Luck v Renton & Ors [2005] VSCA 210

" ● gas leak and explosion in the griller;

● dangerous electrical fault in relation to unsafe electrical fittings throughout the rented premises."

5 Mr Renton was ordered to employ a qualified tradesman to do the work, and Ms Luck was ordered to make the rented premises reasonably available to Mr Renton to enable the order to be complied with.

6 The Tribunal further ordered, with Mr Renton's consent, that Mr Renton employ a qualified tradesman to attend at the rented premises on or before 12 May 2005 -

"to inspect the installation of the gas heater and, if necessary, undertake any adjustments to the heater for the purpose of ensuring it complies with all safety requirements. The tradesman shall, upon completing the task, provide to the landlord, the tenant Ms Luck and the tenant of 2/59 Thames Promenade, Chelsea a copy of a compliance certificate."

7 Finally, the Tribunal ordered Mr Renton to pay Ms Luck costs of the day in the sum of $55.60, to be paid by way of reduction of the rent for the following calendar month.

8 On 13 May 2005, a tradesman from Bayside Gas Shop and Plumbing attended at the premises to carry out the gas repairs. There was a disagreement between Ms Luck and the tradesman. As a result, the tradesman left without completing the work on the gas cooker. Before leaving, he informed Ms Luck that she could not use the grill at all. Ms Luck has since purchased an electric hotplate.

9 An invoice from Bayside Gas Shop and Plumbing stated that the tradesman had initiated repairs on the gas cooker but had been unable to complete them. As a result, according to the invoice, the tradesman disconnected the gas cooker and capped the fitting line for safety reasons.

10 Ms Luck then renewed her proceedings in the Tribunal. She sought orders that the appropriate authority investigate the matter of Mr Renton's allegedly unlawful gas installation, and that she be allowed to appoint her own tradesman to carry out the repairs at Mr Renton's cost. She also sought, under s.472(f) of the RT Act, orders requiring Mr Renton to reimburse her for the costs of the proceeding as well as the cost of the hotplate, and to pay her compensation totalling $3,070.93 for loss of quiet enjoyment.

11 The compensation was claimed in respect of -

(a) Mr Renton's alleged failure to repair the electrical system for a period of 676 days;

(b) a period of 67 days from the date when Mr Renton installed the gas heater, such compensation to continue to be paid until a compliance certificate was provided; and

(c) Mr Renton's alleged failure to provide urgent repairs to the gas cooker and the gas heater respectively.

12 The renewed application came on before the Tribunal on 20 May 2005. The Tribunal made the following findings:

" 1. The tenant has failed to establish on the balance of probabilities that the landlord has failed to comply with the Tribunal's order dated 5 May 2005.

2. A qualified plumber/gasfitter attended the rented premises at the request of the landlord for the purpose of effecting the repairs outlined in the order dated 5 May 2005.

3. The plumber/gasfitter attending the rented premises failed to complete the repair to the griller.

4. The landlord is not responsible for the plumber/gasfitter's failure to carry out the repair.

5. The landlord consents to arranging for another plumber/gasfitter to complete the repair to the griller or, if necessary, to replace the cooking appliance at the landlord's cost.

6. The tenant has failed to establish on the balance of probabilities that she is entitled to compensation for the loss of quiet enjoyment sought in her particulars of claim."

" 1. The landlord shall employ a qualified tradesman of his choice to complete the repairs to the cooking appliance or, if the tradesman deems necessary, to replace the cooking appliance.

2. The repair shall be completed by 27 May 2005.

3. The tradesman shall provide to the landlord a Certificate of Compliance within 10 days of completion of the work.

4. The landlord shall provide the tenant with a copy of the Certificate of Compliance within 7 days of the landlord's receipt of same."

Procedural history

14 Ms Luck wishes to appeal to the Supreme Court, pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), against the orders of the Tribunal made on 5 May and 20 May respectively. The Tribunal having been constituted by a member, Ms Luck must obtain a grant of leave from a judge of the Trial Division before she can bring her appeal (s.148(1)(b)).

15 Ms Luck filed an originating motion dated 17 June 2005, in which she sought leave to appeal from both sets of orders. Because s.148(2) of the VCAT Act requires an application for leave to appeal to be made within 28 days of the decision appealed against, Ms Luck also requires an order under s.148(5) of the VCAT Act extending time for the filing of the application for leave to appeal in respect of the orders made on 5 May 2005.

16 The originating motion sets out five grounds of appeal, as follows:

" 1) That the Tribunal did not act fairly and according to the substantial merits of the case and reasonably take into account the evidence before the Tribunal in accordance with the rules of natural justice and section 97 of the Victorian Civil and Administrative Tribunal Act 1998.

2. That the Tribunal lacked administrative and procedural fairness in processing the matter.

3. That the Tribunal acted with actual and perceived bias.

4. That there is an error on the face of the record.

5. That the appellant has been denied natural justice."

17 It would appear that Ms Luck's primary complaint is that she was not accorded procedural fairness by the Tribunal. Grounds 1, 2, 3 and 5 are contentions to that effect. The question whether the rules of natural justice were breached is, of course, a question of law on which an appeal from the Tribunal can (subject to a grant of leave) properly be brought. Paragraph 98(1)(a) of the VCAT Act expressly states that the Tribunal is bound by the rules of natural justice.

18 On the other hand, ground 1 complains that the Tribunal did not decide the matter "according to the substantial merits of the case", and did not "reasonably take into account the evidence." These claims suggest that Ms Luck wants to re-argue the merits of her repair claim in the Supreme Court. That course is not open on an appeal under s.148, confined as it is to a question of law.

19 Ms Luck issued a summons dated 24 June 2005, in which she sought the necessary extension of time for leave to appeal against the orders of 5 May 2005, and a grant of leave to appeal in respect of both the 5 May and 20 May 2005 orders. The summons came on before Master Evans on 15 July 2005. The Master dismissed both applications.[2]

The appeal to the Practice Court

20 Ms Luck filed a notice of appeal from the Master dated 18 July 2005. In the notice, Ms Luck set out various grounds of appeal, including that she had been denied natural justice before the Master. As was pointed out to her by the Judge in the Practice Court, however, the Judge hearing an appeal from the decision of a Master hears the matter afresh. It is a hearing de novo (r.77.05(7)). There is no need to establish error on the part of the Master. His Honour correctly proceeded on that basis.

21 The notice of appeal set out a lengthy list of orders sought. In addition to seeking the orders for extension of time and for leave to appeal, Ms Luck also sought -

(a) an order that the hearing of the appeal be expedited "due to the urgent and human rights nature of the matter";

(b) an order that the Tribunal provide to Ms Luck, and an expert of her choice, for production at the hearing of the appeal -

(i) the original transcript of the hearings before the Tribunal;

(ii) the original sound recording of the hearings in the Tribunal; and

(iii) a copy of the original source file of the sound recording, directly dubbed onto a compact disk,

with a waiver of any fees or charges associated with the production of such document, on the basis of Ms Luck's "impecunious circumstances";

(c) the correction of any "anomalies, errors, amendments, additions or alterations" in the transcript, to ensure -

"that a final transcription meets the acceptable standard of 98% accuracy or better."

22 In addition, Ms Luck sought an order staying, until the hearing of her appeal (assuming a grant of leave) from the orders of 5 and 20 May 2005, a separate VCAT application which has been instituted by Mr Renton for possession of the premises. This application is listed for hearing before the Tribunal on 2 September 2005.

23 In her notice of appeal from the Master, Ms Luck referred to this as -

"... the VCAT Residential Tenancy List matter of the Notice to Vacate an Application (with reference to the original matter from which the leave to appeal application R2005/20760 was made on the face of the Application) served by the respondents on the appellant in this matter on the 28th June 2005, whereby the Residential Tenancy Act 1997 requires the appellant to file an application with the Tribunal to contest such a notice within 28 days which is on 26th July 2005, (the appellant intends to contest this on the grounds of discrimination and harassment of the appellant by the respondents for the appellant asserting rights under the Residential Tenancy Act 1997 and other State and Federal Laws."

24 This was not a matter which had been raised in the originating motion, nor in the summons which came on for hearing before the Master. The notice of appeal also sought an order that the application for possession of the premises be dealt with by the Supreme Court itself, at the hearing of the appeal from the orders of 5 and 20 May 2005.

25 The appeal from the Master came on for hearing in the Practice Court on 25 July 2005. At Ms Luck's request, a full transcript of the hearing before Hargrave, J. was prepared, and forwarded to her promptly. We have been much assisted by having that transcript available to us.

The adjournment application

26 When the matter was first called on, Ms Luck informed the Court that she was seeking an adjournment "after the making of certain orders". She explained that an adjournment was necessary to enable the papers to be served on the second and third respondents. As mentioned earlier, they are Mr Renton's daughters. Mr Renton told the Judge that his daughters were not aware of the proceedings. He said that, while he had a 50% interest in the property and his daughters were joint owners of the other 50%, the units at 59 Thames Promenade were in his sole control until his death. Ms Luck argued that it was -

"absolutely essential to avoid any substantial injustice to them that they be served and can be heard like myself and [Mr Renton]".

27 To that end, she sought an order that Mr Renton provide to the Court and to her, within two days of the hearing, contact details and addresses for service for the second and third respondents. Mr Renton told the Court that he had not spoken to his daughters for about 15 years and had no idea where they were.

28 There appears to be no dispute that Mr Renton has at all times acted alone as Ms Luck's landlord, that he has (with the apparent acquiescence of his daughters) sole control over the tenancy, and that the matters which are the subject of these proceedings have arisen solely between Ms Luck and Mr Renton.

29 In his ruling, delivered the same day, Hargrave, J. refused the application for an adjournment for the purposes of seeking to serve the second and third respondents. He said:

"It is clear that Mr Renton controls and has for some time controlled the relevant property and has had all material dealings with [Ms Luck]. I will revisit the application for there to be an adjournment if I decide after having heard argument that a case for the granting of leave to appeal has been made out.

In refusing the application for adjournment, I am mindful of the inconvenience and stress which has been caused to both Ms Luck and Mr Renton by reason of this proceeding, and the proceedings in VCAT. It is in my view appropriate that such inconvenience and stress should not be prolonged unless it is absolutely necessary to do so."

30 The question of adjournment was a matter for his Honour's discretion. An appellate court will only intervene in a discretionary decision where there has been an error of principle or in some other respect the discretionary power has not been properly exercised.[3] This is not such a case. We respectfully agree with the decision which his Honour arrived at, for the reasons which he gave. It is important to note his Honour's proviso to the effect that, were the application for leave to appeal to succeed, he would revisit the question of service on the other respondents. This seems, with respect, an eminently sensible course in the circumstances.

Production of transcript

31 In support of her application for production of the VCAT transcript and original sound recordings, Ms Luck acknowledged that she did have what she described as "a secondhand copy" of the transcript, sent to her by electronic mail via the Tenants Union of Victoria. She said of this transcript:

"... [T]he most important fact is that it is severely different than what actually took place and there have been extracts - considerable extracts - especially where I read out orders that I was seeking from the Tribunal."

Later Ms Luck said:

"But this is very distressful, the fact that all this goings-on with the transcript including the fact that it is extremely inaccurate. It has spelt names very, very inaccurately in every aspect, it has been, I believe, revised by the member, which was what the Tenants Union advised me of, which in my opinion is unbelievable. There are authorised transcription services that are supposed to be authorised for that reason, that they are the only people who do it and they should be the only people that do it."

She went on:

"...I cannot base my arguments on a piece of - on a published document that is not only defamatory to me, but it is also inaccurate in that it spells names incorrectly. It has the wrong title, it used wrong names for the title of the document. It refers to me as a male, instead of a female. There are several things that are not right there on the surface, on the face of the record."

32 His Honour rejected the application for orders against the Tribunal in respect of transcript. The relevant part of the ruling stated:

"As to the transcript, no sufficient grounds have been put before me to make such an extraordinary order in the absence of VCAT. If an application had been made on notice to VCAT, it could have been dealt with on that basis. A subpoena could have been served on VCAT to produce the documents and files. This was not done.

Further, in any event, the applicant has not deposed to, or in argument identified, anything other than formal inaccuracies in the transcripts, none of which have any substantial or material relevance to the matters in dispute."

33 As noted earlier, Ms Luck's principal ground of appeal from the orders of the Tribunal is that she was denied natural justice. She complains that there was actual bias against her, alternatively apprehended ("perceived") bias.

34 Where questions of bias are raised, the availability of a transcript of the subject proceedings is of the greatest importance. Particularly is this so where the proceeding involves an unrepresented person who, of necessity, cannot keep any running record of what is said by a tribunal during the course of the litigant's submissions to the tribunal.

35 In Onus v. Sealey,[4] for example, a magistrate's decision to refuse an adjournment to an unrepresented person was quashed on the ground that there had been a breach of the rules of natural justice. The transcript of the proceedings was the foundation of the Court's consideration of the appeal, which included a claim of apprehended bias.

36 The availability of transcript is of equal importance to the tribunal itself. An accurate transcript provides protection for a tribunal against allegations of bias based - for example - on a mishearing, or a misunderstanding, of something that has been said by the tribunal. We would venture to add that prompt availability of accurate transcript might do much to reduce the frequency of challenges to tribunal decisions on this ground.

37 For these reasons, we regard it as essential, before the hearing of Ms Luck's substantive applications for leave to appeal from the Tribunal (see below), that there be available to the parties and the Court a full transcript of what took place before the Tribunal in the May 2005 hearings, and that Ms Luck be given access to the sound recordings to satisfy herself of the accuracy of the transcript, assuming that it is reasonably practicable for such access to be given.

38 That said, we have no doubt that his Honour took the only course open to him in the circumstances. As no notice of the transcript application had been given to VCAT, his Honour was not in a position to assess whether the orders sought were either necessary or practicable.

39 As already indicated, we fully understand Ms Luck's difficulties in articulating the respects in which she considered the "secondhand version" of the transcript to be inaccurate. At the same time, without any clear articulation of substantive - as distinct from formal - inaccuracies in the transcript, his Honour was unable to be satisfied that the order was justified.

The application for stay of the possession proceeding

40 As noted earlier, Ms Luck sought - for the first time - before Hargrave, J. a "stay" of the impending possession application. She again used the terminology of "stay" in her submissions, and documentation, in this Court.

41 It is not unusual for an applicant for leave to appeal from orders made by VCAT to seek a stay of the orders pending the hearing and determination of the leave application. In Brown v. AEP Belgium S.A.[5], for example, the Tribunal had ordered a tenant to vacate rented premises within 14 days. The tenant sought leave to appeal against those orders and sought a stay of the operation of the orders pending the hearing and determination of the application for leave.

42 The motivation for such a stay application, of course, is that unless the orders are stayed, the applicant for leave to appeal will have to comply with the orders before having had any opportunity to challenge their legality. At the same time, as Hollingworth, J. noted in Brown, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances.[6]

43 In the present case, however, Ms Luck does not seek to stay the operation of the orders of 5 May and 20 May, to which her applications for leave to appeal relate. Rather, she wishes to prevent the Tribunal from dealing with Mr Renton's separate application for possession which, if successful, will mean that she must vacate the premises.

44 In substance what she was seeking, both before the Practice Court and before this Court, was an injunction to restrain the Tribunal from hearing that application. Properly understood, this was not a "stay" application at all.

45 As became clear in argument before us, Ms Luck makes two principal contentions in support of her application for a "stay", namely that -

(a) the effect of s.448(3) of the RT Act is to prevent the Tribunal from dealing with the possession application; and

(b) because of the actual or apprehended bias already apparent in the Tribunal's dealings with her, she cannot expect to get a fair hearing before the Tribunal on the possession application.

46 As to the first of these contentions, s.448(3) of the RT Act provides as follows:

"The Tribunal must not determine an issue in an application or proceedings if a civil proceeding in respect of the issue was instituted before a court or person acting judicially before the application to or proceedings before the Tribunal unless the civil proceeding has been discontinued."

47 The relevant "issue" for this purpose is whether Mr Renton is entitled to an order for possession. Subsection 448(3) will only apply if it can be shown that "a civil proceeding in respect of the issue" was instituted before the possession application itself was filed at VCAT. When asked, in the course of her submissions in this Court, to identify the civil proceeding on which she relied, Ms Luck referred to her notice of appeal from the Master. As we have already noted, the matter of the possession application had not been raised by Ms Luck until she filed that notice of appeal.

48 In our view, this contention must fail. Subsection 448(3) would only be applicable in the present circumstances if, at the time Mr Renton filed his application for possession with VCAT, there had already been on foot a court proceeding which raised for determination the question of his entitlement to possession of the premises. There is and was no such proceeding. On no view could Ms Luck's seeking of a stay of the possession application constitute such a proceeding. Indeed, if Ms Luck's argument were right, the mere commencement of an application to restrain the hearing of a proceeding in the Residential Tenancies Division of the Tribunal would automatically - without the need for this Court to make any order at all - prevent the Tribunal from dealing further with that matter.

49 As to the threatened breach of natural justice, Ms Luck's concerns were most fully articulated when she was asked - again in the course of her submissions in this Court - why she would not take the usual course of raising her s.448(3) point with the Tribunal itself, at the commencement of the hearing of the possession application. Ms Luck candidly acknowledged that this was "a logical and very reasonable way to go about things", but said that it was simply not open to her because of -

"my circumstances, my specific circumstances, my relationship with the Tribunal, my relationship with the Residential Tenancy List and the members and the whole - and the past Presidents... I've got to go through all this abuse and harassment and whatever else I have to be subjected to, all over again, then inevitably I'll have to appeal..."

"experienced an abuse of process in relation to all of my matters at VCAT or in the Residential Tenancies List and do believe that there is a threat that such abuse will continue until such time as I can make submissions to an unbiased court based on the facts of the matter and until all evidence I have so far filed in relation to these matters is fairly reasonably, rationally and logically considered, I am afraid to make any appearances or accept any determinations of VCAT or RTL."

51 For the purposes of this discussion, we will assume in Ms Luck's favour (but without deciding) that the ground of bias (actual or apprehended) could be made out in respect of the Tribunal member who dealt with Ms Luck's repair applications in May 2005. (We have not formed any view on that question). The upholding of that ground in respect of a particular member of the Tribunal could never, in our view, justify the grant of an injunction preventing the Tribunal as a whole from hearing a future application in relation to the same person and the same premises. The reason is simple. Where an allegation of actual or perceived bias is made out against a particular member, the proper course is for the Registrar of the Tribunal to allocate the separate application to a different member of the Tribunal.

52 As appears from the extracts from her submissions set out above, however, Ms Luck's apprehension of bias extends beyond the particular member who heard the May applications. She believes that she is, or will be, a victim of institutional bias. She fears that she will never get a fair hearing in the Tribunal, whoever may hear the possession application. That is why she has sought to have the possession application heard by the Supreme Court itself.

53 It is possible to imagine circumstances in which a claim of institutional bias might legitimately arise, but they would be rare indeed. Such a claim would only warrant examination if it were supported by clear, objective evidence of the most compelling kind, independent of the claimant's subjective perceptions. Such evidence would need to show that there was such entrenched and pervasive institutional hostility toward the individual in question that a fair-minded observer might reasonably apprehend that the individual might not be dealt with impartially.[7]

54 There is no material of that kind before the Court. We do not doubt that Ms Luck's apprehension is genuine but, for the reasons we have given, that is not enough.

55 It is important to point out that, even if the claim of institutional bias were made out, the Supreme Court would not be able to deal with the possession application itself. The Tribunal has exclusive jurisdiction under the RT Act to deal with that application.

56 In dismissing the application for a stay, the Judge said that there was nothing before him to suggest that the Tribunal would deal with the possession application otherwise than in accordance with law. We agree with his Honour's conclusion. For the reasons we have given, this was the only conclusion reasonably open, regardless of whether the allegation of bias was well-founded in respect of the particular member who heard the May applications.

57 As a matter of proper process, the application for an injunction to restrain the Tribunal from hearing the possession application should have been separately identified in the originating motion. In the circumstances, however, the Judge in the Practice Court took - the appropriate course, and allowed Ms Luck to make the application. In the event, his Honour dismissed the application for the reasons already referred to.

58 Since, properly characterised, this was an oral application for an injunction to restrain the Tribunal from hearing the possession application, Ms Luck had a right of appeal against the refusal of the application, in accordance with s.17A(4)(b)(ii) of the Supreme Court Act 1986. No leave to appeal was required.

59 When she appeared before us on 12 August, Ms Luck was given the opportunity to say everything she wished to say in support of her application for the "stay". At the conclusion of the hearing, Ms Luck confirmed that she had no further submissions to make in relation to the stay.

60 In the circumstances, the interests of justice will be served if we treat those submissions as having been made, not on an application for leave to appeal but in support of her appeal against the refusal of an order restraining the Tribunal from hearing the possession application. For the reasons given, there was in our view no basis for the grant of such an injunction. More accurately, there was no serious question to be tried about the jurisdiction of the Tribunal to hear the possession application.

61 Accordingly, Ms Luck's appeal against the refusal of the "stay" must be dismissed. We would point out, however, that Ms Luck will have, in respect of the Tribunal's determination of the possession application, the appeal rights which s.148(1) of the VCAT Act confers. If, at the conclusion of that proceeding, Ms Luck considers that the rules of natural justice have not been complied with, she can raise that ground of appeal in exactly the same way as she has raised it in respect of the May orders.

The applications for leave to appeal and extension of time

62 In the course of her submissions before Hargrave, J., Ms Luck said that she could not make her applications for leave to appeal that day. This was consistent with her having earlier told his Honour that she was seeking an adjournment and that, as a result, the matter should take only about 15 minutes. His Honour later noted in his ruling that -

"the plaintiff did not wish to proceed today with her substantive applications for leave to appeal."

63 In his ruling the Judge gave reasons for dismissing Ms Luck's applications - for an adjournment (so that service might be effected on Mr Renton's daughters), for transcript and for a "stay" respectively. Having delivered his ruling, his Honour then informed Ms Luck that he had read the material which had been filed and enquired of her whether she had any other submissions to make in support of her applications for extension of time in respect of the 5 May orders and for leave to appeal against both sets of orders.

64 She responded by saying that "there would not be much point", and expressing her frustration and disappointment at the rejection of the applications the subject of the ruling just delivered. She also said she was unable to speak further because she was too distressed and she asked to leave the Court. His Honour then ordered that the appeal from the orders of Master Evans be dismissed. It being a hearing de novo, his Honour was in effect ordering that the application for an extension of time and both applications for leave to appeal be refused.

65 After some hesitation we have come to the conclusion, respectfully, that his Honour ought not to have taken this course. Although Ms Luck declined the Judge's invitation to make further submissions, she had earlier made it clear that she was not ready to deal with her substantive applications that day. In those circumstances, we think that it was not appropriate for his Honour to proceed to deal with those applications. Not only was Ms Luck not in a position to present argument but it was clear from what she told the Court that she was too distressed by the failure of her other applications to do so.

66 The requirements of procedural fairness mean that Ms Luck is entitled to a fair opportunity to present her arguments in support of her applications for an extension of time and for leave to appeal. In the events which have happened, she has not had that opportunity.

67 It follows, in our view, that Ms Luck's application for leave to appeal from the dismissal of the substantive applications must be granted. In so holding, we say nothing as to the merits of those applications. We would treat her appeal as having been heard instanter, and we would allow the appeal. We will remit those applications to the Trial Division for rehearing.

68 It is, in our view, peculiarly inappropriate for applications brought by an unrepresented person to be dealt with in the press of business in the Practice Court. The competing demands on the Judge's time make it difficult, if not impossible, for the unrepresented person's matter to be given the extra time and attention which such matters typically require.

69 In our view, these applications should be set down for hearing in the Causes List, and appropriate directions for the hearing of the applications made by the Listing Master in the ordinary course.

The requirement to obtain leave to appeal

70 Implicit in what we have said so far is the view that, with the single exception of the appeal from the order refusing the "stay" of the possession application, Ms Luck required leave to appeal from the orders made by his Honour. The position with respect to the applications for adjournment and for transcript is clear. Each was an interlocutory application and, accordingly, an appeal would only lie from the Judge's order by leave of this Court: Supreme Court Act s.17A(4)(b). The same is true of the application for an extension of time within which to bring an application for leave to appeal from the orders of 5 May 2005.

71 As to the applications for leave to appeal themselves, this Court has clearly held, as recently as December 2004, that an order refusing a grant of leave to appeal is an "order in an interlocutory application" within the meaning of s.17A(4)(b) of the Supreme Court Act. In Dodoro v. Knighting,[8] a five-member bench of the Court was considering the status of an order refusing leave under s.93(4)(d) of the Transport Accident Act 1986 to bring proceedings for common law damages. In holding that this was an order in an interlocutory application, Callaway, J.A. (who delivered the principal judgment) said that -

"[L]ike an application for leave to appeal to the Trial Division or to this Court or an application for special leave to the High Court, [an application pursuant to s.93(4)(d)] is no more than a preliminary application."[9]

72 As the judgments in that case show, the decision of the High Court in the Roy Morgan case does not affect this conclusion.

The need for resolution

73 Both before Hargrave, J. and before this Court, Ms Luck has referred repeatedly to the anxiety and distress which she has been experiencing in the course of the tenancy disputes and the various proceedings in the Tribunal, in the Trial Division and in this Court. For obvious reasons, we say nothing about whether her underlying grievances are justified or not. But we can readily appreciate that issues concerning a person's home, and security of tenure, can cause great emotional distress. We acknowledge in passing the very considerable difficulties which must, as a result, attend the work of the Tribunal in its residential tenancies jurisdiction.

74 It was in recognition of Ms Luck's obvious distress that we suggested to her, in the course of argument in this Court, that there might be advantage in having her disputes with the landlord referred to mediation. Mr Renton indicated he was agreeable to this course. Ms Luck, however, said that she would find this highly stressful and that she did not think she could participate. For this reason, we did not press the suggestion.

75 The continued distress which Ms Luck is experiencing is, obviously, inimical to her health and wellbeing. It also has the unfortunate consequence that the number of proceedings, and the number of grievances, tends to multiply. We make no criticism of Ms Luck in this regard but simply point to a striking feature of these proceedings and of the documentation which has been provided to us.

76 Our concerns in this regard were heightened when, on 22 August 2005, Ms Luck filed a further affidavit which was, as she requested, brought promptly to our attention. At the hearing on 12 August, we had afforded Mr Renton the opportunity to file in court any documents to which he wished us to have regard in considering Ms Luck's application. In so doing, we were simply ensuring that he was given the same opportunity as we had afforded Ms Luck, of filing any additional material on which she wished to rely.

77 The documents delivered to the Court by Mr Renton were copied and provided to Ms Luck. They go to the tenancy issues, including the circumstances surrounding the non-repair of the griller. Their only relevance for our purposes has been to confirm that there are a number of factual matters in dispute, many of which have already been ventilated before the Tribunal.

78 In her most recent affidavit, Ms Luck has commented on the content of some of Mr Renton's documents. Paragraph 3 of her affidavit states as follows:

"On or about this day, 22nd August 2005, pursuant to Section 10 of the Supreme Court Act 1986 and Order 64 of the Supreme Court (General Civil Procedure) Rules 1996, I seek directions from the Honourable Court of Appeal as to the inclusion, as parties to this proceeding, by amendment of the Notices of Appeal and any other documents as directed by the Court, of the following entities, for alleged summary and indictable offences of the said entities, as found under legislation listed in my Certificate of Identifying Exhibit "AL10" filed 18/07/05 and alleged defamation, discrimination, vilification, harassment and victimisation of me by the said entities, as evidenced in the documents handed up to the Court by [Mr Renton] on 12/08/05 and the letters received from the Department of Justice dated 15/08/05 and 17/08/05 and due to the evidence previously provided in filed and served Appeal Books Volume I and Volume II to date..."

There then follows a list of 18 individuals, companies and public officials including, for example, the Attorney-General and the Shadow Attorney-General, and various senior officials of VCAT.

79 This material illustrates what we said earlier about the multiplication of grievances, and reflects the state of high anxiety in which Ms Luck unfortunately finds herself. There is, of course, no basis whatsoever for this Court to add any parties to the proceeding, let alone for them to be dealt with "for alleged summary and indictable offences".

80 In the circumstances, we think it would be in the interests of all parties if it were possible for some process of conciliation or mediation to be embarked upon. Clearly, given Ms Luck's distressed state, she would require some independent assistance if that process were to be productive.

Summary

81 Given the length and complexity of these reasons, it is appropriate that we summarise our conclusions as follows:

(1) The applications for leave to appeal in relation to the adjournment application and the application for VCAT transcript are refused.

(2) The appeal from the order refusing a stay of the application for possession in VCAT is dismissed.

(3) The application for leave to appeal from the orders dismissing the application for an extension of time and the applications for leave to appeal from the VCAT orders of 5 May and 20 May 2005 is granted. The Court treats the appeal as having been heard on 12 August and allows the appeal. The result is that those applications will be remitted to the Trial Division for hearing.

(4) The Court has expressed the view that the availability of an accurate transcript of the VCAT proceedings is essential to the proper hearing of those applications. There is no order in that regard.

(5) Because of the anxiety and distress which Ms Luck is experiencing as a result of the various proceedings in which she is involved, it is highly desirable that steps be taken - if practicable - to arrange for a mediation of the matters in dispute. Once again, we make no order in that regard.

(6) There will be no order as to costs.

[1] [2001] HCA 49; (2001) 207 CLR 72.

[2] Although s.148(1) refers, relevantly, to leave being granted by "the Trial Division", s.148(2)(b) requires an application for leave to appeal to be made in accordance with the Rules of the Supreme Court. Order 4 of Chapter II of the Supreme Court Rules provides that the Master may grant or refuse leave to appeal (r.4.09(1)). An appeal lies from the decision of the Master to a judge of the Trial Division under r.77.05 of Chapter I of the Rules

[3] House v. R [1936] HCA 40; (1936) 55 CLR 499.

[4] [2004] VSC 396; (2004) 149 A. Crim. R. 227.

[5] [2004] VSC 255 (23 June 2004, Hollingworth, J.).

[6] See Patrick Stevedores Operations No.2 Pty Ltd v. Maritime Union of Australia (1998) 72 ALJR 869 at 870-1; Scandi Pty Ltd v. Wright [2000] VSC 149 (14 April 2000, Gillard, J.).

[7] cf. Bienstein v. Bienstein [2003] HCA 7; (2003) 195 ALR 225; Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; Johnson v. Johnson [2000] HCA 48; (2000) 201 CLR 488.

[8] [2004] VSCA 217 (3 December 2004, Winneke, P., Charles, Callaway, Buchanan and Eames, JJ.A.)

[9] at [23].