On 6 June 2007 DOH applied to the Victorian Civil and Administrative Tribunal (the Tribunal) for an order for possession of the premises.

The Tribunal granted an order for possession on 22 June 2007.

TP sought leave to appeal to the Supreme Court of Victoria, and filed an originating motion in that Court on 19 July 2007.

On 24 April 2008 His Honour Justice Byrne allowed the appeal, set aside the order made on 22 June 2007, and ordered that the matter be remitted to the Tribunal.

The matter was heard at Melbourne on 12 May 2008. Ms Porter of Counsel appeared on behalf of the Director of Housing, and Mr Horn of Victoria Legal Aid appeared on behalf of TP. At the hearing sworn oral evidence was given by SC O'Connor, informant in the criminal proceedings against DG, Ms Ridley, Acting Team Manager for DOH, and TP. Mr Horn submitted an affidavit from JG, mother of DG. DG was not present at the hearing, or represented. It is noted that criminal proceedings against him are still pending, and that Clause 74 of Schedule 1 of the Victorian Civil and Administrative Act 1998 states that evidence before the Tribunal in a proceeding under the Residential Tenancies Act 1997 cannot be used in criminal proceedings.

I reserved my decision. Unforeseen personal circumstances caused a delay in the provision of these reasons, and I apologise for any inconvenience caused as a result of this delay.

I have dismissed the application for an order for possession, and I now set out the reasons why.

There were two central issues raised. Were the premises used for an illegal purpose, and, if so, did TP permit their use for this purpose? The answers to these questions turn on the facts, and so it is important to look closely at what happened.

This is a brief summary of the evidence that was given at the hearing on 12 May 2008, and the findings of fact that I have made on the basis of that evidence.

SC O'Connor attended the premises on 21 March 2007 at 7.50am with a search warrant. TP and her younger children were present, and so was DG. He found a small number of cannabis plants and some cannabis seedlings, all in plastic pots. Three plants were in the laundry and toilet at the rear of the house, and the seedlings were outside. Charges of using, possessing and cultivating cannabis were laid against DG, and are yet to be determined. SC O'Connor said that the police had obtained information a few days earlier that the cannabis was on the premises. No charges were laid against TP. DG said immediately that the plants were his and that TP had nothing to do with them. SC O'Connor agreed that there was no equipment set up for the maintenance of the plants.

Ms Ridley gave evidence about the service of the notice to vacate and the application to the Tribunal. Aboriginal Housing, who manage the premises for DOH, notified the DOH office about the execution of the warrant at the premises. Ms Ridley also explained she was aware that there was a history of violence by DG against TP. TP had lodged an application for a priority transfer to another property and was on two very long waiting lists for transfer to either Aboriginal Housing or general priority housing. Ms Ridley said that the application for transfer had initially been because TP feared violence from the father of her older children, and also because she needed more space. She agreed that TP had obtained an intervention order against DG in 2005, and another in 2007, and that copies had been given to DOH for the purposes of the transfer application.

TP said that she had known DG for five years. He lived with his mother. TP said that she had never lived with him, but maintained contact with him because he was the father of her children. She said that she thought it important for the children that they be able to see their father. This was important to her as she had been adopted. For herself, she said, she would not choose to see him. She explained that he is violent towards her, and she has obtained two intervention orders against him, one of which is still current. She is afraid of him. She said that DG has a mental illness that is not well treated. He has assaulted her often, slashed her car tyres, and broken her windows. Once DG head-butted her while she was holding her baby. She has had many black eyes as a result of his violence. She has reported his violence to the police on many occasions, but her experience has been that this has not provided adequate protection.

There was no intervention order in place against DG in March 2007. Three days before the arrest on 21 March DG brought cannabis plants to his mother's house where he lived. His mother would not have the plants in the house, and told him he had to get rid of them or leave. DG had a big argument with his mother, then left and went to TP's house. He told her his mother had thrown him out. At first she said he couldn't stay there. Finally, because she felt threatened, she said he could stay for a day or two. She did not know he had the plants. He went away and came back with his belongings, including the cannabis plants. When she saw them TP was angry and distressed, and told him he could not bring them into the house. They argued, and he became increasingly angry and threatening. TP said that finally, because she felt threatened, she told him he could stay for a day or two, but the plants must stay outside down the side of the house during the day when she and the children were awake. He insisted on bringing them in at night, and agreed to do so only after TP and the children were asleep. TP said that she did not ever touch the plants or tend them in any way. She said that DG had his own water bottle and scissors and if he did tend to the plants it was nothing to do with her. She didn't know whether he used water from her house, or whether the water he had in the bottle lasted the few days he was there. DG was at the premises for three days only.

TP said that she tries to have no contact with DG now. She has told him not to ring her. She is still subject to harassment from him. Despite the intervention order she still feels very vulnerable, as action is rarely taken when she reports breaches of the order to the police. She thinks his illness is a bi polar mood disorder, which from her perspective is getting worse. He has been on a number of medications over the years. TP said that DG's mother had called the Crisis Assessment and Treatment Team from time to time, and DG had been admitted to hospital. She said that his mental health problems were probably compounded by his illicit drug use.

I accepted TP's evidence, which was given in a straightforward and convincing way, and was not challenged by DOH.

DG's mother JG provided an affidavit but was not present. It was not possible for JG to be cross-examined about the contents of this affidavit, and so I gave it less weight than I would have given oral evidence. I did take it into account, however, because it was consistent with TP's evidence, which was not contested by DOH. JG stated that DG had always lived with her except for times he was in prison. After an argument in March 2007 he left the house because she said he could not have marijuana plants there. She stated that "he has put T through hell over the years" and that "he is impossible for her to resist when he is angry and making threats, especially when she is mindful of the care of the children." She stated that DG is currently taking the medication largactyl.

None of these facts as outlined in evidence were contested in any significant way. Submissions from the legal representatives for the parties were as to interpretations of the law as applied to these facts.

1. The first issue I addressed was that of whether or not the notice to vacate was valid. The notice was given under section 250 of the Residential Tenancies Act 1997 and states that:

"You have used the premises, or permitted their use, for an illegal purpose.

Using the premises for an illegal activity by way of cultivating cannabis."

1. I had concerns about this notice, for reasons I will explain. Before hearing evidence, I asked the legal representatives for the parties if they wished to make submissions about the notice to vacate. Ms Porter submitted that it was a valid notice, and that any lack of clarity in it was corrected by the certainty that TP knew exactly why the notice was given. Mr Horn agreed that the notice to vacate may be of questionable validity. He submitted, however, that TP wished to proceed with the hearing and not to have the matter struck out on this ground. He agreed with Ms Porter that TP was aware that the notice related to the activity of DG in March 2008, that having been, he said, the only illegal activity on the premises to which it could refer. He said that DG was only there for three days so the dates were known to TP and did not need to be on the notice.

2. The issue arose because of the decision of His Honour Justice Bongiorno in Smith v. Director of Housing[1], a case about a notice to vacate given under section 244 of the Act. His Honour Justice Bongiorno said that " a reason that merely repeated the words of the Act could not satisfy the requirements of section 319(d)."[2] This section of the Act states that:

"A notice to vacate given under this part is not valid unless-

d)... it specifies the reason or reasons for giving the notice...."

His Honour said that "the requirement in section 319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy".[3] There must be "a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes."[4]

1. The notice to vacate provided some information additional to the words of the section. It included the words "using the premises for illegal activity by way of cultivating cannabis". There were no dates included on the notice. The notice was not accurate in that it stated that TP had been "using the premises for illegal activity", when the landlord was giving the notice because it considered that TP had permitted its use for such a purpose.

2. In my view, this notice to vacate was on the boundary between valid and invalid. In another proceeding before me, if an application for possession were sought based on a notice to vacate under section 250 with a similar minimal degree of particularity, I would consider striking it out. I did not do so in this proceeding because I was satisfied, based on Mr Horn's submission, that the tenant had been in a position to understand why the landlord wished to evict her and was in a position to contest those facts. I took into account Mr Horn's considerable expertise and experience as a legal practitioner generally, and in the residential tenancies jurisdiction in particular, when accepting his submission that the notice had provided sufficient information to TP and TP wished to have the matter proceed to a hearing. I found that the notice to vacate was valid.

3. Rule 6.39(4) of the Victorian Civil and Administrative Tribunal Rules 1998 states that:

"An application under section 322, 323 or 324 of the Residential Tenancies Act 1997 arising out of a notice to vacate under section 250, 284 or 309 of that Act must specify-

(a) the illegal purpose alleged; and

(b) the acts, facts, matters and circumstances, including relevant dates, being relied upon to establish that the rented premises were or the room, site of caravan was used for an illegal purpose".

This application states merely "Using the premises for illegal activity by way of cultivating cannabis". The requirements of Rule 6.39 have not been met. For the reasons set out above I have decided not to strike out the application. Again, however, in any future proceeding I may consider striking out an application with such minimal information about the reason why possession is sought under section 250 of the Act.

Ms Porter for DOH submitted that they were. She said that the word "use" should be given its ordinary and natural meaning, and does not have to involve the "use" of the whole of the premises. She referred me to the cases of S.Schneiders and Sons Limited v Abrahams, [5] Abrahams v Wilson [6] and _Majala Pty Ltd v Ellas, [7]_and summarised the relevant test as that of whether:

• (a) an illegal act alleged was committed on the premises;
  • (b) the premises were used for the purpose of committing the illegal act; and
  • (c) the premises were not merely the scene of the commission of the illegal act.

Ms Porter submitted that it might not be sufficient for the purposes of section 250 of the Act to show that an assault had taken place at the rented premises, or that a visitor had a weapon or some drugs on them when they visited. This was different, she submitted, because the rented premises were used to house, nurture, tend and protect cannabis plants. While accepting that there was no evidence that TP nurtured or tended the plants, Ms Porter submitted that DG did so, by watering them, snipping them with his scissors, and carrying them inside at night for shelter.

Ms Porter referred to McAuliffe v CTTT NSWSC [8]for the proposition that illegal use did not have to involve use of the whole premises; the use could be incidental or subsidiary to another use. She said that the Tribunal needed to determine the matter on the facts, and referred to S Schneiders and Sons Ltd v Abrahams, Abrahams v. Wilson, and Majala Pty Ltd v Ellas[9]to describe a continuum along which fact situations might be placed. The cases place, for example, the use of premises as a brothel or gaming house at one end, and a person having some drugs in his or her pocket while visiting the premises at the other.

Ms Porter submitted that these facts fell within the meaning of illegal use. She said that the cannabis plants were kept safe, watered, moved around, and tended, and that the premises were used for this purpose. She submitted that the fact that there was no hydroponic equipment was irrelevant, as was the fact that the plants were in pots rather than in the ground. She said that cultivating cannabis could occur in a flat or unit with no earth. She submitted that illegal use could be once off; there did not have to be a pattern established, and there did not need to be recent or ongoing use for section 250 of the Act to apply.

Mr Horn referred me to the same cases. He described them as offering support for this proposition - that the purpose of the covenant a tenant makes to not use the premises for an illegal purpose is to protect the landlord from liability, not to punish. He said the cases were contradictory, but did establish that the premises had to be used for the illegal activity, and not merely be the scene of its commission. He described the same continuum, and placed this fact situation well short of illegal use. He said the offence did not arise out of the use of the premises. The relationship was between DG and his plants, not the premises and the plants. The presence of the plants, and DG, at the premises was transitory, and the premises did not aid the commission of the offence.

I have found it helpful to think about the continuum. It is clear from the cases that the question of whether or not it can be said that premises have been used for an illegal purpose depends on the circumstances of the illegal activity or action, not just on whether illegal activity occurred. If the rented premises are central and essential to the illegal activity, they are being used for an illegal purpose, and the grounds for a section 250 notice to vacate would be clearly made out. A clear example would be if premises were set up for the manufacturing of drugs, or for the storage of weapons or stolen goods. This Tribunal has dealt with claims for compensation where the premises have been substantially restructured for the purpose of hydroponic cultivation of cannabis, where the electricity supply has been diverted, ceilings or flooring have been altered, and large areas of the house have been given over to the activity. This would be highly likely to constitute illegal use of the rented premises under section 250. At the far end of the continuum, the presence of a visitor on the premises who happened to have a flick knife or an ecstasy tablet in his or her pocket does not constitute illegal use.

So, were the premises used for the purpose of committing the illegal act, or were they merely the scene of the commission of that act? I accept Ms Porter's submission that the illegal use does not have to involve the whole of the premises, and can be subsidiary to another use. The premises, however, have to be connected to the illegal activity in some tangible way. Clearly the primary use for these premises was, and continues to be, that of providing a home for TP and her four children. An uninvited and unwelcome visitor arrived in March 2007, bringing his even more unwelcome cannabis plants. He put the plants outside, at TP's insistence, and only brought them in at night. According to the evidence he watered them with his own water bottle, and whatever else he did to them was his own concern and not that of TP's. He stayed for three days only, until the police arrived - called by an unknown person - when he and his plants left separately.

It was argued for the landlord that the rented premises provided some protection for the illegal activity, in that the premises protected the plants from theft, and detection by the police, particularly when DG brought the plants inside at night. It is no doubt the case that if DG had left the plants in his car, or on the street outside, he would not have been cultivating them for long. I compare this situation, however, with the other illegal activity that took place on these rented premises. I heard that DG assaulted and threatened TP on several occasions on the premises. Had he done so outside on the street he might have been arrested and charged with assault, or at least prevented from continuing to assault. The premises afforded him protection from exposure and prosecution. This would not constitute illegal use for the purposes of section 250; it would be at the far end of the continuum. I see the fact situation before me in this matter as being only marginally further along. If it can be said that at a point half way along that continuum the connection between the premises and illegal use becomes tangible enough that the premises are not merely the scene of the commission of an offence, I find that this fact situation falls well short of the half way mark.

Since 1 January 2008 this Tribunal, and other Victorian courts and tribunals, must consider the Charter of Human Rights and Responsibilities Act 2006 (the Charter) when interpreting legislation. Neither party made submissions as to the Charter in this hearing. I have found ultimately that the activity fell well short of being use of the rented premises for an illegal purpose. The decision does not therefore turn on the Charter. I did give it careful consideration nevertheless. I did so having first considered section 49 of the Charter. Section 49 (1) states in part that the Charter:

... extends and applies to all Acts, whether passed before or after the commencement of Part 2...

Section 49 (2) states that:

This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

This section presents some ambiguity as to whether or not the Charter applies in this case. Section 49 (1) makes it clear that the Charter applies to the Residential Tenancies Act 1997. It is not so clear, from section 49(2), whether or not the Charter applies to these proceedings, which commenced before 1 January 2008; that is whether or not section 49(2) is intended to apply to substantive matters or merely procedural ones. In any case, as I have said above, the decision does not turn on the Charter provisions. In the end I decided the matter on the evidence irrespective of whether or not the Charter applies. It is for completeness that I set out the consideration I gave to Charter issues.

1. Section 32 (1) of the Charter provides that:

32 (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Section 32 therefore requires that a human rights consistent interpretation be adopted when it is possible to do so, having regard to the language and purpose of, in this case, section 250 of the Act and the corresponding section 59 of the Act, which states that tenants must not use rented premises for an illegal purpose.

1. There are at least two rights engaged with, or intruded upon, by the giving of a notice under section 250 of the Act. The first relevant right is set out in section 13 of the Charter, which states in part that:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ...

The second relevant right is in section 17 of the Charter, which states that:

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

1. Section 7 of the Charter then requires that I ask whether a limit or intrusion on the right is justified. It states in part that:

(1)A human right my be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society...taking into account all relevant factors including -

(b)the importance of the purpose of the limitation; and

(d)the relationship between the limitation and its purpose; and

(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

37. The first question is: is the limit or intrusion on the right justified, or in other words, is the limit or intrusion sought in order to achieve a legitimate purpose? This means I needed to consider the purpose of section 250 of the Act. It gives the landlord a remedy when the tenant has breached section 59 of the Act. Its purpose is to protect the landlord's interest in the property. In many instances this will be a reasonable limitation on the rights set out in sections 13 and 17 of the Charter. The next question raised by section 7 of the Act is: were there any less restrictive means reasonably available to achieve the purpose? This requires an assessment of proportionality. In this case, if section 250 were interpreted in the context of these facts, so that the premises were said to have been used for an illegal purpose, the tenant and her children would have been evicted from their home of fifteen years. They may have faced the prospect of extended homelessness. On the other hand, the only interference to the rights of the landlord appears to have been that for three days last year a person stayed in the rented premises with some cannabis plants.

1. If the fact situation of the case had placed it close to the half way mark along the continuum, an interpretation of the statutory provision in accordance with the Charter may have tipped it to one side.

1. I do not need to make findings about this. I have found that there was not illegal use. There was, however, considerable evidence and submissions on this issue, and for completeness I will address it. I do not consider, even had the premises been used for an illegal purpose, that TP permitted that use.

2. I refer to the summary, helpfully distilled from the authorities by Ms Porter, as to what constitutes "permission". The tenant permits use where he or she:
   • (a) knows or has reason to suspect that an illegal act will or is likely to take place;
   • (b) has the power to prevent it;
   • (c) defaults in their duty of control or interference; and
   • (d) thereby fails to prevent the illegal act. [10]

3. Based on the evidence available to me on 12 May 2008, I find that TP did not have the power to prevent the illegal act taking place. DG had a mental illness, which may not have been, nor yet be, adequately treated. Whatever the reason, he was violent and threatening towards TP. An intervention order was in place before the incident, and another has been made since. The landlord acknowledged this history of violence; Ms Porter chose to not cross-examine TP about it and cause her distress. TP said that she gave up resistance to DG staying the few days, and eventually to him bringing the plants, because she felt threatened. Against the background of his violence towards her this was a reasonable response. Ms Porter noted that TP had not called the police or anyone else to have him removed, and so did not do everything she could to prevent him being there. It is true that we do not know who called the police. TP, however, had done so on many other occasions and had not felt adequately protected by this action. Given that TP did not have the power to prevent the illegal act - even if it had constituted illegal use - she did not permit it.

4. The grounds for the notice to vacate were not proven, and the application is therefore dismissed.

[1] (2005) VSC 46

[6] (1971) 2 WLR 923, 928

[7] [1949] VicLawRp 19; (1949) VLR 104, 106

[8] (2004) NSWSC 824. In this case the appeal by the tenant was allowed because of provisions in the NSW Residential Tenancies Act giving a discretion to the Tribunal when considering an application for possession for illegal use and other reasons, when the premises are for social housing. His Honour Justice Harrison did decide that hydroponic cultivation of cannabis within two areas of the rented premises fell within the definition of "use of the premises".

[9] See footnotes 5, 6 and 7 respectively

[10] See Corporation of the City of Adelaide v Australasian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481, 487, applied in Von Snarski ([2001] QCA 71; 2001) 121 A Crim R 205, 210