such that no endangerment was identifiable at the time of the giving of the notice and, therefore, whatever test of endangerment was used by the Tribunal and whatever error may have been made in the definition of the test, it was of no consequence.

102. The jurisdictional issue turns on the evidence relating to the timing of the service of the notice to vacate and the making of the application for a possession order.

105. I have referred above to the facts as found by the Tribunal relating to the attempted service of the notice to vacate and the attempted filing of the application, both on 11 January 2002, and the Tribunal's finding as to the service of the former and the filing of the latter as occurring on 15 January 2002.

108. Affidavit material has been filed in these proceedings providing additional evidence on the issue of the receipt or otherwise of the notice to vacate and the making of the application. As to the receipt of the notice to vacate, Ms Pavletic has sworn an affidavit in which she deposes that on either 16 or 17 January 2002 she received an advisory notice from Australia Post that there was a registered post item for collection from the Heidelberg Post Office. She deposes that she never attended that post office to collect the document. She also deposes that she received from VCAT by post a notice of hearing in respect of the application pursuant to s 322(1) of the Act, notifying her of the listing of the matter for hearing on 22 January 2002. She deposes that she received this letter on 18 January 2002. In addition, the appellant has filed an affidavit sworn by Ms Mann in which she deposes that the Director applied to VCAT on 11 January 2002.

111. The facts may be analysed in a number of ways. If the notice to vacate and the application to VCAT are treated as having been made on the same day, 11 January 2002, notice to vacate had not been given prior to the making of the application. If the giving of notice is deemed, pursuant to s 49 of the Interpretation of Legislation Act 1984, to have occurred on 15 January 2002, the application to VCAT was made either prior to that notice being given or at the same time on the basis that the application was deemed to have been received by VCAT on 15 January 2002. If, however, one considers the evidence, uncontested, that the notice to vacate has never been received, it was not given and accordingly the application to VCAT was made before any notice to vacate was given.[9]

114. The debate before me has centred on the legal consequences that flow from the circumstances that either on the basis of the evidence before the Tribunal, or on the basis of the evidence filed before this Court in addition to that filed before the Tribunal, there was a failure to give notice to vacate prior to making the application for a possession order.

118. The respondent has submitted that the above facts deprived the Tribunal of jurisdiction and, as a result, the order made is invalid and the appeal incompetent. Council submitted that the Tribunal only had jurisdiction to hear and determine applications "under the Act" pursuant to s 446 and that for an application to be made "under the Act" pursuant to s 322 of the Act, it must be preceded by the giving of a valid notice to vacate. If an application is made prior to the giving of such notice it is not an application made "under the Act" and the Tribunal lacks jurisdiction.

121. Section 446 is as follows -

"446. Jurisdiction of Tribunal The Tribunal has jurisdiction to hear and determine an application under this Act relating to - (a) any matter arising in relation to a tenancy agreement or a proposed tenancy agreement of premises situated in Victoria; and (b) any matter arising in relation to a residency right under this Act; and (c) any matter referred to under this Act. ...

125. Counsel submitted that the right to apply "under this Act", in the present instance, was to be found in s 322 as affected by s 326. They provide as follows -

"322. Application for Possession Order by Landlord (1) A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under s 261 or s 263). 326. Time for Application (1) An application under s 322(1) ... may be made at any time after the notice to vacate is given but not later than thirty days after the termination date specified in the notice."

129. Counsel submitted that it followed that for an application to be made "under the Act" it must be preceded by the giving of a valid notice to vacate and that an application made by a landlord in circumstances where the rights conferred by s 322 had not arisen, was not an application made "under the Act" for the purposes of s 446 of the Act and the Tribunal accordingly had no jurisdiction to hear and determine the application.

Jurisdiction Issue - the Arguments of the Appellant

133. Counsel for the appellant accepted that the making of an application "under the Act" was necessary for the Tribunal to have jurisdiction. They submitted, however, that the Tribunal's jurisdiction was not conditioned on compliance with the sequence referred to in s 322(1) and that the legislature had intended that the absence of that sequence would not invalidate the decisions of the Tribunal. Alternatively, counsel submitted that if jurisdiction was conditioned on compliance with the s 322 sequence, the legislature gave the Tribunal the jurisdiction to determine that issue in any application when it may arise and the defendant, not having raised the issue below, cannot do so now.

137. The issue was not raised before the Tribunal and was raised relatively late in the history of these proceedings. This appeal is, therefore, not an ideal vehicle for determination of the issue. In light of the conclusions I have reached on the appellant's points it is also not necessary to determine the question. I note, however, that whether a jurisdiction issue is raised, the right of the landlord to apply for an order for possession is conditioned on giving a notice to vacate. In the present case a finding cannot be made that the notice to vacate was given before the application was made. As a result, it follows that the respondent had at least a defence to the application, one that would render futile remission of the matter to the Tribunal if the appellant were to have made out its case on the questions of law.

141. For the foregoing reasons the questions of law should be answered as follows -

(a) The landlord is only authorised to give a notice to vacate premises under s 244(1) where the tenant or visitor, the subject of the notice to vacate, is continuing to endanger the safety of an occupier of neighbouring premises at the time when the notice is given.

(b) The landlord is not limited to giving notice to vacate under s 244(1) where the act or omission on the part of the tenant or visitor the subject of a notice to vacate seriously endangers the safety of occupiers of neighbouring premises.

The appeal should be dismissed.

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[1] Pursuant to s 322 of the Act.

[3] Interpretation of Legislation Act 1984, s 35.

[4] [1981] HCA 26; (1981) 147 CLR 297 per Gibbs, J at para 6.

[5] "visitor" is defined in s 3.

[6] E.g.Lord Mcnaghten in Gluckstein v Barnes (1900) AC 240, at 248

[7] Director of Housing v Pavletic, 28.5.99; v Nicolic, 11.6.99; v Hussein, 18.8.99 (contra, v Burns, 5.7.02).

[9] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, at 96-97_._