Plaintiff v Defendant

2 In this proceeding AML seeks to appeal VCAT's possession order pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). In short, AML argued that the VCAT member made an error of law by not considering his second request that the hearing on 2 September 2022 be adjourned, made in the days leading up to the hearing. AML's first request for an adjournment had been refused in the days preceding his second request.

3 This judgment relates to Longden's application seeking an order that AML's application for leave to appeal be summarily dismissed.

4 For the reasons given below, I am satisfied that AML's application for leave to appeal has no real prospect of success. I am also satisfied that the interests of justice demand AML's application be dismissed and that the dispute is not of such a nature that only a full hearing of AML's application on the merits is appropriate.

5 In this proceeding AML sought to appeal, pursuant to s 148 of the VCAT Act, the order made by Member Galvin on 2 September 2022 in VCAT that '[t]he renter must vacate the rented premises by 02 September 2022.' AML's notice of appeal provides the following context to this order:

In June 2022 the landlord applied to the Tribunal for a possession order. On 22 August the Tribunal said that the possession order hearing is to be on 2 September at 11.30 am. The next day at 8 am the renter asked to reschedule this based on that on 2 September at 11.30 am he has a civil court case. At 2.48 pm he sent a second message with evidence of the civil court case. On 23, 24 and 25 August there was no reply from the Tribunal. On 25 August at 4.25 pm the renter called the Tribunal and was informed that the request had been refused on 23 August at 11.31 am, 3 hours before the renter's second message with evidence of the civil court case. The refusal document was saying "The renter has not provided sufficient evidence to support the application for an adjournment". On 26 August at 8 am the renter made a second request to reschedule the hearing and asked to take into account the evidence sent at 8 am and 2.48 pm on 23 August which weren't taken into account before. The next 7 days, up to the hearing, there was no reply from the Tribunal. The renter called the Tribunal on 29, 30, 31 August and 1 September about the adjournment request. On 29, 30 and 31 August was informed that the 26 August request is with the Registrar and to wait for a decision. On 1 September was informed that there has been no decision the previous 6 days, thus a decision may be made at the hearing, which was the next day. At 3.01 pm the renter sent a message to the Tribunal saying that is not going to attend the hearing and the adjournment may be made at the hearing. The renter got the recording of the hearing on 12 September and went through it in the afternoon. At the hearing the member made a possession order. The adjournment request messages and the evidence that the renter has a civil court case were not given to the member by the Tribunal, the landlord and [the landlord's] solicitor didn't say that the renter has a civil court case. The possession order was saying to vacate the premises immediately, on 2 September.

6 AML's notice of appeal poses the following questions of law:

1. Was the Tribunal in error in the way it handled the renter's adjournment application by not replying for 7 days up to the hearing, among others? Thus, it didn't exercise jurisdiction and there was procedural unfairness?
2. Was the Tribunal in error in the way it proceeded to make the possession order, by not replying to the renter's adjournment application, not providing the adjournment application messages and evidence to the member at the hearing, not being aware of it at the hearing, thus not taking into account the adjournment application and that the renter has a civil court case and thus is not there to present his case because of it? It didn't exercise jurisdiction, there was an error in jurisdiction or procedural unfairness?
3. The possession order has to be set aside?

The renter said that [he] has a civil court case on the day the Tribunal scheduled the hearing and asked to reschedule it. The Tribunal didn't reply to the renter's request (the second), there is no evidence of taking it into account, there is no evidence of taking into account the renter's evidence about it, didn't provide the adjournment request messages and evidence to the member at the hearing, the renter wasn't at the hearing to present his case. Then the Tribunal made a possession order. It did not exercise jurisdiction, there was an error in jurisdiction and procedural unfairness.

8 AML's appeal is supported by his affidavit affirmed on 12 October 2022. AML's affidavit exhibits:

(a) the possession order made by VCAT Member Galvin on 2 September 2022;

(b) a copy of AML's email to VCAT dated 23 August 2022 at 8:00 am requesting that the hearing on 2 September 2022 be rescheduled because AML had a civil court case on that date and stating that, 'I'd like please to not disclose anything further';

(c) a copy of AML's email to VCAT (not copied to Longden's agent) dated 23 August 2022 at 2:48 pm attaching correspondence from the Magistrates' Court saying there is an appointment with the registrar on 2 September 2022 at 11:30 am;[1]

(d) a copy of Longden's agent's email to VCAT dated 24 August 2022 at 11:51 am stating that Longden opposed AML's adjournment application;

(e) a copy of AML's email to VCAT dated 26 August 2022 at 8:01 am stating that he had been informed on 25 August 2022 that his previous request to reschedule the hearing was not granted because it was not supported by evidence. AML indicated that he had not been notified of the decision and he had sent evidence to VCAT at 2:48 pm confidentially. AML's email stated "[s]eems the decision was made before this" and then makes a second request to reschedule with the evidence previously sent to VCAT;

(f) a copy of an email from Longden's representative to VCAT and AML dated 29 August 2022 at 5:21 pm attaching the documents Longden intended to rely upon at the hearing on 2 September 2022;

(g) a copy of AML's email to VCAT dated 1 September 2022 at 3:01 pm stating that he had been informed that the hearing scheduled for 2 September 2022 had not been adjourned, that his second request had not been determined and 'thus the hearing may be adjourned at the hearing tomorrow'. AML then stated, 'I'm not going to be at the hearing';

(h) a copy of an order made by Member Scott on 23 August 2022 refusing AML's adjournment application and noting:

(i) AML had applied for an adjournment on the basis that he had a civil court case on the same day as the VCAT hearing and had not provided a copy of any notice of the civil hearing in support of the adjournment application;

(ii) that Longden had not consented to the adjournment;

(iii) that there were insufficient grounds to grant the adjournment in that AML had 'not provided sufficient evidence to support the application for an adjournment such as a redacted notice of hearing'; and

(iv) AML may appoint a person to represent him at the hearing.

(i) transcript of the VCAT hearing before Member Galvin on 2 September 2022.

9 The transcript of the VCAT hearing on 2 September 2022 shows that Mr Murdoch, Longden's solicitor, brought to the VCAT Member's attention AML's further email indicating that AML would not be at the hearing. The Member noted that AML may apply to review the Member's order but that, in doing so, AML would have to provide a good excuse for not attending the hearing and a good defence to the possession order. The Member noted that there was nothing in the material before him that indicated the requirements for making the possession order were not met or that it would not be reasonable and proportionate to make the possession order.

10 The transcript records that Mr Murdoch then said to the Member that AML's email of 1 September 2022 does not constitute, in terms, a further request for an adjournment and that even if it had, AML's adjournment application had been denied only days before. The Member responded by stating that he had a discretion to consider any adjournment request received overnight on the day of the hearing but that there was no one present asking for an adjournment.

11 On 18 November 2022, Longden filed its application for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA). Longden's application is supported by the affidavit of Anthony Norman Murdoch sworn 22 November 2022[2] and Longden's written submissions dated 17 February 2023.

12 The hearing of Longden's summary dismissal application commenced on 21 February 2023. Following Longden's oral submissions, AML made an application for an adjournment on the basis that Longden had only revealed the basis of its application in its written submissions filed two business days prior to the hearing and not in compliance with the Court's timetabling orders. Accordingly, I adjourned the further hearing of Longden's summary dismissal application to 23 March 2023 and directed AML to file any further material in response to the application, being affidavits and written submissions, by 14 March 2023.

13 AML filed further written submissions on 20 March 2023. He did not file any further affidavit material.

14 AML is a self-represented litigant and entitled to the assistance of the Court to ensure a fair hearing. During the course of the hearing I found AML to be an able advocate. He was able to clearly articulate his submissions on both the evidence and relevant law.

15 There was no dispute between the parties that Longden's application for summary judgment fell to be considered by reference to the terms of ss 62, 63 and 64 of the CPA and the well-known principles articulated in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[3]

16 Longden submitted that the test to be applied on its summary dismissal application was, in effect, the same test for the question of whether the Court should grant AML leave to appeal.

17 AML filed written submissions on 13 February 2023 in which he submitted that Longden's summary judgment application was improper or at least its basis was unclear and that it should be struck out or dismissed. I accept that at this point AML had not been provided with Longden's written submissions and thus did not have a clear understanding of the basis of Longden's application.

18 Longden filed written submissions dated 17 February 2023. Longden submitted that:

(a) there is no evidence to support AML's submission that his email of 2:48 pm on 23 August 2022 was not received by VCAT until after Member Scott had made his decision refusing AML's adjournment application;

(b) AML's email to VCAT on 1 September 2022 confirms that AML had been informed that the hearing the next day had not been adjourned;

(c) AML did not attend the VCAT hearing on 2 September 2022;

(d) at the VCAT hearing Longden's solicitor brought AML's email of 1 September 2022 to the Member's attention, noting its contents; and

(e) on 2 September 2022 the Member considered Longden's application for a possession order and determined that it was reasonable and proportionate to make a possession order.

(a) VCAT is bound by the rules of natural justice or procedural fairness and so VCAT must afford parties a reasonable opportunity to present their case, and that a failure to do so is an error of law capable of raising a question of law for the purposes of s 148 of the VCAT Act;

(b) not every breach of the rules of natural justice will render a decision invalid; the Court may refuse relief if it is satisfied that what appears on its face to be a denial of natural justice could have had no bearing on the outcome;

(c) a person appealing from a refusal of an adjournment must establish that the 'effect of the refusal was to deprive him the opportunity of putting a sustainable proposition that may have affected the outcome of the proceeding';[4]

(d) the power to grant or refuse an adjournment application is discretionary and an appeal from a refusal to grant an adjournment is governed by the principles in House v The King.[5] Those principles require demonstration that the decision maker took into account irrelevant considerations, failed to take into account relevant considerations or the decision was so plainly unreasonable that an error can be inferred; and

(e) case management principles, including the efficient and timely resolution of disputes, are relevant when considering adjournment applications, and the Residential Tenancies List at VCAT is a high volume list in which decision makers are required to deal with matters promptly and efficiently.

20 Section 148 of the VCAT Act does not allow a rehearing on the merits nor an appeal on a question of fact. A proceeding under that section is in the nature of judicial review.[6]

21 AML's further written submissions were as follows:

The respondent's application is to be dismissed and the case is right to proceed to a substantive hearing because:

1. The respondent in its application says that no evidence "has been elicited, such as a notice of hearing or correspondence from the Magistrates' Court". This raises a question of law of whether the renter has to file the document itself. There is evidence about this evidence in the 12 October 2022 affidavit. Seems it also raises a factual dispute. These are for a substantive hearing.
2. It refers to some cases and creates an impression that the case is about an adjournment request that was refused. It isn't. Is about an adjournment request that wasn't considered. The Tribunal didn't exercise jurisdiction.
3. Says that the validity of the notice and s 330 are not disputed. Both were affected by the procedural unfairness. Are disputed. Is apparent. This raises questions of law. These are for a substantive hearing.
4. It appears to require the renter to submit evidence and submissions disputing the validity and s 330. This raises questions of law and fact. These are for a substantive hearing. The questions it raises may be: Would it be fair in case the renter were to disclose his evidence and defence in the Supreme Court? Is the renter in a position to submit further evidence and submissions before the substantive hearing and thus the respondent's application was premature? Did the renter have an opportunity to fully present the case so far?
5. It omits the history of the parties. The court is aware of the March 2022 and February 2023 (S ECI 2022 01182) Supreme Court cases. These show that the parties have a history of disputes in VCAT and the Supreme Court, the renter has been submitting significant evidence showing dishonesty and wrongdoing from the landlord and a desire to improperly force him out. These possibly show that there is a reasonable proposition to make in a VCAT hearing. This raises questions of law and fact.
6. Says "was afforded a reasonable opportunity to attend the hearing, appoint a person to represent him at the hearing, and provide sufficient evidence to support his adjournment request and failed to avail himself of these opportunities;". These raise questions of law and fact. Did the renter not give evidence to support the adjournment request? Was there a reasonable opportunity to attend the hearing? Was it possible to appoint a different person at the hearing? How were the circumstances overall?
7. In these submissions the renter is only replying to the summary judgment application. Is not fully presenting the case. The material and questions in the substantive hearing may be different and further.

22 AML elaborated on his written submissions at the hearing. I understood AML's submissions to raise three central arguments.

23 AML accepted that a refusal of a request for an adjournment may constitute an error of law where that refusal shuts a party out from the opportunity to advance a sustainable proposition which may have affected the outcome of the proceeding and that it is incumbent upon an appellant to establish that he had such a sustainable proposition.[7] AML sought, however, to distinguish his case from that line of authority on the basis that in his case VCAT did not refuse his adjournment application but rather did not consider it. I understood AML to submit that the error in his case involved VCAT not exercising its jurisdiction and that this created a miscarriage of justice in and of itself. Accordingly, AML submitted that he was not obliged to demonstrate that he had been shut out of an opportunity to put a sustainable proposition that may have affected the outcome of the VCAT hearing.

24 AML also submitted that in the circumstances of his long running dispute with Longden, involving multiple hearings in VCAT and this Court , it would be unfair for the Court to require him to reveal his response to Longden's application for a possession order before either a hearing on the merits of his appeal or a remittal of his matter to VCAT following his successful appeal. When pressed on what he would have argued before VCAT in opposition to Longden's application for a possession order, AML submitted that the Court should infer that, given the parties' acrimonious relationship, he would have things to put to VCAT.

25 AML submitted that the controversy between the parties about whether he had in fact provided evidence in support of his adjournment application to VCAT and whether that evidence could be sufficient to justify the grant of an adjournment, were factual disputes that were inappropriate to determine on a summary dismissal application and that only a full hearing on the merits was appropriate. Similarly AML submitted that a full hearing on the merits was required for the Court to consider his potential arguments to VCAT on the possession order application and that it would be inappropriate for the Court to consider those arguments, even if he revealed them, on a summary dismissal application.

26 In my view AML's application has no real prospect of success for the following reasons.

27 The questions of law AML has posed in his application for leave to appeal VCAT's order of 2 September 2022 involve whether there was procedural unfairness because VCAT either did not exercise its jurisdiction or made an jurisdictional error in the way it handled AML's adjournment application. This 'handling' included, not replying to his request for an adjournment during the seven days leading up to the hearing, the administrative arm of VCAT seemingly not providing the Member with notice of AML's adjournment application and the Member not taking AML's adjournment application into account in determining Longden's application.

28 In this case, AML is not arguing that VCAT demonstrated bias in not considering his adjournment application, nor is bias evident on the face of the evidence before the Court. AML's argument is put purely on the basis of alleged procedural unfairness by VCAT in granting the possession order. This is the case even though at times AML cast the issue as one involving jurisdictional error.

29 AML's distinction between a failure to exercise jurisdiction by not considering an adjournment application and a refusal of an adjournment application is an arid distinction. There is no principled basis upon which the distinction AML propounds could or should lead to the application of different principles relevant to procedural fairness. The real issue in this case is whether the alleged breach of fairness would or could have made a difference. The same question would arise in a case involving jurisdictional error: would or could the alleged error have made a difference. As Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, '[f]airness is not an abstract concept. It is essentially practical...the concern of the law is to avoid practical injustice'.[8]

30 In Opeka Pty Ltd v Mackie Group Pty Ltd,[9] Nettle J considered the authorities on whether a refusal of an adjournment constitutes an error of law:

In short the point of [the] authorities seems to me to be that if the refusal of an adjournment has shut a party out or is likely to have shut a party out of an opportunity to advance a sustainable proposition which may have affected the outcome of the proceeding, the result of the refusal will be seen to constitute a miscarriage of justice and will be set aside. But it is incumbent upon an appellant from a refusal of an adjournment to establish that the effect of the refusal was to deprive him of the opportunity of putting a sustainable proposition that may have affected the outcome of the proceeding.

31 Once Longden filed its written submissions and made oral submissions on 21 February 2023 AML was aware that Longden was arguing that AML had not established that, as a result of VCAT's non consideration of his adjournment application, he was deprived of putting a sustainable proposition that may have affected the outcome of Longden's application for a possession order. AML was aware of the authorities Longden relied upon to support this argument. AML was given an adjournment to consider and respond to Longden's submissions by filing further affidavit material and further submissions. He did not file any further affidavits. AML's further written submissions did not reveal the arguments he would have put to VCAT had he been given the opportunity.

32 During the hearing on 23 March 2023, the Court repeatedly invited AML to tell the Court what he would have argued in VCAT that might have affected the outcome of the VCAT hearing. In response AML repeatedly told the Court he considered it would not be fair if he had to reveal his arguments before either a full hearing of his proceeding or the remittal of the matter to VCAT. He invited the Court to infer that a person in his position would have relevant arguments to make that might have affected the outcome of the VCAT hearing.

33 AML did not submit in terms that the Notice to Vacate was invalid, nor that the making of the possession order by VCAT was not reasonable and proportionate nor that VCAT somehow did not act in accordance with s 330 of the RTA.

34 I find that AML has not established that he has been deprived of the opportunity of putting a sustainable proposition that might have affected the outcome of the proceeding before VCAT.

35 A further problem arises if AML's line of argument were to be accepted. That is, it would leave the process before VCAT to his convenience. Such a position is beyond what the duty to provide procedural fairness requires and is contrary to modern case management principles and the need for finality in litigation. It also does not strike the appropriate balance between the interests of both parties to the litigation.

36 Additionally, AML was aware at the time of the VCAT hearing that his first adjournment application had been refused but that he had been afforded the opportunity to send a representative to the hearing. He did not take up that opportunity but rather, renewed his application for an adjournment. That application was made on the same basis as his first application but arguably better supported by evidence. He was aware immediately before the VCAT hearing that VCAT had not made a decision on his second adjournment application. In those circumstances the outcome of his first adjournment application remained the state of play. AML informed VCAT he would not attend the hearing. AML did not provide any evidence about whether he attempted to find someone who could represent him at the VCAT hearing and did not explain why this option was impossible or unacceptable.

37 I am satisfied that AML's case has no real prospect of success.

38 Given my findings above it is unnecessary for me to consider whether AML had in fact provided VCAT with an evidential basis to grant his second adjournment application.

39 Section 64 of the CPA provides that the Court may order a proceeding to proceed to trial if it is satisfied that, despite there being no real prospect of success, the proceeding should not be disposed of summarily because it is not in the interests of justice to do so or because only a full hearing on the merits is appropriate.

40 AML submitted that there were factual disputes in this proceeding that meant that only a full hearing on the merits was appropriate. Those factual disputes included whether the document AML attached to the email he sent to VCAT in support of his adjournment request was sufficient to justify the grant of an adjournment. AML also submitted that the content of the submissions he might have made to VCAT had he appeared at the hearing of Longden's application for the possession order was also the subject of a factual dispute such that a full hearing on the merits was appropriate.

41 The difficulty is that AML has not put before the Court, even in a summary form appropriate in the context of a summary dismissal application, any evidence capable of supporting his case rising above the level of mere assertion. AML asked the Court to infer he would have had submissions that could have affected the outcome at VCAT. He refused, however, to outline, beyond referring to general topics that might be addressed in submissions and other legal proceedings, the content of those submissions on the basis that it would be unfair for the Court to require him to do so on a summary dismissal application. Similarly, AML relied on a copy of his email to VCAT showing there was a document attached said to support his adjournment application, but despite opportunities to do so, did not put the attached document itself before the Court. AML again submitted that it would be unfair for the Court to require this of him on a summary dismissal application. The result of this course is that AML has left the Court without a basis to be satisfied that a hearing on the merits is appropriate. On the basis of the evidence and submissions I am not so satisfied and am also not satisfied that such a course would be in the interests of justice.

42 For the reasons given above I am satisfied that AML's proceeding has no real prospect of success and should be dismissed. I am not satisfied that the interests of justice require the proceeding to continue nor that the dispute between the parties is of such a nature that only a full hearing on the merits is appropriate.

43 I propose to make an order that the proceeding be dismissed.

44 I request that the parties confer on the form of orders to give effect to this judgement, including on the issue of costs.

[1] The attached document is not exhibited.

[2] It appears Mr Murdoch's affidavit was filed on 18 November 2022 indicating it must have been sworn prior to 22 November 2022.

[3] [2013] VSCA 158; (2013) 42 VR 27.

[4] Opeka Pty Ltd v Mackie Group Pty Ltd [2003] VSC 183, [35] per Nettle J (Opeka).

[5] (1936) 55 CLR 499, 505 per Dixon, Evatt and McTiernan JJ.

[6] Holt v Director of Housing [2021] VSC 270, [49].

[8] [2003] HCA 6; (2003) 214 CLR 1, 14 [37].