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[2021] VSC 199
General information, not legal advice.
Supreme Court of Victoria
2021-04-23
Derham AsJ
Original judgment source is linked above.
[2021] VSC 199 (first revision 18 June 2021)
ADMINISTRATIVE LAW - Application under s 8(4) of the Administrative Law Act 1978 (Vic) (ALA) requiring the defendant to furnish a statement of reasons of its decision to seek, by application to the Victorian Civil and Administrative Tribunal (Tribunal), orders terminating the plaintiff's tenancy under s 549(1) of the Residential Tenancies Act 1997 (Vic) (RTA) and a possession order under s 549(4) of the RTA in respect of the rented premises occupied by the plaintiff - Whether decision of the Director of Housing to make the application to the Tribunal under the provisions of the RTA introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) is a decision for the purposes of s 2 of the ALA - Whether the Director is a tribunal under the ALA - The decision to apply to the Tribunal in this case was not a decision under the ALA - The Director was not a tribunal under the ALA - R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691; AB v Lewis [1980] VicRp 18; [1980] VR 151; Nicol v Attorney-General for the State of Victoria [1982] VicRp 33; [1982] VR 353; State Electricity Commission v Commissioner for Equal Opportunity [1992] VicRp 6; [1992] 1 VR 79; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635; Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149; Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612; Burgess & Anor v Director of Housing & Anor [2014] VSC 648 referred to.
1 By originating motion filed on 31 July 2020, the plaintiff applies for orders:
(a) under s 8(4) of the Administrative Law Act 1978 (Vic) ('ALA') requiring the defendant ('Director') to furnish a statement of reasons of its decision to seek, by application to the Victorian Civil and Administrative Tribunal (Tribunal) dated 11 May 2020, orders under ss 548(1), 549(1) and 549(4) of the Residential Tenancies Act 1997 (Vic) ('RTA') in respect of the rented premises occupied by the plaintiff; and
(b) under s 9 of the ALA, suspending the operation, or restraining the implementation, of the decision until the expiration of 14 days from the furnishing of the statement of reasons sought by the plaintiff under s 8(4) of the ALA, or such further time as the Court deems fit.
2 The plaintiff applied by summons filed on 12 August 2020 for orders:[1]
(a) that the plaintiff be referred to in any subsequent Court documents in this proceeding by a pseudonym ('pseudonym order'); and
(b) under r 28.05(2)(b) of the Rules that, subject to further order, the Prothonotary treat the Court file in this proceeding and each document in it as confidential and not produce them or any of them for inspection by any person not a party to the proceeding ('confidentiality order').
3 The application for pseudonym and confidentiality orders was supported by the affidavit of Mr Nicholas Graham Anderson, a Senior Lawyer of Victoria Legal Aid. On 20 August 2020, I made the orders sought for the reasons set out in that order.
4 The application came before me for trial directions on 1 September 2020. The parties confirmed on that day that the principal issue is whether the decision of the Director to commence eviction proceedings pursuant to the RTA in the Tribunal is a 'decision' within the meaning of the ALA_._ In these circumstances, the Court proposed that the trial might well be conducted on the affidavit of the plaintiff's lawyer and on written submissions of the parties without the need for an oral virtual hearing. Trial direction were made with a view to the trial being held on or after 23 November 2020. It was ultimately fixed to be heard before me on 8 December 2020.[2]
(a) First, whether the Director's decision to apply to the Tribunal is a 'decision' within the meaning of the ALA_._
(b) Second, whether the Director is a 'tribunal' for the purposes of the ALA_._
6 The plaintiff is one of two tenants of a property owned by the Director, which the plaintiff has occupied pursuant to a tenancy agreement dated 13 August 2019 ('the rented premises'). The tenancy agreement is governed by the RTA.
7 On 11 May 2020, the Director filed an application in the Tribunal under s 548 of the RTA seeking an order terminating the plaintiff's tenancy under s 549(1) and a possession order under s 549(4) of the RTA. That application refers to certain allegations of criminal conduct. The application and grounds for it are set out in an attachment to the application as follows:
The Director of Housing considers that [the tenants] have 'trafficked' heroin within the meaning of s 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (see also s 549(9) of the RTA).
8 The attachment to the Application sets out the factual details and basis for the application and a 'Summary of Material Facts' which formed part of the criminal brief of evidence against the plaintiff. There had been no hearing of the Charges laid against the plaintiff or 'another person' as referred to in s 549(2)(g)(vi)(A) of the RTA.
9 By letter dated 18 May 2020, Victoria Legal Aid requested, on the plaintiff's behalf, that the Director provide reasons under s 8(1) of the ALA for his decision to make the application. By letter dated 2 June 2020, the Director, by his representative, refused to provide reasons in accordance with the plaintiff's request. By letter dated 21 July 2020, Victoria Legal Aid made a further request for reasons under s 8(1) of the ALA, and sought the Director's response by 24 July 2020. By email dated 23 July 2020, the Director, by his representative, refused to provide reasons in accordance with the plaintiff's request.
10 Section 8(1) of the ALA confers a statutory right to reasons on a person affected by a decision of a tribunal, where a request for reasons is made. That section, in full, provides:
Reasons for decision to be furnished by tribunal on request by party concerned
(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.
(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.
(3) The statement of reasons shall be in writing and furnished within a reasonable time.
(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.
(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.
(6) Nothing in this section applies to the Victorian Civil and Administrative Tribunal or the Business Licensing Authority.
11 The purpose of the right conferred by s 8(1) is to enable the person affected, and this Court, to assess whether the relevant decision is attended by error such as to support a claim for judicial review. Sub-section 8(4) sets the standard of adequacy of the reasons: they must enable a Court to see whether the decision does or does not involve any error of law.[3] Section 8 is an acknowledgement that the provision of reasons for a decision is a necessary incident of the function of a tribunal which owes an obligation to accord procedural fairness. As Winneke P said in Masters v McCubbery,[4] it is only by setting out its reasons in sufficient detail to demonstrate whether it has acted on proper principles that the Court will be in a position to effectively review its decision.
12 By the terms of s 8(4), where a decision-maker does not comply with a request for reasons made under s 8(1), this Court may order the decision-maker to provide reasons, if satisfied that a reasonable time has elapsed without the request for reasons having been met. Where an order of this Court is not complied with, the Court may, among other things, make any such order as might have been made if error of law had appeared on the face of the record.
13 The definitions section of the ALA, s 2, provides:
In this Act unless the context or subject-matter otherwise requires -
decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;
person affected in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;
tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include -
(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or
(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.
14 The Director of Housing is a body corporate under that name with perpetual succession and a corporate seal and is capable in law of suing and being sued and of acquiring, holding and disposing of real and personal property.[5] The Director's powers include, subject to the RTA, to lease any land vested in the Director on terms and conditions that the Director thinks fit.[6]
15 The objects of the Housing Act include '[t]o ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging... the provision of well-maintained public housing of suitable quality and location...'.[7] The Director's powers include, subject to the RTA, to lease any land vested in the Director on terms and conditions that the Director thinks fit.[8]
16 The Director, as a landlord of residential premises, is subject to the RTA as are the tenants of residential premises leased by the Director. The Director has produced a number of detailed 'guidelines' to guide his decision-making (and that of his staff).[9] An earlier version of the guidelines, called a Manual, was considered by Macaulay J in Burgess.[10]
17 There are three sets of guidelines and policies with respect to tenancy breaches and the termination of tenancies ('Policies'):
(a) Neighbourly behaviour and support guidelines, the current version of which is dated July 2017.
(b) Tenancy breaches operational guidelines, the current version of which is dated July 2017.
(c) Business Continuity Coronavirus (COVID-19) Consolidated Operational Policy - Housing and Homelessness. This policy was first introduced on 20 April 2020 and there have been 17 versions of the policy during the time in which the temporary measures in Part 16 of the RTA were in force. Up until 11 May 2020, when the Defendant filed the application in the Tribunal, there had been two versions of this policy. On 11 May 2020 version 3 of the policy was published.[11]
18 It is now clear, after further submissions made on 9 April 2021, that it is common ground that the content of the Policies is not relevant to the issues before the Court. The submissions made by both the plaintiff and the Director make clear that the key issues before the Court are whether the decision the subject of this proceeding is a 'decision', and whether the defendant is a 'tribunal', within the meaning of the ALA, so that the Policies are not directly relevant to determination of the plaintiff's application. To the extent that Macaulay J in Burgess considered the 'Tenancy Management Manual', of which the Tenancy Breaches Operational Guidelines appear to form part, his Honour did so in the context of determining the content of the applicable rules of procedural fairness, and not the anterior question of whether procedural fairness was attracted in the circumstances.
19 The plaintiff submitted, however, that the terms of the Policies are consistent with the defendant being under an obligation to provide reasons for the decision at issue in this proceeding, particularly having regard to the emphasis they place on fair, transparent, accountable and documented decision-making by housing staff; the explicit acknowledgment of the need for housing staff to apply the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') in this context; and the requirement imposed on housing staff to take account of the matters in s 538 of the RTA when considering whether to apply to the Tribunal for an order terminating a tenancy.[12]
20 The Director submitted that beyond providing some context for the decision of the Court in Burgess, the Policies provide no assistance in determining the issues in the present case, because they are irrelevant to the question of whether an application under s 548 of the RTA is a 'decision' for the purposes of the ALA. The Director also submitted that the Policies provide no assistance in determining whether the Director is required to afford natural justice when making a decision to apply to the Tribunal for the termination of a tenancy under s 548 of the RTA, so as to be a 'tribunal' for the purposes the ALA. This question depends upon whether the RTA confers upon a public official the power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations.[13]
21 For these reasons I will not go into the content of the Policies for the purposes of determining the two issues in this proceeding.
22 I should add, that it is common ground that the Director is, for the purpose of the Charter, a public authority, as he is an 'entity established by a statutory provision that has functions of a public nature'.[14]
23 Part 6 of the RTA, headed 'Termination' contains, in Division 1, the provisions relevant to termination of residential tenancies, which relevantly provides for the issuing of notices to vacate to tenants. Part 7 of the RTA contains provisions for the regaining of possession of, amongst other places, rented premises.
24 Although it is common ground that there is a tenancy agreement between the plaintiff and Director, and that the plaintiff is a tenant of the Director, within the meaning of the RTA, I note that by s 3 of the RTA, a tenancy agreement means an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence.[15]
25 Under the RTA, a tenant can only lawfully be evicted in accordance with the procedure prescribed by that Act. This follows from s 216 of the RTA which provides that despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with Division 1 of Pt 6, or Pt 7 or 8. Section 216 is a pivotal provision of the RTA.
26 Until the legislation introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) ('Omnibus Act'), the procedure was as set out in Division 1 of Pt 6, which relevantly provided for the issuing of notices to vacate to tenants; Pt 7, which relevantly provided for the obtaining of orders of, and warrants for, possession in respect of rented premises; and Pt 8 of the RTA (which is not relevant to the circumstances of this proceeding).
27 The Omnibus Act introduced a new regime into the RTA, in Pt 16, by which a landlord is prohibited from issuing a notice to vacate to a tenant. Under this regime, a tenancy can only be terminated if the Tribunal makes an order under s 549(1). An order under s 549(1) can only be made in limited circumstances. Part 16 had effect, and is taken always to have had effect, on and from 29 March 2020.[16] It was originally provided to be repealed on the day that is 6 months after its commencement, 24 October 2020.[17] However, the fixed-term operation of Pt 16 was extended by the COVID-19 Commercial and Residential Tenancies Legislation Amendment (Extension) Act 2020 (Vic) (No 25 of 2020).[18] By s 10 of that Act, s 615 of the RTA was substituted so that Pt 16 is repealed on 28 March 2021 or if a later date is fixed under s 616, that date. The Act inserts a new s 616 authorising the Governor in council, by order published in the Government Gazette, to fix a date on which Pt 16 is repealed, being a date after 28 March 2021 and before 27 April 2021.
28 Under this new regime, a landlord is prohibited from issuing a notice to vacate to a tenant and any notice given is of no effect.[19] A tenancy does not terminate unless, relevantly (amongst other things), the Tribunal makes an order under s 549(1).[20] The landlord must apply to the Tribunal for an order terminating the tenancy.[21] An order under s 549(1) can only be made in limited circumstances.[22]
(a) The landlord must apply to the Tribunal for an order terminating the tenancy: RTA s 548(1).
(b) The Tribunal must make an order terminating the tenancy: RTA s 449(1). Thisinvolves considering the application (and the grounds for termination relied upon in that application), and being satisfied that one or more of the circumstances prescribed by s 549(2) applied, which relevantly includes circumstances of illegal activity; and that making an order terminating the tenancy was 'reasonable and proportionate', having regard to s 538 of the RTA and the interests, relevantly, of the landlord, the tenant, any co-tenants and neighbours and other affected persons.
(c) The Tribunal must make a possession order: RTA: s 549(4) (on the Tribunal's initiative), ss 500(1), 551 (on application by a landlord).
(d) If the tenant does not vacate the premises voluntarily in response to the possession order (RTA s 549(5), a landlord must apply for a warrant of possession: RTA s 549(7) and s 351(1).
(e) The Tribunal must issue the warrant of possession: RTA ss 355 and 549(7).
(f) The warrant of possession must be executed at the rented premises: RTA ss 355(2) and 549(7).
30 I set out below the written submissions made on behalf of the parties. The plaintiff's submissions are somewhat repetitive, but I set them out more or less in full so as to make the consideration of the arguments easier to follow.
Defendant's decision to apply to VCAT is a 'decision' under the ALA
31 The plaintiff contends, in essence, that the Director's application for a termination order is a 'decision', in the requisite sense, because in the factual and statutory framework in which it was taken, it was both the necessary first step prescribed by the RTA for evicting the plaintiff from her home, and could conceivably be the last decision required from the Director to end the plaintiff's right to exclusive possession of her home if the plaintiff voluntarily vacated the premises once a possession order is made.
32 Each of the steps in the prescribed chain of decision-making ([29] above) can only be taken by the relevant decision-maker if the step before it has also been taken. The Tribunal cannot make an order terminating a tenancy unless the relevant landlord has first made an application under s 548 of the RTA. It is only when the landlord makes its application under s 548 that the Tribunal's power to terminate the tenancy is enlivened, and it may terminate the tenancy without any further decision of the landlord.
33 Unless the relevant landlord were to seek, and obtain, leave to withdraw the application under s 74 of the VCAT Act, the Tribunal would be empowered to terminate the relevant tenancy, over the objection of the landlord, if satisfied, on the basis of material filed and the evidence otherwise adduced, of the matters in s 549 of the RTA. The landlord's decision to apply to the Tribunal is the critical step in the tenant's eviction. By that means, the tenant's right to exclusive possession of the rented premises is exposed to a 'new hazard'.[25]
34 That step takes place in a legislative framework overlaid by the Charter. The Charter emphasises and protects the right to property and home.[26] The steps taken by the Director in this respect are 'acts' within the meaning of ss 3(1) and 38 of the Charter, such that the obligation to consider the effects of the action on the plaintiff is enlivened. The obligation upon the Director to both consider and act in a manner consistent with the Charter is consistent with the characterisation of the decision as one to which the obligation to provide reasons attaches. Moreover, to the extent that any ambiguity arises in respect of the construction under the ALA, s 32 militates in favour of the construction advanced by the plaintiff.
35 The plaintiff submits that the Director's application to the Tribunal is a 'decision' in the requisite sense, because it is a 'decision operating in law to determine a question affecting the rights' of the plaintiff, within the meaning of the definition of 'decision' in s 2 of the ALA, for the following reasons.
36 First, in determining whether a decision affects rights for the purposes of s 8 of the ALA, regard may be had to those authorities considering whether a decision has sufficient legal effect so as to be amenable to certiorari.[27]
37 Second, a majority of the High Court in Hot Holdings Pty Ltd v Creasy[28] held that a decision may have sufficient legal effect to be amenable to certiorari if it is either the ultimate decision in a decision-making process and it sufficiently affects legal rights or it is preliminary or recommendatory to a substantive decision, but the initial decision sufficiently determines, or is related to, the substantive decision.[29] A decision will fall into the latter category where it is a 'condition precedent' to the making of a decision that affects rights,[30] where it subjects rights 'to a new hazard',[31] is a 'precondition or ... bar to a course of action'[32] or is a 'step in a process capable of altering rights ...".[33] Decisions of this character include a recommendation to a decision-maker with respect to the grant of a licence that enlivens the decision-maker's power to act and must be taken into account by that decision-maker,[34] and an opinion that determines a question affecting rights in a manner that becomes binding on the ultimate decision-maker.[35] A decision that is a condition precedent to a decision affecting rights may be legally effective in the requisite sense, even where it merely enlivens a discretion conferred on the ultimate decision-maker.[36]
38 Third, a decision of the Tribunal to grant a termination or possession order is a decision that directly affects rights, in the sense considered in the authorities referred to above. This is because it enables the tenant's right to exclusive possession of the rented premises to be brought to an end - if the tenant vacates after such an order is made[37] or if a warrant is obtained to forcibly evict them. Further, a possession order, specifically, obliges a tenant to vacate the premises,[38] entitles a landlord to possess the premises and creates an obligation for the issue of a warrant if an application for a warrant is made.[39]
39 Fourth, a decision to apply for an order terminating a tenancy is sufficiently related to a decision affecting rights, because:
(a) it exposes the tenant's right to exclusive possession of the rented premises to a 'new hazard' (that is, the making of termination and possession orders); and
(b) it is a condition precedent to the taking of 'rights-affecting' action by the Tribunal, because the Tribunal's power to grant a termination order under the statutory regime in Pt 16 of the RTA can only be enlivened by an application of the landlord.
40 Support for this view can be found in the persuasive dicta of this Court in Burgess, where, in the context of the pre-pandemic regime for terminating a tenancy under the RTA, Macaulay J observed:[40]
The reasoning in Hot Holdings may very well support an argument that the Director's notice decision, or even his warrant application decision, might themselves have a sufficiently discernible effect on legal rights to render them amenable to the remedy of certiorari. That, it may be argued, may follow because each of those decisions might be viewed as a condition precedent to the exercise of power which will affect legal rights (eg VCAT making a possession order or issuing a warrant). Alternatively, they may be viewed as a precondition to a course of action or a step in a process capable of altering rights, interests or liabilities.
41 Further, in the context of determining whether the requirements of procedural fairness were attracted by a decision to issue a notice to vacate, the Court found that such a decision 'sufficiently exposes the tenant to the risk of losing the tenancy to be rightly regarded as one that affects a person's rights and interests'.[41]
42 In the context of an application for an order terminating a tenancy on the basis of alleged illegal activity, the landlord's application to the Tribunal 'stands between' the allegations of illegal activity made against a tenant and a determination by the Tribunal of whether those allegations justify terminating the tenancy,[42] as well as establishes the factual allegations and legal claims that inform the scope of the Tribunal's jurisdiction in determining the application.[43]
43 In analogous circumstances, this Court held in State Electricity Commission v Commissioner for Equal Opportunity,[44] that a decision extending the prescribed time limit for making a complaint under the Equal Opportunity Act 1984 (Vic) was a 'decision' for the purposes of the ALA, because it affected the rights of:[45]
(a) the complainant, by enabling the complainant to pursue a process, that might result in substantial relief, which was otherwise statute-barred; and
(b) the subject of the complaint, by exposing them to the full range of procedures and remedies prescribed by the Equal Opportunity Act 1984 (Vic).
44 In this context, the decision to apply for a termination order exposes the tenant to the procedure prescribed by the RTA for terminating their tenancy and, under the pandemic-specific regime, until that application is made, the tenant's right to exclusive possession of the premises is not substantively imperilled.
Defendant is a 'tribunal' for the purposes of the ALA
45 The plaintiff contends that if the Court finds that the Director's decision to apply to the Tribunal is a 'decision affecting rights' in the sense contended by the plaintiff, then the Court can be satisfied of the other operative elements of s 8(1) - namely, that the requirements of procedural fairness applied to the decision, for the purposes of the definition of 'tribunal', and that the plaintiff is a 'person affected'.
46 For the purposes of s 8(1) of the ALA, the Director is a 'tribunal' within the meaning of the definition of s 2 of the ALA, as a 'person ... who, in arriving at the decision in question, [was] ... required ... to act in a judicial manner to the extent of observing one or more of the rules of natural justice':
(a) The Director is a 'person' for the purposes of the definition of 'tribunal', being a body corporate under the Housing Act.
(b) The Director is obliged to afford procedural fairness in deciding to apply to the Tribunal, because its decision was made by an executive decision-maker under statute that affected the plaintiff's rights (principally, her right to exclusive possession of the rented premises).[46]
(c) This Court found in Burgess that a decision to issue a notice to vacate to a tenant under the RTA attracts the requirements of procedural fairness because it 'sufficiently exposes the tenant to the risk of losing the tenancy to be rightly regarded as one that affects a person's rights and interests'.[47] In this context, as in the context of a notice to vacate, a decision to apply to the Tribunal under s 548(1) of the RTA:[48]
(i) 'commences a process that may result in the termination of the tenant's tenancy of premises' without which 'the tenancy is secure until the expiration of the term';
(ii) 'exposes the tenant to the risk of losing the tenancy'; and
(iii) 'establishes the defining facts', proof of which may result in an order that the tenant must vacate the premises;
(d) The common law obligation to afford procedural fairness was not excluded by the RTA or, to the extent relevant, by the Housing Act.
(e) Neither of the exclusions in paragraph (a) and (b) of the definition of 'tribunal' in s 2 of the ALA applies in the circumstances.
47 The plaintiff is a 'person affected' by the Director's decision, within the meaning of s 2 of the ALA because she is one of two tenants of the rented premises who enjoys the right to exclusive possession of those premises and is a person who is directly affected, to a substantial degree, by a decision to terminate that right.
48 With respect to the other requirements of s 8 of the ALA, the plaintiff submitted:
(a) the plaintiff requested reasons in writing and within the time limit prescribed by s 8(2);
(b) for the purposes of s 8(4), the Court can be satisfied that a 'reasonable time has elapsed' since the plaintiff requested reasons, in circumstances where, as at the date of filing her submissions on 25 September 2020, over four months had elapsed since the plaintiff's first request for reasons was made and the Director had, on two occasions, explicitly refused to provide reasons.
49 The plaintiff submitted in conclusion that the Court should make orders under ss 8(4) and 9 of the ALA requiring the Director to provide reasons and suspending the operation of the Director's decision until such time as the Court deems fit, but in any event not less than 14 days after such reasons are provided. The Director should pay the plaintiff's costs of this proceeding.
50 The Defendant opposes the relief sought on the basis that, however described, the 'decision' is not one to which the ALA applies because it is not a 'decision' made by a 'tribunal' within the meaning of s 2 of the ALA. The concepts of 'decision', 'person affected' and 'tribunal' are interrelated. Whether or not a tribunal is required to act in a judicial manner when arriving at a decision depends upon the nature of the decision and the extent to which it determines the rights or interests of a person. The Director does not concede that he is a 'tribunal' in arriving at a decision to make an application to the Tribunal under s 548 of the RTA or to seek orders from the Tribunal under ss 549(1) and (4).
51 The definition of 'person affected' depends upon there being a 'decision' within the meaning of s 2 of the ALA. Because the Director contends there is no such 'decision', it follows that the plaintiff is not a person who is directly or indirectly affected by that decision. If, however, the Court determines that the filing of an application in the Tribunal, or the anterior decision to make such an application or to seek orders from the Tribunal, is a 'decision' then it follows that the plaintiff is directly affected by that decision and is therefore a 'person affected' and entitled to seek reasons under s 8 of the ALA.
Defendants decision to apply to the VCAT not a 'decision' under the ALA
52 Whether it is the Director's application to the Tribunal, or some anterior decision to make an application to or seek orders from the Tribunal, it is not a decision that operated in law to determine any question affecting the plaintiff's rights or to terminate a privilege or licence.
53 The question of whether and when steps leading up to an ultimate interference with rights or interests is a 'decision' for the purposes of the ALA has been the subject of a number of decisions, although exactly where the line is drawn is not entirely clear. Aronson and Groves state that the 'test seems to be whether the putative decision effectively precludes any opportunity for reconsidering the question at stake'.[49]
54 In AB v Lewis,[50] Fullagar J held that a decision by the Secretary of the Law Institute of Victoria to notify a person that it intended to cancel their practising certificate upon a particular event occurring was not a decision under the ALA. This was because the Secretary 'never made any right-altering decision; at most he said by the notice that he proposed to make one in the future'.
55 In Nicol v Attorney-General for the State of Victoria,[51] the Court considered whether the Attorney-General's granting of consent to the laying of an information was a 'decision', and held it was not. In reaching its finding, the Court cited passages from Cody v Joseph Pease (Pty) Ltd,[52] in which Mansfield J (with whom other members of the Full Court agreed) stated:
By his consent the Attorney-General does not decide any controversy, nor does he give any binding or authoritative decision which determines questions of rights and liabilities. His consent may affect the liability of a person after a controversy has been decided by an appropriate judicial tribunal, but his consent does not in any way determine a right or liability.
56 In Bayside City Council v Fooks Martin Sandow Pty Ltd,[53] Beach J held that the decision of the Administrative Appeals Tribunal to allow the applicant for a permit to submit a detailed landscape plan in respect of the relevant land and to then allow the Council and other objectors to make written submissions concerning the plan cannot constitute a decision operating in law to determine a question affecting the rights of any person.
57 By way of contrast, in Masters v McCubbery,[54] the Court of Appeal held that a 'medical opinion' of a medical panel under the Accident Compensation Act, was a 'decision' under the ALA. This was because the medical panel is vested with substantial decision powers to make decisions of fact and law which effectively dispose of the issues. As Winneke P explained in that case:
These ultimate conclusions expressed by the panel as 'opinions' dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms.[55]
58 Accordingly, the question of whether there has been a 'decision operating in law to determine a question affecting the rights of any person or to ... terminate... or alter a privilege or licence' requires close analysis of the statutory framework.
59 Up until 25 April 2020, when the RTA was amended by the Omnibus Act, a landlord had the power to terminate a tenancy by giving to the tenant a notice to vacate. The provisions of Subdivision 4 of Division 1 of Part 6 (ss 243-268B) set out the grounds upon which a notice to vacate could be given and the length of the notice required. Relevantly, this included where the tenant used the premises for an illegal purpose (s 250), a minimum of 14 days' notice, and where the Director of Housing is the landlord, a minimum of 14 days' notice if the tenant:
(a) has trafficked a drug of dependence (s 250A(1)(a)); or
(b) intentionally permitted another person to use the premises or the common area for trafficking in a drug of dependence (s 250A(1)(db)).
60 Where a tenant did not vacate the premises in accordance with the notice to vacate, the landlord could apply to the Tribunal for a possession order (s 322). The scope of the Tribunal's decision making powers on such an application was limited. Significantly, if satisfied that the landlord had grounds for giving the notice to vacate, the Tribunal had no discretion and was required to make the possession order: see ss 330, 333 and 334, which are set out in the Schedule to these Reasons. If the tenant failed to comply with the possession order, the landlord could apply to the principal registrar of the Tribunal for a warrant of possession (s 351), which then authorised the person to whom it is directed to enter the premises and compel persons occupying the premises to vacate (s 355).
61 The effect of the Omnibus Act provisions is that landlords no longer have the power to terminate a tenancy by giving a notice to vacate, and any notice to vacate purportedly given under Subdivision 4 of Division 1 of Part 6 is of no effect (s 544). Instead, a landlord must make application to the Tribunal under s 548 and obtain an order under s 549. Section 547 expressly provides that a tenancy agreement does not terminate unless an order is made by the Tribunal under s 233B or s 549(1),[56] or it is terminated (by the tenant) under certain provisions.[57]
62 In contrast to the pre-COVID provisions, the Tribunal has a very broad discretion to make or refuse an order terminating the tenancy under s 549(1) and to make or refuse a possession order under s 549(4). In contrast with ss 322 and 330, the language of s 549(1) and (4) is in discretionary terms and the Tribunal is not limited to an inquiry as to whether there are grounds to terminate the tenancy. Rather, the Tribunal is empowered and required to consider all of the circumstances, including the interests of and impact upon the tenant, and must be satisfied that making an order is 'reasonable and proportionate' before any order can be made.
63 Thus the Director does not currently have any power to make such a decision that operates in law to determine a question affecting the rights of any person. That power resides exclusively with the Tribunal. Any power of a landlord to terminate a tenancy under the RTA, or to determine any question relating to termination of the tenancy, was removed following the amendments to the RTA effected by the Omnibus Act. The power to terminate a tenancy now lies exclusively with the Tribunal, in its original jurisdiction.
64 The filing of an application in the Tribunal, and any anterior decision to do so, merely invokes its jurisdiction and its decision-making powers under s 549 of the RTA. It determines nothing and has no legal effect upon the plaintiff's rights or tenancy. It is therefore not a 'decision' within the meaning of s 2 of the ALA.
Defendant is not a 'tribunal' for the purposes of the ALA
65 The Director is not a 'tribunal' with respect to a decision to file an application or seek orders from the Tribunal because, when arriving at the decision to issue a proceeding in the Tribunal to seek orders under s 549 of the RTA or in making such an application, he is not required to act judicially. That is because he is not exercising any statutory decision making power or determining the rights and interests of any person. The decision making power and the ability to determine the respective rights and interests of the Plaintiff and Defendant resides with the Tribunal. In exercising that power, the Tribunal is required to act judicially and to observe the principles of natural justice but that duty does not extend to the party making the application that invokes those powers. The initiation of a legal proceeding does not engage a duty to hear from the potential defendant before commencing that proceeding.[58] There is no obligation on a person considering whether to commence legal proceedings to hear from a potential respondent before doing so. The obligation to observe the rules of natural justice, including to afford procedural fairness, is upon the Tribunal or Court determining the application, not the party applying to it.
Comments on authorities relied on by plaintiff
67 The Director submitted that authorities concerning whether a decision has a legal effect upon rights so as to be amenable to certiorari may be relevant to the question of whether there is a 'decision' for the purposes of s 2 of the ALA, because the scope of the ALA is no broader than the general law with respect to judicial review. As Emerton J explained in Byrne v Legal Services Commissioner:[61]
the ALA was not enacted to create new grounds of review or to make substantive changes to the general law. The purpose of the ALA was to eliminate procedural technicalities which attended the machinery of the prerogative writs. A decision that is not reviewable under general law because it does not relevantly affect rights will not be reviewable under the ALA.
68 However, it does not necessarily follow that because a decision is reviewable under general law it is a 'decision' for the purposes of s 2 of the ALA. The terms of s 2 require that the decision operates in law 'to determine a question affecting rights'. It is doubtful that the ALA extends to the making of a recommendation.[62] In any event, the decision in Hot Holdings only extends to a preliminary recommendation or report that the ultimate decision maker is required to take into account.[63]
69 The plaintiff placed significant reliance on the decision of Burgess.[64] The Director submitted that the Burgess decision and its reasoning has no application to the present case. Burgess concerned the pre-COVID provisions of the RTA discussed above. Notably, in Burgess, the Director accepted that the issuing of a notice to vacate and subsequent steps taken by the Director to obtain possession involved a decision that could be quashed. It is clear that the comments relied upon by the plaintiff turned upon the terms of the particular statutory scheme, which were analysed in some detail, and Macaulay J did not express a concluded view on the issue. In contrast to a notice to vacate under the pre-COVID provisions, an application to the Tribunal under s 548 of the RTA has no legal effect upon rights, and determines nothing.
70 In response to the Director's submissions, the plaintiff contended, in summary, that:
(a) the changes made to the RTA by the Omnibus Act do not alter the test to be applied in this case, or inform any principle of construction which might be relevant to the operation of the current provisions of the RTA;
(b) the discretionary nature of the Tribunal's decision in hearing an application made by the Director under s 548 of the RTA does not alter the conclusion that the Director's application 'affects rights' in the requisite sense; and
(c) once it is appreciated that no relevant distinction arises from the changes made to the RTA by the Omnibus Act the Director's claim not to be bound by the requirements of procedural fairness in this context must be rejected.
71 In relation to the first point, the plaintiff submitted that the Director's attempt to draw a distinction between the operation of the RTA prior to and following the enactment of the Omnibus Act does little to assist the Court in its task of determining whether the Director's decision meets the definition of a 'decision' for the purposes of the ALA. Given the similarities between the pre and post Omnibus Act regimes the reasoning in Burgess must be regarded as persuasive for the purposes of this proceeding:
(a) Under both regimes, there is a prescribed chain of decision-making required before a tenancy can be terminated.
(b) The prescribed chain of decision-making that applies under the COVID regime is addressed above at [[[65]](#_Ref644560
(c) The prescribed chain of decision-making that applies under the pre-COVID regime (and which will apply once the COVID regime comes to an end), as it concerns the Director, is to the following effect:
(i) first, the Director must issue a notice to vacate to the relevant tenant under Pt 6 of the RTA;
(ii) second, if the tenant did not vacate the premises voluntarily in response to the notice to vacate,[66] the Director would need to apply to the Tribunal for an order for possession;[67]
(iii) third, if the application for possession were determined favourably to the Director, the Tribunal would need to make an order for possession;[68]
(iv) fourth, if the tenant did not vacate the premises voluntarily in response to the possession order, the Director would need to apply for a warrant of possession;[69]
(v) fifth, the Tribunal would issue the warrant of possession;[70] and
(vi) sixth, the warrant of possession would need to be executed at the rented premises.[71]
(d) Under both the pre-COVID and COVID regimes, a tenancy terminates when the tenant vacates voluntarily following receipt of a notice to vacate (under the pre-COVID regime) or following the making of a termination order (under the COVID regime), or if the tenant does not vacate voluntary and is evicted upon execution of a warrant of possession.
(e) Under both regimes, each step in the prescribed chain of decision-making cannot be taken by the relevant decision-maker, unless the step before it has also been taken. Relevantly, under the COVID regime, the Tribunal cannot make an order terminating a tenancy unless the Director has made an application under s 548, while under the pre-COVID regime the Tribunal cannot make a possession order unless a valid notice to vacate has been given.
72 Thus, the distinction that the Director seeks to draw between the two regimes is illusory. Under both regimes, the relevant step taken by the Director directly affects rights, and is a condition precedent to the making of a decision by the Tribunal. Further, the Director's contention that 'landlords no longer have the power to terminate a tenancy by giving a notice to vacate' is misconceived. Under the pre-COVID regime, the issuing of a notice to vacate would not of itself terminate a tenancy.
73 If the proposition advanced by the Director by reference to the cases referred to above at [53] - [58] is simply that determining whether a decision sufficiently affects rights, so as to constitute a 'decision' for the purpose of the ALA, requires consideration of the statutory context for the decision, then that is accepted. In this case the plaintiff submits that the statutory context reveals the critical way in which the Director's application both enlivens, and defines the contours of, the Tribunal's jurisdiction. This is consistent with the Court's analysis in State Electricity Commission v Commissione[72]for Equal Opportunity,72 in the context of the ALA. In that case, the Court concluded that the pursuit of a process was itself a 'decision' for [73]e purposes of the ALA.73 Otherwise those cases do not assist the Director:
(a) As the Court identified in State Electricity,[74] Nicol v Attorney-General for the State of Victoria[75] turned on the existence of a 'legitimate expectation' (a concept which has since fallen out of favour as a source of substantive rights[76]).[77]
(b) Both AB v Lewis[78] and Bayside City Council v Fooks Martin Sandow Pty Ltd[79] were cases in which the relevant decision-maker had expressed an intention to make a decision at some stage in the future.[80] That is not this case - relevantly, the decision at issue in this case is a decision by the Director to take the last step required of him before the Tribunal is empowered to terminate the plaintiff's tenancy because, unless the Director were subsequently to seek, and obtain, leave to withdraw his application, the Tribunal would be empowered to terminate the plaintiff's tenancy over the objection of the Director.
(c) Masters v McCubbery_[81]_ was but one example of how, having regard to the relevant statutory context, a decision ancillary to a decision that directly affects rights might have the requisite effect on rights so as to be a decision for the purposes of the ALA. Resolution of that issue in this case ultimately depends upon consideration of the RTA.
74 The discretionary nature of the Tribunal's decision does not alter the conclusion that the Director's application 'affects rights' in the requisite sense. The discretionary nature of the Tribunal's decision in determining an application under s 548 of the RTA as a basis for finding that the Director's application does not determine a question affecting rights neglects to take proper account of the decision in Hot Holdings[82] and Byrne v Legal Services Commissioner.[83] The Director has pointed to no persuasive reason why those authorities should not be applied in the circumstances of this case.
75 To the extent that the Director suggests that his decision does not have requisite legal effect because the Tribunal is not required to take that decision into account, that contention neglects the way in which the application enlivens, and defines the contours of, the Tribunal's jurisdiction. The Director's contention that, in hearing an application under s 548, the Tribunal determines 'all questions relating to whether the tenancy should be terminated' is similarly misconceived. The Tribunal's function in this context is not to conduct some unconstrained, inquisitorial, process to determine whether circumstances exist for the making of a termination order. Rather, that function is constrained by the substance of the Director's application - the Tribunal can only make a termination order on the legal and factual grounds supplied by the application.
76 The plaintiff assumes that the Director's contention that he is 'not required to act judicially' is intended to mean that he is not 'required ... to ... [observe] one or more of the rules of natural justice' in making an application under s 548 of the RTA, for the purposes of the definition of 'tribunal' in s 2 of the ALA. It is well accepted that the rules of natural justice (or procedural fairness) encompass two limbs: first providing a hearing to a person whose rights or interests are to be affected by a decision; and second, that the decision be made by a decision-maker who is not biased.
77 In Burgess, this Court held that a decision to issue a notice to vacate sufficiently exposes a tenant to the risk of losing their tenancy so as to attract the requirements of procedural fairness. For the reasons identified above, the obligation to afford procedural fairness arises under both the pre-COVID and COVID residential tenancy regimes. In any event, while Burgess is persuasive in this sense, the analysis of the statutory regime is compelling even if variation in the statutory context is identified.
78 The notion that the Director can take all steps within his power to end a tenancy to which he is a party without applying the basic rules of procedural fairness (i.e. that the decision be made by a disinterested decision-maker who has considered the tenant's circumstances) is inconsistent with the authorities, and neglects the significance of the Director's obligations under the Charter.
79 In my view the decision of the Director to make application to the Tribunal for orders under s 549 of the RTA terminating the plaintiff's tenancy is not a 'decision operating in law to determine a question affecting the rights' of the plaintiff. It is common ground that whether or not the Director is a 'tribunal' within the meaning of the definition depends upon the nature of the decision and the extent to which it determines a question affecting the rights of the plaintiff. As the Director submitted, The concepts of 'decision', 'person affected' and 'tribunal' are interrelated. Thus, if the decision of the Director to make the application to the Tribunal is not a decision operating in law to determine a question affecting the rights of the plaintiff, then the Director is not a tribunal within the meaning of the ALA.
81 It is common ground that authorities concerning whether a decision has a legal effect upon rights so as to be amenable to certiorari may be relevant to the question of whether there is a 'decision' for the purposes of s 2 of the ALA, because the scope of the ALA is no broader than the general law with respect to judicial review. In Monash University v Berg[86] the Full Court of this Court said:
It was sought by the Administrative Law Act 1978 to introduce a single form of application to review decisions of administrative tribunals, namely an application for review to the Supreme Court: s. 3. On the return of the order for review, the Court is given power to grant such remedy as on the material adduced and the grounds set out it might have granted on the return of an application for any prerogative writ, or in an action for quo warranto, or in an action for a declaration of invalidity in respect of the decision, or for an injunction to restrain the implementation thereof: s. 7. In our opinion, s. 7 does not intend to empower the Court to grant new remedies; nor does it do so. It simply empowers the Court to select from the several alternatives set out in the section, the remedy appropriate in the particular case, on the material adduced and having regard to the grounds stated in the order for review.
Nor does the section enable any person affected by a decision of a tribunal to obtain a remedy which was not formerly available....[87]
82 It is thus undoubtedly right to say, as Emerton J explained in Byrne v Legal Services Commissioner,[88] that the ALA was not enacted to create new grounds of review or to make substantive changes to the general law. Its purpose was to eliminate procedural technicalities which attended the machinery of the prerogative writs. A decision that is not reviewable under general law because it does not relevantly affect rights will not be reviewable under the ALA. The decision of the High Court in Hot Holdings shows that even a decision made at a preliminary or recommendatory stage of the decision-making process may be one that determines 'a question affecting the rights of any person'. So much appears to me to be recognised by Emerton AJA (Hansen AJA agreeing) in Byrne v Legal Services Commissioner because her Honour observes that a decision may fall within the definition in the ALA if it is 'sufficiently connected with the final decision affecting rights'.[89]
Did the Director make a 'decision' under the ALA
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision....[92]
84 The decision-making structure in Hot Holdings was quite distinct from that involved in this case. To capture the difference it is desirable to simplify the 'preliminary or recommendatory stage of the decision-making process' that was in issue in that case. The relevant decision of the Mining Warden was preliminary to a recommendation to the Minister, in whom the legislation reposed the discretionary power to make the final decision. The Minister's power to make a decision depended on there having been a recommendation by the warden, in that without such a recommendation the Minister had no power.
85 The High Court had granted special leave to appeal from the Full Court of the Supreme Court of Western Australia on a limited issue, whether certiorari lies to challenge a decision by a warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by s 105A(l) of the Mining Act 1978 (WA) ('Mining Act').[93] That provision_,_ s 105A, conferred a right 'in priority over every other applicant' to have granted to him the mining tenement to which the application related and provided for a ballot to determine priority where two or more applications 'complied with the initial requirement in relation to their applications at the same time'. There was no right of appeal against a warden's decision to make a recommendation.
86 The need to determine the priority right arose because, after a hearing, the warden concluded that a number of applicants for exploration licences and mining leases complied with the Mining Act's requirements 'at the same time' and that accordingly it was appropriate to conduct a ballot to determine priority.
The present case is, as we have sought to explain, of a different nature to either Ainsworth or ACTU-Solo Enterprises. There is no issue taken with the proposition that the granting or refusal of a mining tenement by the Minister under the Act affects legal rights in the relevant sense. Rather, the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J, one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation 'as a precondition or as a bar to a course of action' or 'as a step in a process capable of altering rights, interests or liabilities'.
A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari. The relevant question on these appeals thus involves the construction of the Act and an analysis of the scheme of inquiry, report and subsequent action which it establishes. We turn to consider the relevant provisions of the Act.[99]
89 The majority then proceeded to analyse the legislative structure and observed that it would be a mistake to compartmentalise the function of the warden under the Mining Act, and to see whether that function, especially the decision to determine priority by ballot, of itself, creates any legal right. They said:
In contrast, the correct approach recognises that the legal right at the end of the process, namely the grant of an exploration licence or a mining lease, is a sufficient legal interest. The issue is whether the decision of the warden to conduct a ballot, as that decision appears as part of the report transmitted to the Minister, has a sufficient legal effect upon the final decision of the Minister to grant or refuse applications.[100]
90 The majority did not find it necessary to decide upon the nature of the 'right of priority' (although they considered the submissions and authorities on the question as they had been presented to the Court) perhaps because:
...the 'Minister is not bound to grant the application of the first in time or the winner of the Ballot. But that is not the point. The point is whether the decision as to initial compliance at the same time, which led to an order for a ballot to be held, has an apparent or discernible legal effect upon the Minister's final decision.[101]
91 The majority noted that, in the Full Court below, the distinction was drawn between a preliminary finding by the warden which is a necessary precondition of a final exercise of power, in the sense that the actual content of the finding must support the final decision, and a finding which is a necessary precondition in the sense only that, so long as it is made, it activates the power, regardless of its content.
92 Under the Mining Act the content of the warden's report and recommendation did not bind the Minister, but, the majority concluded, this did not mean that the report and recommendation of the warden was not something to which the Minister was bound to have regard in exercising his discretion. By eliminating the double negative, the majority thus held that, properly understood, the Mining Act provisions required the Minister to consider the recommendation and the information which the warden transmitted. This is borne out by their analysis of the Mining Act and various decisions, including in particular Peko-Wallsend,[102] and the following extract:
...the legislature provided no other means for the Minister to be informed of matters specific to the individual applicants. It is apparent that the Minister is bound to consider the information which the warden transmits under s 58(3) and s 75(3). The Minister may not exercise the discretion to grant or refuse applications until the warden's recommendation and report, expressing as it must the warden's decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the 'right in priority', the warden's decision has a discernible legal effect upon the Minister's exercise of discretion.[103]
Can the reasoning in Hot Holdings apply here?
93 The legislative structure in this case is quite different. There is no comparability between the first step in the process in this case, a decision to make an application to the Tribunal, and the decision the subject of review in Hot Holdings. The application to the Tribunal is a necessary precondition to the exercise of the Tribunal's power, but in the sense only that, so long as it is made, it activates the power, if the statutory grounds are later determined to have been correctly made out. The decision of the Director to make an application is in a different category from the decision of the warden because, as the High Court concluded in Hot Holdings, the warden's decision had 'a discernible legal effect upon the Minister's exercise of discretion'. The only effect of the Director's decision is to raise the issue set out in the application for the Tribunal to apply the provisions of the RTA to the particular grounds advanced. There is no recommendation by a statutory body or person acting under a particular statutory regime, nor is the Tribunal bound or necessarily influenced, if the grounds of the application are established, to make an order terminating the tenancy agreement.
94 Whether the Tribunal does so is within its discretion. Under s 549 of the RTA applicable in this case, it may make such an order if satisfied, first as to any of the matters set out in s 549(2) (which includes in sub-s (2)(g) that where the Director is the landlord, the tenant has, amongst other things, trafficked or attempted to traffick a drug of dependence) and that in the circumstances of the particular application, it is reasonable and proportionate having regard to s 538, to make the order taking into account various interests, including that of the tenant.
95 In my view it is a mistake to think that because each step in the prescribed chain of decision-making leading to an order terminating a tenancy (or an order for possession and the issue of a warrant of possession) can only be taken by the relevant decision‑maker if the step before it has also been taken, that the decision to make application to the Tribunal falls into the category of a decision that is at a preliminary or recommendatory stage of the decision-making process and sufficiently 'determines' or is connected with the ultimate decision to be made, which undoubtedly affects legal rights. If that were so, there would be a multitude of decisions by public authorities to make applications to Courts and Tribunals that when made would be susceptible to judicial review if the application were a precondition or a step in the process to a decision affecting the rights of any person.
96 There are two 'ultimate' decisions in this case. The first, as I have mentioned above (at [94]) is the decision of the Tribunal under s 549(1) of the RTA to make an order terminating the tenancy agreement. This decision is the exercise of a discretion by the Tribunal and does not follow in any way automatically or necessarily from the making of the application to the Tribunal. It turns on the Tribunal being satisfied that the factual grounds of the application are satisfied, and these are one or more of the grounds set out in s 549(2)(g)(i)-(vi) or s 549(2)(h) or (i) (these provisions are set out in the Schedule). This involves a hearing, at which the parties are entitled to be heard, present evidence and make submissions, in which the facts are established to satisfaction of the Tribunal. The Tribunal must also be satisfied that in the circumstances of the particular application, it is reasonable and proportionate having regard to s 538, to make the order.
97 The second decision is the making of a possession order requiring the tenant to vacate the premises. Again, the Tribunal must be satisfied, first, that that any resident who is entitled to a period of notice under s 289A has been given the required notice, and second that in the circumstances of the particular application, it is reasonable and proportionate having regard to s 538, to make a possession order taking into account the interests of the same people as are considered under the first decision.
98 The Director's decision to make an application under s 548 for an order terminating a tenancy agreement under s 549(1) does not have a discernible legal effect on either of the decisions. It is a necessary precondition, just as it is necessary for every applicant to the Tribunal or a Court to make application for particular relief. The application has only a legal effect on the ultimate decision in a very limited sense. That is, by actually specifying the grounds for termination of the tenancy that fall within the grounds specified in the RTA_._
99 The Director's decision to apply to the Tribunal to terminate the plaintiff's tenancy is clearly a critical step in the chain of decisions that may lead to the tenant's tenancy agreement being terminated and the plaintiff being evicted. That does not mean that the plaintiff was exposed to a 'new hazard' as that expression was used in the ACTU‑Solo case.[104] The hazard existed before the application was made to the Tribunal and is one created by the provisions of the RTA and the tenancy agreement entered into by the parties.
100 In Burgess, the Court held that the Director's decision to apply for a warrant of possession was of sufficient legal effect to be amenable to certiorari.[105] The Court also held that a decision to issue a notice to vacate might have a sufficiently discernible effect on legal rights to render it amenable to the remedy of certiorari, because the decision might be viewed as a condition precedent to the exercise of power which will affect legal rights (eg VCAT making a possession order or issuing a warrant). Alternatively, they may be viewed as a precondition to a course of action or a step in a process capable of altering rights, interests or liabilities.[106]
101 In Burgess one issue was whether the 'notice decision' had any ongoing legal effect. The Director conceded, for the purposes of the case, that had an application for judicial review been made before VCAT made its possession order, his decision to issue the notices to vacate would have been amenable to the remedy of certiorari as an anterior step of the kind discussed in Hot Holdings. Macaulay J therefore proceeded on the footing that the decision to issue the notice to vacate was a reviewable decision. However, whether or not that decision was a reviewable decision was moot because he concluded that the decision was spent.[107] An order in the nature of certiorari is:
(a) available only in respect of an exercise or purported exercise of power which has, at the date of order, an apparent legal effect;[108]
(b) not available in respect of an exercise or purported exercise of power the legal effect or purported effect of which is moot or spent.
102 An order in the nature of certiorari in these circumstances would not be simply inutile, it would be unavailable.[109]
103 Although the Court in Burgess was not required to determine the issue before me in this case, the views expressed by Macaulay J as to the amenability of the 'notice decision' to relief in the nature of certiorari are relevant to this case because they expose the differences between the RTA provisions applicable in that case when compared to this case.
104 Burgess concerned the RTA pre-COVID provisions previously in force and which will again be in force before long. Under those provisions, as Macaulay J noted in summary:
Subdivision 4 of Division 1 sets out the various grounds upon which a landlord may give a tenant a notice to vacate rented premises. Amongst other things, those grounds include malicious damage,[110] endangering safety of neighbours,[111] and not paying rent.[112] The two pertinent grounds for the purposes of this case are those set out in ss 250 and 250A because it was upon these grounds that the Director issued notices to vacate to Ms Burgess. As appears from its text, s 250A is a ground that is only available to the Director as landlord.[113]
105 His Honour then set out the terms of ss 250 and 250A of the RTA, the latter containing provisions applicable only to the Director as a landlord, similar to those set out in s 549(2)(g) of the provisions relevant here, and the background justification for the particular provisions related to drug trafficking by reference to the second reading speech of the Minister when s 250A was introduced into the Parliament. His Honour went on:
Part 7 of the RTA is headed: 'Regaining possession ‑ possession orders and warrants'. Relevantly, Division 1 of Part 7 makes provision for possession orders, and Division 4 makes provision for warrants of possession. Part 7 establishes that, if a landlord has given a tenant a notice to vacate rented premises, the landlord may apply to the tribunal for a possession order.[114] Sections 330, 333 and 334 are all of particular importance in this case. As can be seen from the terms of the provisions below, they establish 3 important propositions:
(a) VCAT must make a possession order on the application of the Director if it is satisfied the Director was entitled to issue the notice to vacate;
(b) when making a possession order VCAT must direct the tenant to leave the premises, and must direct the registrar of the tribunal to issue a warrant of possession if one is requested; and
(c) it is only when possession of the premises is delivered to the landlord that the tenancy agreement terminates.[115]
106 This summary makes perfectly clear the significant and important difference between the RTA provisions applicable in this case and those applicable in Burgess. If it is not already obvious, it is that on the application of the Director, the Tribunal must make a possession order 'if it is satisfied the Director was entitled to issue the notice to vacate'. It makes the giving of, and the validity of the grounds of, the notice to vacate critical to the entitlement of the Director to a possession order. If the notice is in the correct form, is served in accordance with the RTA and the Tribunal is satisfied the Director was entitled to issue the notice to vacate, then the resultant possession order is automatic. Thus the decision to issue the notice to vacate, called by Macaulay J in Burgess the 'notice decision', can be seen to determine a question affecting the rights of the tenant in the sense that it is one to which regard must be paid by the final decision-maker, the Tribunal, and will have the requisite legal effect upon rights to attract certiorari. To employ and adapt the language of the High Court majority in Hot Holdings, the decision of the Director to issue the notice to vacate has a 'discernible legal effect' upon the Tribunal's exercise of the power to make a possession order. The real impact of the COVID regime introduced by the Omnibus Act was to take the decision to terminate a tenancy away from the Director and give it to the Tribunal.
107 I agree, therefore, with the submission of the Director that under the pre-COVID provisions:
(a) the scope of the Tribunal's decision making powers on such an application was limited. If the Tribunal was satisfied that the landlord had grounds for giving the notice to vacate, the Tribunal had no discretion and was required to make the possession order;
(b) if the tenant failed to comply with the possession order, the landlord could apply to the principal registrar of the Tribunal for a warrant of possession (s 351), which then authorised the person to whom it is directed to enter the premises and compel persons occupying the premises to vacate (s 355).
108 The effect of the Omnibus Act provisions is that landlords no longer have the power to terminate a tenancy by giving a notice to vacate, and any notice to vacate purportedly given under Subdivision 4 of Division 1 of Part 6 is of no effect (s 544). Instead, a landlord must make application to the Tribunal under s 548 and obtain an order under s 549. Section 547 expressly provides that a tenancy agreement does not terminate unless an order is made by the Tribunal under s 233B or s 549(1),[116] or it is terminated (by the tenant) under certain provisions.[117]
109 In contrast to the pre-COVID provisions, the Tribunal has a very broad discretion to make or refuse an order terminating the tenancy under s 549(1) and to make or refuse a possession order under s 549(4). In contrast with ss 322 and 330, the language of s 549(1) and (4) is in discretionary terms and the Tribunal is not limited to an inquiry as to whether there are grounds to terminate the tenancy. Rather, the Tribunal is empowered and required to consider all of the circumstances, including the interests of and impact upon the tenant, and must be satisfied that making an order is 'reasonable and proportionate' before any order can be made.
110 Thus the Director does not currently have any power to make such a decision that operates in law to determine a question affecting the rights of any person. That power resides exclusively with the Tribunal. Any power of a landlord to terminate a tenancy under the RTA, or to determine any question relating to termination of the tenancy, was removed following the amendments to the RTA effected by the Omnibus Act. The power to terminate a tenancy now lies exclusively with the Tribunal, in its original jurisdiction.
111 The plaintiff submitted, however, that there was no relevant distinction between the pre-COVID regime and the current regime. It was submitted that the changes made to the RTA by the Omnibus Act do not alter the test to be applied in this case, or inform any principle of construction which might be relevant to the operation of the current provisions of the RTA, because under both regimes, there is a prescribed chain of decision-making required before a tenancy can be terminated and both regimes provide that a tenancy terminates:
(a) when the tenant vacates voluntarily following receipt of a notice to vacate (under the pre-COVID regime) or following the making of a termination order (under the COVID regime); or
(b) if the tenant does not vacate voluntarily and is evicted, upon execution of a warrant of possession.
112 There is an impermissible 'slide' in the comparison between the two regimes in [111(a)] above. There is a vast difference between the notice to vacate procedure under the pre-COVID regime and the termination order procedure under the COVID regime. Under the pre-COVID regime the Tribunal must make a termination order if satisfied that the Director was entitled to give, and properly gave, the notice to vacate. Under the COVID regime the position is akin to an application to a Court for relief based on allegations of breach of the relevant provisions of the RTA_._ The distinction between the two regimes is in my view not illusory.
113 The plaintiff submitted that the statutory context reveals the critical way in which the Director's application both enlivens, and defines the contours of, the Tribunal's jurisdiction. This, it was said, is consistent with the Court's analysis in State Electricity Commission v Commissioner for Equal Opportunity,[118] in the context of the ALA. In that case, the Court concluded that the pursuit of a process was itself a 'decision' for the purposes of the ALA.[119]
114 With respect, I think characterising 'the pursuit of a process' as a decision misunderstands the reasoning of Gobbo J in that case. At issue was whether a grant by the Commissioner for Equal Opportunity of an extension of time within which persons could lodge complaints of discrimination was a decision under the ALA_._ Gobbo J said:
The decision to extend the time so as to enable a complaint to be lodged that would be otherwise barred from being pursued under the Act is the determination of a question affecting the right of the complainant to lodge and pursue a complaint under the Act that may result in substantial relief, including an order for damages. It is, in my opinion, clear that the determination of the question as to whether the complaint is barred or may proceed affects the complainants' rights. It would be an odd result if a complainant was denied any avenue for relief if, for example, there had been a wholly arbitrary or biased decision denying an extension of time. It does not, in my view, matter for the purposes of the definition of 'decision' under s. 2 whether the decision is favourable or unfavourable, though it may well matter for purposes of s. 3 whether the person is 'affected' by the decision. The decision has to be one operating in law to determine a question. It is not expressed in the Act as being one operating to affect a right. It is the question not the answer that is important, though it must be a question affecting the right of any person. On this basis, the question determined was that as to an extension of time and such question plainly affected the rights of the complainant. That suffices, in my opinion, to bring the present decision within the meaning of decision'.
'[t]he decision has to be one operating in law to determine a question. It is not expressed in the Act as being one operating to affect a right',
His Honour cannot mean that the question determined need not be one 'affecting the rights of any person' for to say that is to ignore the words of the definition of 'decision' in s 2 of the ALA. His Honour recognises this in the next sentence where he says '[i]t is the question not the answer that is important, though it must be a question affecting the right of any person.' In that case, whichever way the decision of the Commissioner went, in favour of a grant of an extension, or against, it determined a question affecting the rights of a person, either the complainant or the person complained against.
It may also be said that the act of the Attorney-General in giving his consent was not a determination of a question at all. It was part of a process of authorisation and decided no controversy. The Attorney-General's role was thus quite different in character to that of the commissioner who is called upon to deal with complaints in accordance with a range of provisions in the Equal Opportunity Act. Moreover, the commissioner may only extend the time 'if the Commissioner is satisfied that there is good cause for so doing'.
117 If his Honour is right so to characterise Nicol's case, that does not equate the 'pursuit of a process' with a 'decision' for the purposes of the ALA, quite to the contrary.
The requirement that there be a decision determining things has spawned many cases on the extent to which the Act covers interim rulings. The Act has no equivalent to AD(JR)'s reviewable 'conduct' as a possible alternative to 'decisions', with the result that there is more riding on the issue of the requisite finality required of a Victorian decision as compared to a Commonwealth decision. The cases cannot all be reconciled. They all, however, concede the Act's coverage of some intermediate, formal rulings.[124] Indeed, were that concession not made, there would be little (if any) room for relief in the nature of prohibition or injunction under the Act.[125] There is a line, however, and it seems to be drawn against steps merely initiating formal hearings or inquiries, and against tentative decisions.[126] The test seems to be whether the putative decision effectively precludes any opportunity for reconsidering the question at stake.[127]
119 To understand the decision in AB v Lewis it is necessary to explain briefly the legislative and factual context. The respondent, as the Secretary of the Law Institute of Victoria (Mr Lewis), had sent a letter (described in the judgment as a 'notice') to the applicant pursuant to s 84 of the Legal Profession Practice Act 1958 (Vic) that he intended to cancel the applicant's current Practising Certificate on certain grounds prescribed in s 84. The notice informed the applicant that he was entitled to require the Council (of the Law Institute) to hold a full inquiry to afford him the opportunity of giving an explanation and to raise any relevant matters, either personally or in writing. It stated that if he wished the Council to hold the inquiry, he must make the request in writing which must reach Mr Lewis within seven days from the date of the notice. If no written request was received, Mr Lewis 'shall cancel your current Practising Certificate'.
120 The applicant requested a full inquiry within the time stipulated. Thus at the commencement of the application (on 15 June 1979), on a date after the request for a full inquiry (on 21 May 1979), the threat of a cancellation of the applicants Practising Certificate had passed. Counsel for Mr Lewis submitted that there had been no 'decision' within the meaning or the ALA. The editors of the Victorian Reports summarised the ratio of the decision rather well as:
The applicant was not a person affected by a decision since no decision, operating in law to determine a question affecting the rights of a person, had in fact been made but was only proposed in the future if the applicant did not avail himself of the statutory right to a full inquiry before the Council.
In my opinion Mr Searby was correct in his contention that the applicant must show that at the date of his application on 15 June 1979, or perhaps at some time since, he has been a person affected by a decision complained of. As at 15 June 1979, the applicant had already elected to have a full inquiry before the Council of the Law Institute. He had so elected on 21 May, and he thereby deprived Mr. Lewis of any material power to cancel his practising certificate. When I say 'of any material power to cancel the certificate' I mean any power to cancel it upon or by reason of any of the allegations or assertions made in the notice of 18 May. There has been at no time any cancellation of his practising certificate, and it is my opinion that at all material times, that is to say from 15 June 1979 onwards, there has been no intention in, or proposal of, Mr Lewis to cancel the applicant's practising certificate. At all times from the beginning of 15 June 1979 onwards there has been, as it were, no operative decision of Mr. Lewis, that is to say, no decision which was being acted upon or could be acted upon.[128]
122 That was probably enough to resolve the issue, but his Honour went on:
In my opinion there never was a decision by Mr. Lewis terminating, or making inevitable the termination of, the certificate, and there never was a decision by him altering, or making inevitable the alteration of, any rights under the certificate. Mr. Lewis never made any right-altering decision: at most he said by the notice that he proposed to make one in the future. The truth of the matter is, I think, that Mr. Lewis never decided at all to cancel the certificate but he did decide to send the notice pursuant to s. 84(3) of the Legal Profession Practice Act.[129]
123 It may be that, if the same circumstances were to arise today, that this last statement would be decided differently, having regard to the decision of the High Court in Hot Holdings. However, a little later, his Honour said:
I should not be taken as saying that if, in the absence of an elective notice from the applicant to hold a full inquiry, the Secretary had himself cancelled the certificate, the applicant A.B. would not have been able to come to this Court under the Administrative Law Act raising the contention inter alia that there must have been accompanying the act of cancellation a decision by the Secretary that one or other of the grounds in s. 84(1) had been made out, in the sense of a prima facie case being established, and that in all the circumstances that decision had been arrived at without paying sufficient attention to or making sufficient compliance with rules of natural justice, and that because of the accompanying cancellation such decision affected the rights of the applicants. That question simply does not arise here; it has been precluded by the election made by the applicant.
124 Interesting though the reasoning is, the best summation of it is the editor's head note. Further, it does not enable me to conclude that in this case there was no decision within the meaning of the ALA because the legal and factual setting is so utterly different. It is only if one draws from it the proposition that Aronson, Groves and Weeks advance, that the decision has any useful precedential value in the current circumstances. That is, there is a line and it seems to be drawn against steps merely initiating formal hearings or inquiries, and against tentative decisions. If that is the correct take, then it applies here and may not apply, at least with the same force, to the pre-COVID regime, because under that regime once a valid notice to vacate is given the Tribunal must make a possession order. Here, by the decision to make the application, the Director is initiating a formal hearing or inquiry by the Tribunal at which all the relevant arguments may be made and heard by both the Director and the plaintiff.
The decision in Byrne v Legal Services Commissioner
125 The Director submitted that the position in this case is analogous to that identified by Hansen and Emerton JJ in Byrne v Legal Services Commissioner.[130] That case was a continuation of the saga dealt with by the Court in Byrne v Marles. There Emerton J (Hansen J agreeing) said that:
The appeal was argued on the basis that any reasons given by the commissioner should give sufficient explanation of her decision to enable review thereof by the court either under the ALA or otherwise by judicial review. It was implicit that the decision of the commissioner to treat the complaint against the appellant as a disciplinary complaint pursuant to ss 4.4.7 and 4.4.9 of the Legal Profession Act 2004 ('the Act') was a 'decision' that was amenable to review under the ALA. The appeal must be and has been decided on that basis.
Without the benefit of hearing any argument on this point, however, I express the view, albeit tentative, that the decision of the commissioner to treat the complaint as a disciplinary complaint was not a 'decision' for the purposes of the ALA, that the commissioner was under no obligation to provide reasons for the decision and that it was therefore unnecessary for the commissioner's letter of 6 August 2008 notifying the appellant of her decision to provide an explanation that would enable a court to see whether the decision did or did not involve any error of law, as contemplated by s 8(4) of the ALA.
A 'decision' in respect of which reasons may be required to be given under s 8(1) and (4) of the ALA is a decision which operates in law to determine a question affecting the rights of a person - in this case, the appellant, as the person about whom the complaint was made and whose conduct it is proposed to investigate. In Byrne v Marles, Nettle JA (with whom Dodds-Streeton and Coghlan JJA agreed) gave detailed consideration to whether the decision by the commissioner to treat a complaint as a disciplinary complaint under ss 4.4.7 and 4.4.9 was a decision that could be set aside by a grant of certiorari. His Honour concluded that it was not. A decision that is amenable to certiorari must have a discernible or apparent legal effect upon rights, for it is that legal effect which may be quashed by the action of the writ, and the decision of the commissioner did not have such an effect.
Importantly, however, Nettle JA held that although the appellant could not obtain the remedy of certiorari to quash the impugned decision, he was not necessarily devoid of a remedy. His Honour identified a number of features in the complaints regime in the Act resulting in there being practical merit in providing a solicitor with an opportunity to make a submission or adduce facts to the commissioner before the commissioner determined that the complaint was a disciplinary complaint which needed to be investigated.
Accordingly, while the decision of the commissioner to treat the complaint as a disciplinary complaint does not determine rights, and is not sufficiently connected with the final decision affecting rights, to be amenable to judicial review on grounds other than want of procedural fairness, a limited right has been brought into existence by the statute, which is a right to be heard as to whether the complaint should be treated as a disciplinary complaint and referred for investigation.[131]
126 The Director contended that for the same reasons that a decision by the Commissioner to treat the complaint as a disciplinary complaint does not determine rights, an application to the Tribunal under the COVID regime does not determine rights. The plaintiff has used language, such as the decision to make an application is 'a condition precedent', a 'gateway', or a 'a step in the process', but the authorities in relation to gateways and conditions precedent involve the 'determination' of something. It is equally possible to characterise the Legal Services Commissioner treating a complaint as a disciplinary complaint as a condition precedent or a gateway to the ultimate determination of a proceeding which would have a significant effect upon the rights of the legal practitioner. But Emerton J makes clear that that is not a sufficient basis upon which to say that the treating of the complaint as a disciplinary complaint, which invokes the jurisdiction of the tribunal, determines a question affecting rights.
127 For the same reason, the Director submitted an application to the Tribunal for a possession order under the COVID regime does not determine rights. For the reasons that I have exposed above in relation to the applicability of the reasoning in Hot Holdings and, particularly, Burgess, I agree. The observations of Emerton J in Byrne v Legal Services Commissioner are a further illustration of the line identified in Aronson between steps merely initiating formal hearings or inquiries and the hearing or inquiry itself and whether the decision effectively precludes any opportunity for reconsidering the question at stake_._
128 Because the definition of 'tribunal' is expressed by reference to the person who arrives at 'the decision in question' (see above at [13]), it follows that once the decision to issue the application under s 548 of the RTA is found not to be a decision within the meaning of s 2 of the ALA_,_ in making that decision the Director is not acting as a tribunal.
129 If, on the other hand, I am wrong to conclude that the Director's decision to make the application to the Tribunal is not a decision within the meaning of the ALA, then in my view the Director is a tribunal for the purposes of the ALA for the following reasons.
130 The plaintiff's interest as a tenant of the Director in respect of the property in question will or may be affected, directly or indirectly, to a substantial degree by the decision to make the application, so as to bring the effect of the decision with the definition of 'person affected' in s 2 of the ALA. The decision attracts the requirements of procedural fairness because it 'sufficiently exposes the tenant to the risk of losing the tenancy to be rightly regarded as one that affects a person's rights and interests'.[132] Indeed, the Director conceded that if the decision to make such an application or to seek orders from the Tribunal, is a 'decision' then it follows that the plaintiff is directly affected by that decision and is therefore a 'person affected' and entitled to seek reasons under s 8 of the ALA.
131 In Burgess, Macaulay J observed:[133]
Whenever a statute gives a public official the power to do something affecting a person's rights or interests, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of legislative intention.[134] Once the existence of a general duty to afford natural justice is ascertained, the particular content of the rules of natural justice applicable to the circumstances of the case at hand then also needs to be ascertained. They are to be ascertained by, first, examining the statutory context of the power to be exercised. More particularly, or in addition, they are to be ascertained having regard to matters such as the nature of the inquiry in question, its subject matter, the specificity or formality of the rules governing the exercise of the power, whether any and if so what rights of appeal exist in respect of its exercise, and the practical context in which the decision maker must consider whether to exercise the power.[135]
One particular potential indicia of the specific content of any applicable rule of natural justice arises for consideration in this case. That indicia is the existence and content of guidelines produced by the Director to guide the exercise of his power in deciding to issue notices under s 250 and 250A of the Act. The Director had produced a detailed set of guidelines called the 'Tenancy Management Manual' ('the manual') in relation to making many of the decisions he was empowered to make under the Act, including, in particular, a decision under s 250A.
In Minister for Immigration v Gray,[136] the Full Federal Court (French and Drummond JJ, Neaves J dissenting) observed that if statutory guidelines are not given for the exercise of a discretion which, because of its subject matter or its expected high volume use, should as a matter of justice be exercised consistently in like cases, it could be inferred that Parliament contemplated that the decision maker would develop policies to guide decision making in order to achieve that consistency. Although such policies are not to fetter the exercise of relevant discretion, the Court held that 'within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by' the decision-maker.[137]
The court emphasised that policy guidelines are not to be applied with 'statutory nicety'; to do so would be 'to misunderstand their function' as general guidelines.[138] However,
...where the existence and content of such a policy is to be regarded as a relevant fact which the [decision-maker] is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power.[139]
As will appear, the manual set out various processes to be undertaken before the Director made a decision. Those processes, in turn, concern steps that provide the tenant various means of being heard as well as specifying things to be considered. Although the quoted passage from Gray is specifically concerned with a misconstruction of policy terms, and a resulting failure to take into account relevant matter, what was said can be applied to a case where the policy was not followed at all. It also seems logical that, where the content of a policy guideline stipulates procedures for enabling a tenant to make submissions about a proposed action, that guideline might by similar reasoning assist in determining the particular content of the requirements of natural justice to be applied to a given situation.
132 Thus, if the decision to make an application to terminate the plaintiff's tenancy agreement was a decision within the meaning of the ALA, then that is a decision to do something affecting the plaintiff's rights or interests and the rules of natural justice regulate the exercise of that power. Having regard to the analysis undertaken by Macaulay J in Burgess, it is tolerably clear that the rules of natural justice or procedural fairness are not excluded by the RTA, if the decision is otherwise reviewable under the ALA.
133 As I have said above (see [18]), the parties are agreed that the content of the Director's Policies is not relevant to the issues before the Court. In these circumstances it is sufficient to say that if the decision to make application to the Tribunal under the COVID regime in the RTA is a decision under the ALA, the plaintiff is entitled to be heard or to make representations to the Director and for that purpose is entitled to reasons under s 8(4) of the ALA. It may also be that the bias rule applies, notwithstanding that the Director has a personal stake in the matter, in that he is the landlord, a party to the tenancy agreement and therefore has an interest in the decision to be made. Because the Director acts through staff, it could happen that a member of staff with a family or other interest in the matter is involved giving rise to an apprehension of bias. But as I am satisfied that the decision of the Director is not decision under the ALA, the plaintiff is not entitled to reasons and is, accordingly not entitled to any interim relief pursuant to s 9 of the ALA.
134 It is, in the circumstances, unnecessary to say anything about the Charter.[140]
135 For the reasons set out above, I refuse the plaintiff's applications:
(a) requiring the Director to furnish a statement of reasons of its decision to seek, by application to the Tribunal dated 11 May 2020, for orders under ss 548(1), 549(1) and 549(4) of the RTA in respect of the rented premises occupied by the plaintiff; and
(b) under s 9 of the ALA, suspending the operation, or restraining the implementation, of the decision, until the expiration of 14 days from the furnishing of the statement of reasons sought by the plaintiff.
136 I will ask the parties to consult in relation to the costs of the proceeding and, if no agreement can be reached, to make an appointment for the question to be argued. In the meantime, I will make orders dismissing the applications, but subject to the costs of the proceeding being reserved. I will reserve liberty to apply.
1 The provisions of the RTA applicable until the Omnibus Act introduced Pt 16, which are referred to by the Director in its argument, are ss 330, 333, and 334, which so far as relevant provide as follows:
330 Order of Tribunal
(1) The Tribunal must make a possession order requiring a tenant...to vacate rented premises...on the day specified in the order if the Tribunal is satisfied -
(a) in the case of an application where notice to vacate has been given, that -
(i) the landlord...was entitled to give the notice; and
(ii) the notice has not been withdrawn; and
(d) that the tenant...is still in possession of the rented premises...after the termination date specified in the notice to vacate or notice of intention to vacate; and
(1) A possession order must include -
(a) the day (being a day not more than 30 days after the day on which the possession order is made) by which -
(i) in the case of rented premises, the tenant must vacate those rented premises; and
...
(b) a direction to the tenant, resident or site tenant (as the case may be) to vacate the rented premises...by the day specified in the order; and
(c) a direction to the principal registrar to issue a warrant of possession in accordance with section 351 on the application of the person who obtained the possession order.
(1) If a possession order is made under this Division in respect of rented premises, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord or mortgagee.
2 The relevant provisions of Pt 16 introduced into the RTA by the Omnibus Act are as follows:
534 Purpose and effect of Part
(1) The purpose of this Part is to temporarily change the operation of this Act in response to the COVID-19 pandemic.
(2) This Part applies despite anything to the contrary in -
(a) another Part of this Act; or
(b) any other Act, other than -
(i) the Charter of Human Rights and Responsibilities; or
(ii) the COVID-19 Omnibus (Emergency Measures) Act 2020; or
(iii) the Constitution Act 1975; or
(c) any subordinate instrument, other than a subordinate instrument made under -
(i) the Charter of Human Rights and Responsibilities; or
(ii) the COVID-19 Omnibus (Emergency Measures) Act 2020; or
(iii) the Constitution Act 1975; or
(d) any other law.
3 Section 538 makes provision for what is 'reasonable and proportionate' for the purpose of making orders under various sections, including the sections relevant to the application in this case, ss 549, 551, 559, 561, 569, 571, 582 or 584. By that section the Tribunal must have regard to the following -
(a) the nature, frequency and duration of the conduct of the tenant, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement;
(b) whether the breach is trivial;
(c) whether the breach was caused by the conduct of any person other than the tenant, resident or site tenant;
(d) whether the tenant, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order and -
(i) if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and
(ii) if a notice or order was made, whether it included an exclusion condition; and
(iii) any other matter in relation to family violence or personal violence the Tribunal considers relevant;
(e) whether the breach has been remedied as far as is practicable;
(f) whether the tenant, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the tenancy agreement, residency right or site agreement, as the case requires;
(g) the effect of the conduct of the tenant, resident or site tenant on others as a tenant, resident or site tenant;
(h) whether any other order or course of action is reasonably available instead of making the order sought;
(i) as the case requires, the behaviour of the landlord, the landlord's agent, the rooming house owner, the caravan park owner, the caravan owner or the site owner;
(j) any other matter the Tribunal considers relevant.
(1) A landlord or mortgagee in respect of rented premises must not give a tenant a notice to vacate rented premises under Subdivision 4 of Division 1 of Part 6 and any notice purportedly given is of no effect.
(2) Section 267(3) applies as if it included a reference to this Division.
Note
Section 267 provides for the rights of an owner where a landlord under a tenancy agreement is not the owner.
547 Terminations - tenancy agreements
(1) A tenancy agreement does not terminate unless -
(a) the Tribunal makes an order under section 233B or 549(1); or
(b) it is terminated under -
(i) section 217 [by agreement]; or
(ii) section 218 [by the tenant vacating with consent of landlord]; or
(iii) section 219(1), by reason of the tenant having given a notice of intention to vacate the rented premises that the tenant was entitled to give under section 546 and the tenant vacating the premises on or after the termination date specified in the notice; or
...[ss 220 (abandonment0, 221 (because of sub-letting), 224 (by merger), 225 (by disclaimer), 226 (by tenant before taking possession), 228 (death of the tenant) or a prescribed provision]
(2) Section 216 applies as if it also included a reference to this Division.
Note
Section 216 provides that despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with Division 1 of Part 6 or Part 7 or 8.
Application to Tribunal for order to terminate
(1) Subject to the Residential Tenancies Dispute Resolution Scheme, a landlord under a tenancy agreement or a mortgagee in respect of rented premises may apply to the Tribunal for an order terminating the tenancy agreement.
(2) A landlord must not make an application to the Tribunal to terminate a tenancy agreement under section 374.
(3) A person may also make an application under section 232 if an order terminating the tenancy agreement under section 549 has been made in respect of the premises.
Tribunal may terminate tenancy agreement in certain circumstances
(1) On an application under section 548, the Tribunal may make an order terminating a tenancy agreement if satisfied -
(a) as to any of the matters set out in subsection (2); and
(b) that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make the order taking into account the interests of, and the impact on, each of the following in making the order -
(i) the landlord or mortgagee in respect of the rented premises;
(ii) the tenant;
(iii) any co-tenants or other residents;
(iv) any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(2) For the purposes of subsection (1), the matters are -
(a) (f) ...[not relevant]
(g) if the Director of Housing is the landlord, that the tenant has, on the rented premises or in a common area, illegally -
(i) trafficked or attempted to traffick a drug of dependence; or
(ii) supplied a drug of dependence to a person under 18 years of age; or
(iii) possessed a preparatory item with the intention of using the item for the purpose of trafficking in a drug of dependence; or
(iv) possessed, without lawful excuse -
(A) a tablet press; or
(B) a precursor chemical; or
(v) intentionally caused another person to traffick in a drug of dependence by threatening to harm that person or another person or by using violence against that person or another person; or
(vi) intentionally permitted another person to use those premises or the common area for -
(A) trafficking in a drug of dependence; or
(B) cultivating a drug of dependence; or
(vii) cultivated or attempted to cultivate a narcotic plant; or
(h) if the landlord is the Director of Housing, that the tenant has committed an indictable offence that is prescribed for the purposes of section 250B(1) on the rented premises or in a common area; or
(i) that the tenant has failed to comply with the tenant's obligations under the tenancy agreement or the Act, including by not paying rent, in circumstances where the tenant could comply with the obligations without suffering severe hardship; or
...
(3) If the Tribunal makes an order under subsection (1) and does not make a possession order under subsection (4) -
(a) the Tribunal must specify the date on which the tenancy agreement terminates; and
(b) the tenancy agreement terminates at the end of that day.
(4) If the Tribunal makes an order under subsection (1), the Tribunal may also make a possession order requiring a tenant to vacate rented premises if satisfied -
(a) that any resident who is entitled to a period of notice under section 289A has been given the required notice; and
(b) that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order -
(i) the landlord or mortgagee in respect of the rented premises;
(ii) the tenant;
(iii) any co-tenants or other residents;
(iv) any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(5) If a possession order is made under this section, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord.
(6) The Tribunal must not make an order under subsection (1) on the ground that the tenant has failed to comply with the tenant's obligations under the tenancy agreement or the Act, including by not paying rent, if the tenant is unable to comply with, or it is not reasonably practicable for the tenant to comply with, those obligations because of a COVID-19 reason.
(7) For the purposes of Division 4 of Part 7, a possession order made under this section is taken to have been made under Division 1 of Part 7.
(8) ....[not relevant].
(9) [Sets out various definitions, including such things as Cultivate, narcotic plant and traffick]
8 Section 550 of the RTA provides, so far as presently relevant, that:
When can a landlord or mortgagee apply for a possession order?
(1) A landlord or a mortgagee in respect of rented premises may apply to the Tribunal for a possession order for rented premises if -
(a) the Tribunal has made an order under section 549(1) terminating the tenancy agreement and has not made an order under section 549(4); and
(b) the tenant has not delivered up vacant possession of the premises by the end of the termination date specified in the order under section 549(1).
(2) A landlord must not apply to the Tribunal for a possession order for rented premises under section 322, 335 or 337(3).
[1] By order of The Honourable Justice John Dixon made on 17 August 2020 pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'), the plaintiff's summons filed on 12 August 2020 was referred to an Associate Justice for hearing and determination.
[2] A referral having been made by Justice John Dixon pursuant to r 77.05 of the Rules for an associate justice to hear and determine the proceeding.
[3] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 640, 651 (Winneke P).
[4] [1995] VICSC 209; [1996] 1 VR 635, 640.
[5] Housing Act 1983 (Vic) ('Housing Act'), s 9(2).
[9] The Director's Policies were not initially in evidence before me. A Manual was referred to in oral submissions and was considered in some detail in Justice Macaulay's decision in Burgess & Anor v Director of Housing & Anor [2014] VSC 648 ('Burgess'). After the conclusion of the hearing, I raised with the parties whether they wished to address the relevance of the manual. After some delay, the parties agreed to put the current documentary guidelines into evidence and make short submissions as to relevance, which were filed on 9 April 2021.
[10] [2014] VSC 648, [146], [149] and [165]-[175] in particular.
[11] Affidavit of Laura Isabella Limone made 9 April 2021.
[12] Plaintiff's Submissions on the Relevance of Certain Policies of the Defendant, filed 9 April 2021, [3].
[13] Defendant's Further Written Submission filed 9 April 2021.
[14] Charter s 4(b); Burgess, [2014] VSC 648, [210].
[15] It does not include an SDA residency agreement which relates to special disability accommodation.
[17] See s 615 of the RTA. It commenced on the day after the day on which it received the Royal Assent. It was assented to on 24 April 2020 and came into operation on 25 April 2020.
[18] It commenced the day after the day it received Royal Assent. It received the Royal assent on 22 September 2020.
[20] RTA s 547(1)(a). The tenancy may also be terminated in a number of prescribed circumstances, none of which is relevant to the circumstances of this proceeding.
[23] The relevant provisions are, for convenient reference, set out in the Schedule to these Reasons.
[24] Submissions of the Plaintiff filed 18 September 2020, [11].
[25] See R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691, 699.
[27] Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674, [103]-[106] (Emerton), Hansen AJA agreeing at [99], by reference to Nettle JA's decision in Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612.
[28] [1996] HCA 44; (1996) 185 CLR 149 ('Hot Holdings').
[29] Hot Holdings [1996] HCA 44; (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ), 178 (Dawson and Toohey JJ).
[30] R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691, 695.
[31] R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691, 695, 699; citing with apparent approval Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353, 369, 370 (Kitto J).
[32] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ), citing Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509, 525 (Barwick CJ) and R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864.
[33] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); citing R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864, 881 (Lord Parker CJ), 884 (Diplock LJ) and Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353, 366-7 (Kitto J), 373-4 (Menzies J).
[34] Hot Holdings [1996] HCA 44; (1996) 185 CLR 149, 174 (Brennan CJ, Gaudron and Gummow JJ).
[35] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 649 (Winneke P), 651 (Ormiston JA), 659 (Callaway JA). Conversely, a report of an executive inquiry that merely 'serve[s] to inform the mind of government' (R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691, 695), a decision-maker's notification of an intention to make a decision that affects rights in the future (Neon Australia Pty Ltd v Minister for Planning (2019) 58 VR 278, [16]-[19]; citing AB v Lewis [1980] VicRp 18; [1980] VR 151) and a decision to investigate a disciplinary complaint (Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612, [65]-[71] (Nettle JA), Dodds-Streeton JA agreeing at [94] and Coghlan AJA agreeing at [95]) have been held not to have sufficient legal effect. In the latter case, Nettle JA observed that the decision to investigate a complaint under the Legal Profession Act 2004 (Vic) did not 'have any discernible effect upon a decision of ... [VCAT] upon application later made under ... [the] Act'. The decision at issue in that case can thus be contrasted with that the subject of this proceeding, because the former was not a precondition to the taking of some action by VCAT.
[36] Hot Holdings [1996] HCA 44; (1996) 185 CLR 149, 174-5 (Brennan CJ, Gaudron and Gummow JJ).
[37] A tenant faces a risk of being liable for loss suffered by a landlord if they vacate rented premises in circumstances other than those provided for by the RTA, one of which is where an order for possession has been made: see, relevantly, ss 210(1), 216-218, 547, 549(5). An order for possession thus removes a barrier to the tenant's right to exclusive possession being brought to end and 'affects' that right in the requisite sense.
[38] Burgess [2014] VSC 648, [126]. Such an order is also a non-monetary order directing the tenant to do something (that is, 'requiring a tenant to vacate rented premises': s 549(4)) and non-compliance with such an order may be an offence: VCAT Act s 133(1).
[39] Burgess [2014] VSC 648, [126]. This Court also observed in Burgess that the legal effect of a possession order extends to founding an appeal under s 148 of the VCAT Act.
[40] [2014] VSC 648, [117] (citations omitted).
[41] Burgess [2014] VSC 648, [157].
[42] See, eg, QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322, [5] (Basten JA), Ward JA agreeing at [58], Young AJA agreeing at [59].
[43] By analogy to a notice to vacate, see the Court's observations in Burgess [2014 VSC 648, [156]-[157].
[45] [1992] VicRp 6; [1992] 1 VR 79, 82-3.
[46] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2011) 246 CLR 636, 666-667 [97]-[98] (Gummow, Hayne, Crennan and Bell JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 100-101 [39]-[41] (Gaudron and Gummow JJ). The requirements of procedural fairness are attracted in the context of a decision that affects rights: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [11] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), [11]; citing Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).
[47] Burgess [2014] VSC 648, [157].
[49] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 38 [2.50].
[52] [1945] St R Qd 81, 91.
[58] See, for example, AYHT v Medical Board SA [2000] SASC 136.
[61] [2010] VSCA 162; (2010) 27 VR 674, [106].
[62] See discussion at [2.20] Victorian Administrative Law, Thomson Reuters Westlaw AU, on-line ed, 6 October 2020.
[63] [1996] HCA 44; (1996) 185 CLR 149, 165.
[65] Taken substantially from the plaintiff's submissions filed 18 September 2020 at [11].
[72] [1992] VicRp 6; [1992] 1 VR 79 ('State Electricity').
[73] [1992] VicRp 6; [1992] 1 VR 79, 82-3.
[74] [1992] VicRp 6; [1992] 1 VR 79, 83.
[76] See, eg, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 334-5 [28]-[30] (Kiefel, Bell and Keane JJ), 343 [61] (Gageler and Gordon JJ).
[77] This point was also made by the Court of Appeal of this Court in Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81, [50], [88], [119] (Maxwell P, Weinberg JA and Ferguson AJA).
[80] AB v Lewis [1980] VicRp 18; [1980] VR 151,153; and Bayside City Council v Fooks Martin Sandow Pty Ltd (1995) 8 VAR 244, [14].
[83] [2010] VSCA 162; (2010) 27 VR 674, [103]-[106] (Emerton J), Hansen AJA agreeing at [99], by reference to Nettle JA's decision in Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612.
[87] Ibid, 388. See also Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 640 (Winneke P).
[88] [2010] VSCA 162; (2010) 27 VR 674, [106].
[89] [2010] VSCA 162; (2010) 27 VR 674, [105].
[90] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 159 citing Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 595 (Brennan J); Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612, [64] (Nettle JA).
[92] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 159-60 (Brennan CJ, Gaudron and Gummow JJ).
[93] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 158 (Brennan CJ, Gaudron and Gummow JJ).
[94] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
[95] R v Collins; Ex parte ACTU-Solo Enterprises (1976) 50 ALJR 471; 8 ALR 691.
[99] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 165 (Brennan CJ, Gaudron and Gummow JJ).
[100] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 168 (Brennan CJ, Gaudron and Gummow JJ).
[101] Hot Holdings [1996] HCA 44; (1995) 185 CLR 149, 172 (Brennan CJ, Gaudron and Gummow JJ) [emphasis added].
[102] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[103] Hot Holdings, 158 (Brennan CJ, Gaudron and Gummow JJ), 174.
[104] See R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691, 699.
[105] Burgess, [2014] VSC 648, [131]-[142], [143(b)].
[107] Ibid [129] and [143(a)], applying Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 ('Wingfoot').
[108] Hot Holdings [1996] HCA 44; (1996) 185 CLR 149, 159.
[109] Wingfoot [2013] HCA 43 [25].
[113] Burgess, [2014] VSC 648, [33].
[114] RTA s 322(1), (2). In the case of a notice given because a fixed term tenancy had expired or a 'no reason notice', an additional condition is required namely that the tenant has not vacated the premises.
[115] Burgess [2014] VSC 648, [37].
[118] [1992] VicRp 6; [1992] 1 VR 79 ('State Electricity').
[119] [1992] VicRp 6; [1992] 1 VR 79, 82-3.
[120] [1982] VicRp 33; (1982) VR 353, which involved the consent of the Attorney‑General to the commencement of proceedings for an offence after three years.
[123] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 38 [2.50].
[124] See Shire of Sherbrooke v FL Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353; Porchester Nominees Pty Ltd v Renfrey (1987) 65 LGRA 288; Bayside City Council v Fooks Martin Sandow Pty Ltd (1995) 8 VAR 244; El Alam v City of Northcote [1996] VicRp 95; [1996] 2 VR 672 at 685-686; Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635; and No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (No 3) [1999] VSC 319; (1999) 16 VAR 45 at 50. But see: Whitvan Pty Ltd v Mapel Nominees Pty Ltd (1992) 6 VAR 265 at 273 (doubted whether a tribunal's ruling on an issue during the course of a proceeding was in itself a "decision"); and Freeman v Medical Practitioners Board of Victoria [2000] VSC 547; (2000) 17 VAR 106 (held no ALA coverage of decision to delegate, or of delegate's rejection of challenge to that decision).
[125] Section 7 grants the court power to award such relief.
[126] Eg AB v Lewis [1980] VicRp 18; [1980] VR 151; Bayside City Council v Fooks Martin Sandow Pty Ltd (1995) 8 VAR 244; Serban v Victoria Legal Aid [1998] 2 VR 326 at 335; and Hassan v Nisselle [2000] VSC 271; (2000) 17 VAR 1 at 8-10.
[127] But see Serban v Victoria Legal Aid [1998] 2 VR 326 at 335-336, where Hansen J suggested that an authority's refusal to do something which it lacked legal power to do could not be a "decision".
[128] AB v Lewis [1980] VicRp 18; [1980] VR 151, 153.
[131] Ibid, [101]-[105] (footnotes omitted).
[132] Burgess [2014] VSC 648, [157].
[133] Burgess [2014] VSC 648, [145]-[149].
[134] Annetts v McCann (1990) 170 CLR 596, Koia v West [1985] HCA 81; (1985) 159 CLR 550, Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Miah (2001) 206 CLR 57_('Miah')._
[135] Miah (2001) 206 CLR 57 [31]-[35] (Gleeson & Hayne JJ), [129], [143] (McHugh J), [189] - [193] (Kirby J).
[136] [1994] FCA 1052; (1994) 50 FCR 189 206 ('Gray').
ARF (a pseudonym)
Director of Housing [2021] VSC 199
(1976) 8 ALR 691
(1992) 175 CLR 564
(1996) 185 CLR 149
(2008) 19 VR 612
(2010) 27 VR 674
(1963) 109 CLR 353
(1969) 121 CLR 509
(2019) 58 VR 278
(2011) 246 CLR 636
(2000) 204 CLR 82
(2010) 241 CLR 252
(1990) 170 CLR 596
(2015) 256 CLR 326
(2012) 41 VR 81
(1995) 185 CLR 149
(1976) 50 ALJR 471
(1986) 162 CLR 24
(1985) 159 CLR 550
(2001) 206 CLR 57
(1994) 50 FCR 189