Keasey v Director of Housing [2022] VSCA 7

ADMINISTRATIVE LAW - Pt 16 inserted into Residential Tenancies Act 1997 in response to COVID-19 pandemic - Whether judge erred in finding there was no 'decision' within the meaning of the Administrative Law Act 1978 ('ALA') - Whether application of the Director of Housing to the Victorian Civil and Administrative Tribunal for a termination order is a 'decision' under the ALA - Whether the Director of Housing is a 'tribunal' within the meaning of the ALA - Application for leave refused.

1 In response to the COVID-19 pandemic, the Residential Tenancies Act 1997 ('the RTA') was amended by the insertion of pt 16 headed 'COVID-19 temporary measures', so as to change the process by which a landlord could evict a tenant under a residential tenancy agreement. In contrast to the pre-existing regime, which was built on the landlord giving a notice to vacate to a tenant, the amendments made it harder for a landlord to evict a tenant and gave to the Victorian Civil and Administrative Tribunal ('the Tribunal' or 'VCAT') a greater decision making role in the process. In short, under the provisions, a landlord is prohibited from issuing a notice to vacate to a tenant and any notice given is of no effect.[1] A tenancy agreement does not terminate unless, relevantly (amongst other things), the Tribunal makes an order under s 549(1).[2] The landlord must apply to the Tribunal for an order terminating the tenancy agreement.[3] An order under s 549(1) can only be made in limited circumstances.[4]

2 Under this temporary statutory process,[5] a landlord could apply to VCAT under s 548 of the RTA for an order terminating a tenancy agreement. On an application under s 548, VCAT could make an order terminating a tenancy agreement only if satisfied of various stipulated matters. Those matters include that, in the circumstances of the particular application, it is reasonable and proportionate to terminate the tenancy having regard to s 538, and taking into account the interests of, amongst other persons, the landlord, the tenant, and any neighbours who may be, or who has been, affected by the conduct of the tenant. Section 538 set out various qualitative matters, such as the nature, frequency, seriousness, and impact of the tenant's conduct.

3 In addition, by s 549(1)(a) of the RTA, before making an order VCAT must be satisfied as to any of the matters in s 549(2), which include matters relating to the conduct of the tenant. The matters in s 549(2) which are relevant to the current proceeding are: using the rented premises for any reason that is illegal at common law or under an Act; trafficking a drug of dependence at the rented premises or in a common area; and intentionally permitting another person to use the premises or a common area to traffick in a drug of dependence.

4 Section 549(4) of the RTA provides that if VCAT makes an order terminating the tenancy under s 549(1), VCAT can make a possession order if it is reasonable and proportionate to do so, again having regard to the matters in s 538.

5 The applicant and another person are tenants of a property under a tenancy agreement with the respondent, the Director of Housing ('Director'). The tenancy agreement is governed by the RTA. The Director is a corporate entity whose core functions include the administration of the State's public housing system. The Director is the landlord of public housing let to those members of the community who are allocated public housing in accordance with criteria and policies specified by the Director.

6 Following the laying of criminal charges against the applicant, on 11 May 2020, the Director, as landlord, filed an application in VCAT under s 548 of the RTA seeking to terminate the applicant's tenancy agreement on the basis that the rental property was being used by the tenant or another person for an illegal activity and as a place to traffick heroin.[6] An attachment to the application set out the factual details and basis for the application and a 'Summary of Material Facts' which formed part of the criminal brief of evidence against the applicant. The Director also sought a possession order under s 549(4). At the time of the hearing below, the criminal charges were yet to be heard.

7 It follows from the statutory provisions, that the tenancy agreement can only be terminated and a possession order made if VCAT is satisfied as to the existence of the facts relied on by the Director in relation to the drug trafficking, and is satisfied that it is reasonable and proportionate to make orders terminating the tenancy agreement and issuing a possession order.

8 Notwithstanding that the applicant may, in VCAT, resist the allegations made by the Director on their merits and, by submissions and evidence, seek to avoid VCAT coming to the view that a possession order is reasonable and proportionate, the applicant requested under s 8 of the Administrative Law Act 1978 ('the ALA') that the Director provide reasons in writing for the 'decision' to commence the application in VCAT. Usually, and presumably in this case, a request for reasons in writing is a precursor to making a challenge by way of judicial review of the decision to commence the VCAT proceeding.

9 The critical question in this application for leave to appeal from a decision of Derham AsJ is whether the decision of the Director to apply to VCAT under s 548 of the RTA was a 'decision' under the ALA, with the consequence that the Director was, on request, obliged to give reasons.[7] Derham AsJ answered that question in the negative. In his comprehensive reasons, Derham AsJ set out the arguments of the parties in great detail, which have been repeated on the present application.

10 At the conclusion of argument, we made orders refusing leave to appeal and indicated that we would provide our reasons at a later date. What follows are our reasons. In our respectful opinion, the reasoning and conclusions reached by Derham AsJ are faultless. The making of an application under s 548 of the RTA was not a decision under the ALA. The decision of Derham AsJ was correct. Leave to appeal must be refused.

11 The ALA sets out a procedure that may be followed for making an application for judicial review of decisions to which the ALA applies. As is well understood, the ALA does not provide grounds for review, nor remedies, but was enacted to overcome procedural difficulties that were thought to be associated with the issue of public law writs and remedies.[8] The process is not exclusive and judicial review may also be sought under O 56 of the Supreme Court (General Civil Procedure) Rules 2015.

12 The ALA does provide for two substantive matters that are important. First, it provides that a decision maker must, on request, provide reasons for a decision to which the ALA applies. In this respect it overturns the common law which imposes no obligation to give reasons.[9] Second, the ALA provides that reasons form part of the record for the purpose of seeking review for an error of law.[10]

13 Section 8(1) of the ALA provides that '[a] tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.' In order to appreciate the scope of the obligation, it is necessary to have regard to the definitions supplied by the ALA for 'decision', 'person affected', and 'tribunal'. They are set out in s 2 of the ALA and are as follows:

In this Act unless the context or subject-matter otherwise requires -

decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

person affected in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;

tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include -

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or

(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.

14 The applicant submits that a decision to make an application under s 548 of the RTA is a decision under the ALA.

15 The applicant submits that a tenant can only be evicted in accordance with the procedure mandated by the RTA which contemplates a sequence of interrelated steps: first, the landlord makes an application to VCAT; second, VCAT considers the application and grounds and makes an order terminating the tenancy agreement; third, VCAT makes a possession order; fourth, if the tenant does not vacate the premises the landlord makes an application for a warrant of possession; fifth, VCAT issues the warrant; and sixth, the warrant of possession is executed. The applicant says that each step follows the anterior step and that VCAT cannot make any orders unless the landlord has first applied under s 548 of the RTA.

16 Relying on cases which explain when certiorari may issue in respect of anterior or intermediate decisions,[11] the applicant submits that, although anterior to any ultimate decision that VCAT may make, the decision to apply to VCAT 'determined a question affecting [their] rights' because it was sufficiently related to any VCAT decision that may be made.

17 The applicant calls in aid Hot Holdings, to say that an anterior decision made along the way to an ultimate decision may have sufficient legal effect to be amenable to certiorari if it is either: the ultimate decision in a decision-making process and it sufficiently affects legal rights; or it is preliminary or recommendatory to a substantive decision but the initial decision sufficiently determines, or is related to, the substantive decision. It was said that a decision will fall into the latter category where it is a 'condition precedent' to the making of a decision that affects rights,[12] where it subjects rights 'to a new hazard',[13] is a 'precondition or... bar to a course of action',[14] or is a 'step in a process capable of altering rights ...'.[15]

18 In this case, the application to VCAT was said to 'enliven' and 'define the contours' of VCAT's authority to terminate the tenancy agreement and therefore exposed the tenancy to a 'new hazard'. It was a precondition for the exercise of VCAT's jurisdiction and a decision by the Director was informed by a different statutory setting relating to the decision making of the Director, including the Charter of Human Rights and Responsibilities Act 2006 ('Charter').

19 The submissions of the applicant cannot be accepted.

20 Rather than starting with principles that relate to when certiorari might be available for anterior decisions, and treat those cases as providing the relevant organising principle, the correct starting point is the text of the ALA.

21 A 'decision' in respect of which a 'tribunal' is required to provide reasons is:

a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence.

22 There are three elements to the phrase. The definition requires a plaintiff to identify a decision, being one that operates in law and determines a question affecting rights. Of course, the process of construction does not involve disaggregating a phrase and ascribing a meaning to each word that is used as if it appeared in isolation. The task is to construe the language of the statute, not individual words.[16] That said, close attention must be paid to the text and this requires a focus on the words used.

23 It can be seen that the composite phrase involves a number of interlocking and reinforcing aspects. First, in its usual sense a decision involves something that has a degree of finality about it[17] and in other statutory contexts has been contrasted with conduct leading up to a decision.[18] Second, the requirement that the decision 'operate in law' connotes that the decision has some legal force derived from either the common law or statute.[19] That is, its force is located in some legally effective instrument or principle. Thirdly, it must be determinative of a question affecting rights.

24 It may be accepted that, in certain contexts, a decision that is legally operative and relevantly determinative may be made before an ultimate decision is made. That is simply to acknowledge that some decision making processes may yield more than one decision. The cases on certiorari in relation to recommendatory or anterior decisions are illustrative of the general point.

25 In approaching the construction of the definitions in the ALA, it is relevant that the ALA is facultative in nature and designed to overcome technical requirements associated with the common law writs. It must be construed in that context. However, that does not mean that this Court should adopt a leaning or generous construction. An overly inclusive approach to the meaning of 'decision' is liable to encourage the atomisation of a single decision making process into a series of separate decisions each giving rise to an obligation to provide reasons, potentially disrupting the orderly decision making sequence.

26 Applying that approach here, it is plain that the decision of the Director to commence an application in VCAT under s 548 of the RTA is not a decision for the purpose of the ALA.

27 The applicant was unable to satisfactorily identify the question that was said to be determined by the making of the application. In oral submissions, the applicant submitted that the decision to make the application under s 548 of the RTA determined two questions that affected her rights. First, the form of the application set the grounds on which the application would proceed in VCAT, 'lifted the barrier' in the RTA that prevented her eviction and founded the jurisdiction of VCAT. Second, it determined the application of the Charter because the Director, but not VCAT, was bound to apply the Charter in his decision-making.

28 Neither submission can be accepted. The forensic 'decision' as to which grounds should be included in the application to VCAT did not affect the applicant's rights. If anything, the grounds confined the case which the Director could advance and provided notice of that case to the applicant. The grounds were no more than statements of allegation that could only affect rights if they were ultimately accepted by VCAT, having heard the evidence and submissions. Further, the making of the application did not determine the nature or ambit of VCAT's jurisdiction to entertain the application or determine whether an order should be made. The grounds raised matters for VCAT to determine in the first instance and, in the event of an appeal, the Supreme Court. As already noted, the making of the application did not determine how it was to be decided. Again, that was a matter for VCAT to determine having heard from the parties. In hearing an application under s 548 of the RTA, VCAT does not review the decision of the Director to issue the application as if it were an operative decision, but decides for itself on the merits whether or not an order terminating the tenancy should be made.[20] The so-called 'barrier' to possession could only be lifted by VCAT.

29 At the time of the application to VCAT, the applicant had a tenancy agreement with the Director which governed their respective rights to the property. Neither the RTA nor the Victorian Civil and Administrative Tribunal Act 1998 provided, on the making of an application under pt 16 of the RTA, for any change to the applicant's rights under the tenancy agreement. The tenancy agreement continued on foot and was unaffected by the making of the application. In legal terms, the tenancy was neither less secure nor conditional merely because an application to VCAT had been made. The making of the application did not alter the Director's rights; nor did it take away or reduce the rights of the applicant to remain as a tenant and continue to enjoy exclusive possession. As a matter of practical reality, the odds of the tenancy agreement surviving the application will depend on the factual strength of the landlord's case. Whether the applicant's rights have been affected by the application does not turn on her assessment of whether or not the Director is likely to succeed or the fact that she might feel burdened or, to use the word used by the applicant in argument, 'vexed' by having to respond to the allegations. The power to determine any question arising in the application is one reposed in VCAT and not the Director.

30 It is true that an application is a precondition for the exercise of the statutory powers reposed in VCAT under the RTA which could lead to the termination of the tenancy agreement. But the mere making of the application did not influence, let alone determine, how the application would be determined on its merits. In arriving at its decision on the merits, VCAT is not concerned with why the Director commenced the proceedings but must focus on whether or not it is satisfied as to the existence of the statutory conditions for terminating the tenancy agreement. The applicant could only be evicted from the property as a result of a decision of VCAT, which was required to apply the statutory criteria in the independent exercise of its discretionary powers.

31 The analysis of the majority in Hot Holdings does not assist the applicant. VCAT is required to consider whether a valid application has been made to it, but in no sense is the application analogous to the anterior decisions that were found to be amenable to certiorari in Hot Holdings, which included a recommendation that the decision maker was bound to take into account in making the ultimate decision. The belief of the Director that the rental premises were being used in the trafficking of heroin did not bind VCAT, which was obliged to form its own view on the basis of the evidence and submissions before it. The opinion of the Director about the merits of his application to terminate the tenancy agreement enjoys no special status and carries no particular weight at VCAT.

32 It is possible to conceive of a statutory regime in which the making of an application or the giving of a statutory notice may, without more, bring about an alteration of rights or where an anterior decision circumscribes the powers of the ultimate decision maker or, relevantly influences or dictates the ultimate result. In those cases it may be that the anterior decision has all the hallmarks of a decision under the ALA. In each case it will be necessary to examine the specific statutory setting. However, that is not a description that can be applied to an application under s 548 of the RTA.

33 For similar reasons, the arguments based on the Charter did not assist the applicant.

34 The applicant's arguments on the Charter were not developed at first instance or in her written case in this Court. The applicant now says, without elaboration and without reference to authority, that because the decision to make an application to VCAT is subject to s 38 of the Charter it must affect rights and be a decision for the purpose of s 2 of the ALA. That argument is problematic on a number of levels and cannot be accepted. First, the obligation imposed on a public authority to 'act' compatibly with Charter rights is not, in its terms, confined to a decision. In order to identify an obligation to give reasons for a decision, it is still necessary to satisfy the s 2 ALA definition. Second, the procedural obligation in s 38(1) of the Charter to consider human rights applies to any 'decision'. The question here is whether there was a decision of a certain kind, namely one that determined a question affecting rights. The contention that the public authority, in this case the Director, was required to consider human rights and therefore has made a decision under s 2 of the ALA assumes that there must be a 'decision' that determines a question affecting rights every time there is a consideration of rights. The applicant simply assumes that every decision requiring consideration of the Charter is a decision that determines a question affecting rights. That is not so.

35 The mere making of the application under s 548 of the RTA did not have the potential to limit the applicant's rights under the Charter. The applicant pointed to s 13 of the Charter, which provides that the applicant has the right not to have her home unlawfully or arbitrarily interfered with and s 20, which provides that the applicant must not be deprived of her property other than in accordance with law. The mere making of the application to VCAT in this case could not deprive her of property, nor could it unlawfully or arbitrarily interfere with her rights under the tenancy agreement. Self-evidently, in making an application under s 548 the Director will have to consider whether there is a proper basis for the application, including whether there is a basis for VCAT to be satisfied that it is reasonable and proportionate to make the orders sought. But, in doing so, the Director does not determine these matters and is not making a decision that is captured by s 2 of the ALA.

36 In the circumstances, the decision to commence a proceeding was not legally operative to determine any question that materially affected the rights of the applicant. It put a process in train but in doing so it did not, in itself, determine or affect the rights of the applicant or any other person.

[2] Ibid s 547(1)(a). The tenancy agreement may also be terminated in a number of prescribed circumstances, none of which are relevant to the circumstances of this proceeding.

[5] Its operation was extended to 28 March 2021 by the COVID-19 Commercial and Residential Tenancies Legislation Amendment (Extension) Act 2020 and was then repealed.

[7] ARF (a pseudonym) v Director of Housing [2012] VSC 199. At trial an order that the plaintiff be referred to by a pseudonym was made given the existence of pending criminal proceedings. Those proceedings have been concluded and the pseudonym order is no longer required and will be set aside.

[8] Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674, 704 [106] (Emerton AJA); [2010] VSCA 162.

[9] Public Service Board (NSW) V Osmond (1986) 159 CLR 656, 662 (Gibbs CJ); [1986] HCA 7.

[11] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 ('Hot Holdings'); R v Collins; Ex pare ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691 ('Collins').

[12] Collins (1976) 8 ALR 691, 695 (Stephens J).

[13] Collins (1976) 8 ALR 691, 695 and 699 (Stephens J) citing with apparent approval Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353, 369-70 (Kitto J); [1963] HCA 29 ('Testro').

[14] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10 ('Ainsworth') citing Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509, 525 (Barwick CJ); [1969] HCA 40 and R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864.

[15] Ainsworth [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10 citing R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864, 881 (Lord Parker CJ), 884 (Diplock LJ) and Testro [1963] HCA 29; (1963) 109 CLR 353, 366-7 (Kitto J), 373-4 (Menzies J); [1963] HCA 29.

[16] Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252, 261 [34] (Gordon J); [2013] FCAFC 68.

[17] See by way of analogy Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.

[18] See eg, Administrative Decisions (Judicial Review) Act 1977 (Cth).

[19] Cf Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 dealing with the phrase 'made under an enactment'.

[20] Director of Housing v Sudi [2011] 33 VR 559; [2011] VSCA 266.