1. On 11 July 2025, the respondent filed a notice of contention (the 'NoC') containing three grounds:

(a) First, in assessing whether the respondent gave proper consideration to human rights under s 38(1) of the Charter, the judge erred in finding 'Mr Newport's consideration of human rights ... did not include reflection on the impact of the Decision being made without prior notice or consultation'.

(b) Second, the judge erred in finding that the Decision interfered with the group members' homes within the meaning of s 13(a) of the Charter.

(c) Third, the judge erred in finding that the Decision arbitrarily interfered with the group members' right to home under s 13(a) of the Charter.

1. By its proposed ground 6, the applicant argues that the judge erred in failing to exclude significant parts of the September affidavit of Mr Newport, and parts of Mr Newport's evidence in cross-examination under s 135 of the Evidence Act. For the reasons we give below,[34] we have concluded that the balancing exercise in s 135 falls squarely in favour of admitting the impugned evidence. The probative value of the evidence was relatively high (notwithstanding certain limitations, which we address below). While there was some risk of prejudice, this risk of prejudice in no way substantially outweighed the probative value of the evidence.
2. In light of our conclusion on proposed ground 6, the evidence summarised in the preceding PART C was all admissible before the judge, save for the evidence given in relation to the judge's questions. With this in mind, it is convenient and sensible to commence analysis of the applicant's proposed grounds of appeal by commencing with grounds 2, 3 and 4 relating to the failure to give group members an opportunity to be heard. Then, it is convenient to deal with the two grounds that raised separate issues about Homes Victoria's obligations under the provisions of the Charter (grounds 1 and 5, and NoC grounds 1-3). We will then return to ground 6, regarding s 135(a) of the Evidence Act.

PART E: PROCEDURAL FAIRNESS (GROUNDS 2, 3 AND 4)

1. The applicant's procedural fairness grounds concern whether Homes Victoria was obligated to give group members an opportunity to be heard before making the Decision.
2. At trial, Mr Berih contended that before making the Decision, Homes Victoria was obliged to afford group members procedural fairness. The judge rejected this, concluding that:

(a) the power in s 15(1) of the Housing Act to demolish the towers is not conditioned on the observance of procedural fairness;[35] and

(b) the Decision did not affect any 'legally recognised interest' of the applicant.[36]

1. As to the first aspect, the judge took into account the nature of the power and noted a number of features. These features included:

(a) the power is a broad power to develop land;

(b) it may be exercised on an ongoing basis;

(c) the s 15 'powers' did not expressly require consideration of the individual circumstances of people who may be affected by their exercise;

(a) the objects of the Act and Ministerial control show they are based on a wide range of potentially conflicting policy considerations; and

(b) s 15(1)(a) does not identify the class of persons who may be affected and the rights of individuals are picked up by other provisions and statutory regimes, such as the RT Act.[37]

1. As to the second, the judge held that the right to be heard only extended to those whose 'legally recognised rights or interests' might be adversely affected.[38] The judge concluded that notwithstanding the Decision, the tenancy agreement remained on foot and the applicant's security of tenure was not sufficiently affected so as to give rise to a right to be heard.[39]
2. Although strictly not necessary to do so in light of the conclusion that procedural fairness was not owed, the judge added that the content of the obligation would have been limited to hearing about the individual circumstances of the tenant and would not have extended to submissions about the feasibility of renovating and retrofitting the towers, as an alternative to demolition and redevelopment.[40]
3. The judge went on to hold that hearing from the applicant could not realistically have changed the decision:

Key reasons for the Decision were that taking no action about the state of the [t]owers was not an option, retrofitting the [t]owers was not feasible, and both retrofitting and redeveloping would involve relocating renters. Mr Newport was aware of, and considered, the significant disruption that the Redevelopent Program would cause existing renters, 'by disrupting their home life, their connections to local supports and services, and their links to their communities in the towers and the surrounding area'. I am not persuaded that a better understanding of these impacts could realistically have changed the Decision. In particular, it would not have affected Mr Newport's assessment that any of the options available to address the problems with the Towers would involve relocating residents.

A further and equally important reason for the Decision is that the Redevelopment Program will substantially increase the amount of housing on the sites of the [t]owers. This purpose realistically can only be achieved by demolishing the [t]owers and redeveloping the sites. I am not satisfied that anything that Mr Berih or other group members might have said could have changed that reality.[41]

1. Following the hearing of parties' oral submissions on the application in this Court, the High Court delivered judgment in Badari v Minister for Territory Families and Urban Housing ('Badari'), allowing the appeal.[42] The Court invited parties to provide further submissions in respect of the High Court's judgment. Both parties filed further submissions, which are discussed below.

1. The applicant submits that, absent clear statutory displacement, there is a strong and established presumption, applicable to any statutory power capable of having an adverse effect on legally recognised rights and interests, that 'the exercise of the power is impliedly conditioned on the observance of procedural fairness'.[43]
2. On this basis, they submit that the exercise of the power contained in s 15(1)(a) of the Housing Act, in so far as it is exercised to cause the demolition of buildings in which people live, is a power capable of adversely affecting the interests of the residents.
3. The impact of the Decision did not affect group members 'indiscriminately' as members of the public. Rather, they were affected in their capacity as individuals entitled to exclusive possession of their homes, the subject of the Decision to demolish. In this way, individual interests were affected in a manner 'substantially different' from that of the public or a class of the public, and therefore, to the extent that the Decision was apt to affect their interests, group members were entitled to procedural fairness.
4. Observing that the obligation to afford procedural fairness need not only affect a legal right, but may apply to the exercise of any statutory power apt to affect any interest by an individual, the applicant submits that the judge erred in holding that the Decision was not apt to affect group members' interests, namely, their interests in maintaining exclusive possession, quiet enjoyment, and maintaining community.
5. In respect of group members' interest in maintaining exclusive possession of their homes, the applicant submits that the diminution of the group members' security of tenure in their homes, as the judge found, constituted sufficient affection of their interest in security of tenure. The fact that tenants could not be legally evicted at this stage is not determinative because eviction was not the only way in which group members' interests were affected. They submit that the Decision was a decision to take all steps to decant residents from the towers. Therefore, absent intervention, the inevitable consequence of the Decision was that group members would have to vacate their homes. The applicant further submits that no subsequent processes would have provided a meaningful opportunity to be heard on the Decision. They submit that the point at which the Victorian Civil and Administrative Tribunal ('VCAT') could consider whether a possession order would be 'reasonable and proportionate', demolition would essentially be irreversible, and the decision-maker could defend the application on the basis that the Decision had been made lawfully and stood to be implemented.
6. The judge, in finding that the Decision did not sufficiently affect the applicant's security of tenure, placed significant reliance on the decision in Keasey v Director of Housing ('Keasey').[44] The applicant submits that this reliance was misplaced as Keasey is distinguishable in that it was not concerned with whether a decision affected the interests of renters, it concerned a different legislative context - that being a 'temporary statutory process' established during the COVID-19 pandemic and it related to a decision in respect of a single premises.
7. In respect of the group members' interest in quiet enjoyment, the applicant submits that attempts to cause a tenant to leave their residence, even in the absence of physical interference or entry to the property, can constitute a breach of this interest. They note that Homes Victoria commenced a 'communications program' that 'came out of the blue', and included doorknocking, information booths in the towers, and letters and text messages advising tenants that they would be required to leave their homes.[45] On this basis, they submit that the judge erred in failing to find that this repeated contact from Homes Victoria adversely affected group members' right to quiet enjoyment.
8. Finally, the applicant submits that judge erred in failing to find that group members' interest in maintaining community was an interest attracting a right to be heard. Such an interest, they submit, is not one held by group members as members of a class of the public, but rather, held as individuals.
9. The applicant submits that the High Court's decision in Badari is authoritative, in so far as it supports the submission that the Decision affected group members' rights and interests - both personal and contractual - to exclusive possession, quiet enjoyment and maintenance of community. Badari, they submit, establishes that the presumption of an obligation to afford procedural fairness is not rebutted because the relevant decision was made by Cabinet, nor because the statutory power at issue is expressed in general terms or in a way that affects a large group of people.
10. Under the third proposed ground of appeal, the applicant submits that the judge erred in finding that a hearing could not have changed the Decision on the basis that 'retrofitting the towers was not feasible', 'both retrofitting and redeveloping would involve relocating renters' and that a substantial increase in housing could 'only be achieved by demolishing the [t]owers'.[46] They submit that those conclusions rest entirely on Mr Newport's evidence, which was not rationally capable of grounding such findings.
11. In respect of the content of the obligation, the applicant submits that the judge erred in holding that even if the exercise of power pursuant to s 15(1)(a) of the Housing Act was conditioned on the obligation to afford procedural fairness, the content of that obligation would not have conferred an entitlement for Mr Berih (or any of the group members) to be heard on the feasibility of renovation and retrofitting because they were 'technical matters beyond his knowledge'.[47] The applicant submits that, per Badari, a decision-maker cannot reduce the content of the obligation to nothingness by determining that the interests of those affected are irrelevant. On this basis, the applicant submits that it was an error to reduce the content of procedural fairness to nothingness by reference to the applicant's relative lack of expertise. The object of affording procedural fairness is 'ensuring an opportunity of raising for consideration matters which are not already obvious'.[48] As tenants of the towers, groups members had personal, reliable and credible knowledge which may not have been obvious to Homes Victoria and may have borne upon the necessity of demolition, feasibility of renovation and retrofitting, and the desirability of an alternative approach.
12. They submit that, as the judge held, the applicant's relevant interests included remaining in his home and preserving the community around the towers. Given the decision was based largely on the perceived necessity of demolition, whether feasible alternatives existed was a central issue. Without the feasibility studies being in evidence, the Court had no basis to find that group members could have had no personal knowledge of matters relevant to the feasibility of renovation and retrofitting. They further submit that, while group members may not have had personal expert knowledge about the feasibility of retrofitting or renovation, no authority suggests that this is a relevant test and therefore, there was no basis for holding that the content of the procedural fairness obligation was so limited.

1. The respondent submits that the judge was correct to hold that an exercise of power under s 15(1)(a) of the Housing Act is not conditioned by an obligation to afford procedural fairness, because the Decision was not capable of having an adverse effect on any legally recognised right or interest held by the applicant.
2. Any effect on legally recognised rights or interests of group members as a result of the Decision is, they submit, at its highest, indirect and through a subsequent statutory process under the RT Act (noting that a notice to vacate can only be issued pursuant to s 91ZY, where the residential rental provider intends to demolish the premises 'if all necessary permits and consents to demolish' have been obtained). Those conditions were not satisfied by the Decision. The statutory process contained within the RT Act relevantly entitles a renter to be heard by VCAT on a broad range of issues. Keasey, they submit, is relevant in so far as it held that 'the tenancy was neither less secure nor conditional merely because an application to VCAT had been made' for a possession order.[49] As in Keasey, the respondent submits that where a notice to vacate is issued on the basis of an intention to demolish pursuant to s 91ZY of the RT Act, the issuance of the notice will depend on the factual strength of the landlord's case. Group members therefore have the opportunity to be heard before there is any possible interference with any legally recognised interest.
3. The respondent further submits that the right to quiet enjoyment is not affected by the Decision. A renter's right to quiet enjoyment, embodied in s 67 of the RT Act, protects a renter from conduct that substantially interferes with their possession of the property. Additionally, the respondent rejects the submission that group members' interest in preserving the community in the towers constituted a legally recognised interest capable of giving rise to an obligation to afford procedural fairness.
4. Further, any effect on group members occurred as a result of the Decision applying to a class of which they were a member - namely, as a resident of one of the towers. Thus, no obligation to afford procedural fairness could arise.
5. The respondent submits that the High Court's decision in Badari is consistent with the judge's decision. The decision at issue in Badari concerned a change to the rent payable by tenants under a tenancy agreement. This constituted a clear effect on the legally recognised right or interest. In contrast, the Decision was not capable of affecting any legally recognised rights or interests of the applicant. They further note the High Court's reference to the statement of the majority in South Australia v O'Shea, that a hearing at one stage of a multi-stage decision making process can provide a 'sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness'.[50] That was not applicable to the relevant determination in Badari, whereas here, the eviction of tenants is conditioned on the provision of an opportunity to be heard by VCAT.
6. Alternatively, the respondent submits that even if an exercise of power under s 15(1)(a) of the Housing Act is conditioned on the obligation to afford procedural fairness, the content of such an obligation would, as the judge found, not extend to making submissions about the feasibility of renovating or retrofitting the towers as an alternative to demolition and redevelopment. That, accords with an orthodox application of High Court authorities which recognise that a right to be heard is limited by the interest that is apt to be adversely affected.[51]
7. The respondent submits that the High Court's finding in Badari in respect of the content of the obligation is distinct in that the determinations at issue affected individual contractual rights. Accordingly, the obligation to afford procedural fairness was not devoid of content, notwithstanding the broad class affected and the policy-based considerations underlying the determinations. By contrast, the judge correctly found that any obligation did not extend to matters of technical expertise or of policy considerations.
8. Finally, the respondent submits that there was no realistic possibility that the Decision could have been different had group members been afforded an opportunity to be heard, and it was open to the judge to find that the applicant did not discharge their onus of establishing materiality. They noting that the applicant did not put to Mr Newport that the Decision could have been different if he had had a greater understanding of the impacts on renters of certain groups of renters, and the judge's finding that 'Mr Newport was aware of, and considered, the significant disruption that the Redevelopment Program would cause existing renters'.[52] On this basis, it was open to the judge to find that a better understanding of these impacts could not have realistically have changed the Decision.

The principles in relation to procedural fairness

1. Whether and how the exercise of a statutory power affects a person may be relevant in a number of different contexts: whether procedural fairness applies;[53] whether the person is sufficiently affected so as to confer standing;[54] whether there is a 'decision' which founds a statutory basis for judicial review;[55] and the type of relief that may be available either under statute or under the general law.[56] Although each context is different and may give rise to different considerations, there is an underlying premise which concerns the limits of statutory power and the fundamental role of the courts in ensuring that the executive charged with statutory power acts in accordance with law. Each of them involve questions of statutory limits on power.
2. Thus, whether a statutory power is conditioned by the obligation to accord procedural fairness involves a question of statutory construction.[57] The first aspect - whether the exercise of the power is capable of having a relevant adverse effect - involves an inquiry as to the nature or character of the statutory power in question, which in turn calls into play the conventional tools of statutory construction with their attention to text and context, informed by a strong common law presumption. Perhaps because of the strength of the common law presumption, no party submitted that this question of construction was informed by s 32 of the Charter.
3. A separate question, but related to the issue of construction, is whether the exercise of the power in a given case has directly affected the rights or interests of the party who claims to be affected. This involves questions of fact requiring a focus on the particular circumstances of that person. They are related inquiries because how the exercise of the statutory power affects people, both at the specific and general level, may inform the initial question of construction as to whether the power is conditioned by a procedural fairness requirement, and, also the content of any such obligation. Although the facts of a particular case do not control construction of a statute, and for that reason the question of construction yields a universally applicable answer,[58] the task of construction cannot occur in a factual vacuum.
4. Returning to the question of construction, the 'strong' common law presumption, generally applicable, is that the exercise of a statutory power which is capable of having an adverse effect on legally recognised rights or interests, is impliedly conditioned on the observance of procedural fairness.[59] The presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates 'unless clearly displaced by the particular statutory scheme'.[60]
5. The obligation to act fairly - which the presumption is concerned to protect - arises as a legal condition on the exercise of the statutory power. For that reason the focus must be on the extent to which the affection of interests arises by force of statute, because it is the statutory limit that the court is called upon to enforce. Although the content of the obligation is informed by what is fair and just and is concerned with avoiding practical injustice,[61] this fact does not sever the link with the particular statutory context. Thus, in CNY17 v Minister for Immigration and Border Protection, Kiefel CJ and Gageler J observed that, unless excluded, observance of procedural fairness

is an implied condition of the exercise of jurisdiction by 'every one who decides anything' pursuant to statute to affect the interests of an individual by force of the statute.[62]

1. This notion also finds reflection in the requirement that the impact of the exercise of statutory power be 'direct and immediate' before the obligation arises.[63] The requirement that the exercise of power directly affect the person serves to connect the impact on the affected person with the force of the statute and also to differentiate those cases where the exercise of power affects the public or a section of it in a generalised or indiscriminate way.[64]
2. In both Disorganized Developments Pty Ltd v South Australia ('Disorganized Developments')[65] and Badari the High Court stated the presumption that procedural fairness applies where a statutory power is capable of having an adverse effect on 'legally recognised rights or interests'. The reference to 'interests' expands the category beyond strictly legal rights but the category is not unlimited. In Kioa v West ('Kioa'),[66] Brennan J noted that the interests were 'qualified' and referred to proprietary and financial interests and reputation.[67]
3. In Badari the High Court affirmed the principle, established in Disorganized Developments, that decisions affecting the rights of individuals with respect to property are a category of cases that has a long history of attracting a duty of procedural fairness as a matter of 'fundamental justice', 'long-established doctrine' and a 'deep-rooted principle of the law', subject to displacement by Parliament through express words or necessary implication in the relevant statute.[68]
4. That said, it is important to distinguish between the interest that is protected and how the impact on that interest might be felt or experienced by the individual. The adverse effect on property rights might bring a very heavy burden on the individual, but the adverse effect is the loss or diminution of property rights or interests. It is not the particular loss of enjoyment or suffering of the individual. Of course, the impact that the exercise of power may have will plainly be relevant to the content of the obligation to afford procedural fairness.
5. In considering whether a particular statutory power is subject to the obligation of procedural fairness, little is achieved by applying a taxonomy of powers, duties, discretions, functions or capacities. It is the substantive nature of the power and how its exercise is apt to affect legally recognised rights or interests that is relevant.
6. It is commonplace for public entities to be clothed with corporate status under statute. Often the provision of incorporation confers or recognises powers such as the power to contract, hold and dispose of land. In this way, the entity will have capacities similar to other corporate entities or legal persons. Where such powers are conferred on a public entity they are often limited by purpose or process.
7. In Griffith University v Tang ('Tang'),[69] the High Court was not concerned with the question of whether a particular exercise of statutory power was conditioned by procedural fairness, but with the different issue of whether a particular decision was an administrative decision made under an enactment. The High Court explained that the answer to that question has a number of elements. In relation to the need for the decision to be made 'under an enactment' the Court concluded that this required that the decision be expressly or impliedly required or authorised by the enactment; and, secondly, that the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.[70]
8. The Court illustrated the point by reference to a statutory power to contract. The Court concluded that a legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party.[71] The point of present relevance that can be drawn from Tang is that there are some statutory powers that, by reason of their character, do not of themselves affect the legal interests of third parties.
9. Thus as Doyle J observed in King v Ombudsman:

[T]he fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers. It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional pre‑requisites to its exercise should be implied. For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non‑coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints.[72]

1. Applying that approach, the Court of Appeal of Western Australia in Patole v Child and Adolescent Health Service held that a power of a State to enter into a contract with a person is not ordinarily conditioned by a requirement to accord procedural fairness to other persons who may aspire to enter into the same contract.[73] The central issue that emerges is the need to focus on the potential statutory consequences for the rights and interests of others that the exercise of power produces in a direct and immediate way.

What is the nature of the s 15 power and what are its consequences?

1. Section 9(2) of the Housing Act confers corporate status on Homes Victoria and expressly confers the capacity to acquire, hold and dispose of property including real property. In the exercise of its powers, discretions, functions and authorities and in the discharge of the duties imposed on it, Housing Victoria is subject to the general control of the Minister under s 10 and more specifically under s 13 in relation to powers as to property.
2. Section 14 provides that Homes Victoria may acquire, sell, and_,_ subject to the RT Act, lease or sublease any land vested in it.
3. Section 15 is headed 'Power to develop and manage land' and lists a series of actions that Homes Victoria may take in relation to land. Section 15 provides that Homes Victoria may develop any land.[74] The word 'development' is defined in s 4 of the Housing Act to include the construction or demolition of a building on the land. Section 15 also provides that Homes Victoria may generally control, manage or use any land which is vested in it (or leased or mortgaged to it) and maintain and repair and generally control, manage or use any houses and buildings situated on any such land.[75]
4. The authority given to Homes Victoria to demolish buildings on its land is expressly provided for in s 15 and is expressly limited by purpose - namely, the purpose of the Act and 'all purposes ancillary to those purposes'.[76] One effect of s 15 is that it ensures that the development of land falls within the scope of Homes Victoria's legal authority. In other words, development of land for the purposes of the Act or ancillary purposes is not ultra vires.
5. Beyond that, s 15 does not treat Homes Victoria differently to any other land owner. That is, any development that it wishes to undertake is subject to the general law and would, for example, require Homes Victoria to overcome any statutory or common law impediments applicable to the development. So, for example, the ability to develop land may be subject to the Planning and Environment Act 1987, other land use statutes and any other rights that third parties may have in relation to the land or buildings. In the present context, the most relevant third party rights are those belonging to tenants, such as the applicant, pursuant to a tenancy agreement.
6. The Housing Act specifically provides in s 14 that Homes Victoria may lease its land subject to the RT Act, and neither ss 14 or 15 relieve Homes Victoria of the obligations imposed on it under the RT Act as a 'residential rental provider'. Thus, the permissive 'powers' in s 15 to control land and maintain and repair buildings are subject to the duties contained in ss 67 and 68 of the RT Act, to give quiet enjoyment to the tenants and ensure that the premises are in good repair and in a reasonably fit and suitable condition.
7. The permissive language in s 15 of the Housing Act and the express requirement that any tenancy be subject to the RT Act is a strong indication that the rights and obligations of Homes Victoria and any tenant are to be found in the RT Act. The judge made this point, observing that where the exercise of a power in pt III may affect the legal rights of individual tenants or owners of land, specific provision is made for the process by which that is to occur. The RT Act applies where Homes Victoria leases land to another person, the Land Acquisition and Compensation Act 1986 applies to the compulsory acquisition of land, and the procedure prescribed in sch 2 of the Housing Act must be followed before an easement or restrictive covenant can be extinguished.[77]
8. Although s 15 permits Homes Victoria to engage in certain activities, including those that may, if implemented, affect tenancy, it is concerned with the internal authority of the agency rather than arming Homes Victoria with powers that, by force of statute, affect external rights or interests of third parties. The bare making of a decision by Homes Victoria to develop land, including by deciding to demolish a building, does not of itself involve an exercise of power that brings about any change to the position of third parties. As the judge said, a decision to demolish is not in terms a power to demolish.[78]
9. This conclusion is reinforced by the factors to which the judge had regard.[79] They include that s 15 is couched as a broad conferral of authority without reference to any specific criteria, including any criteria that might concern a tenant. The presence and general powers of ministerial control and direction contained in ss 10 and 13 also reinforce the political and policy-based nature of the power. The fact that the Act itself provides for no legal consequences further suggests that the Decision is informed by broad and competing policy considerations.
10. The fact that s 15 is conferred in furtherance of the objects of the Act does not alter the character of the provision and its capacity to affect third parties. That is true even allowing that the objects include seeking the participation of tenants and other community groups in the management of public housing and promoting consultation on major housing policy issues.[80] As the judge explained, the fact that such general powers relate to consultation on major housing policy issues is 'far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness'.[81]
11. This relevantly limited effect of s 15 which arises as a matter of statutory construction can be seen in the context of how it operated in relation to the applicant's tenancy, to which we now turn.

Did the Implementation decision affect the rights or interests of the plaintiff?

1. The applicant identified four interests that he said were affected by the decision:

(a) the loss of his home;

(b) his security of tenure in his home;

(c) his interest in maintaining the community that exists in the Alfred Street tower; and

(d) his right of quiet enjoyment of his home.[82]

1. The matters in paragraphs (a), (b) and (d) relate to the applicant's rights or interests in his home.
2. In our opinion, the mere making of the Decision did not affect the applicant's tenancy in a direct and immediate way. The plaintiff occupied his home under a residential tenancies agreement with Homes Victoria. That agreement was governed by the terms of the agreement and the provisions of the RT Act.
3. Subject to one potential qualification that requires separate consideration, the legal rights under the tenancy agreement were not altered by the making of the Decision. The rights to exclusive possession continued. The making of the Decision gave no legal authority to Homes Victoria to evict the applicant from his home.
4. As Mr Newport explained, once the Decision was made, it was then necessary to make a series of decisions and take various steps in order to bring about the fulfilment of the Decision. So, for example, Mr Newport said that it would involve communicating the Decision to residents, planning for their relocation, and entering into contracts for the demolition of the existing buildings. Each of those steps are subject to their own processes, comprising both procedural requirements and substantive criteria, some of which were statutory and some of which were applied as a matter of policy.
5. The potential qualification is that the making of the Decision might provide a basis on which a notice to vacate could be given insofar as it constituted a relevant 'intention' to demolish the towers. Thus, s 91ZY of the RT Act permitted Homes Victoria, as a residential rental provider, to give a tenant a notice to vacate if it 'intends' to demolish the premises and has obtained all necessary permits and consents to do so.[83] However, the mere forming of an intention might well be subject to change and can have no impact whatsoever unless and until it is accompanied by a notice to vacate under s 91ZY of the RT Act. Even then, the giving of a notice to vacate does not determine whether the VCAT will make a possession order under s 330, which will rather be determined by reference to separate criteria, after provision of an opportunity to be heard.
6. We therefore do not consider that the facility provided by s 91ZY, converted the s 15 Decision into an exercise of power which itself altered the legally recognised rights or interests of the tenant and which was subject to procedural fairness.
7. The Decision to implement the Housing Strategy also stands in a different position to the determination of the weekly rent payable, considered in Badari, and the declaration of certain land as a 'prescribed place', considered in Disorganized Investments. In each of those cases the making of the relevant decision, being a determination and declaration respectively, had statutory force and produced adverse consequences for the tenant and land owner. As the High Court observed in Badari, the making of the determination 'directly and personally affected each of the tenants'.[84]
8. Beyond the strictly legal impact, it may be accepted that, as a practical matter, the likelihood of the applicant being able to remain in the tenancy was reduced. The likelihood was reduced because the Decision demonstrated the resolve of Homes Victoria to take those steps necessary for implementation. Those steps included obtaining vacant possession of the towers so as to allow the development to proceed. However, the question is whether the applicant's rights or interests were affected in a direct and immediate way by the exercise of power, not what were the risks of an alteration of the position of the applicant in the future. Here, the probability of change was a function of the statement of policy reflected in the Decision and the extent to which that policy could be accommodated within the relevant legal and factual framework. As already observed, the intention of Homes Victoria to implement the policy did not bring about a change that required procedural fairness to be accorded to the applicant.
9. So far we have addressed the submission that the rights under each tenancy agreement were detrimentally affected. The fourth interest was the impact on the community in which the applicant lived. In our view, for the reasons that the judge gave, this is not a legally recognised interest.[85] The loss of community may be a consequence of a loss of property rights but it is not, itself, protected by the presumption.

Did the Decision affect the applicant in an individual capacity?

1. Although it does not affect the outcome, respectfully, we do not agree with that part of the judge's reasons in which her Honour held that procedural fairness was not required because the Decision did not affect the applicant or other group members in their individual capacity. If, contrary to our view, the Decision directly affected the individual tenants in a way that attracted an obligation to accord procedural fairness, the fact that it applied to a large number of people provides no answer to the ground.[86]
2. If the exercise of the s 15 power was conditioned by procedural fairness, two subsidiary questions would arise: what is the content of the obligation and did the failure to accord procedural fairness make any difference such as to justify relief? The judge decided both these issues adversely to the applicant and the issues are the subject of proposed grounds 3 and 4.
3. In circumstances where Homes Victoria gave no forewarning to the tenants and no opportunity to be heard on whether or not Homes Victoria should adopt the Redevelopment Program in relation to the towers, the respondent would have to establish that the content of procedural fairness had been reduced to zero. We do not think that it could go that far. Further, as was said in Disorganized Investments:

[t]here is no reason to doubt that an owner or occupier may have something to say of relevance about the characteristics of the land or its uses, or about possible adverse impacts of declaring a place as a prescribed place, which might affect an assessment of whether to make such a declaration.[87]

1. The Decision made by Homes Victoria to demolish the towers was not subject to procedural fairness because the nature of the power was not such as to attract the principle and because the identified interests of the applicant were not directly affected. Additionally, in relation to the effect on the applicant's enjoyment of the community, for the reasons given by the judge, that does not reflect a legally recognized interest protected by procedural fairness. The judge was correct in reaching these conclusions.
2. Proposed ground 2 fails. Given that the applicant accepted that he needed to win on all of the proposed grounds relating to procedural fairness, he is unable to overturn the judge's decision in respect of procedural fairness. Accordingly, it is not necessary to determine proposed grounds 3 and 4.

PART F: HOMES VICTORIA'S OBLIGATIONS UNDER THE CHARTER (GROUNDS 1 AND 5)

1. At trial, Mr Berih contended that the Decision was incompatible with rights under the Charter. The only presently relevant right is that provided for in s 13(a) of the Charter, which provides that a person has the right 'not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with'.
2. The judge found that, although the Decision did not interfere with Mr Berih's rights or interests protected by procedural fairness, the right in s 13(a) was to be construed in the broadest possible way and the protection conferred by the right is not confined to narrow legal interests - or even to interests that are legally recognised for procedural fairness purposes.[88] The judge held that the potential impact of the Decision was sufficient to interfere with the s 13 right.[89]
3. The judge further held that the limitation on the right was arbitrary because it was made without prior notice to renters, and without engaging in any consultation with them. The Decision came out of the blue and was not consistent with the framework developed between the Department and the residents of the towers following harsh lockdowns during the pandemic. That framework, the PTWF framework, provided, amongst other things, for residents groups to be consulted on decision-making. By reason of the lack of consultation or notice, and the expectations that residents reasonably had by reason of the PTWF framework to be able to participate in decisions which affected residents, the judge concluded that Homes Victoria had 'capriciously and unpredictably, let those communities down by making the Decision without notice or consultation'.[90]
4. Ultimately, the judge was satisfied that the Decision arbitrarily interfered with, and therefore limited, the applicant's right to home under s 13(a) of the Charter.
5. The judge however found that the limitation was demonstrably justified under s 7(2) of the Charter. The judge observed that the Decision had two main purposes which were unquestionably important to the achievement of the objects of the Housing Act and in their own right. First, to address the many issues with the towers that render them unfit for modern living. A second, equally significant purpose was to increase the supply of housing on the sites where the towers now stand.[91]
6. The judge said in summary that Homes Victoria

must do something to address the ongoing deterioration of the Towers. The Redevelopment Program is rationally directed to achieving that purpose. While the implementation of the Decision will diminish group members' security of tenure and disperse their community, the alternative option of retrofitting the Towers would have a similar effect. The implementation of the Redevelopment Program will substantially increase the amount of housing on the sites, to the benefit of a much wider group than the current renters in the Towers.[92]

Did the Decision interfere with group members' homes within the meaning of s 13(a) of the Charter?

Respondent's submissions: NoC, ground 2 - interference with home

1. In support of ground 2 of the NoC, the respondent submits that the judge erroneously held that the Decision interfered with group members' homes because the Decision 'diminished group members' security of tenure in their homes' by satisfying one of the conditions precedent on the issuance of a notice to vacate under s 91ZY of the RT Act; and because it resulted in group members being told that they would be required to move home. The respondent submits that neither of those matters resulted in the diminution of group members' security of tenure, or otherwise interfered with their homes.
2. The respondent notes that a notice to vacate pursuant to s 91ZY of the RT Act cannot be issued until the other precondition in the provision had been satisfied - that permits and consents for demolition be obtained. The respondent submits that Homes Victoria's mere formation of an intention to demolish the towers had no effect on renters' homes or the security of their tenure.
3. In respect of the relocation of group members, the respondent submits that the Government's announcement of its future intentions with respect to land does not interfere with people's homes on that land. This approach is supported by Keasey, where the making of an application to VCAT would necessarily have resulted in the renter being informed about relocation.[93]
4. Second, the respondent submits that the judge's finding that the Decision had commenced the dispersal of the community that exists around the towers was erroneous in two respects. First, it failed to recognise that such a dispersal was the product of decisions made by residents of the towers to accept alternative accommodation offers, not the Decision itself. In this way, her Honour conflated the Decision with subsequent acts and decisions taken by other officials and residents. Second, the judge erroneously based her analysis on the proposition that an act may interfere with an individual's right to home solely by altering the composition of the community in which they live. Such a proposition, the respondent submits, is unsupported by authority and exceeds the recognised scope of the right to home.

Applicant's submissions: NoC, ground 2 - interference with home

1. The applicant submits that, as the judge correctly found, the right to home contained in s 13(a) of the Charter is to be construed in the broadest possible way and the protection conferred by such a right is not confined to narrow legal interests. Further, whether the Decision interfered with group members' homes is a question of fact, rather than law. Therefore, the legal effect of the Decision may be relevant but it is not determinative. The applicant submits that the respondent's contention incorrectly narrows the scope of the right conferred under s 13(a) to a technical property law concept of security of tenure and an undefined concept of interference with the home. Keasey is of limited relevance. It concerned whether 'a decision that determines a question affecting rights' had been made by the Director for the purpose of the Administrative Law Act 1978, under a 'temporary statutory process'. Further, the submissions made in respect of the Charter in Keasey were directed towards that different context, were not developed prior to the hearing and were presented 'without elaboration'.[94]
2. The applicant also submits that it mischaracterises the nature of the Decision to describe it as the formation of an intention to demolish the towers and the government's announcement of its future intentions. This, they submit, does not address evidence of other aspects of the Decision, including the communication of those formed intentions to residents, and Homes Victoria's active encouragement of residents to vacate the towers.
3. In respect of the dispersal of the community, the applicant submits that contrary to the respondent's contention, the dispersal of the community that exists around the towers was a direct and intended result of the Decision. They submit that the respondent's submissions contend for an erroneously narrow interpretation of the scope of s 13(a) of the Charter, as it applies to rights in respect of a singular home and a singular resident. The applicant submits that this disregards the nature of the Decision, which was to simultaneously demolish a large number of group members' homes, all of which constituted a community.
4. Additionally, the applicant submits that the respondent's contention mischaracterises the ways that the Decision stood to impact the group members' home life and s 13(a) Charter right as an issue of law, rather than an issue of fact. They note that Homes Victoria did not challenge the evidence on which the judge found that the dispersal of the community that lives in the towers constituted an interference with group members' homes, and it cannot now challenge these relevant findings of fact. The applicants submit that the absence of authority dealing with analogous fact scenarios does not assist the respondent now to challenge the judge's findings of fact.

1. We accept that the right to home under s 13(a) of the Charter brings in broader considerations than the legal rights conferred by the tenancy under which the buildings are occupied. For that reason, the holding that procedural fairness was not owed because the decision did not interfere with legally recognised rights and interests, does not necessarily carry with it the conclusion that the s 13 right was not limited.
2. To the extent that there was a limitation of the right it was circumscribed in a number of important respects.
3. First, there was no direct alteration of the legal rights that underpinned the tenancy.
4. Second, the impact of that right must be assessed in light of all of the associated rights and protections, including those provided by the RT Act. In considering whether an eviction of a public housing tenant was in breach of art 8 of the European Convention of Human Rights, which establishes a right to respect for private and family life including in an individual's home, the UK Supreme Court said that the decision had to be proportionate to the pursuit of a legitimate end. The court held this requires the occupier to be involved in the decision-making process in order to protect his or her rights.[95] In assessing the effectiveness of the procedure to achieve respect for the safeguarded rights the court looks to the whole proceedings involving the interference with the home. Applying that approach here, the effect has to take into account the rights, including the right to be heard in VCAT. Under s 330 of the RT Act, VCAT would also have to be satisfied that it is reasonable and proportionate, having regard to s 330A, to make a possession order. This opportunity, even if limited, reduces any impact of the Decision and allows some participation in the decision to evict each tenant.
5. Third, in circumstances in which the towers in their current condition were near their end of life and something needed to be done to address this situation, the Decision, accompanied by efforts to relocate the residents in which the residents were able to participate, did serve to reduce the limitation on the right.
6. Notwithstanding these matters, which ameliorated at least to some extent the impact of the Decision, it still created a high degree of uncertainty and anxiety in residents and inevitably led to a dispersal of the community. We find no error in the judge's conclusion that the impact of the Decision, including the dispersal of the community and the severing of social bonds that exist within the community in and around the towers, limited the rights of the applicant and group members, under s 13 of the Charter.
7. We reject ground 2 of the NoC.

1. In support of ground 3 of the NoC, the respondent submits that the judge erroneously found that the Decision arbitrarily interfered with, and therefore limited the group members' right to home under s 13(a) of the Charter because it was made in capricious and unpredictable manner, having occurred without notice to or consultation with the group members.[96] If the respondent succeeds in that contention, then the issue of justification does not arise.

Respondent's submissions: NoC ground 3 - arbitrary interference

1. The respondent submits that the determination of whether an interference with the right to home is arbitrary requires an objective assessment of the overall circumstances. Here, they submit the judge's finding that 'from the residents' perspective' the Decision was 'capricious and the result of unpredictable conduct'[97] incorrectly assessed the circumstances from the subjective perspective of the group members. Unpredictability, they contend, requires more than that an interference was unpredictable to a person from their subjective viewpoint, and must consider the broader procedural context in which a decision is taken.[98]
2. The respondent contends that relevantly the Decision was made in the context of Mr Newport seeking to give effect to a decision made by a Cabinet committee on 18 September 2023 - that is, the approval of a policy that the towers would be demolished - as part of the Government's housing statement. Consistent with the law regarding responsible government, Mr Newport deposed that as the embodiment of Homes Victoria and senior public servant, he considered himself bound to implement that decision.
3. The respondent further contends that the judge erred in three respects in finding that the 'unpredictability of the Decision was amplified by the fact that the Redevelopment Program had not previously been mentioned at a PTWF meeting',[99] and that there was 'no evidence that explained this failure' before making the Decision.[100]
4. First, they submit that the evidence establishes that Homes Victoria could not have consulted with group members within the two days following the decision of the Cabinet committee on 18 September 2023 and prior to the announcement of the housing statement by the Premier on 20 September 2023. Nor could Homes Victoria have consulted following the announcement because, as Mr Newport deposed, 'the horse had bolted certainly by the time the Premier had announced in [sic] on TV'. Therefore, the judge must have found, by implication, that consultation with group members should have occurred before the Cabinet committee endorsed the policy to demolish the towers. This is so despite the fact that the documents Mr Newport was instructed to prepare for Cabinet's consideration of the Redevelopment Program policy were held to be subject to public interest immunity by Keogh J,[101] and Cabinet's ultimate decision was found to be non-justiciable.[102] Therefore, it could not be the case that Homes Victoria should have consulted group members about a proposal that was to be put to Cabinet for its determination.
5. Second, the judge's findings on arbitrariness are not reconcilable with her Honour's findings on interference. The judge found that the Decision interfered with the group members' right to home partly because it commenced the dispersal of the community that exists around the towers, however, that relocation process was accompanied with significant consultation between Homes Victoria and group members. In these circumstances, any interference with group members' right to home could not be considered capricious or unpredictable.
6. Third, the respondent submits that the judge failed to consider the decision-making process as a whole, as part of which, the Decision was one part of an extended and multi-stage process. Group members' rights were not affected by the Decision, absent further actions as part of that process. That process, they submit, was governed by Homes Victoria's procedure and the requirements provided by the RT Act. Group members could only be required to vacate their residences by the issuance of a possession order made by VCAT, following an independent assessment on the merits of the reasonableness and proportionality of such a decision. In that context, the Decision could not have been arbitrary, even without prior notice to, or consultation with group members.

Applicant's submissions: NoC ground 3 - arbitrary interference

1. The applicant submits that the judge did not merely adopt the subjective perspective of group members in finding that the Decision constituted an arbitrary interference with their right to home. While the test is objective, the position of the individual is relevant. Here, the judge's observation that the announcement of the policy 'came out of the blue' is not a subjective assessment of s 13(a), but rather, identifies a relevant, objective circumstance applicable to group members. They submit that the judge's finding was made by reference to the relevant objective circumstances of the Decision, including that it was made without notice or consultation, and that Homes Victoria did not engage with the consultation mechanisms established as part of the PTWF initiative. They submit that the respondent's contention that Homes Victoria could not have consulted group members on the Decision is without merit.
2. The applicant rejects the respondent's submission that the Decision formed part of a 'multi-stage' process in two respects.
3. First, they submit that the Decision itself arbitrarily interfered with group members' right to home under s 13(a) of the Charter, noting the judge's finding that one year into the Redevelopment Program, 59% of households had been relocated or were awaiting relocation, and that the respondent did not identify a later stage at which this impact had the potential to be reversed.
4. Second, the evidence contradicts the contention that the decision-making process was multi-staged. They submit that Mr Newport's evidence does not identify any later decision that he thought posed any prospect of reconsidering the Decision, nor any later stage at which group members' concerns would be canvassed and considered. Additionally, communications from Homes Victoria to group members did not suggest that the likelihood of them being required to vacate their residences would be dependent on the outcome of any multi-stage process.

The meaning of arbitrary in s 13 of the Charter

1. In Thompson v Minogue ('Minogue'), this Court said the clear preponderance of authority supports the proposition that 'arbitrary' in s 13 describes an interference with the right that is 'capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought'.[103] In doing so, this Court endorsed the observations of Warren CJ in WBM v Chief Commissioner of Police ('WBM') that the term 'arbitrary' in s 13(a) has a wider 'human rights' meaning rather than its ordinary meaning.[104]
2. This Court acknowledged that there may be some overlap in the matters that are relevant to whether the interference is unjust or unreasonable and those that require consideration under s 7(2) of the Charter when the question of justification of a limitation on a right is considered. The Court went on to say that the overlap should not distract attention from two points of difference. First, unlike justification, it is the plaintiff, rather than the defendant, who carries the onus of establishing that the interference is arbitrary. Second, what is called for is not a full consideration of the s 7(2) matters, but rather, requires

a broad and general assessment of whether, in all the circumstances, the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued by the public authority.[105]

1. Both parties agreed that whether interference with the applicant's rights was arbitrary is to be determined objectively. The judge's conclusion that the Decision was arbitrary rested heavily on finding that it was unpredictable and occurred without notice.
2. As stated above, in Minogue, this Court adopted what was said by Warren CJ in WBM. Those observations seek to explain the meaning of 'arbitrary' in the context of the Charter. It is important not to read them as providing a list of synonyms, each of which is to be equated with 'arbitrary'. Rather, the observation should be taken as a whole and reveal that arbitrariness is assessed by an overall assessment of the limitation. Plainly, both the process by which the limitation is imposed and the objective impact of it will be relevant to that assessment. For that reason, care must be taken in not substituting the statutory term 'arbitrary' with terms such as 'unpredictable'. A decision that is unpredictable may be arbitrary not just because it could not have been predicted, but because it also connotes a sense of randomness or lack of evident justification.
3. The fact that an interference with a Charter right was unpredictable and came without notice may in some contexts reveal a good deal about the decision. However, it is also necessary to consider whether, looked at globally, the decision was proportionate to a legitimate end. Although, as was explained in Minogue, the concept of an arbitrary interference in s 13 does not directly engage with the concept of s 7(2) justification, there is an overlap. Just as an arbitrary decision would be difficult to justify, a decision that is demonstrably justified is unlikely to display the hallmarks of an arbitrary interference with rights.
4. Before Homes Victoria made the Decision, there was a lamentable lack of consultation with the residents - this was disrespectful and lacking in decency. It reflected poorly on the decision-making process. But on the judge's findings, which were correct on the evidence, the purpose and intent of the Decision was to replace end-of-life buildings and increase the amount of public housing on the sites. These were legitimate ends, the pursuit of which were properly a matter for Homes Victoria.
5. Further, the selection of the towers did not arise from any idiosyncratic or hostile view. That something would have be done at some point to address the problems was neither unpredictable nor ill-considered. Indeed, much of the applicant's case was concerned with the viability of an alternative option - namely, retrofitting the towers so as to bring them up to an appropriate contemporary standard - rather than challenging the need for taking any action.
6. In our view, when looked at from both the procedural and substantive aspects, the applicant did not establish that the Decision was unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought. For that reason, the Decision did not entail an arbitrary interference with the right to home.
7. We uphold ground 3 of the respondent's NoC.

Was any arbitrary interference demonstrably justifiable?

1. Given our finding that the limitation was not arbitrary, no question of justification arises. In case we are wrong, we turn to consider whether the judge erred in finding that the limitation was demonstrably justified. Under the first proposed ground of appeal, the applicant submits that the trial judge erred in finding that Homes Victoria discharged its onus to establish that the arbitrary interference into group members' right to home under s 13(a) of the Charter was demonstrably justifiable pursuant to s 7(2) of the Charter.

1. The applicant submits that Homes Victoria, bearing the onus to establish demonstrable justification, needed to 'adduce evidence that is sufficient to satisfy that standard of justification'.[106] They submit that the standard is high and requires 'a degree of probability which is commensurate with the occasion'.[107] Further, the standard of proof must be 'strictly imposed' where the court is concerned with a decision affecting the human rights of vulnerable people,[108] and, though the views of the decision-maker may be considered, the court should not give 'any particular deference, respect or latitude'.[109]
2. On this basis, the applicant contends that the only relevant evidence led by Homes Victoria was the opinion evidence of Mr Newport, which, they characterise as purporting to express a range of opinions about the technical feasibility of retrofitting the towers, the impacts on renters and the effects on housing supply. They submit that this evidence related to the 44 public housing towers generally, rather than to the three towers the subject of the proceeding; was expressed at a high-level and in conclusionary form; and was largely based on unattributably hearsay, as the advice, reports and other documents relied upon were not available to Mr Berih or the Court. They further note that there was no evidence identifying, among other things, the authors of the technical reports (beyond reference to two engineering firms); the instructions or materials provided to the authors by Homes Victoria; the final conclusions of the authors; or the assumptions upon which those conclusions were based. Despite this, finding that the arbitrary interference was demonstrably justified, they submit that the judge relied on this evidence as broad authority for the propositions that retrofitting the towers would not be feasible; the impact of retrofitting on group members would be similar to the impact of the Decision; and the Decision would increase the supply of housing on the sites of the towers and retrofitting would not.
3. The applicant submits that the judge erred in several respects. First, there was no evidence capable of establishing any specific proposal for retrofitting that Homes Victoria had considered and rejected. Therefore, there was no rational basis upon which the judge could find that retrofitting the towers in an unknown way would be unfeasible, nor make findings in respect of the impact of retrofitting on group members or the effect on the supply of housing. They contend that Mr Newport's evidence was not capable of supporting such findings, having minimal probative value, and the Court was not permitted to make findings of fact by reference to the evidence adduced by Homes Victoria. Therefore, they submit that the judge failed to subject the Decision to sufficient review and, in so doing, failed to identify any probative evidence establishing that the limitation of the applicant's human rights was demonstrably justified.
4. The applicant submits that the stringent standard of proof required by s 7(2) of the Charter is not undermined by reason of the unavailability of the documents relied upon by Mr Newport, nor did the upholding of the claim of public interest immunity justify the Court making assumptions about the content of those documents. The Court was not obliged to accept Mr Newport's evidence and conclusions. It was not relevant that the judge found Mr Newport to be a 'truthful witness'. The nature of the evidence adduced by Homes Victoria was insufficient to discharge its onus pursuant to s 7(2) of the Charter. In this way, the judge erred in failing to review the evidence to determine whether, or to what extent, the evidence enabled a finding that the opinions expressed by Mr Newport were objectively accurate. By accepting this evidence, the judge impermissibly deferred to Mr Newport's judgment and delegated the judicial task of assessing the reliability of expert evidence to the decision-maker.
5. The applicant submits that nothing prevented Homes Victoria from adducing admissible, probative evidence capable of discharging its onus pursuant to s 7(2) of the Charter. The feasibility of retrofitting buildings is not a topic that is inherently privileged, nor is Homes Victoria exclusively capable of conducting such an assessment. It was a forensic decision not to do so. They submit that the judge erred in relieving Homes Victoria of the onus under s 7(2) because the relevant reports had already been obtained and were immune from production.

1. Accepting that it bore the onus of establishing that any limitation was demonstrably justified in accordance with s 7(2) of the Charter, the respondent submits that the judge was correct in her application of the relevant factors.
2. Mr Newport gave evidence that retrofitting the towers would not be feasible. In the absence of evidence to the contrary, they submit that it was open to the judge to accept this evidence. Section 7(2)(e) of the Charter does not impose upon a public agency the burden to prove a negative nor to establish why alternative decisions are not reasonably available, unless the possible reasonable availability of those measures is open on the face of the evidence. They submit that discharging the burden imposed by s 7(2) did not require Homes Victoria to give evidence of a specific proposal for retrofitting, and the evidence of Professor McNiven, they contend, rose no higher than a general view that retrofitting may be available, subject to specific circumstances and feasibility.
3. Further, the respondent submits that the option to retrofit the towers was of limited relevance in light of Mr Newport's evidence that retrofitting was not a less restrictive means of achieving the aims of the policy decision of Cabinet. They submit that, in the absence of contradictory evidence, it was open to the trial judge to accept this evidence.

The principles applicable to determining compatibility

The onus of establishing that a human right has been limited is on the person alleging the limitation. Once it has been established that a human right has been limited, the onus is on the public authority to establish that the limitation is lawful, reasonable and can be demonstrably justified within the terms of s 7(2) of the Charter. Because of the requirement that the limitation be demonstrably justified, the public authority will ordinarily need to adduce evidence that is sufficient to satisfy that standard of justification. However, the standard of proof remains the civil standard, namely, the balance of probabilities.[110]

1. The Court noted that the issue raised by s 7(2)(e) of the Charter, namely whether there are less restrictive means available, may present difficult issues of onus. The onus does not require the decision-maker to exclude the universe of potential alternatives and much will depend on how the issue arises. Thus the Court may, in the absence of contrary evidence or challenge, accept evidence of a decision-maker with relevant experience that rationally explains the appropriateness of the course adopted in achieving the stated purpose and why no other less restrictive course that can achieve that purpose - as effectively and to the same extent - is reasonably available.[111] Of course, if there is a successful challenge, or contrary evidence, then it will need to be taken into account in deciding whether the onus has been discharged.
2. This Court said that the assessment of whether the interference is compatible with a right is not to be undertaken by giving 'deference', 'respect' or 'latitude' to the decision-maker.[112] To the extent the issue of compatibility involves questions of fact, they must be determined on the evidence adduced and to the civil standard. In this respect, a clear distinction with judicial review is apparent.[113] In making findings of fact, the nature of the disputed fact is important to the kind of evidence that will be relevant and cogent. Often in the decisions of public authorities, the relevant issues may be informed by matters of public policy and expertise in public administration. In Minogue, the Court said:

[T]he decision-maker's expertise and experience may be taken into account in the Court's assessment of whether the impugned decision is compatible with an applicable human right. The Court can give that expertise and experience such weight as is warranted in the particular circumstances of the case, without any preconception that they are to be given any particular deference, respect or latitude. But, in the end, the Court must decide for itself whether the public authority has acted incompatibly with human rights, and therefore unlawfully.[114]

1. At the heart of the applicant's submission lies a contention that the evidence of Mr Newport was incapable by reason of inadequate detail and content to prove that the interference with the applicant's home was demonstrably justified. The critical factual issue which the applicant submits the respondent failed to prove was that retrofitting or renovating the towers so as to address any defects was not reasonably available to Homes Victoria. The submissions were based on what Professor McNiven had said about what would be required in order to make a proper assessment of all of the options, including retrofitting or demolition. Without that assessment, so the argument ran, there was no rational basis disclosed for Mr Newport's opinion, which was expressed in sparse and conclusionary terms.
2. As found by the judge, the evidence of Mr Newport was admissible. He had expertise and experience in the construction and development of public housing. He gave evidence as to why the buildings could not be retrofitted in order to achieve the objectives of the housing statement. Further, he expressed the opinion that retrofitting would also require the residents to leave their homes for a substantial period of time and the disruption would be significant. The judge accepted that evidence. As already observed, her Honour's overall conclusion was that the interference to existing residents of a retrofit would have a similar effect to a demolition and rebuild.
3. The judge accepted that the Decision was rationally connected to the achievement of its two purposes: to improve the quality of the accommodation at the sites; and to increase the supply of housing on the sites. The judge accepted that there would be an impact on the residents, over and above the distress and anxiety arising from not being consulted or participating in a decision which so keenly affected them - namely, a diminution of security of tenure and the dispersal of the community. As already observed, these impacts were ameliorated to some degree by the provision of alternative accommodation and a written commitment from Homes Victoria of a right to return to the site.
4. A critical issue at trial was whether there was any less restrictive means reasonably available to achieve the relevant purpose. Mr Newport in his evidence said that retrofitting was not a good alternative because it would not overcome certain structural problems, such as ceiling height and room size; it would not be value for money; it would not increase housing supply on the site; and it would have a significant impact on the tenants, requiring them to relocate for a substantial period of time.
5. Professor McNiven's opinion was that retrofitting could not be discounted without a full feasibility study and that, in the absence of this work, it could not be said that the towers were at the end of their life.
6. The judge inferred that there had been a feasibility study,[115] that it would in any event, require relocation and disrupt the community;[116] and would not achieve an increase in supply of housing (which was one of the purposes of the redevelopment).[117]
7. With respect, it was not open to the judge to draw the inference. The position was as follows. The evidence showed that Cabinet adopted the Redevelopment Program. The documents before Cabinet and the reasons for doing so were not in evidence because of a successful claim of public interest immunity. Following Cabinet, the Premier announced the housing statement and Mr Newport said that, once he was aware that Cabinet had approved funding (which, it appears, preceded the final cabinet decision to adopt the Redevelopment Program) he decided to implement the policy and made the Decision. In his evidence, Mr Newport said why the Decision was made and why alternatives, such as retrofitting, were not suitable alternative options.
8. In this state of the evidence, the judge said:

In light of Mr Newport's evidence, I am satisfied that Homes Victoria did obtain a feasibility assessment as to whether it would be possible to retrofit the 44 public housing towers. Of course, the assessment is not in evidence, and I am unable to make any finding as to whether it covered the matters that Professor McNiven considered essential. However, Mr Newport was in my view an honest witness, and I have no reason to believe that he misrepresented the advice he had received about the feasibility of retrofitting. I accept Mr Newport's evidence that retrofitting the Towers would not be feasible, for the reasons given in his evidence set out at [234] above.[118]

1. In our view, it was not open to the judge to draw any inference as to the content of the material before Cabinet. Beyond that which was disclosed in Mr Newport's evidence, it is not possible to make any finding as to the material that he had before him.
2. However, on the state of the evidence, the judge was correct to accept the evidence of Mr Newport in respect of the feasibility of retrofitting. Professor McNiven said what in his opinion would be necessary to reach an opinion. However, beyond that, the applicant did not adduce evidence that was inconsistent with the conclusion of Mr Newport. Of course, the respondent could have adduced more evidence and in some respects the evidence of Mr Newport was conclusionary. But this did not render it incapable of being accepted and the applicant avoided a direct evidentiary attack on his opinions. Based on Mr Newport's experience and having regard to his evidence, the respondent established that there was no less restrictive means available.
3. More importantly, retrofitting would not have avoided the limitations on the right because it would have required relocation for an extended period and did not increase the supply of housing. For those reasons, it was not a less restrictive means of achieving the same outcomes.
4. In our view, the judge was correct to hold that the interference with the applicant's rights under s 13 was demonstrably justified.
5. We would reject proposed ground 1.

Whether Homes Victoria failed to comply with s 38(1) of the Charter - the procedural limb

1. Under the fifth proposed ground of appeal, the applicant submits that the judge erred in finding that Homes Victoria had acted in compliance with the procedural limb of s 38(1) of the Charter, despite having failed to consider the impact of the Decision being made without prior notice or justification.

1. The applicant submits that while proper consideration involves a 'broad and general assessment of whether the impact [of the decision] is justified', the process requires accurate identification of those impacts. Here, they characterise the lack of notice and consultation as a critical feature of the Decision and central to the finding of the trial judge that the s 13(a) Charter right had been limited. Therefore, they submit that the trial judge erred in holding that Homes Victoria gave proper consideration to human rights even though it did not consider the impacts that resulted in substantive incompatibility.

1. The respondent submits that the judge correctly held that Mr Newport's assessment of the impact of the Decision on group members was sufficient to satisfy the standard required by the procedural limb of s 38(1) of the Charter. They submit that Mr Newport's assessment was appropriately directed to the s 13(a) right and the extent to which it would be affected by the Decision, and he understood that the Redevelopment Program would significantly impact group members' homes because it would require their relocation, and disrupt their home lives and connections to local supports, services and community.
2. The respondent submits that Mr Newport was not required to consider the manner in which the Decision was made or whether it might be characterised as 'arbitrary' within the meaning of s 13(a) of the Charter. This would transform the requirements of the procedural limb of s 38(1) into a 'sophisticated legal exercise', requiring consideration of the internal limits of rights conferred by the Charter.

Respondent's submissions: NoC, ground 1 - procedural limb of s 38(1)

1. Furthermore, the respondent submits under ground 1 of the NoC, that the judge erred in finding that Mr Newport's consideration of human rights 'did not include reflection on the impact on renters of the Decision being made without prior notice or consultation'.[119] The respondent submits that this disregarded Mr Newport's evidence that he considered the impact of the Government's announcement on renters, and that the judge neither referred to nor rejected this evidence in making her finding.

Applicant's submissions: NoC, ground 1 - procedural limb of s 38(1)

1. The applicant submits that it was open on the evidence before the judge to make the impugned finding. Mr Newport did not give evidence that he had taken into account the impact of the lack of consultation on renters when making the Decision. The applicant submits that Mr Newport viewed the lack of consultation as an 'issue' Homes Victoria would address subsequently to the taking of the Decision.
2. Further, the applicant submits that the Court should be slow to find error in the judge's finding, given that it was made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing.
3. Alternatively, if the Court accepts that the judge's finding was erroneous, the applicant submits that there is insufficient evidence for this Court to substitute it with a positive finding that Mr Newport's consideration did, in fact, include those impacts, and the matter should be remitted for a new trial.

1. The judge referred correctly to the relevant principles. By reference to the decision of this Court in HJ v Independent Broad-Based Anti-Corruption Commission ('HJ'), the judge said that s 38(1) of the Charter required a decision-maker to:

(a) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision;

(b) seriously turn their mind to the possible impact of the decision on a person's human rights and the implications for the affected person;

(c) identify the countervailing interests or obligations; and

(d) balance competing private and public interests as part of the exercise of justification.[120]

1. The judge referred to the evidence of Mr Newport and in particular the following paragraphs of the September affidavit:

The redevelopment of the towers will have a significant impact on renters. Many renters have strong connections to their tower and the surrounding area: they rely on local services; they go to school, study or work locally; their family and friends and other members of their community live in their tower or nearby. For those renters, retaining their links to their communities in the towers and the local area is vital. Because redevelopment will mean the relocation of renters to alternative accommodation, it will necessarily involve some disruption and dislocation to renters. Our renters in the towers include families with children, older people, people living with disability, and specific migrant communities. Members of those cohorts may find relocation more disruptive than other renters (because, for example, they are more reliant on local services or have stronger connections to their community in the tower). However, these needs and connections are front of mind in how Homes Victoria supports renters being relocated.

.....

I knew that relocation would have a significant impact on the renters and their human rights, by disrupting their home life, their connections to local supports and services, and their links to their communities in the towers and the surrounding area. I also knew that steps had been taken to minimise that impact as far as possible through the sequencing of the program, and that I and others would continue to take steps to consider and minimise that impact during the implementation process and before any renters were actually required to move out of their towers... Given the problems with retrofitting, I considered that there was no way to address the problems with the towers without causing significant disruption to the renters - either option was going to cause a significant disruption. I also considered that the program would ultimately benefit future renters on the sites, including those current renters who choose to return, by delivering more and better homes for them to live in. On that basis, I considered that the program was justified and that the impact on the renters, while significant, was acceptable.

1. The judge accepted that evidence, holding that it amounted to proper consideration of the human rights of group members. The judge said that Mr Newport understood the impact and seriously turned his mind to those impacts and the implications for renters, while identifying a number of countervailing interests, including the benefit to future renters of having more and better housing on the sites, and the alternative of retrofitting which he rejected.[121]

1. The judge was correct on this issue. The procedural limb of s 38(1) of the Charter was complied with.
2. Mr Newport's considered the effect of the Decision on renters including both the legal consequences that they would have to leave but also the loss of connection to the towers and their community that would follow from the Decision. That revealed a sufficient understanding of the s 13 right and how it might be limited if the Decision was to be made. In addition to taking into account the impacts on the relevant right, he considered the alternative of retrofitting the buildings but rejected it. Consideration of the Charter right did not require a particular outcome and, having considered it, he made the Decision. The Charter question then became one of substantive compatibility.
3. We reject proposed ground 5.

PART G: SECTION 135: EXCLUSION OF EVIDENCE (GROUND 6)

1. The applicant argues that the judge should not have admitted significant parts of the September affidavit of Mr Newport, and that parts of his evidence in cross-examination should also have been excluded.
2. As mentioned at the start of these reasons, the September affidavit was admitted into evidence on the first day of trial - 28 October 2024. Cross-examination of Mr Newport occurred on the same day. A break of a number of months then followed, during which Keogh J made the ruling on the call for production of various documents.[122] As canvassed above, on 25 February 2024, Mr Berih filed a document entitled 'Plaintiff's objections to defendant's evidence' in which he objected to paras 17, 18, 23 and part of para 34 of the September affidavit and portions of Mr Newport's viva voce evidence in cross-examination. The trial returned on 27 February 2025. There, Mr Berih argued that parts of the evidence were inadmissible as they were opinion, hearsay without any basis identified, and unfairly prejudicial pursuant to s 135 of the Evidence Act. Alternatively, Mr Berih sought a direction under s 136 of the Evidence Act, limiting the use to be made of the evidence.[123]
3. The judge made an ex tempore decision to exclude four passages of oral evidence (given in response to her Honour's questions) but otherwise did not uphold the objections.[124] The judge gave reasons for judgment in the final judgment of 4 April 2025.

1. In the reasons, her Honour said:[125]

For the most part, the objections could and should have been taken at the time Mr Newport's affidavit was read and when he gave his answers in cross-examination. The basis for the objections was apparent at that time. However, the evidence was received without objection on the first day of the trial. It was simply too late to raise these objections when the trial resumed. To uphold the objections would have resulted either in unfairness to Homes Victoria or further delay in completing the trial, neither of which would have facilitated the just, efficient, timely, and cost-effective resolution of the matters in dispute.[126]

Further, I accepted that Mr Newport was qualified to express opinions about the issues with the public housing towers and the options available to address them. He has specialised knowledge of asset management in the public housing sector, based on his study and experience. In relation to study, he has a bachelor's degree in business, is a chartered accountant, holds a Certificate IV in building and construction, and has a graduate certificate in asset management. He has 12 years' experience in the private residential building sector and another 12 years' experience in public housing in New South Wales and Victoria... Mr Newport's qualifications and experience are more than sufficient to qualify him to express the opinions in issue.

It is the case that Mr Newport's opinions are based in large part on unattributed hearsay, and that key documents relevant to his opinion - including technical reports commissioned by Homes Victoria - were not available to Mr Berih. While that impaired Mr Berih's ability to test the basis for Mr Newport's opinions, it also disadvantaged Homes Victoria because it was unable to rely on the documents to substantiate the opinions. As Homes Victoria submitted, the disadvantage cut both ways.

Critically, the immunity of the Cabinet documents from production was not a forensic choice made by Homes Victoria. It was not entitled to waive public interest immunity over the Cabinet documents; determination of the claim was a matter for the Court.[127] In the event, the Court determined that the public interest in disclosure was outweighed by the public interest in maintaining the confidentiality of Cabinet deliberations.[128] In those circumstances, I was not persuaded that the unavailability of the documents created a danger of unfair prejudice to Mr Berih.

Different considerations applied to the answers given by Mr Newport in answer to my questions, to which timely objection was taken. In relation to that evidence, there was a danger of unfair prejudice to Mr Berih, who had no prior opportunity to consider or respond to the evidence. It was not evidence adduced by Homes Victoria, which indicated that it did not regard the evidence as having great probative value. I accepted that those answers should be excluded under s 135 of the Evidence Act.

I should add that I did not accept Homes Victoria's suggestion that the Evidence Act somehow applies with less rigour to evidence adduced by a public authority to justify limiting a human right in accordance with s 7(2) of the Charter. The Court of Appeal's consideration of the evidence in [Minogue] concerned weight rather than admissibility, in circumstances where the decision-maker's affidavit had been admitted without objection. It remains the case that a public authority that has limited a human right bears the onus of justifying that limitation by adducing admissible evidence sufficient to satisfy the stringent standard of demonstrable justification under s 7(2).[129]

1. The applicant argued that during the pretrial process and up until evidence was given in cross-examination by Mr Newport, Homes Victoria maintained that there were no documents relevant to the Decision. Upon the existence of those documents being revealed, and the public interest immunity claim determined against the applicant, the applicant suffered a two-fold disadvantage. First, the applicant was at a forensic disadvantage of being tied to the forensic decisions that were made before Homes Victoria changed its position on the existence of documents. Second, by reason of those documents not being available due to the public interest immunity, it made it 'impossible' to meaningfully test Mr Newport's evidence.
2. At the first opportunity after Keogh J's ruling, the applicant made submissions that the material should not be admitted.
3. The applicant submitted that in light of these matters, the judge failed to properly consider the unfair prejudice caused to the applicant by Homes Victoria failing to disclose the fact that Mr Newport had taken into account certain documents when making the Decision. Mr Berih argued that a procedural disadvantage, such as inability to effectively test evidence in cross-examination, is capable of being unfairly prejudicial to a party. Mr Berih pointed to authority where courts have previously held that evidence in 'general language' of 'unsupported opinions relating to important factual matters' created a risk of unfair prejudice where effective cross-examination would be difficult due to the large number of relevant documents.[130] Here the risk was even more acute, since the relevant documents were not available at all.
4. Third, the applicant argued that it was difficult to see how the balancing exercise inherent in s 135 was applied. The judge's reasons did not explain the process. The probative value of the evidence was low: much of the evidence was based on 'unattributed hearsay',[131] and Mr Newport was vague in the way that he referred to the nature and content of the reports. The applicant also critiqued the judge's reasoning that the procedural disadvantage 'cut both ways', asking how this could be so when 'Mr Newport's evidence was accepted in its entirety ... and given significant weight in the [judge's] ultimate decision'.

1. The respondent essentially relied upon the judge's reasons for refusing the application. It was said that s 135(a) had little, if any application in a trial before a judge alone.[132] Furthermore, the written objection of the applicant to the impugned evidence of Mr Newport was taken far too late - it was filed four months after the evidence was given.

1. Section 135(a) of the Evidence Act provides generally (ie in a civil or criminal proceeding) that a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. It has a specific criminal law analogue in s 137 of the Evidence Act, which mandates that a court must refuse to admit evidence if the danger of unfair prejudice to the defendant outweighs its probative value.
2. In our view, the applicant's submission fails at several levels.
3. First, the primary application of ss 135 and 137 relates to the adducing of evidence in cases before a jury. As the Australian Law Reform Commission explained in its interim report on Evidence:

By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact‑finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact‑finder to base his decisions on something other than the established propositions of the case.[133]

1. After the enactment of the Evidence Act 1995 (NSW), in R v Suteski, the New South Wales Court of Appeal said:

As is now well established, the prejudice to which the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves.[134]

1. It can, therefore, be seen that the primary purpose of s 135(a) is its application in jury trials - in this state, both civil and criminal.
2. However, it may still have an application from time to time in a civil case before a judge sitting alone where 'procedural prejudice' is asserted.[135] The High Court in Moore (a pseudonym) v The King ('Moore')[136] has now resolved the debate as to whether a procedural disadvantage (such as the inability to cross‑examine the maker of a relevant representation) can constitute unfair prejudice within the meanings of ss 135 and 137. It can.
3. Moore was a criminal trial. The prosecution relied upon a statement (representations) of the victim, who was unable to be cross‑examined and whose evidence was admissible under the hearsay exception in s 65 of the Evidence Act. The Court said as follows:

ALRC 102 preceded the enactment of the [Evidence Act] and can be considered in its construction. The report's analysis of the interrelationship between the inability to cross‑examine the maker of a representation and unfair prejudice should be accepted. It reconciles the procedural disadvantage arising from the inability to cross‑examine with the understanding of prejudice described in the interim report.[137]

1. Then, after discussing matters relevant to the factual basis for the appeal the Court said - critically for the purpose of this application:

Beyond matters of credit, which can be the subject of evidence and submissions, there is no basis for concluding that the inability to test evidence by cross‑examination will substantially affect the ability of the trier of fact to rationally assess the weight to be attached to the evidence of the representations. There is no scope for uncertainty about the source of the complainant's knowledge of the subject matter of the representations. The complainant was plainly purporting to recount matters she directly (and recently) observed, and she was very familiar with the appellant. To the extent that there is a danger of unfair prejudice arising from the inability to cross‑examine the complainant, it is not substantial when regard is had to the capacity of the appellant to address her credibility by way of evidence and submissions, and the ability of the trial judge to give appropriate directions to the jury.[138]

1. There have been cases in judge alone civil trials in the past where the admission of the hearsay evidence (justified under one of the exceptions in the Evidence Act) of the maker of representations has been refused, relying upon s 135(a). Such cases usually involve the inability of a party to cross-examine the maker.[139]
2. But this is not such a case. In Moore, the High Court emphasised the importance of assessing whether there was a real risk of prejudice, focusing on the question of whether 'the inability to test evidence by cross-examination will substantially affect the ability of the trier of fact to rationally assess the weight to be attached to the evidence of the representations'.[140] Here, Mr Newport, the deponent of the affidavit, was available and cross-examined extensively as to the basis of the Decision. What was missing was some (or perhaps, much) of the material he relied upon in reaching the Decision. This, contrary to the applicant's submissions, went directly to the quality of Mr Newport's evidence, not its admissibility.
3. Simply put and consistent with the observations in Moore, we doubt whether s 135(a) has any application in this case where the judge had the opportunity to see the witness under cross-examination and was able to attach appropriate weight to the forensic disadvantage alleged by the applicant in her assessment of the quality of Mr Newport's evidence. The fact that the judge gave Mr Newport's evidence more weight than the applicant submitted was appropriate does not advance his argument. This was quintessentially the task of the trial judge.
4. Second, assuming s 135(a) is engaged, there is no basis for excluding the impugned evidence of Mr Newport.
5. Returning to Moore, the High Court set out the approach to the evaluative assessment undertaken under s 135(a). First, assess the weight of the probative value of the evidence. Second, assess the extent of any danger of unfair prejudice. Then compare the two.[141] Only if there is a risk that the danger of unfair prejudice significantly outweighs the probative value of the evidence should an order be made excluding the evidence be made.
6. Moreover, in assessing evidence pursuant to s 135(a), the relevant 'evidence [is to] be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue'.[142]
7. The probative value of these parts of Mr Newport's evidence is abundantly clear. The impugned parts of his evidence explain why he decided to demolish rather than retrofit. This was the very Decision that is attacked in this proceeding.
8. Taken at its highest, these impugned parts of his evidence went squarely to answering the applicant's criticisms of the decision‑making process. Mr Newport went on affidavit and was cross‑examined as to the basis for the Decision. Notwithstanding the criticisms made of the quality of the opinion (ie the reliance upon reports which were not produced in evidence) the tested opinion of the decision‑maker must be of significant probative value in such a proceeding. As we have said, the question of the unavailability of the expert opinions may ultimately have affected the weight to be attached to Mr Newport's decision-making process but it does not affect its overall probative value in the scheme of a judicial review proceeding.
9. The degree of prejudice asserted by the applicant is somewhat illusory. The primary asserted prejudice is that of being unable to test Mr Newport's reliance upon the various expert reports from consultant engineers in reaching the Decision. It can be accepted that the applicant was disadvantaged by his inability to access the expert reports. This, it can be assumed, may have enabled the applicant to impugn Mr Newport's opinion. Equally, it may not have. This was the point the judge made - whether they would have enhanced or disadvantaged Mr Berih's case below is unknown. All that can be said is that there was a possible forensic limitation on the cross‑examination of Mr Newport by reason of the absence of the expert reports.
10. Again, at the point of being overly repetitive, it is this defect that a judge may treat as a matter going to the weight to be attached to the quality of the opinion expressed. Indeed, the judge took this into account in her reasons, and it was at that level that the absence of the reports required attention - not by exclusion under s 135(a).
11. The balancing exercise falls squarely in favour of admitting the impugned parts of both the September affidavit and the cross-examination. To a considerable extent, the applicant's assertions of prejudice are coloured by a misconception as to the nature of the proceeding before the judge. In the applicant's written submissions the following is said:

Mr Berih was not able to cross-examine any expert who had any line of reasoning as to why retrofitting or renovation was not feasible; and was not able to counter Mr Newport's highly generalised conclusions about retrofitting by calling expert evidence of his own that responded to any specific proposal for retrofitting that Mr Newport had purported to consider...

1. The case is not about determining a controversy between the conflicting opinions of the experts as to the desirability of demolition or retrofitting - as suggested in the applicant's written and oral submissions to this Court - but rather, it is about the nature of the decision made by Mr Newport and its amenability to judicial review.
2. Although the judge did not refer to the balancing exercise required by s 135(a) in terms, it is abundantly clear that in dealing with the Mr Berih's complaints under the section, her Honour took into account the competing arguments as to prejudice and probative value, as her reasons demonstrate. As we have said, the probative value of the evidence was relatively high (notwithstanding the limitations we have adverted to), and whilst the risk of a prejudice remained, it in no way substantially outweighed that of the probative value of the evidence which we have set out above.
3. The second basis for asserting procedural prejudice - the effect upon forensic decisions as to the conduct of the case below - was never elaborated upon.
4. The judge was correct in rejecting Mr Berih's application under s 135(a).
5. Strictly speaking, it is not necessary to address any of the other issues raised by Homes Victoria in support of the judge's ruling on this matter. However, we should emphasise one point. The judge was correct to hold that the objection based on s 135(a) to answers given during cross-examination by Mr Newport was made too late. The proper time to object was during the cross-examination, so the judge could rule on it. We accept that in this trial's context, given how the report's existence was revealed, it was a surprise. But trials are full of surprises, and waiting until final submissions to object to significant parts of the answers given to plaintiff's counsel during cross-examination was inappropriate - as the judge rightly observed. The same reasoning also applies to the objections to the September affidavit. It had been admitted into evidence without objection. While it is true that at that time counsel for the plaintiff was unaware of the expert reports, once their existence was revealed early in the cross-examination, that was the appropriate moment to object, not several months later after a forensic examination of the evidence given by Mr Newport.
6. Proposed ground 6 is not made out.

1. We would grant leave to appeal and dismiss the appeal.

[1] Berih v Homes Victoria (No 4) [2025] VSC 169, [5] (Richards J) ('Reasons').

[3] Housing Act 1983, s 9(2).

[4] At the time of the trial, Mr Berih was the representative plaintiff pursuant to s 33C of the Supreme Court Act 1986. Prior to the application for leave to appeal being heard, Mr Berih was replaced as representative plaintiff by Mr Mallard. For the reasons that follow, the individual circumstances of Mr Berih and Mr Mallard are not material to any of the conclusions that we have reached. For convenience, in discussing the circumstances of the proceedings, references to 'the applicant' is a reference to Mr Mallard (the applicant in this proceeding). We will refer to the plaintiff in the proceeding below as 'Mr Berih'.

[5] Housing Act, s 9(2).

[6] Mr Newport was also the Deputy Secretary to the Department of Families, Fairness and Housing at the relevant times.

[7] Housing Act, s 6(1)(g).

[8] Ibid s 6(1)(h).

[16] Housing Act, s 9(2).

[17] Ibid s 9(1)(a).

[18] Ibid s 14(g).

[19] See Berih v State of Victoria (No 2) [2024] VSC 230 (Richards J) ('Berih (No 2)'). An amended writ was filed in June 2024 against Homes Victoria alone.

[21] There had been previous hearings before the trial judge related to applications for summary judgment, declassing the claim and discovery: see Berih (No 2) [2024] VSC 230 (Richards J).

[27] Berih v Homes Victoria (No 3) [2025] VSC 30, [42] (Keogh J) ('Berih (No 3)').

[29] Ibid [48]-[53]. See Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 615-16 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ); [1993] HCA 24; Murdesk Investments Pty Ltd v Secretary To the Department of Business and Innovation [2011] VSC 436; Kamasaee v Commonwealth (No 3) (2016) 52 VR 322; [2016] VSC 438; Kamasaee v Commonwealth (No 5) (2016) 52 VR 322; [2016] VSC 595.

[30] Berih (No 3) [2025] VSC 30, [84] (Keogh J).

[38] Ibid [113], citing Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 280 CLR 515, 536-7 [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22 ('Disorganized Developments').

[39] Reasons, [114]; Keasey v Director of Housing [2022] VSCA 7; (2022) 66 VR 45, 51-2 [29]-[30]; [2022] VSCA 7 ('Keasey').

[41] Reasons, [126]-[127] (citations omitted).

[42] [2025] HCA 47.

[43] Citing Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515, 536-7 [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22.

[44] (2022) 66 VR 45; [2022] VSCA 7.

[48] Badari [2025] HCA 47, [40] (the Court).

[49] Quoting Keasey [2022] VSCA 7; (2022) 66 VR 45, 53 [29] (Niall, Emerton and Whelan JJA); [2022] VSCA 7.

[50] (1987) 163 CLR 378, 398 (Mason CJ); [1987] HCA 39.

[51] Citing Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515, 545 [45] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22.

[53] See Kioa v West (1985) 159 CLR 550; [1985] HCA 81 ('Kioa'); Disorganized Developments (2023) 280 CLR 515; [2023] HCA 22; Badari [2025] HCA 47.

[54] See Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53.

[55] See Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7.

[56] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 ('Plaintiff M61').

[57] Badari [2025] HCA 47, [17] (Gageler CJ, Gordon, Edelman, Steward, Gleeson JJ).

[58] Kioa (1985) 159 CLR 550, 611 (Brennan J); [1985] HCA 81.

[59] Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515, 536-7 [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22; Badari [2025] HCA 47, [17] (Gageler CJ, Gordon, Edelman, Steward, Gleeson JJ).

[60] Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515 536-7 [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22.

[61] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13-14 [37] (Gleeson CJ); [2003] HCA 6.

[62] [2019] HCA 50; (2019) 268 CLR 76, 86-7 [16] (Kiefel CJ and Gageler J) (citations omitted); [2019] HCA 50.

[63] Kioa (1985) 159 CLR 550, 584 (Mason J); [1985] HCA 81; Plaintiff M61 (2010) 243 CLR 319, 329 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 41.

[64] Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515, 537 [34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22; Kioa (1985) 159 CLR 550, 584 (Mason J), 619 (Brennan J), 632 (Deane J).

[65] (2023) 280 CLR 515; [2023] HCA 22.

[66] (1985) 159 CLR 550; [1985] HCA 81.

[67] Ibid 618 (Brennan J), discussing FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 412 (Brennan J); [1982] HCA 26, and Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513, 528 (Brennan J); [1985] HCA 31.

[68] Disorganized Developments [2023] HCA 22; (2023) 280 CLR 515, 535 [28] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) (citations omitted); [2023] HCA 22.

[69] (2005) 221 CLR 99; [2005] HCA 7.

[70] Ibid 130-1 [89] (Gummow, Callinan and Heydon JJ).

[72] King v Ombudsman (2020) 137 SASR 18, 39 [93] (Doyle J) (citations omitted); [2020] SASCFC 90.

[73] [2024] WASCA 126, [28] (Quinlan CJ and Mitchell JA).

[74] Housing Act, s 15(1)(a).

[75] Ibid s 15(1)(b)-(c).

[76] Ibid s 15(1).

[80] Housing Act, s 6(1)(g) and (h).

[81] Reasons [119]; R (on the application of Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947, [38] (Lord Reed, Lady Hale DP and Lord Clarke agreeing); [2014] UKSC 56. See also Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154, 177 [85]-[86], 177-8 [88] (Branson and Finn JJ); [2007] FCAFC 175.

[83] Section 91ZY of the RT Act provides that:

(1) A residential rental provider may give a renter a notice to vacate rented premises if -

(a) the residential rental provider intends to demolish the premises -

(i) in the case of a building owned by a residential rental provider containing 5 or more rented premises, immediately after the last renter vacates; or

(ii) in any other case, immediately after the termination date; and

(b) the residential rental provider has obtained all necessary permits and consents to demolish the premises.

(2) The notice must specify a termination date that is not less than 90 days after the date on which the notice is given.

[84] [2025] HCA 47, [18] (Gageler CJ, Gordon, Edelman, Steward, and Gleeson JJ).

[86] Badari [2025] HCA 47, [18] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ).

[87] [2023] HCA 22; (2023) 280 CLR 515, 540 [44] (Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ); [2023] HCA 22 (citations omitted). See also Badari [2025] HCA 47, [45]-[46] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ).

[93] Citing Keasey [2022] VSCA 7; (2022) 66 VR 45, 54-5 [34]-[35] (Niall, Emerton & Whelan JJA); [2022] VSCA 7.

[95] R (ZH and CN) v London Borough of Newham and Lewisham [2014] UKSC 62; [2015] AC 1259, 1306 [62] (Lord Hodge JSC); [2014] UKSC 62.

[98] Citing Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 363 [227] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358 ('Minogue').

[101] Berih (No 3) [2025] VSC 30, [86] (Keogh J).

[102] Berih (No 2) [2024] VSC 230, [47] (Richards J).

[103] Minogue [2021] VSCA 358; (2021) 67 VR 301, 317-8 [51]-[55] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.

[104] [2012] VSCA 159; (2012) 43 VR 446, 470-1 [103]-[113] (Warren CJ); [2012] VSCA 159.

[105] Minogue [2021] VSCA 358; (2021) 67 VR 301, 318 [56] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.

[107] Citing Re Application Under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381; (2009) 24 VR 415, 448 [147] (Warren CJ); [2009] VSC 381.

[108] Citing Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, 504 [203] (John Dixon J); [2017] VSC 251.

[109] Citing Minogue [2021] VSCA 358; (2021) 67 VR 301, 327 [100] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.

[110] [2021] VSCA 358; (2021) 67 VR 301, 321 [74] (Kyrou, McLeish and Niall JJA) (citations omitted); [2021] VSCA 358.

[112] Minogue [2021] VSCA 358; (2021) 67 VR 301, 327 [100] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.

[114] Ibid 327 [100] (citations omitted).

[120] Ibid [137]; HJ v Independent Broad-Based Anti-Corruption Commission [2021] VSCA 200; (2021) 64 VR 270, 306 [155] (the Court); [2021] VSCA 200 ('HJ'). See also Castles v Secretary of the Department of Justice [2010] VSC 310; (2010) 28 VR 141, 184 [185]-[186] (Emerton J); [2010] VSC 310; Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 198-9 [217]-[221] (Warren CJ), 218-23 [277]-[289] (Tate JA), 297-8 [535]-[536] (Santamaria JA); [2015] VSCA 197.

[122] Berih (No 3) [2025] VSC 30.

[123] Four paragraphs of Mr Newport's September affidavit set out above - paras 17, 18, 23, and 34 - advanced Mr Newport's reasons for concluding that the towers should be demolished.

[125] Ibid [51]-[56] (citations in original).

[126] Civil Procedure Act 2010, ss 7(1), 8(1).

[127] State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd [2001] VSCA 94; (2001) 3 VR 1, 6-7 [16]-[18] (Ormiston JA); [2001] VSCA 94.

[128] Berih (No 3) [2025] VSC 30, [92].

[129] Minogue [2021] VSCA 358; (2021) 67 VR 301, 321-2 [71]-[77] (Kyrou, McLeish and Niall JJA); [2021] VSCA 358.

[130] Citing Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; (2005) 224 ALR 317, [23]-[24] (Sackville J); [2005] FCA 1348; Yara Pilbara Fertilisers Pty Ltd v Oswal [2016] VSC 440, [164] (Dodds-Streeton JA).

[132] Commissioner of Taxation v White (No 3) [2025] FCA 392, [14] (Kennett J). See also Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd [2018] FCA 264, [39] (Rangiah J).

[133] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), 644.

[134] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, 199 [116] (Wood CJ at CL); [2002] NSWCCA 509. See also Papakosmas v The Queen (1999) 196 CLR 297, 325 [91] (McHugh J); [1999] HCA 37; R v Lisoff [1999] NSWCCA 364.

[135] Latrobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4; (2011) 190 FCR 299, 313 [64] (Finkelstein, Jacobson and Besanko JJ); [2011] FAFC 4.

[136] (2024) 308 A Crim R 592; [2024] HCA 30 ('Moore').

[137] Ibid 603 [35] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) (emphasis added) (citations omitted).

[138] Ibid 604 [39] (emphasis added).

[139] See Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59, [49]-[65] (J Forrest J); Bolitho v Banksia Securities Ltd (No 16) [2021] VSC 9, [30] (John Dixon J).

[140] Moore [2024] HCA 30; (2024) 308 A Crim R 592, 604 [39] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30.

[142] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, 314 [47] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.