Luck v Renton & Ors [2005] VSCA 210

Luck v Renton & Ors [2005] VSCA 210 - VSCA 2005 case summary — Zoe

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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 -

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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 -

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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 -

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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:

At a glance

Court

Decision date

Before

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Judgment (44 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)