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[2021] VSC 270
General information, not legal advice.
Supreme Court of Victoria
2021-05-18
Derham AsJ
Original judgment source is linked above.
JUDICIAL REVIEW AND APPEALS - Application to dismiss an application for an extension of time within which to apply for leave to appeal, and for leave to appeal, from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Whether question of law identified - Whether appellant does not, or would not, have an arguable case on appeal or to refuse leave would impose no substantial injustice- Whether appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court - Application to dismiss granted.
1 The respondent ('Director') applies to dismiss this proceeding. The proceeding is an application for leave to appeal by Ms Kirstei Holt, a tenant of the Director, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act').
2 The subject of Ms Holt's application is an order of the Victorian Civil and Administrative Tribunal ('Tribunal') made on 26 August 2019 dismissing Ms Holt's claim against the Director for compensation for breaches of a tenancy agreement. Ms Holt also seeks an extension of time within which to make her application for leave to appeal.
3 By summons filed on 25 November 2020, the Director applies for:
(a) an order dismissing this proceeding for the appellant's failure to comply with r 4.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ('Chapter II Rules').
(b) Further, or in the alternative, an order dismissing the proceeding pursuant to r 4.08(8) of the Chapter II Rules in that the:
(i) Notice of Appeal filed by the appellant does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought; and/or
(ii) appellant does not, or would not, have an arguable case on appeal or to refuse leave would impose no substantial injustice; and/or
(iii) appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
4 Ms Holt is self-represented and, as is not uncommon in these matters, has had some difficulty understanding and complying with the requirements for a properly constituted application for leave to appeal and for an extension of time within which to do so. In this circumstance, and because Ms Holt faces dismissal of her applications in this Court, I have endeavoured to set out or summarise the whole of her evidence and materials to permit, if at all possible, the identification of a question or questions of law that might be sustainable. This has involved an extensive review of the affidavits and materials adduced in evidence by both Ms Holt and the Director and a detailed review of the transcript of the hearing. This makes these reasons overly long and, because of the difficulty the presiding Member had in conducting the hearing, somewhat tedious because of the need to set out sections of the transcript of the hearing below ('VCAT Transcript').
5 In my view of the totality of the evidence and materials before the Court, it is only in the conduct of the hearing before the Tribunal that there is any possible question of law and that is confined to whether Ms Holt was afforded procedural fairness in two respects. My analysis of the transcript of the hearing leads me to conclude that Ms Holt was not denied procedural fairness in any respect. In this case, Ms Holt's failure to establish her claims, if she had any, is a consequence of the necessary evidence to support them being obfuscated by her own conduct in the hearing.
6 Ms Holt has filed five affidavits in this proceeding, the first sworn on 15 October 2019 and filed on 29 November 2019 ('Ms Holt's first affidavit'). That affidavit was filed without exhibits. The second affidavit was sworn and filed on 20 February 2020 ('Ms Holt's second affidavit'). It was filed pursuant to an order of Clayton JR made on 11 December 2019 which required Ms Holt to 'file and serve an amended affidavit to comply with r 4.07 of the Rules, namely the amended affidavit needs to set out the acts, facts, matters and circumstances relating to... why leave to appeal should be given and the grounds or proposed grounds set out in the notice of appeal'.
7 Ms Holt's third affidavit was sworn and filed on 3 March 2020 ('Ms Holt's third affidavit'). The fourth purported affidavit is unsworn and was filed on 6 November 2020 ('Ms Holt's fourth affidavit'). This affidavit was filed, it seems, pursuant to an order of Keith JR made on 25 June 2020 which extended the time for her to comply with the order of Clayton JR to 26 June 2020. Ms Holt's fifth affidavit was also unsworn and filed on 19 January 2021 ('Ms Holt's fifth affidavit'). Both unsworn affidavits were not able to be sworn by her due to the COVID-19 restrictions.
8 The Director has filed two affidavits. First, the affidavit of Rachel Maree Velardi sworn on 30 July 2020 ('Velardi affidavit'). Ms Velardi a Project Officer employed by the Department of Health and Human Services (DHHS). She attended and gave evidence at the Tribunal hearing. Second, the affidavit by a solicitor acting for the Director, Laura Isabella Limone, sworn 25 November 2020 in support of the application before me.
9 From 5 August 2018 to 26 April 2019, Ms Holt and the Director were parties to a written Tenancy Agreement for premises at 1/40 Charles Street, Abbotsford, Victoria ('Premises').[1] That tenancy agreement was governed by the Residential Tenancy Act 1997 (Vic) ('RTA'). The written Tenancy Agreement had express terms, including that:
(a) the tenancy was from week to week until terminated in accordance with the RTA.
(b) the Director was bound to ensure that the premises were maintained in good repair, and to take all reasonable steps to ensure that the tenant has quiet enjoyment of the premises.
(c) Ms Holt was bound to ensure that care was taken to avoid damaging the rented premises, to take reasonable care to avoid damaging the premises and any common areas, to give notice to the Director of any damage to the premises as soon as practicable after becoming aware of it, to keep the premises reasonably clean, not to use or allow the premises to be used for any illegal purpose and not use or allow the premises or any areas neighbouring or adjoining the premises to be used in such a manner as to cause a nuisance or cause an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises.
(d) each party must comply with the provisions of the RTA as they apply to each party.
(e) Ms Holt was required to sign a 'Neighbourly Behaviour Statement' issued by the Department of Health and Human Services outlining the behaviour expected of public housing tenants.
10 The tenancy for the premises between Ms Holt and the Director commenced after Ms Holt was transferred from another property owned by the Director. After the tenancy ended on 26 April 2019 Ms Holt was transferred to another of the Director's premises.
11 Ms Holt commenced the VCAT proceeding against the respondent on 25 January 2019.[2] The application was accompanied by bank statements and receipts from Crown Metropol, Melbourne. Her claim was made under the RTA for compensation for loss of amenity and quiet enjoyment at the Property and, under the claim details heading in the standard General Application form, she stated:
Section 67 Section 68
Loss of amenity.
Not allowed quiet enjoyment
Compensation for being forced to stay in hotels
Tenants x 4 at Units 2,3,4 threaten my safety, lie to courts and uphold terror to my person. 3 tenants withdraw false allegations. I have had my door and window frames belted by N Shaw # 3. My garden beds had tenant 4's rubbish bins on it, he didn't move them. All tenants trespass my lawn. Tenant 2 & 3 still campaign fear and excrete, litter animal nuisance to my front door, when they are not allowed to remain within 5 metres. Please see attached Hotel bill in excess of $2000.
12 The first listing of the matter before the Tribunal was on 18 March 2019. A Deputy President adjourned the proceeding, and ordered that:
(a) It would not be listed unless Ms Holt gave notice to the principal registrar by 18 April 2019 that the proceeding is renewed.
(b) If the proceeding is renewed it shall be referred to the Head of List for hearing directions.[3]
13 The proceeding was renewed by Ms Holt, and was again listed before the Deputy President, who was Head of the Residential Tenancy List at the Tribunal, on 26 April 2019. The orders then made required the proceeding to be listed for a compulsory conference on Monday 20 May 2019 for a half day.[4] Compulsory conferences are held pursuant to s 83 of the VCAT Act. Amongst the several functions of such a conference is to identify and clarify the nature of the issues in dispute in the proceeding and to promote a settlement of the proceeding.
14 The compulsory conference was held on 20 May 2019. The proceeding did not settle. The Senior Member conducting the conference adjourned the proceeding, and ordered that Ms Holt provide full particulars of her claim in support of her application and provide to the Director copies of all documents relied upon (by 1 July 2019). The Director was ordered to provide a brief summary of the defence and copies of all documents relied upon (by 22 July 2019). The proceeding was listed for hearing on 26 August 2019.[5]
15 The VCAT proceeding was again listed for directions on 27 June 2019. The Member presiding recorded in the order that 'The tenant is claiming compensation totaling $4,114.85 as set out in her documentation lodged on 27 June 2019. The tenant has written to the Tribunal stating that she wishes to add to her claim but she has not specified any additional amount being claimed.' The Tribunal then ordered that:
If the tenant wishes to amend her application to increase the total amount being claimed she must provide to the Tribunal and the landlord, by no later than 16 August 2019, the detail of all additional amounts being claimed, and specify why she alleges the landlord is liable to pay her compensation for each of the additional amounts claimed.
If no amended claim is received by the Tribunal by 16 August 2019, the hearing on 26 August 2019 will proceed on the basis that the amount claimed by the tenant is $4,114.85.[6]
16 On 27 June 2019, Ms Holt filed and served further details of her claims in accordance with the Orders made on 20 May 2019.[7] This document is undated, but the version in evidence before me is stamped as received at the Collingwood Housing Office on 27 June 2019.[8] It contains a chronology of Ms Holt's complaints regarding her neighbours and repairs or attempted repairs to the premises. A few examples are:
21st August
Detailed email explaining my distress regarding the neighbour's bins at my door entry and their constant intrusion at my door and abusive behaviour in common areas all three households
22 August to 30th November
Several Contractors visits to patch and repair without completing or measuring or doing any work in a timely manner or any notification of knocking at the door despite numerous requests pleading not too.
25 contractor and inspection visits without proper or ANY notification during this time. Just constantly demanding and abusing my right to have any life other than this.
3rd October 2018
Email from Collingwood Housing stating they have raised orders for repairs when I have already had 15 inspections by contractors for windows and wall brackets and I have advised that I cannot do this repetitively over several days and weeks, that I am not coping at all and the last things I want to is patch and repair maintenance as the dwelling is untenable and requires double glazing and the fencing as discussed as advised by the ombudsman and still no common decency or understanding of my mental health obviously deteriorating as a result of constant intrusion and having to document this for my safety.
Several emails advising, I cannot cope with constant inspections and that contractors are not to appear without an appointment. Experiencing devastating impact of chronic unaddressed constant psychological abuse from housing staff, contractors and tenants.
4th October 2018
I have been living in the lounge room area since the outset of the tenancy as the bedroom is inhabitable (sic) due to chronic noise and aggression from the tenants. I have had no lights on in the side of the house where they constantly trespass and are abusive at the doorway. Confined to the lounge and the kitchen. Tenants start slamming gates louder to get a reaction from me. Advise Collingwood housing that I have asked them that all I want is privacy. I have not even been outside or anywhere in the common ground again since they appear so insane per my emails stating ongoing blockage of my right of way.
1st November 2018
Carpets and bathroom flooded. Car for [nine] hours parked at my door entrance. Unable to shower, or leave property safely due to driveway blockage. Ongoing reports of tenants following me, watching me, bullying.
November and December 2018
I am completely isolated and feeling homelessness again and I am forced to stay in a rooming house that I paid for up to 3 weeks staying away from the unlivable dwelling. Only to return and the neighbours start harassing me as though I had never left at every opportunity.
19th March 2019
Request for gate to be removed until I leave as I had not slept for six weeks due to chronic noise and abuse of gates. Consumer Affairs, Police in attendance at other times agreed there was another entry the tenants did not have to constantly stand at my unit and degrade and insult me. Receipts for hotel stays at Richmond Hill Apartments. Two weeks stay at Croydon Women's refuge. Three weeks of couch surfing. Due to untenable living at Charles St after 2 years of abuse and still no laundry to this day almost three years.
17 On 22 July 2019, Ms Holt filed and served further details of her claims in accordance with the Orders made on 27 June 2019 and 20 May 2019. In Ms Velardi's affidavit she states that Exhibit 4 of Ms Holt's affidavit sworn on 20 February 2020 is part of this document. The document was, however, longer than that exhibit. She states that she has checked the Director's records, and says that the document was actually 5 pages, and was provided to the Tribunal and the Director by Ms Holt in full.[9] This document commences with a letter dated 15 July 2019 that summarises Ms Holts complaint that encompass two matters. First, nuisance and abuse by neighbours at the premises. Second, failure to maintain the premises. The letter finishes with the statement '[i]f the Office of Housing cannot see fit a correct amount to remedy for this almost loss of life and ongoing mental health deterioration I see the amount to be in excess of the vicinity of $10,000.00'. Mixed in with these matters are complaints about the Director's officers' treatment of Ms Holt. Attached to the letter is an undated document headed 'Hotel receipts due to neighbours calling police and invading my right to privacy' with a series of hotel expenses followed by a summary of her complaints:
(a) that the property was uninhabitable for the duration due to constant trespass from tenants, visitors, drug users and Victoria St vehicles and other matters;
(b) Collingwood Housing has received via email numerous requests to attend to maintenance properly, to liaise with Ms Holt, to complete works in a timely manner, 'all of which fell on deaf ears and only ongoing intrusion and disrespect'.
18 On 15 July 2019, the Director filed and served Ms Holt with the Director's written submissions and supporting documentation which the Director intended to rely upon at the hearing listed for 26 August 2019. They were served by Registered Post.[10] The submission is more than a submission. It sets out facts intended to be relied on as evidence on behalf of the Director at the hearing. After some formal matters, it addressed the facts and submissions, and attached relevant documents, as follows:
CONCLUSION
In this case the Director considers that there were no other reasonable steps it could have taken to address Ms Holts issues. The Director has taken steps in consistency with its policies and guidelines for dealing with neighborly disputes and did not prevent Ms Holt from residing in her property at 40 Charles Street at any time for the duration of her tenancy.
ATTACHMNENTS
Attachment A: Maintenance History for jobs raised from August 05 2018 - April 26 2019.
Attachment B: Response to non-urgent repairs report from Consumer Affairs Victoria received January 09 2019.
Attachment C: Email from McPeake General manager Lynette Attard March 05 2019.
19 The hearing came on before a Member on 26 August 2019. Ms Holt represented herself. The Director was represented by Ms Velardi, who was at the time a Tenancy and Property Officer for the Director at the Collingwood Housing office. Both Ms Holt and Ms Velardi each swore to give truthful evidence at the outset of the hearing. At the conclusion of the hearing, the presiding Member dismissed Ms Holt's application and made an order to that effect, which also recorded that oral reasons were given at the hearing.[11]
20 A Transcript of the hearing has been obtained by Ms Holt and is in evidence.[12] I note at this point that Ms Holt maintained at the hearing before me that the typed transcript was inaccurate and did not record all that took place. At my request, Ms Holt provided the audio recording from which the transcript was typed and I have listened to it and compared it with the transcript. I refer to my conclusion later in these reasons.
21 On 15 October 2019, Ms Holt filed a Notice of Appeal seeking leave to appeal, an extension of time within which to appeal, to quash or set aside the decision, and to have the matter reheard before the Tribunal constituted by a different Member, and costs.[13] On 29 November 2019, the appellant filed a Summons seeking leave to appeal, an extension of time to file the Notice of Appeal, and directions.[14] The Notice of Appeal and summons were supported by Ms Holt's first affidavit.
22 The Notice of Appeal seeks leave to appeal from the whole of the order made on 26 August 2019 and seeks an extension of time within which to do so. It states the questions of law as 'Did VCAT identify the wrong legal test, or wrongly apply the right test? 'Was there no evidence to support an important factual finding?' The proposed grounds of appeal were stated as follow:
(a) The Tribunal was wrong in law in the exercise of its discretion in that it placed excessive reliance upon one relevant factor, namely Mcpeaks General Manager telephone call to the exclusion of other relevant factors, namely the application being made for personal safety and the installation of safe gates and fences. This resulted in VCAT application for loss and damages under S67 and S68.
(b) The Tribunal should have considered all relevant factors and [found or held] that the Director failed to follow the resolution process by lying to the Ombudsman as I can see in attached exhibit correspondence from the Ombudsman 26th September 2018. Collingwood Housing failed to provide any safe or clearly understood communication that was followed by them at any time. It is all ad hoc despair with an unfair and biased advantage to long term tenants, even when advocacy was sought that they acknowledged at a much later stage where no signature or accountable person is signatory to an email dated 6th February 2019 where they acknowledge Launch Housings involvement in 'tenancy related concerns.'
The Tribunal denied the appellant due natural justice and procedural fairness by not extending to the appellant the opportunity of presenting evidence that was the compulsory requirement for proceedings to continue for example, not allowing the appellant to cross-examine Mcpeaks General Manager for the respondent or to rebut the evidence of the respondent's witnesses, during the hearing before the Tribunal.
23 The reference to 'Mcpeaks' is a reference to McPeake Painting and Building Services Pty Ltd who was the Director's maintenance contractor for the area of the premises. ('McPeake').[15]
24 The order sought was to quash or set aside the decision made by the Member on 26 August 2019 and to have the matter reheard in VCAT by a different Member and for the Director to pay Ms Holt's costs of the appeal.
25 In Ms Holt's first affidavit she first sets out what she describes as background in the following terms:
2. Loss of Tenure due to breeches of privacy from negligence to duty to care and failure to upkeep gates and fences to a good standard, resulting in loss of quiet enjoyment and loss of comfort due to poor working order of gates and fences that I was advised were being installed for my personal safety resulting in - loss of amenity and ongoing noncompliance to the Tenancy Agreement. The Ombudsman's report highlights significant discussion and dates regarding fences for my personal safety I would not have suffered personal injury to the extent I have and I still am enduring if Collingwood Housing had followed the Law.[17]
26 She then identifies the steps take in the proceeding before the Tribunal leading up to the hearing on 26 August 2019 and says:[18]
4. The First Hearing was adjourned. The housing person Abdi presented a map of the fences and the Member asked if one of the gates could be permanently closed. I reinstated the application as no two way communication between the advocate and Collingwood Housing took place that I was ever advised of and I was mentally harmed by Housing tenants and Maintenance to the point I could not stay at the address and was made homeless and provided receipts to VCAT when asked. Following VCAT orders there was another compulsory conference where details and requirements were sent to me as enclosed. I sought legal advice and provided dates and times of when I was forced to stay elsewhere due to loss of amenity and gates and fences not in good working order. Member Good did not consider any of this or even allow me to see if I was at the address when the General Manager for Mcpeaks was on the phone stating that I denied entry falsely on several occasions.
5. No real reasons was given, she said I had no evidence although I did per the barristers advice.
27 The affidavit then referred to exhibits, being the Tribunal's orders and the transcript of the hearing on 26 August 2019, but they were not, as I have said, filed. The affidavit then went on to deal with the application for an extension of time, saying, in substance, that:[19]
(a) she had been and continues to suffer personal injury constituted by mental harm, chronic stress and migraines as a consequence of the Department's treatment of her;
(b) she has suffered ongoing minor breakdowns that limit her and that she has impaired abilities due to ongoing chronic interference from neighbours who mentally harm her;
(c) she was suffering exhaustion and lapses in her mental health, that has deteriorated from constant 'scapegoating' for over two years and that has made it hard to follow the Supreme Court process;
(d) she was then suffering panic and trauma as Collingwood housing staff had been at her property again without any forewarning, despite being asked to coordinate, making her mentally and physically unable to cope with their inability to follow the rules or law.
(e) she suffered from panic attacks and depression due to the current degraded property she lived in.
28 The affidavit finishes with the following under the heading 'Orders':
7. That the Director of Housing who refuses to negotiate or partake in any common sense discussion at any time, that is incoherent and has made me suffer trauma ongoing due to neglect and upholding bullying to say the least, that the Director of Housing pay the compensation amount reached in via formal proceeding in Agreement under the jurisdiction of VCAT by submitting further particulars and following the tribunals ORDERS respectfully on 20th May 2019 and submission of further particulars 1st July 2019, that the Director pay the monies owed in full as I would not have suffered this traumatic loss and financial crisis if I had been in stable housing that they stated and repeatedly advised they were in the process of doing yet it never happened.
29 On 11 December 2019, Ms Holt's summons came before Clayton JR for directions. It was noted in the order made that day that Ms Holt's first affidavit was filed without its exhibits. The applications for an extension of time, for leave to appeal and the hearing of the appeal, if leave is granted, were all set down for hearing on 14 October 2020, and directions were made to enable that hearing to take place, including an order that Ms Holt file and serve an amended affidavit to comply with r 4.07 of the Rules. The order went on the explain what that meant, namely the amended affidavit needs to set out the acts, facts, matters and circumstances relating to why leave to appeal should be given and the grounds or proposed grounds set out in the notice of appeal.
30 Ms Holt's second affidavit attempted to do so. It is a highly epithetical mixture of facts and assertions, references to evidence and grievances, all mixed together. It repeats grounds identified in the Notice of Appeal and adds to them. In summary it provides:
(a) The Member presiding placed undue emphasis and too much weight on a single phone call to Lynette Attard, the General Manager of McPeake whom she spoke to near the end of the hearing. The Members views were based on nothing other than the views of a biased manager on the end of a phone. Ms Holt had no warning of this evidence nor was she given any chance to respond.
(b) The sheets for repairs from the Director are over technical and contain many inconsistencies, errors and even lies.[21] The document shows haste and is inadequate to dismiss Ms Holt's serious and painful living conditions. She lost goods and the neighbouring tenants damaged her property. Their visitors made serious threats to harm her and still no CCTV or any safety measure introduced despite chronic taunts from desperate residents.
(c) Ms Holt had prepared and supplied to the Tribunal and the Director, as required by the orders of the Tribunal, documentation stating the damages she had suffered, the dates, times and reasons why the premises were unfit and unsafe to live in. This also included other correspondence which was also provided to the Director of housing, including emails and correspondence from the Ombudsman, Consumer Affairs and Launch Housing - all who subsequently despite written evidence also failed in the end to hold any authority over the process or be able to advocate in any trustworthy capacity.
(d) Then there is an account of the matters arising from disturbances by neighbours that made the premises unlivable and resulted in an 'unendurable loss of amenity at the perimeter, which was causing me mental harm from the tenancy start up'; and the failure of Collingwood housing [the Director] to 'intervene or complete any repair with any care or consideration to the suffering and harassment I was enduring to the point of a minor nervous breakdown.'
(e) Ms Holt then provides an explanation for the lateness of her application to this Court in a way broadly similar to her previous explanation referred to above at [27]. Ms Holt adds that she still in unstable housing and the neighbours regularly abuse her rights and that is why her application was late. She says she has one letter from her psychologist in her exhibits and that she has provided several throughout the housing ordeal and is able to provide further evidence as necessary.
31 There are 18 exhibits to Ms Holt's second affidavit. None of them are referenced in the affidavit. Most do not relate to the subject of the hearing before the Tribunal or any question of law sought to be raised in the application for leave to appeal. They are:
(a) Exhibit 1 - an email chain dated 5 March 2019 between Ms Holt and Abdi Salad, a Tenancy and Property Officer at the Collingwood Housing office, concerning a request for Ms Holt to complete a Register of Interest. This presumably relates to finding alternate accommodation for Ms Holt. This was not in evidence in the Tribunal.
(b) Exhibit 2 - is a copy of an application and summons for an Intervention Order dated 23 October 2018 under the Personal Safety Intervention Orders Act 2010 (Vic) in which Ms Holt seeks an intervention order against Ms Velardi. The detail supporting the application refers to Ms Velardi, as an officer of the Director of Housing, sending an email stating that a tenant at Charles Street had accused Ms Holt of removing a gate, latch and door at the premises and that had resulted in 4 intervention order applications against her. This was not in evidence in the Tribunal.
(c) Exhibit 3 - is a copy of the email sent to Ms Holt by Ms Verlardi on 9 October 2019 regarding the removal of the 'gates'. This was not in evidence in the Tribunal.
(d) Exhibit 4 - is a part of the material filed in the Tribunal on 22 July 2019 by Ms Holt pursuant to the orders made on 20 May 2019 and 27 June 2019. The complete version of this document is exhibit RV-8 to the Velardi affidavit. It lists the hotel receipts and payments made 'due to neighbours calling police and invading my right to privacy'. The full version of this document was in evidence in the Tribunal.
(e) Exhibit 5 - is a copy of an email from Ms Velardi to Ms Holt dated 10 September 2018, annotated by Ms Holt. It was not in evidence before the Tribunal.
(f) Exhibit 6 - is a copy of an email from the Ombudsman to Ms Holt dated 26 September 2018 regarding her complaints about the DHHS. This was not introduced in evidence in the Tribunal, but there were references in Ms Holt's evidence to an investigation by the Ombudsman.
(g) Exhibit 7 - is an annotated email dated 27 September 2018 from Ms Holt to 'complaints.reception' (presumably at DHHS), Daniel Andrews, Greg Hunt MP, Bill Shorten MP, and others, including Ms Velardi. This was not in evidence in the Tribunal.
(h) Exhibit 8 - is a schedule of calls made to triple zero between 1 September 2018 and 31 March 2019, presumably by Ms Holt. It was not in evidence at the Tribunal, but was referred to by Ms Holt in her documentary evidence.
(i) Exhibit 9 - is another version of the email in exhibit 3.
(j) Exhibit 10 - is an email chain between Launch Housing, the Neighbourhood Justice Centre and Ms Holt regarding Undertakings given by and to Ms Holt in respect of applications for intervention orders by and against Ms Holt's neighbours. It was not in evidence in the Tribunal.
(k) Exhibit 11 - is an email from Abdi Salad of the Collingwood Housing Office relating to complaints. It was not in evidence in the Tribunal.
(l) Exhibit 12 - is an email chain dated 6 February 2019 between Ms Holt and the Collingwood Housing Office concerning complaints by Ms Holt. It was not in evidence in the Tribunal.
(m) Exhibit 13 - is a copy of a letter from Cherie Lacis, Clinical Psychologist, to the Collingwood Office of Housing dated 27 February 2019, reporting on complaints made by Ms Holt. It was not in evidence in the Tribunal.
(n) Exhibit 14 - is a copy of an email from Ms Lynette Attard of McPeake to a Jessie Rogers of DHHS stating that-
We just had a call from Ms Holt at above job advising McPeake are to stop calling and leaving cards she will not let us in and wants all jobs cancelled. We are in the process of cancelling these jobs now but If you could please arrange DHHS to stop raising jobs until whatever issues client has is resolved.
This was included in the evidence given by the Director at the hearing in the Tribunal.
(o) Exhibit 15 - is a copy letter dated 17 December 2019 from a Residential Tenancies Inspector at Consumer Affairs Victoria, a division of the Department of Justice and Regulation, regarding a request by Ms Holt for an an inspection of outstanding non-urgent repairs at the premises. The director included this letter in evidence at the hearing before the Tribunal, together with an table that was attached to the letter and a statement of responses to the matters listed.
(p) Exhibit 16 - contains copies of Ms Holt's application to the Tribunal, the Tribunal order made on 18 March 2019, the Notice of Compulsory Conference fixed for 20 May 2019, the Tribunal order of 26 April 2019, the Tribunal orders of 20 May 2019 and 27 June 2019, the Notices of Hearing fixing the compulsory conference on 20 May 2019 and the hearing of the application on 26 August 2019, and the request for the audio recording of the hearing on 26 August 2019.
(q) Exhibit 17 - is another copy of the letter in exhibit 13.
(r) Exhibit 18 - are photographs concerning matters of complaint about neighbours behaviour by Ms Holt. They were not in evidence at the hearing before the Tribunal.
32 Ms Holt's third affidavit reiterates and expands on matters addressed in her first two affidavits, in particular that she was denied natural justice by:
(a) not being permitted to cross-examine Lynette Attard, the Manager of McPeake;
(b) being unable, or perhaps denied the opportunity, to present the evidence and facts that she had prepared with a Senior Solicitor's pro bono advice;
(c) so much weight being placed on a single telephone call to Ms Attard at McPeake, who said she was a difficult tenant 'end of story';
(d) being traumatised by Ms Verladi's presence before the Tribunal
33 The affidavit continues, as with the first two affidavits, to explain why she was late with her application, in this instance because:
(a) she was exhausted and nutrient deficient and was depressed during the 28 day period when she was expected to apply for the hearing decision to be quashed;
(b) she was sick, mentally drained and under duress and being subject to ridicule with fear tactics and devastating noise from the new neighbour;
(c) she was confused and lost and was doing everything she can to change her circumstance 'but the Government has only overseen me to downfall, poverty and detriment which has damaged my ability to have my own life and rights upheld as they don't face the truth'.
34 Otherwise the third affidavit descend into the complaints that provided the basis for her claims in the Tribunal, namely that the Director breached the Tenancy Agreement by failing to ensure that the premises were maintained in good repair and failing to take all reasonable steps to ensure that Ms Holt had quiet enjoyment of the premises.
35 On 15 June 2020, Ms Holt filed the Transcript of the hearing in the Tribunal on 26 August 2019. There was no accompanying affidavit. The same transcript was also later exhibited to the Velardi affidavit.
36 On 25 June 2020, Keith JR made orders by consent, without any party appearing:
(a) extending the time provided in the order made at the first directions hearing for Ms Holt to file and serve her affidavits and exhibits, including the transcript of the VCAT hearing on 26 August;
(b) extending the time for Ms Holt to file and serve an amended affidavit to comply with r 4.07 of the Rules, explaining what such an affidavit must include;
(c) extending the time for the Director to file and serve affidavits;
(d) extending the time for the filing and service of various written outlines of submissions.
(e) Providing in the usual way for Ms Holt to prepare and file a court book and list of authorities.
37 There was another direction hearing held on 23 September 2020 by audio-visual link. By that time Ms Holt had not filed various documents required by the orders made on 25 June 2020. Those orders (and the previous orders made on 19 December 2019) were made to enable the application for an extension of time, for leave to appeal, and if leave were granted, the appeal itself, to be heard on 14 October 2020. It was noted that because of non-compliance by Ms Holt with the previous orders, the hearing on 14 October 2020 must be vacated, and it was. It was also noted that the 'matter has been listed for a further directions hearing on 2 December 2020 for the purpose of compliance, and for consideration of dismissal of the proceeding for want of prosecution in accordance with r 24.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the "Rules"), or any application the respondent may make.' Subject to compliance with an order that Ms Holt file and serve an amended affidavit to comply with r 4.07 of the Rules (and the order set out what that meant), the proceeding was listed for hearing on 31 August 2021. The proceeding was listed for a further directions hearing on 2 December 2020.
38 Ms Holt's fourth affidavit descends into some of the detail of her factual complaints against the Director's officers and also as to broken promises, events at the premises that caused her 'numerous breakdowns', and threats to her personal safety, all of which drove her to pay for temporary respite accommodation. The only matter in the affidavit that I can find that might constitute a ground for a question of law is the assertion that the Director adduced evidence at the hearing of attempted maintenance work at the premises that related to different premises at 40 Charles Street, Abbotsford (unit 3, 40 Charles Street).[24] She repeats matters already referred to that she says explain and justify her late application for leave to appeal.
39 On 25 November 2020 the Director's summons to dismiss the proceeding was filed with the Court and made returnable on 24 February 2021. On the same day the Limone affidavit in support was filed. The summons was made returnable on 24 February 2021 because upon the Director seeking a date for the return of the application, the Court notified the parties by email on 25 November 2020 that due to the business of the Court, the directions hearing listed on 2 December 2020 had been adjourned to 24 February 2021. The associate to Keith JR, before whom the directions hearing was to be conducted, emailed the parties that the Judicial Registrar required the Director to file and serve any affidavit material and/or a short written outline of submissions in support of its application on or before 20 January 2021 and for Ms Holt to file and serve any affidavit material and/or a short written outline of submissions in opposition to the application on or before 17 February 2021. The Director filed an Outline of submissions on 20 January 2021 as required.
40 Ms Holt filed her fifth affidavit presumably in order to comply with the requirement of the Judicial Registrar. It gives evidence of matters that she claimed were grounds in support of her claim in the Tribunal that the Director breached the Tenancy Agreement. None of it is relevant to this application. It is the sort of material, albeit very generally stated, that might have been advanced as evidence and submissions in the Tribunal, dealing with why the premises were not maintained in good repair, that the premises were damaged, that the neighbours caused nuisances and a number of other miscellaneous complaints.
41 On 24 February 2021 the parties appeared before Keith JR by audio-visual link for directions as to the hearing of the Director's summons to dismiss, and he ordered that it be heard by an Associate Justice on 16 March 2021.
42 The Director's summons to dismiss came on for hearing before me on 16 March 2021, by audio-visual link. After ascertaining that the parties could hear and see each other and me, and that they consented to the hearing being conducted by audio-visual link, I made the usual directions and orders under ss 42G and 42E of the Evidence (Miscellaneous Provisions Act) 1958 (Vic). However, Ms Holt was attempting to participate using her prepaid telephone. After Counsel for the Director had opened the application to dismiss, referred to Ms Holt's affidavits and was dealing with Ms Velardi's affidavit and exhibits, I paused to enquire whether Ms Holt was following the material being presented. It turned out that she did not have the documents being referred to, she did not have a computer and she had only printed out the Limone affidavit in support of the Director's summons to dismiss. She had difficulty finding relevant documents.
43 Moreover, she informed me that that at the directions hearing held on 24 February 2021, arrangements were made for the appellant to have access to a computer and desk at the Court to enable her to participate properly in the hearing (by audio visual-link). The closure of the Court's building at 436 Lonsdale Street, Melbourne, made it impossible to make those arrangements. In the result the appellant, who has no computer and no ability to print out documents (except through a commercial provider) did not have some of the documents referred to in the application and nor did she have a suitable space to enable her to access those documents she had.
44 I determined that in the interests of the just, efficient, timely and cost effective resolution of the application made by the Director, and particularly to enable Ms Holt to have a fair hearing, I should make orders for the Director to prepare the relevant documents in hard copy and to deliver them to Ms Holt at her home and organise for the hearing to be held in a Court in a face to face hearing on a suitable date at a time when a court room is available. The hearing came on in Court on 15 April 2021. This approach was driven by the following principles concerning self-represented litigants.
Self-represented litigants - applicable principles
45 It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law.[26] Procedural fairness is 'an essential attribute of a court's procedure'.[27] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[28] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances - it must ensure a fair trial and not afford an advantage to the self-represented litigant_._[29]
In determining the proper scope of assistance to be offered to a self‑represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[32] In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.[33] It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[34]
47 A little later the Court of Appeal went on to say:[35]
A failure by a judge to provide the necessary advice and assistance to a self‑represented litigant may constitute a denial of procedural fairness and warrant an appellate court setting aside the trial judge's decision and remitting the matter for a further hearing in accordance with law.[36] It is well established that not every departure from procedural fairness at a trial will entitle the aggrieved party to a new trial. An appellate court will not order a new trial where such a trial would inevitably result in the making of the same order as that made by the trial judge at the first trial. However, where a denial of procedural fairness affects the entitlement of a party to make submissions on a material issue of fact, it is more difficult for an appellate court to conclude that compliance with the requirements of procedural fairness could have made no difference.[37]
48 In the decision of the Court of Appeal in Roberts v Harkness,[38] which was applied in Doughty-Cowell v Kyriazis,[39] the Court made it clear that a litigant must have a reasonable opportunity of presenting her case. What amounts to a reasonable opportunity of presenting a case depend on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision ('what is at stake') and the competing demands on the time and resources of the court or tribunal.[40]
49 A party to proceedings before the Tribunal may appeal on a question of law pursuant to s 148 of the VCAT Act. This section confers judicial power to examine for legal error what has been done in the Tribunal.[41] Despite the description of proceedings under the section as an 'appeal', it confers original not appellate jurisdiction; the proceedings are 'in the nature of judicial review'[42]. The identification of a question of law is a qualifying condition to the ground of appeal and also the subject matter of the appeal itself.[43]
50 An application for leave to appeal must be made within 28 days after the day of the order.[44] Leave to appeal may only be granted if the Court is satisfied that the appeal has a real prospect of success, as opposed to fanciful prospects of success.[45] This requirement was introduced in 2017 and is a reflection of the test for summary determination of proceedings under Part 4.4 of the Civil Procedure Act 2010 (Vic). The text of s 148(2A) is as follows:
The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
51 However, leave to appeal may be refused even if the Court is satisfied that an appeal has a real prospect of success. The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave.[46]
52 This approach to the question of granting leave to appeal was conveniently summarised by Warren CJ in Myers v Medical Practitioners' Board of Victoria.[47] That summary is as follows:
(a) Whether leave is granted or not must always depend upon the justice of the particular case;
(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;
(c) the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings. [footnotes omitted]
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
54 Other considerations that may bear on whether leave to appeal should be granted in a particular case include:
Procedural fairness and the conduct of proceedings
56 It is also clear that the Tribunal is bound by the rules of natural justice (or procedural fairness, as it is now more commonly called).[55] It is bound, as part of the requirement to afford natural justice, to afford each party a reasonable opportunity to present his or her case. Failure to do so is an error of law and possibly also jurisdictional error[56]. But it is not every breach of the rules of natural justice that will render a decision invalid. The court may refuse relief if satisfied that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome[57].
57 There are several sections of the VCAT Act which bear upon the procedure to be adopted in hearings and that are relevant to the way the hearing was conducted in this case. First, s 97 provides that -
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
(1) The Tribunal -
(a) is bound by the rules of natural justice;
(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.
(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding.
Example
Section 85 provides that evidence of anything said or done in the course of a compulsory conference is not admissible except in certain circumstances.
(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.
59 Third, s 100 provides for the method of conducting hearings, as follows:
(1) If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.
(2) If the parties to a proceeding agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses.[58]
(1) The Tribunal must allow a party a reasonable opportunity -
(a) to call or give evidence; and
(b) to examine, cross-examine or re-examine witnesses; and
(c) to make submissions to the Tribunal.
(2) Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
(3) Evidence in a proceeding -
(a) may be given orally or in writing; and
(b) if the Tribunal requires, must be given on oath or by affirmation or by affidavit.
(4) A member of the Tribunal may administer or cause to be administered an oath or affirmation or take or cause to be taken an affirmation for the purpose of taking and receiving evidence at a hearing.
61 These sections and the case law establishes that the requirement that the Tribunal afford natural justice to each party does not require that its procedures be that of a formal court. Indeed, the sections of the VCAT Act referred to above make it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate.[59] This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court.[60]
62 This does not mean that the Tribunal should provide legal advice to parties that appear before it. But, as Nettle JA pointed out in Collection House Ltd v Taylor[61] there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes which are being undertaken and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel.
63 Nevertheless, as I have pointed out, s 102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions.[62]
64 Order 4 of the Chapter II Rules applies to appeals from the Tribunal and applications for leave to appeal commenced under s 148 of the VCAT Act.[63]
65 Rule 4.04 provides, in effect, that an appeal or an application for leave to appeal from the Tribunal is commenced by filing a notice of appeal in the Court within 28 days after the day of the order of the Tribunal. Rule 4.05 provides, so far as relevant, that if an extension of time is needed within which to appeal or apply for leave to appeal, it may be made to, and determined by, the Court in conjunction with the application for leave to appeal and, if granted, may be granted retrospectively.
66 Rule 4.06 sets out what the Notice of Appeal must contain. So far as is relevant to this application it provides that the Notice must set out or state whether an extension of time is needed, whether leave to appeal is required, the order which is the subject of the proposed appeal, whether the proposed appeal is from the whole or part only of the order, and, if so, what part, the question of law upon which the proposed appeal is brought, concisely the proposed grounds of appeal and the order sought in place of that from which the appeal or proposed appeal is brought.
67 Rule 4.07 requires that within 7 days after the Notice is filed the applicant must file an affidavit setting out the acts, facts, matters and circumstances relating to the order of the tribunal, if an extension of time is needed, why an extension should be granted, if leave to appeal is required, why leave to appeal should be given and the grounds or proposed grounds set out in the notice of appeal. The Rule also requires that the affidavit exhibit a copy of the relevant order of the Tribunal and a copy of the reasons given for the order, or their absence as exhibit must be accounted for in the affidavit.
68 Rule 4.08 deals with the conduct of the application, requiring that the applicant apply on summons for directions, an extension of time and for leave to appeal within 7 days after filing her Notice. Amongst other things, the rule includes as r 4.08(8) that -
(8) The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if satisfied that -
(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b) the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c) the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
69 In relation to an extension of time, s 148(5) of the VCAT Act empowers this Court to extend the 28-day time limit fixed for seeking leave to appeal. Whether or not to extend the time for appealing is in the discretion of the Court.[64] Although the discretion to extend time is unfettered, like all discretions it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or relevant to the matter, and it should be exercised flexibly with regard to the facts of the particular case.[65]
70 A consideration relevant to the exercise of the discretion is that upon the expiry of the time limited for appeal, or in this case, an application for leave to appeal, the defendant has a vested right to retain the judgment or order unless the application is granted.[66]
(a) The length of the delay;
(b) The reasons for the delay;
(c) Whether there is an arguable case for the grant of leave to appeal if an extension of time is granted;
(d) The weighing of the extent of prejudice to the appellant and respondent if time is extended; and
(e) The importance of the subject matter.
72 In some cases, where the delay has not been long and the reason has been an error in the understanding of the correct procedure by the would-be appellant or her legal advisors, much has depended upon the extent to which the appellant would be prejudiced by the Court refusing its application and any prejudice to the respondents occasioned by granting it.[69] This, inevitably, brings into play the chances of leave being granted if an extension of time is granted and thus whether it is arguable that the Tribunal made an error of law.
73 In general, an extension of time will be granted where it is in accordance with the justice of the case to do so.[70] Clearly, the party seeking the extension bears the onus of proving that it should be granted. An extension will not be granted if the case is hopeless, unarguable or bound to fail, or now since the introduction of s 18(2A), because the case has no real prospects of success, because it would be futile to grant the extension in those circumstances.[71]
74 The appellant has filed five affidavits. None of those affidavits complies with the Rules. The Court has made Orders on three occasions[72] requiring the appellant to file an affidavit which complies with the Rules. The affidavits reveal that the appellant appears to be under the impression that this is an opportunity for a rehearing on the merits of her case, however this is not permitted.[73] The appeal is confined to a question of law, with no appeal permitted on questions of fact.[74] Further, each affidavit raises issues which are not relevant to this proceeding.
75 The first affidavit (filed on 29 November 2019) is difficult to follow. Paragraph 2 appears to relate to the VCAT proceeding, however this is unclear. Paragraph 4 appears to refer to earlier listings of the VCAT proceeding, but again it is unclear. Paragraph 5 refers to 'barrister's advice' which is not exhibited. Paragraph 6 refers to the extension of time requirement and states that a psychologist report will be provided on 24 October 2019 which, to the best of the respondent's knowledge, has never been received. The orders sought in paragraph 7 cannot be understood.
76 Most, if not all, of the contents of the second affidavit (filed on 20 February 2020) are irrelevant. For example, the paragraphs which begin "I had evidence prepared based on Senior Solicitors pro bono advice" (p 1), to that which ends "to the point of a minor nervous breakdown" (p 3). Those paragraphs relate, it appears, to the original application under the Residential Tenancies Act 1997 (Vic) rather than the VCAT proceeding, or this appeal. The final two paragraphs on page 3 (from "I have also been bullied") seem to be complaints of a general nature against the respondent and are, again, irrelevant. None of the exhibits (of which there are 18) is referenced within the body of the affidavit, nor does the affidavit address why they are relevant to this proceeding. For example, exhibit 2 is an Application and Summons for an Intervention Order made in October 2018.
77 Paragraph 1 of the third affidavit (filed on 3 March 2020) spans three pages of close type and covers an array of topics. At best lines 1 to 9 may be considered relevant to the appeal.[75] The rest of paragraph 1 is complaints about the respondent and its contractors generally. The remaining parts of the affidavit refer to the extension of time, but do not address the issue adequately. For example, exhibit 4 is a letter dated 6 February 2019 from a clinical psychologist requesting that the appellant be excused from jury duty.
78 The fourth affidavit (filed on 6 November 2020) again appears to raise concerns regarding the respondent generally rather than those matters which were the subject of the VCAT proceeding (for example, page 2 refers to rental premises at Rutland Street).[76]
79 The appellant's Notice of Appeal filed 15 October 2019 lists three grounds of appeal. The first ground was that the Tribunal 'was wrong in law in the exercise of its discretion in that it places excessive reliance upon one relevant factor (namely, the evidence of McPeake's General Manager). In order for the Court to interfere with the Tribunal's exercise of a discretion, the exercise must be vitiated by an error or law.[77] Ms Holt has not identified - whether in the Notice of Appeal or her affidavits - precisely how this ground of appeal is based, and how it may be said to be an error of law.
80 The second ground of appeal is also difficult to follow. It appears to allege that the Tribunal failed to consider all relevant factors, however does not identify with any specificity precisely what those factors actually were. It does not identify that the issues sought to be agitated (namely, failure to consider all relevant factors) raise a question of law for this Court.[78]
81 The third ground of appeal refers to natural justice and procedural fairness. Although it is conceded that a breach of natural justice is a question of law for the purposes of s 148 of the VCAT Act, however how it relates to this proceeding is, again, not sufficiently clear.
82 Even on the broadest reading of the material filed by the appellant, the appellant simply has no case on appeal and refusing leave would impose no substantial injustice. On a fair reading of the Notice of Appeal and the accompanying five affidavits, it appears the appellant has formed the view that an injustice has been inflicted upon her by the Tribunal. The reasons for this are difficult to ascertain, however appear to allege a failure to take relevant evidence into account and/or relying upon the evidence of one witness. While these may rightfully form questions of law under s 148 of the VCAT Act if properly drafted and accompanied by affidavits which comply with the Rules, a simple reading of the transcript of the VCAT proceeding reveals the grounds are baseless and there is no arguable case on appeal. The Tribunal afforded the appellant ample opportunity to present her case, assisted the appellant generally, explained the relevant legislation, and considered all the evidence presented. One such example is that appellant complains that she was not able to cross‑examine the witness, Ms Attard. A simple reading of the transcript shows this is simply not correct. The Tribunal Member allowed the appellant to cross‑examine the witness during the hearing.[79]
83 Extensive delay has been considered by this Court to be a relevant factor as to whether it would be just to grant leave to appeal.[80] This proceeding was commenced in October 2019, and relates to an application brought before the Tribunal in January 2019. There have been two directions hearings. The appellant has had the opportunity to file four affidavits, and yet still has not complied with the Rules. In circumstances where the matter has been afforded multiple opportunities to articulate her claim and has failed to do so, to continue this proceeding would be an abuse of process.
84 Ms Holt filed no written submissions, save of course to the extent that her affidavits included submissions. For a self-represented litigant this is not surprising. The actual questions stated in the Notice of Appeal: '[d]id VCAT identify the wrong legal test, or wrongly apply the right test? 'Was there no evidence to support an important factual finding?' are not justiciable questions of law (see the questions at [22] above). As to the first supposed question of law, no legal test, right or wrong, is identified as being applied. The second supposed question of law is just rhetoric.
85 Because it is necessary for this application to take Ms Holt's application for leave and for an extension of time at its highest, I interpret her Notice of Appeal and affidavits to raise the following questions of law:
(a) that in the conduct of the hearing by the Tribunal Ms Holt was denied procedural fairness by-
(i) being denied the opportunity to present the evidence and facts in support of her claims;
(ii) not being permitted to cross-examine Lynette Attard, the Manager of McPeake;
(b) in arriving at the conclusion that Ms Holt had not proven her right to compensation in respect of the alleged breach of s 68 of the RTA (that is, the obligation to ensure that the premises were maintained in good repair) the Tribunal placed undue weight on the evidence given by Lynette Attard of McPeake.
86 In all other respects, Ms Holt's Notice of Appeal, grounds and affidavits were concerned with the merits of the application before the Tribunal. Ms Holt made it abundantly clear at the outset of her oral submissions to me that she still did not understand the nature of an appeal from a decision of the Tribunal.
87 Ms Holt then pointed to a difference between the Director's submission to the Tribunal as sent to her before the hearing, where the version in her possession mistakenly referred to her premises being unit 3/40 Charles Street, rather than unit 1, and the version of the Submission exhibited to Ms Velardi's affidavit. She maintained that this made 'the whole maintenance history schedule a little bit iffy'.[81] That issue was examined and explained by Counsel for the Director. Nothing turns on the minor discrepancy.
88 I then sought to bring Ms Holt back to her first point of law as set out in the Notice of Appeal. This then led Ms Holt to express her point of law by reference to what she put in her fifth affidavit, which concerned the merits of what was complained about before the tribunal. I explained to Ms Holt that in order to get leave to appeal the question of law has to relate to the application of the law by the tribunal or that she was denied procedural fairness. I pointed out to her that any question of law can be the subject of leave to appeal and the following exchange occurred -
HIS HONOUR:But it might be that the wrong law was applied by the tribunal about what is a breach of s.67 or 68 or it could be, and this is what I'd thought your notice of appeal was addressing, that you were denied procedural fairness and that was the point I thought that lay at the heart of your complaint about how you were dealt with at the tribunal.
MS HOLT: Yes.
HIS HONOUR: Whereas this affidavit at p.313 of the court book [Ms Holt's fifth affidavit] you seem to be addressing a merit of the claim before the tribunal.
MS HOLT: Okay.
HIS HONOUR: Which is not the job of this court to address.
MS HOLT: Okay.
HIS HONOUR: We've got to address whether they got an aspect of the law relating to that claim wrong.
MS HOLT: Yes.
HIS HONOUR: Or whether they have denied you procedural fairness which is itself a question of law.
MS HOLT: Okay.
HIS HONOUR: So, for example - that's why I went to your notice of appeal.
MS HOLT: Yes.
HIS HONOUR: It's basically seeming to say, 'Well, too much notice was taken of McPeake and not enough notice was taken of your evidence'; is that in a sense what you were saying in that first part of the notice of appeal?
MS HOLT: Yes. Well, none of my evidence was considered at all in what I had prepared for the day.[82]
89 I have read the VCAT Transcript and listened to the audio recording of the hearing on 26 August 2019. It begins, as expected, with the parties identifying themselves. Immediately thereafter, the presiding Member asks each of Ms Holt and Ms Velardi to take the Oath. The evident course to be followed is that everything said is to be evidence in the proceeding. It is also evident from a reading of the transcript that the Member had before her the documents that Ms Holt had submitted as part of her case as well as the 'submission' filed by the Director, with its attachments. All of this is consistent with, and in accordance with, the procedure permitted by s 98 of the VCAT Act. In particular, the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; it may inform itself on any matter as it sees fit; and must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.
90 Despite constant interruptions by Ms Holt, sometimes in a very load voice, the Member sought to explain the procedure that required the person bringing the claim to satisfy the Tribunal member that they are entitled to what they are seeking. Further, the Member explained that the Tribunal has to be able to make a decision that the person who is making the claim is entitled to the loss or damage, or compensation, claimed.[83] Ms Holt said she was aware of the procedure, having been before the Tribunal 'regarding Collingwood Housing' about eight or nine times.[84]
91 The Member sought to encourage Ms Holt to give further more specific evidence in support of the two claims she made. The trouble was that Ms Holt became agitated. The best representation of this, and other aspects of the case to which I refer below, is to quote the transcript. The following extract concerns in the first part the alleged breach by the Director of the obligation to ensure Ms Holt enjoyed quiet enjoyment of her premises, and in the second half an attempt by the Member to see whether Ms Holt intended to pursue her application that day:
MS GOOD: - - -[the] Minister of Housing is in a difficult situation because they assist people, some of whom may have disabilities and difficulties, and they hear - they often hear one thing from one tenant and another thing from another tenant. They've got to weed their way through - and people are often living in close proximity to each other which makes it worse. So I think you have to realise that things can be difficult for them to know what's going on and also - - -
MS HOLT: I think I've been extremely patient given the level of aggression and abuse and hostility - - -
MS GOOD: Okay. I can't - I can't do anything - if you - - -
MS HOLT: Well, I'm answering you. I didn't raise that; you did.
MS GOOD: No. I know. I know.
MS HOLT: Okay.
MS GOOD: But what I'm - - -
MS HOLT: And I have been belittled and interrogated over - over the top. I've had people intruding in my house from the government repetitively with no outcome. Now, they're going to argue and fight and bicker. This is not going to solve anything. My concern is the standard of living is atrocious - - -
MS GOOD: Okay.
MS HOLT: - - - and you can't actually get on with your life, and if you - they - we are here because I have been just - I was forced in haste to move from Rutland Street after 83 visits which - nearly my house was fixed, and they could have left me there but, no, they coerced me. There's - there's nothing you can do about this. They - they have - what I - what needed to be said and dealt with today at Charles Street is very, very emotional because I've been persecuted by the whole community for bringing peace, for fighting for me, myself, to be able to live - live comfortably. Now, the new tenant there will be getting the benefits of my hard work in the area. Nobody cares what I had to suffer. They deliberately provided security guards at 1 am to just wake me up as well. I had nobody at all. I don't even know how I survived Charles Street because it was so terrorising with the tenants all attacking me. Now that - now, still to this day when I've asked Collingwood Housing as well as we're in the Magistrates' Court who is Fleur Warner, I don't even think this person exists. The tenants made up a whole lot of what you would call in the olden days cock and bull - absolute rubbish story and terrorised me by banging a gate 24 hours a day, if we can just get clear about that - that I was absolutely shaken to the ground to a nervous breakdown by their behaviour. And I still chose not to go ahead, despite mounting evidence against an elderly woman whom I never did anything to and never would. It's not even in my persona or demeanour to insult and degrade people.
MS GOOD: Okay.
MS HOLT: I - they were degrading my right to exist.
MS GOOD: Okay.
MS HOLT: And all I did - - -
MS GOOD: I - I would like to interrupt you for a moment.
MS HOLT: - - - was - all I did was defend myself on - - -
MS GOOD: Yes. Okay.
MS HOLT: - - - one occasion and they had already - - -
MS GOOD: Can I - can I just ask you one question, please. I'm - I'm not quite sure.
MS HOLT: There's no point.
MS GOOD: Do you want to - are you pursuing the application today?
MS HOLT: Well - - -
MS GOOD: So it sounds as though you didn't want to - - -
MS HOLT: - - - how can I? They just deliberately inflame. They send someone different every time. There's no consensus in what they've said. They're drawing attention to matters saying that I - I caused all of these problems for other tenants, and I'm not going to sit here and listen to that because - - -
MS GOOD: Okay.
MS HOLT: - - - there needs to be - it needs - there's not going to be an outcome where they're going to admit that I couldn't live there.
MS GOOD: Okay.
MS HOLT: I had to stay in hotels.
MS GOOD: But this is - I just want to ask you - as I've said at the start, if - if you want to pursue your case today you're fully entitled to and that's your right, but I have to get down to what it is you're claiming and I need to hear from you and then I need to hear from the Ministry of Housing. So every - each person involved has the right to tell me what they wish to that's relevant to the matter before me. So that's why I want to know - - -
MS HOLT: That's the rules.
MS GOOD: - - - are you - pardon?
MS HOLT: That's the rules.
MS GOOD: Yes.
MS HOLT: That's what I was following.
MS GOOD: But are you - - -
MS HOLT: I provided - as you requested - have you got it in front of you what I provided?
MS GOOD: Yes. But you haven't given specifics. You've just said that they - - -
MS HOLT: I haven't - I've given days [dates].
MS GOOD: Okay. What I want to know is are you wanting to - you - you seem to say that you think it's hopeless today. What I'm trying to ask you is do you want to pursue this claim or not today?
MS HOLT: I have provided you with the dates and in however many pages - it took two days. That's fairly specific - - -
MS GOOD: Okay. All right. All right. I want to go back - - -
MS HOLT: - - - about the dates and times.
MS GOOD: - - - to the - back to the start.
MS HOLT: No. This - no. But this is regarding - answering your question.
MS GOOD: Yes. Just please - it's just that I need to - I need to know whether you want to pursue the - whether you're wanting to pursue the matter today or not.
MS HOLT: I'm trying to, but their response does not even follow what I have provided at all.[85]
92 Then the Member cleared up the amount that Ms Holt was claiming, which took some time and effort on the Member's part, having regard to the most recent letter that claimed a figure of $10,000.[86] The member established, with some difficulty and unnecessary argument from Ms Holt, that Ms Holt was claiming $4,114.85 for the costs of alternate accommodation, and addressed a complaint Ms Holt had about being sent out of the room during the compulsory conference, and matters related to intervention order applications between her and her neighbours, some of which appeared to be at her Rutland Street premises. Throughout the hearing the Member had difficulty getting Ms Holt to address the specific facts that gave rise to her complaints. There were constant interruptions and general unspecific allegations of misconduct, for example:
MS GOOD: Okay. Were they [the intervention orders] in your favour or against - - -
MS HOLT: Yes. All of them. All of them. Because I haven't done anything to anyone. I've been scapegoated, repeatedly - - -
MS GOOD: Yes. Okay.
MS HOLT: - - - treated like a piece of absolute trash, and it doesn't matter. At least now - at least now I accept that. I mean, weird as it is, the only goal is to degrade and insult me and keep me living with rats and vermin and terrorised. I can't - I'm not used to living like that and I'm still being pursued. I still have to deal with these people in the community. I don't even know why I'm still in the City of Yarra when I didn't even have it on my list.
MS GOOD: Okay. Can I just ask - ask you - - -
MS HOLT: Look, there's no point - - -[87]
93 The Member then turned, perhaps in frustration, to Ms Velardi to ask for a general overview and the Director's attitude to the claims. Ms Velardi responded that the Director is not taking any responsibility because 'we did take reasonable actions as a landlord to try to remedy the issues'.[88]
94 Ms Velardi then outlined the two issues, being issues with neighbours and maintenance of the premises, whereupon Ms Holt interrupted with complaints that there were safety issues for her as well, and related matters, and then raised other proceedings not concerned with the premises. Ms Holt was at this point quite agitated.[89]
95 During a significant part of the hearing the Member sought to encourage Ms Holt to address the facts that grounded her claims. In relation to both her claims Ms Holt said:
MS HOLT: Well, I mean, I had personal safety issues - just so you know, clearly they take no responsibility for the fact that I was terrorised and I have been isolated and thrown out of whole communities to the point of - I have had no contact - I haven't been able to build - all the normal things that you do in life I've been denied. I couldn't even shower in my house, nothing. I couldn't go anywhere safely.[90] [emphasis added]
96 At this point, the Member clearly identified an instance where there might have been a fact relevant to Ms Holt's claim for a failure to maintain the premises in good repair, the inability to shower in her premises. It turned out to be at her previous premises at Rutland Street. The Member asked:
MS GOOD: Why - why could you not shower in your house?
MS HOLT: Well, that was to do with the repairs.
MS GOOD: Okay. Isn't - - -
MS HOLT: The way they administrated it.
MS GOOD: Is it correct that Ministry of Housing took steps to - to try to get the work done but you refused entry to their contractors?
MS HOLT: No. 83 people came into my house. Minister - not Minister. Member Moon had them on the phone in here. There was a conference calling phone here. Now, Ms Velardi was very reluctant to put them on the speaker, but Member Moon insisted, and Member Moon managed to establish after 15 minutes of maintenance being on the phone - she managed to establish with Ms Velardi that actually I hadn't denied anyone entry at all. And I think it's absolutely absurd after I've let 83 people in my house that - - -
MS GOOD: Okay.
MS HOLT: - - - if I'm sick - I'm sick - - -
MS GOOD: Just let me - - -
MS HOLT: - - - on one occasion - and that's got nothing to do with Charles Street anyway.
MS GOOD: Well, I mean - - -
MS HOLT: This is what I mean. It's impossible.
MS GOOD: - - - it has if you had issues with Charles Street - - -
MS VELARDI: Member, that address - that maintenance claim was for Rutland Street. That wasn't for Charles Street. So that was a - - -[emphasis added]
MS GOOD: Right. The one that Member Moon dealt with?
MS VELARDI: Yes.
MS HOLT: Yes.
MS GOOD: Okay. All right. Well, we need to just deal with the matter that's before me - - -
MS HOLT: So the - - -
MS GOOD: - - - which is Charles Street. Were you denying - - -
MS HOLT: Yes. But they're talking about Rutland Street.
MS HOLT: No. I didn't deny - deny.
MS GOOD: Were you - - -
MS HOLT: No. I didn't. Look at the list of inspections. This has to go to the High Court of Australia somehow.
MS GOOD: If - if - - -
MS HOLT: It might take years, but this is a deliberate - even what's happening to me now is just so wrong, for me to be put on the spot when I am the most honest and hardworking - - -
MS GOOD: - - -
MS HOLT: - - - fair - I have been - I didn't deny anything.
MS GOOD: You're being - you're being given the opportunity to present your case.
MS HOLT: 99 per cent - - -
MS GOOD: - - - but you bear the onus of - of satisfying - - -
MS HOLT: Yes. And you don't want to look at the 99 per cent of overwhelming - you can't. There's - no person can fight from this position for fairness, for justice.
MS GOOD: Okay. Well, I - I don't agree with that.
MS HOLT: Well, you're asking me the most painful question when I've been intruded hostilely by tenants, neighbours, the office, everyone - they won't do anything - - -
MS GOOD: Okay. Let's just go back - - -
MS HOLT: - - - in a timely manner.
MS GOOD: - - - to the maintenance issues.[91]
97 The Member clearly had difficulty in guiding Ms Holt to address matters relevant to her claims, in this instance the failure to maintain the premises in good repair. This was not the fault of the Member. She tried.
98 Ms Holt maintained before me that she had no chance to present evidence, for example, about the failure of the Director to install a fence at her premises: she said 'the fence issue just sort of got pushed aside'.[92] In fact, she made a number of references to the failure of the Director to install the fence she says was promised,[93] as she did in her documents in this Court.[94] Just so as to show the difficulty facing the Member in dealing with the claims by Ms Holt in a factually relevant way, the 'fence' issue in the Tribunal went like this:
MS HOLT: I - I had - no. I'm talking about what you asked, about the maintenance at Charles Street. Collingwood Housing agreed to put up a fence for my personal safety. Now, this - these are very serious - serious matters. These are actually acts of crime. Now, we're a long way - - -
MS GOOD: .....
MS HOLT: There's no actual - this is going on across the whole of Australia.
MS GOOD: Okay.
MS HOLT: Now, this is not going to - there's no urgency. There's no certainty. There's actually no law. There's no sense. There's - nobody in this room is actually following any laws to have any respect for the public tenant, which is myself.
MS GOOD: Well, I completely disagree with that.
MS HOLT: Well, I was told a fence was going to be put up for my personal safety, and it was in writing. Now, that was in August, September, October, November, December. Still no fence. Then in March after I've had the government come in from the city branches, the - it doesn't - look, I'm telling you honestly. I can tell you the truth, the whole truth and nothing but the truth, and Collingwood Housing will, as always, kick you in the back, kick you in the spine and treat you like you are just worthless, and they'd prefer you to be in the gutter, and I've been kicked out into the gutter by the tenants in Charles Street. I'm a highly educated woman who's raised a family, a successful family that are homeowners. My family are homeowners my whole life - my extended family - and I have been treated like an animal, nothing less, to - - -
MS GOOD: Okay.
MS HOLT: - - - the point where I have had to go and stay in hovel hostels, hotels, walk around looking like I can't even shower. I can't even go in my shower because the tenants are banging on the walls. I've had - contacted Collingwood Housing for help. Collingwood Housing have then accused me of taking off gates, which I could not possibly have done. They've defended the tenants and put this in writing now so we can have evidence, because that's all they care about, is petty dispute escalating to the point where someone is humiliated, degraded, scapegoated and thrown out of the community, and that's what they've successfully done and that's all they've done. I had to stay in hotels. I couldn't go to my home safely.
The tenants have collectively combined to make up a - just a complete, insane horror story, which then they detracted, which then they changed, which then nobody cares less about because they're - we're all crazy, public tenants, so I'm included now. I'm the worst one of all. And it's just ludicrous. I had to get Launch Housing - I was advised - actually told by the manager at Collingwood Housing that Launch Housing was handling my case now in writing. Actually, there's not even a - a signature. That - that's how little merit and that's how little value they place on human life. There's not even a signature. They've cc'd in - - -
MS GOOD: Okay.[95]
99 In the face of this sort of diatribe, the Member did not, understandably, embark on the question whether the failure to erect a fence for the personal safety of Ms Holt could ever amount to a breach of the duty to maintain the premises in good repair. Nevertheless, there were further 'discussions' about Launch Housing's involvement in assisting Ms Holt, or as Ms Holt said, not assisting her, and the Member then raised the issue of Ms Holt denying access to tradespeople attending to repairs (as the Director had contended was the fact), and Ms Holt clearly said she did not deny access and that they came to the premises 25 to 30 times, even 100 times.[96] This lead Ms Holt to another irrelevant outburst:
MS HOLT: Yes. Exactly. So I've already explained to you - and this is the problem when, you know, you've got an understanding of your own situation and the law and you're a paralegal secretary and you're a nurse and you've got an Arts degree with Honours and you're as educated to the highest possible standard you can be in community service, taught by yourself, and you're a social scientist and a holistic counsellor and a Reiki master and a yoga practitioner and a community advocate who speaks nothing but truth and clarity and peace and distinction - - -
100 After this, the Member turned to Ms Velardi for a response on behalf of the Director. Ms Velardi stated, and having regard to the procedure adopted in the Tribunal, this is evidence:[97]
MS VELARDI: So in regards to complaints about neighbours, we obviously - we investigated those. There was a few neighbour complaints put in by the other neighbours and what - so we couldn't actually breach any of the other neighbours because they were saying the same thing about Ms Holt. So we obviously did do our investigations and we couldn't breach anyone because there was no - there was no evidence there to breach on. With the maintenance, we did raise multiple maintenance - - -
MS GOOD: Just - so what happened with the - are - are you aware of any intervention orders being made?
MS GOOD: Yes.
MS VELARDI: So Ms Holt did against a few of the other tenants, and they did - they applied - - -
MS GOOD: Okay.
MS VELARDI: - - - against Ms Holt as well.
101 Ms Holt then interrupted and there was another exchange of no relevance. Then the Member said:
MS GOOD: Ms Holt, I need to -I've got to ask questions of the respondent's representative and that's what I'm doing. Okay. I'd like to hear what she has to say about their side of the story. There's always two sides to the story. Okay. Thank you.
MS VELARDI: So with the maintenance side of things, Ms Holt was emailing through maintenance requests, which we raised with maintenance. We were getting calls from our contractor saying that Ms Holt wasn't allowing access or she would allow access and then not allow for them to complete the job. So then jobs were re-raised when Ms Holt re-raised those issues. I do believe Consumer Affairs was contacted a couple of times by Ms Holt. We did try to get into the property a few times where - through email correspondence. I think there was a couple of cancelled appointments so we actually could - did a notice to enter to actually see what those responsive maintenance concerns were. The first time Ms Holt told us to leave so we were only there for a couple minutes. We didn't get to see the - the maintenance issues. The second time we were allowed access and there was responsive maintenance that we could raise.
102 Shortly after this, whilst the Member was asking Ms Velardi further questions, Ms Holt again interrupted suggesting to the Member that she just accepted evidence that she, Ms Holt, had denied access to tradespeople attending to repairs in response to complaints. The Member then asked Ms Velardi further questions about what happened after a Consumer Affairs Inspector's report was received in January 2019, and Ms Velardi said the maintenance jobs were re-raised. When asked by the Member what happened and whether any of the work was done, Ms Velardi said that she believed most of them were cancelled due to no access or Ms Holt cancelling the jobs herself. There was an email sent on 5 March 2019 from the General Manager at McPeake, which was attached to the Director's Submission (see above at [31(n)]). Ms Holt responded that by then she was being moved to another location. Ms Holt said it was outrageous, 'this is hundreds of people attacking me. You can't solve [98]is.'98 To which the Member responded that she had to try and solve it. To which Ms Holt responded 'Well, it's going to be in favour of the department. I don't know why you want to ridicul[99]me.'99 (I should emphasise that at no time during the hearing did the Member ridicule Ms Holt.) The Member told Ms Holt that she was trying to find out what happened that is relevant to the application. Ms Holt accused the Member of being on the side of t[100]Director.100 Then the following exchange occurred:
MS GOOD: I'm putting to you what the respondent is saying that - as in the number of times that they got their contractor apparently to try and fix the work that you say - - -
MS HOLT: Well, this is what I'm saying. You need to call people on subpoena because they're lying. They came to my house within, like - it must have been five months - 25 times and did nothing. They kept sending another - I've been through all of this, "Oh, we can't fix that switch. We'll have to get the electrician. Oh, we can't do that. We - it's not on the calling card. Oh - oh, that's going - that's not a job for us". Well - - -[101]
103 The Member then questioned Ms Velardi about what jobs were done or not done and Ms Velardi said she believed all of the jobs were cancelled. Then the following exchange occurred:
MS HOLT: Works were raised in February. They weren't raised with me. I have - you need to - this needs to go to a proper court hearing. They need to be subpoenaed and what I'm saying to - - -
MS GOOD: Who needs to be subpoenaed?
MS HOLT: All the contractors that came or didn't come or didn't have the calling information or who rang on Sunday or who turned up on Saturday or who came incorrectly with the wrong information or who just, you know, ambushed the place. I mean, the amount of times the Field Services officers turned up - then they say - they'll say they fixed a fence or they installed a fence. Oh, look, you can't even believe the extent they go to to actually sit back and laugh. They'd build a fence to stop drug - drug addicts. All that did was cause more nuisance. Nobody cares and nobody - it doesn't matter if you're a Public Housing tenant. It doesn't matter if you're a ratepayer. It actually doesn't matter.
There's no one in Australia that really - this has been front page news and still people don't care. It's atrocious. Nobody could care less. I've already explained to you very, very clearly that Collingwood Housing can give you all of those dates. I'm not a lawyer. I will have to go away now - because I had to provide all my dates and information relevant to what the member presiding here asked by a certain date. I assumed they would respond so we could have a - a - some clarity - - -... so there wouldn't be all of this inflaming.[102]
104 After some further exchanges that went nowhere and established nothing, the member stated that she was going to try and call McPeake, to which Ms Holt said that they will just lie.[103] Eventually Ms Attard, who wrote the email of 5 March 2019 to DHHS stating that Ms Holt wanted all jobs cancelled, was contacted, sworn and gave evidence confirming that Ms Holt had called the McPeake receptionist, Helen, and left a message to the effect set out in the email.
105 Ms Holt maintained, as I have said, that the transcript was not an accurate representation of what was said in the Tribunal. For example, she said in her submissions to me:
MS HOLT: That's right, the transcript shows a lot of things that didn't happen.
HIS HONOUR: Really?
MS HOLT: Yes. And in fact, you know, the personal attack from Ms Wilson, when she doesn't seem to be familiar with what's happened at all, saying that I was - I can't remember what she said but I was not willing to speak to Ms Attard.[104] I was and I tried and Ms Attard just shot me down immediately and this was at the end of the hearing. There was no prior contact or phone calls or conference calls made with Ms Attard before then in the hearing to the best of my knowledge.
HIS HONOUR: Yes, but she was called by Ms Good during the hearing; was she not?
MS HOLT: She might have been - yes, I - the whole transcript has been changed dramatically because I haven't said a lot of things that I've been quoted as saying - and again I don't know if this - nobody seems to take this seriously - I very clearly asked Ms Attard, and addressed her as 'Ms Attard', and it says I have said some other statements addressing her as 'Lynette' and there's no wording anywhere that says, 'Excuse me, Ms Attard. It's Kirstie Holt and I was just wondering' - and I can't remember exactly what I said but she said very clearly - cut me off and said, 'Ms Holt is a very difficult' - I have 7000 tenants on my books and - over 7000 tenants on my books and Ms Holt is extremely difficult'.
HIS HONOUR: Well, I don't remember seeing that in this transcript.
MS HOLT: No.
HIS HONOUR: But you say that occurred, do you?
MS HOLT: Yes, it's in - I had to get the CD first so it must be in that. You know, there's other omissions and it's all just cut and paste into something that similarly at other points which I would much prefer to be able to show you directly but where the Director is saying that I raised intervention orders and then later on the other tenants - and that's not what happened either so they're not taking this seriously and they don't even care what the order of events are ‑ ‑ ‑[105]
106 As I have already said, Ms Holt provided to my associate the audio recording from which the transcript was typed and I have listened to it and compared it with the written transcript. It is entirely accurate so far as I could ascertain. I say 'so far as I could ascertain' because there are many instances of Ms Holt talking or shouting over the Member presiding so that what was said by the Member was often hard to hear. Ms Holt interjected many times when the Member was speaking or explaining matters to her and interrupted constantly, and some of the interjections are hard to hear. But in all cases of this kind the transcriber had captured what was said by Ms Holt.
107 In relation to the suggestion that Ms Attard said Ms Holt was very difficult, it is plain to me from listening to the transcript that what occurred was during the examination of Ms Attard by the Tribunal Member, interspersed with questions by Ms Holt, Ms Attard said it was difficult to get access to the premises to carry out maintenance repairs. This was understood by Ms Holt as saying that 'she was difficult', which may or may not be what Ms Attard meant. The following excerpt from the transcript of the Tribunal hearing shows the relevant exchange, as well as showing that Ms Holt was involved in questioning Ms Attard and did not hesitate to interrupt in a way which made the hearing of the matter - and reading the transcript - quite difficult:
MS ATTARD: That time was - and then at 4.50 pm we officially notified the department on that job number that no - the - the exact words were:
She advised that no McPeake trades are to attend and that Collingwood Housing office know this. Please cancel all live jobs.
MS HOLT: And that - to write - who said to write to Collingwood Housing?
MS GOOD: Sorry. Do you - -
MS HOLT: Put it in writing.
MS GOOD: Ms - Ms Holt has a question of you. What are you asking?
MS HOLT: This is - oh, I mean, the - the clarity is just staggering.
MS GOOD: Do you want to ask a question or not, Ms Holt?
MS HOLT: Well, Lynette just had previously said they were advised by myself to put it in writing; is that correct?
MS GOOD: Can you just repeat what you said before.
MS ATTARD:
Tenant - tenant called after receiving card from trades. She advised that no McPeake trade is to attend and that Collingwood Housing office know this. Jobs to be cancelled.
MS GOOD: So she didn't - - -
MS ATTARD: So that's what [when] you had contacted - - -
MS HOLT: That's a summary - is a summary.
MS ATTARD: - - - Helen in our office and advised. We have then - - -
MS HOLT: Yes.
MS ATTARD: And it had been reported it to me and I reported it to Jessie [at DHHS] in writing on the same day.
MS GOOD: So that was the reason you wrote the email - - -
MS ATTARD: Yes.
MS GOOD: - - - in fact. Yes.
MS HOLT: And you had had no - - -
MS ATTARD: And there were a number of jobs there - - -
MS HOLT: Yes.
MS ATTARD: - - - that got cancelled and stopped - - -
MS HOLT: And so you had had no contact with the Office of Housing after they had spoken to the Ombudsman or Launch Housing who was supposed to be advocating.
MS ATTARD: I have no further emails - - -
MS HOLT: No.
MS ATTARD: - - - from Jessie or anyone else - - -
MS HOLT: Yes.
MS ATTARD: - - - from the Department of Housing and Human Services after my initial email. She has acknowledged it and she also acknowledged that there were some access issues at the property.
MS HOLT: So that was your first contact with the file for this house?
MS ATTARD: Pardon.
MS GOOD: No.
MS HOLT: That was the first time you had any knowledge yourself, Ms Attard.
MS ATTARD: We've had knowledge that there - we've got a - a property history note permanently on 1/40 Charles Street to say that - that there are access issues - - -
MS HOLT: But - - -
MS ATTARD: - - - and the client should be contacted as first port. We also had the same access concerns at your previous property at 10 and 11 Rutland Street.
MS HOLT: Regarding?
MS ATTARD: Access.
MS HOLT: Meaning - - -
MS ATTARD: That we have numerous no accesses at both properties and that we would be best to try and contact the client before dispatching the job order.
MS HOLT: And you have details of all the numerous non-access at Rutland Street as well?
MS ATTARD: Certainly do and the department has that as well.
MS HOLT: Okay.
MS ATTARD: There seems to be quite a history here - not so much of the properties but of the client - for - as I said, for Rutland and Charles Street.
MS GOOD: Do you mean in respect of denying access or being difficult to obtain access to the property?
MS ATTARD: Being difficult to obtain access and denying, so both. [emphasis added]
MS GOOD: Okay. Is there anything else relevant you want to ask Ms Attard?
MS HOLT: Well, clearly what she's saying is untrue and she's just apparently - - -
MS GOOD: Okay. Well, that's a matter for me to decide. Okay. Thank you, Ms Attard. I'll let you go now.
MS ATTARD: Have a pleasant day. Thank you.
MS GOOD: Thank you. Bye. Okay. So your answer to that is that Ms Attard is lying; is that what you're saying?
MS HOLT: I'm just saying that the whole - everyone is. Absolutely.
MS GOOD: All right.
MS HOLT: I'm being discriminated - I couldn't live at either of the properties because of the chronic abuse of the neighbours and the lack of timeliness. Unless they've changed their systems - because I did not deny entry to - you can put the people from McPeake's on the stand, as to whether they'll tell the truth or not - no. They're not telling the truth.
MS GOOD: Okay.
MS HOLT: I was required to be at the address over 70 times.
MS GOOD: But a lot of that - a lot of that may well be - - -
MS HOLT: And I wasn't difficult.
MS GOOD: - - - because you didn't allow access initially - - -
MS HOLT: No. Of course I did.
MS GOOD: - - - and they came multiple - or multiple times - - -
MS HOLT: Well - - -
MS GOOD: - - - when they had to try and get access. It's - - -
MS HOLT: No. This is just - there's no reason to raise maintenance and then be difficult. It just didn't happen.
108 Reading the transcript, and listening to the audio recording, of the hearing reveals that the Member was patient with Ms Holt in encouraging her to give specific evidence in support of her claims and telling her what the Member needed to hear in evidence in order to make an assessment of that claims. She attempted to encourage Ms Holt to prove her case and elicit her evidence, but was constantly frustrated by interruptions, comments and ultimately allegations of bias or favouritism. The Member patiently attempted keep her on track. Ms Holt was given ample opportunity to present her case both orally and by reference to the documents which she had filed.
109 There was an extensive conversation between the Member and Ms Holt in the lead up to Ms Attard from McPeake being called, and the reasons why the Member did that. It also shows that once Ms Attard was called to give evidence, and did give evidence, Ms Holt was given an opportunity to, and did, ask questions of her. But it appears by that point Ms Holt was very much of a mind that whatever was going to be said by Ms Attard would be false.
110 The Tribunal Member did her best to encourage Ms Holt to give relevant evidence in support of her claims. There was no denial of procedural fairness either by Ms Holt being denied the opportunity to present the evidence and facts in support of her claims or be denied the opportunity to cross-examine Lynette Attard, the Manager of McPeake. In my assessment of the whole of the evidence, the Tribunal did not place undue weight on the evidence given by Ms Attard of McPeake. Thus, in relation to the only possible questions of law available to Ms Holt, I am satisfied that she has no arguable case on appeal and to refuse leave to appeal would impose no substantial injustice. It follows from this conclusion that Ms Holt's application for leave to appeal has no real prospect of success. For that reason I find it unnecessary to embark on whether she could satisfy the Court that the time for making application should be extended.
111 If a part of Ms Holt's grounds of appeal were construed to relate to the calling of Ms Attard, then that does not give rise to an arguable case on appeal and to refuse leave to appeal would impose no substantial injustice. It is well within the power of the Tribunal to do what was done. The evidence was given by telephone and that too is a matter the Tribunal is permitted to do.
112 Further, I agree with the Director's submission that the appeal is otherwise frivolous, vexation or an abuse of process of this court. This arises out of the numerous orders made for Ms Holt to file an affidavit which directly addresses the requirements of the Rules and her failure to properly identify the questions of law and their grounds. It appears that Ms Holt continues to believe that these proceedings are a way to agitate an appeal on the merits or to make a complaint of a general nature in relation to her tenancy, which it is not.
113 For the reasons set out above, orders will be made dismissing the proceeding. In light of the fact that the summons filed on 25 November 2020 does not seek costs against Ms Holt, I will make no orders for costs unless and until specifically asked to do so. For the time being the costs will be reserved.
[1] The Tenancy Agreement is exhibit RV-1 to the Velardi affidavit. It names Ms Holt a 'Kirsten Holt'.
[2] Velardi affidavit [5] and exhibit RV-2.
[3] Velardi affidavit [6] and exhibit RV-3.
[4] Velardi affidavit [7] and exhibit RV-4.
[5] Velardi affidavit [8] and exhibit RV-5.
[6] Velardi affidavit [9] and exhibit RV-6.
[7] Velardi affidavit [10] and exhibit RV-7.
[9] Velardi affidavit [11] and exhibit RV-8.
[10] Velardi affidavit [12] and exhibit RV-9.
[11] Velardi affidavit [13] and exhibit RV-10.
[12] Velardi affidavit [14] and exhibit RV-11. In addition, Ms Holt filed the Transcript on CourtView as a standalone document on 15 June 2020.
[13] Affidavit of Laura Limone made 25 November 2020, paragraph 3, item 2.
[14] Affidavit of Laura Limone dated 25 November 2020, paragraph 3, item 3.
[15] Letter from the Department of Health and Human Services ('DHHS'), undated, in exhibit 2 to Ms Holt's third affidavit.
[16] Sworn on 15 October 2019 and filed on 29 November 2019.
[17] Ms Holt's first affidavit at [2].
[18] Ms Holt's first affidavit [4]-[5].
[19] Msa Holt's first affidavit [6]-[7].
[20] Sworn and filed on 20 February 2020.
[21] The sheets for repairs refers to a printed spread sheet introduced into evidence at the hearing setting out details of requests for repairs to the premises.
[23] Unsworn and filed on 6 November 2020.
[24] Ms Holt's fourth affidavit, p. 4 of 18 (the pages are unnumbered and there are no paragraph numbers).
[25] Unsworn and filed 19 January 2021.
[26] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 523; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, [53].
[27] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 99 [156].
[28] Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347 ; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, [27]-[29], [33]; Platcher v Joseph [2004] FCAFC 68, [104]; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130.
[29] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130.
[30] 2016 VSCA 308 at [27]- [28].
[31] [2015] VSCA 298 [39].
[32] McWhinney v Melbourne Health [2011] VSCA 22; (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 [141] (Bell J).
[33] Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, 651 [57] (Redlich JA; Tate JA agreeing).
[34] Pamamull v Albrizzi (Sales) Pty Ltd [No 2] [2011] VSCA 260 [102] (Neave, Harper and Hansen JJA).
[35] [2015] VSCA 298 [44] (Kyrou and Kaye JJA and Ginnane AJA).
[36] See, eg, Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283, 303 [105]-[106], 304 [115] (Osborn JA; Whelan JA agreeing); Bahonko v Moorfields Community [2008] VSCA 6 [27], [39] (Nettle JA; Buchanan and Redlich JJA agreeing).
[37] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145-6 (Mason, Wilson, Brennan, Deane and Dawson JJ).
[40] Roberts v Harkness [2018] VSCA 215, [8]-[49].
[41] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ; [2001] HCA 49; Osland v Secretary of the Department of Justice [2010] HCA 24, [18].
[42] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ. Osland v Secretary of the Department of Justice [2010] HCA 24, [18].
[43] Osland v Secretary of the Department of Justice [2010] HCA 24, [21], citing Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation, (1988) 82 ALR 175 at 178 (Gummow J).
[46] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [16].
[49] [1999] VSCA 117; [1999] 3 VR 331 at 337.
[50] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [11].
[51] Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746, [18].
[52] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, [137].
[53] Spilkin v Rosenberg [2011] VSC 128, [42].
[54] Kacinskas v McMahon [2011] VSC 458, [11].
[55] VCAT Act s 98(1)(a); Francis-Wright v VCAT [2001] VSC 35; (2001) 17 VAR 306 at 313; Collection House Ltd v Taylor [2004] VSC 49, [20] (Nettle JA).
[56] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-585; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 145-6; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 121, 143 and 153; Collection House Ltd v Taylor [2004] VSC 49, [20] (Nettle JA); S v Crimes Compensation Tribunal (1998) 1 VR 83, 88-93.
[57] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 145-6; Collection House Ltd v Taylor [2004] VSC 49, [20] (Nettle JA).
[58] This sub-section was repealed and replaced by, and a new sub-section (3) inserted by, s 58 of Act No. 11 of 2021.
[60] Winn v Blueprint Instant Printing Pty Ltd, [2002] VSC 295 at [9] (Byrne J); op. cit. Collection House Ltd v Taylor [2004] VSC 49, [26] (Nettle JA).
[61] [2004] VSC 49, [27].
[62] Winn v Blueprint Instant Printing Pty Ltd, [2002] VSC 295 at [9] (Byrne J); op. cit. Collection House Ltd v Taylor [2004] VSC 49, [26] (Nettle JA).
[64] See, eg, Davies v Transport Accident Commission [2000] VSC 379 at [20].
[65] Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517; [1985] 1 WLR 942; Latoudis v Casey, [1990] HCA 59; (1990) 170 CLR 534, 537.
[66] Vilenius v Heinegar (1962) 36 ALJR 200 at 201; Hughes v National Trustees, Executors & Agency Co of Australasia Ltd, [1978] VicRp 27; [1978] VR 257 at 263.
[67] Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302.
[68] See Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 263; Jackamarra v Krakouer (1998) 195 CLR 516; Giurina v Owners Corporation No 1579 [2012] VSC 466 at [28]; Update Pty Ltd v Commissioner of State Revenue [2013] VSC 122 at [29].
[69] Per Warren CJ in Bendigo Bank v Csizmadia-Estok [2007] VSC 112 at [24].
[70] Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd [2002] VSC 444 at [5].
[71] See, eg, Loizou v University of Melbourne [2000] VSC 1 at [34].
[72] Orders dated 11 November 2019, 25 June 2020 and 23 September 2020.
[73] Spilkin v Rosenberg [2011] VSCA 128 at [42].
[74] Finch v The Heat Group Pty Ltd [2011] VSCA 100 at [21].
[75] Beginning at paragraph 1, "I state that this affidavit is the second affidavit" to "by way of the compulsory conference that I had to attend".
[76] At the time that the Director filed his written Outline of Submissions, he did not have or had not considered Ms Holt's fifth affidavit. Nothing turns on this.
[77] American Express International Inc v Commissioner of State Revenue [2003] VSC 32, [58].
[78] A requirement discussed in Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd [2010] VSC 608 at [10].
[79] Affidavit of Rachel Velardi filed on 30 July 2020, exhibit RV-11, [transcript pp 52-55].
[80] Legal Services Commissioner v Turner [2012] VSC 394 at [94]- [110].
[82] Holt v Director of Housing, 15 April 2021, Transcript, 76.23-77.20 ('SC Transcript').
[93] VCAT Transcript 18.16-44; 30.20-29;
[97] This needs to be read with the evidence given in the Director's submission on this subject, see above at [18].
[101] VCAT Transcript, 29.27 - 29. 36.
[104] Ms Wilson was Counsel for the Director in the hearings before me. I should point out that there was no personal attack on Ms Holt by Counsel for the Director. I believe Ms Holt has wrongly construed Ms Wilson's reference to the proposition advanced by Ms Holt that she was not permitted to cross-examine Ms Attard as an attack on the conduct of Ms Holt.
Holt
Director of Housing [2021] VSC 270
(1981) 147 CLR 512
(1992) 177 CLR 292
(2012) 36 VR 637
(2013) 252 CLR 38
(1999) 84 FCR 438
(2007) 17 VR 100
(2011) 31 VR 285
(2014) 46 VR 283
(1986) 161 CLR 141
(2001) 207 CLR 72
(1988) 82 ALR 175
(2007) 18 VR 48
(2016) 49 VR 746
(2013) 40 VR 587
(1985) 159 CLR 550
(2000) 204 CLR 82
(1998) 1 VR 83
(1990) 170 CLR 534
(1962) 36 ALJR 200
(1998) 195 CLR 516