Plaintiff v Defendants

1 This is an application by Amended Originating Motion dated 19 February 2016 brought by Wirihana Tatana (the plaintiff), whose case has been argued by his brother and McKenzie friend, David Tatana.

2 For a relatively short period of time prior to 29 October 2015, the plaintiff had been occupying a property controlled by the Director of Housing (the Director), the second defendant, at 144/76 Canning Street, North Melbourne (the property).

3 On 1 October 2015 application was made by the Director to the Victorian Civil and Administrative Tribunal (VCAT) for an order for possession of the property. In support of the Director's application of 1 October 2015, the Director filed affidavit material including the affidavit of Jack Thai sworn 1 October 2015 which deposes, in summary, to the following facts:

(a) the Director is responsible for the provision of public housing in Victoria;

(b) the Director is the owner of property situated at and known as 144/76 Canning Street, North Melbourne;

(c) until 30 August 2015 the property was occupied under a tenancy agreement between the Director and one Faafoe Maiava (Maiava);

(d) Maiava's tenancy of the property was terminated on 30 August 2015. Under his tenancy arrangement with the Director, Maiava was the sole tenant of the two bedroom apartment at the property from 20 May 2012 to 30 August 2015;

(e) at the end of August 2015, Maiava was relocated to another two bedroom apartment at 94/76 Canning Street, Melbourne because the property was to be renovated and upgraded by the Director;

(f) Maiava completed and signed a Notice of Termination form on 25 August 2015 and returned the keys to the property to the North Melbourne office of the Director on 9 September 2015.

4 By 1 October 2015 the property had been occupied by the plaintiff without the licence or consent of the Director. No key has ever been given to the plaintiff by the Director however the plaintiff had, in or about October 2014, somehow gained access to the property without the knowledge of the Director. Since at least late September 2015 the plaintiff has been considered to be a trespasser by the Director.

5 On 1 October 2015, the Director made application to VCAT for orders including an order for possession of the property. On 8 October 2015 the Director's application for possession came before Member Lightfoot at VCAT. The plaintiff was present at the hearing on 8 October 2015 at VCAT.

6 On 8 October 2015 Member Lightfoot ordered that the Director be entitled to possession of the property and further ordered that the plaintiff vacate the property on that day. Member Lightfoot also authorised the issue of a Warrant of Possession in relation to the property.

7 On 19 October 2015, VCAT issued a Warrant of Possession in respect of the property, based on Member Lightfoot's orders of 8 October 2015.

8 The materials filed in this appeal also appear to establish that on 21 October 2015 Victoria Police communicated with the plaintiff advising him of the issue of the Warrant of Possession.

The plaintiff's applications to VCAT and to an Associate Judge

9 On 28 October 2015 the plaintiff commenced proceedings in this Court (S CI 2015 5599) against VCAT, the Director and at that stage also against the Commissioner of Police, seeking orders quashing the orders made by Member Lightfoot on 8 October 2015 and seeking a declaration that the Warrant of Possession of 19 October 2015 was of no legal force and effect. The plaintiff also issued a Summons on 28 October 2015 seeking to stay the Warrant of Possession. On 28 October 2015 Associate Justice Ierodiaconou of this Court dismissed the plaintiff's application for a stay of the Warrant of Possession. There was no appearance at that hearing on behalf of the Director.

10 On 29 October 2015, between about 2.05pm and 2.15pm, the Warrant for Possession dated 19 October 2015 was executed and possession of the property was returned to the Director.

11 On 29 October 2015 the plaintiff applied to VCAT under s 232(1) of the Residential Tenancies Act 1997 (Vic) (the RTA) seeking an order pursuant to s 232(1) and arguably s 233(1), for the creation of a tenancy agreement between the plaintiff and the Director.

12 The plaintiff's application of 29 October 2015 at VCAT details his claim for an order requiring the Director to enter into a tenancy agreement with the plaintiff pursuant to s 232 of the RTA. That application also details the grounds upon which orders were sought, namely as follows:

This application is made on the grounds that the Respondent was aware since November 2014 the applicant had been residing at the address. The applicant could be reasonably expected to comply with the duties of a tenant. The applicant will suffer severe hardship if he were compelled to leave the premises. The hardship suffered by the applicant would be greater than any hardship that the respondent would suffer.

13 What is to be noted about the plaintiff's application of 29 October 2015 is that the process issued by the plaintiff at VCAT made it clear enough that the relief sought was directed to forcing the Director to enter into a tenancy agreement to ensure that the plaintiff remained in the property, that is, at the apartment at 144/76 Canning Street, North Melbourne. The application, when considered as a whole, makes this clear enough by the references in the application to the "address" and by the plaintiff's ground referring to the plaintiff not being compelled to leave the premises, namely the property.

14 On 29 October 2015, VCAT Member Tilley struck out the plaintiff's application of that date as misconceived. The VCAT orders of 29 October 2015 however summarise the relevant application as being an application for restraining orders/injunctions made under s 452 and s 472 of the RTA. There is no mention of an application pursuant to s 232(1) of the RTA.

The plaintiff's application to the Supreme Court

15 The plaintiff's current Amended Originating Motion dated 19 February 2016 seeks a declaration and/or orders that the orders made by Member Tilley at VCAT on 29 October 2015 are void. The plaintiff alleges and argues that the orders made by VCAT and which refer to s 452 and s 472 of the RTA, were wrongly based and erroneous because his application had been advanced under s 232 of the RTA and, the plaintiff argues, also based on s 233 of the RTA. Concomitantly, the plaintiff complains that Member Tilley failed to deal with the plaintiff's s 232 application.

16 The relief sought by the plaintiff's current Motion also includes a declaration, or some other mandatory order, that a tenancy agreement be entered into pursuant to s 232 and s 233 of the RTA, between the plaintiff and the Director.

17 In this appeal the plaintiff relied on materials including his affidavit of 19 February 2016 and in addition to the earlier mentioned affidavit of Jack Thai of 5 November 2015. The Director relies upon the affidavits of Nicholas Elmes of 5 November 2015, and Michele Marie Rowland of 18 February 2016. The Director also relies upon written submissions, as amended, dated 22 February 2016.

18 The Director observes in his written submissions, that on 5 November 2015 the Court informed the parties that this proceeding would be treated as an appeal under s 148 of the Victorian Civil and Administrative Tribunals Act 1998 (VCAT Act). I note that the submissions made by the parties in the current appeal, and in particular those advanced by the plaintiff, do not seek to depart from that framework for determination.

19 The Director's submissions also state at [20], that in addition to the property, the Director holds another 14 units on level 14 of the high rise residential tower in which the property is located. The Director's submissions disclose that level 14 of that residential tower is being renovated and that those renovations are not scheduled to be completed until the middle of June 2016.

20 Counsel for the Director also informed me that once the renovation works have been completed, the Director plans to transfer the tenants currently located on level 15 of the property to the newly renovated units on level 14, including to the unit the plaintiff formerly occupied. These facts are not the subject of affidavit evidence but were not contradicted by the plaintiff.

21 The legislative framework within which this application is to be considered comprises s 148 of the VCAT Act and s 232(1) and s 233(1) of the RTA. Those sections provide:

Victorian Civil and Administrative Tribunal Act 1998

s 148 - Appeals from the Tribunal

(1) A party to a proceeding may appeal on a question of law from

an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

(2) An application for leave to appeal must be made -

(a) no later than 28 days after the day of the order of the Tribunal; and

(b) in accordance with the rules of the Supreme Court.

(3) If leave to appeal to the Trial Division of the Supreme Court is granted, the appeal must be instituted -

(a) no later than 14 days after the day on which leave is granted; and

(b) in accordance with the rules of the Supreme Court.

Residential Tenancies Act 1997

s 232(1) - Application to Tribunal for creation of tenancy agreement

A person who has been residing in rented premises as his or her principal place of residence and who is not a party to a tenancy agreement applying to those premises may apply to the Tribunal for an order requiring the landlord of the premises to enter into a tenancy agreement with the person if -

(a) an application for a possession order for the premises has been made under Part 7; or

(b) the tenant has abandoned the rented premises; or

(c) the tenant has delivered up vacant possession of the rented premises; or

(d) the tenant has given a notice of intention to vacate the rented premises; or

(e) the tenant has died and there is no surviving tenant.

s 233(1) - Order of Tribunal

The Tribunal may make an order requiring the landlord to enter into a tenancy agreement with the applicant under section 232 if the Tribunal is satisfied that -

(a) the applicant could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which this Act applies; and

(b) the applicant would be likely to suffer severe hardship if he or she were compelled to leave the premises; and

(c) the hardship suffered by the applicant would be greater than any hardship that the landlord would suffer if the order were made.

22 Section 233 of the RTA, it is to be noted, provides for an order to be made against any landlord, public or private.[1] The provisions of s 232(1) of the RTA empower the Tribunal to compel a landlord to enter into a tenancy agreement with a specified person, at the same time providing for a discretion in the Tribunal as to whether to exercise that power. The Tribunal's power to require agreement to a tenancy includes the power to so order against wishes and objection of a landlord.

23 Further, the matters in respect of which the Tribunal is to be satisfied, as defined in s 233(1)(a), (b) and (c), are cumulative requiring an applicant under that section to establish each of the specified matters to the Tribunal's satisfaction before the discretionary power of the Tribunal is able to be exercised.

24 As already alluded to, s 233(1) of the RTA also provides for a residual discretion in the Tribunal as to whether or not to compel a landlord to enter into a tenancy agreement with the plaintiff.

25 When exercising the residual discretion to which I have referred, the Tribunal, as a public authority, is required to comply with s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[2]

26 Section 148(1) of the VCAT Act requires that leave of the court be obtained prior to an appellant being able to prosecute a proposed appeal in relation to an order of VCAT.

27 An appeal under s 148 of the VCAT Act is confined to the identification and establishment of an error of law in respect of the subject VCAT decision. Such an appeal is by way of judicial review, not a merits review.

28 A plaintiff seeking to proceed under s 148 of the VCAT Act must comply with the requirements of that Act and the applicable Rules of Court. Such an applicant must first obtain leave to appeal by issue of an originating motion and, within the time required by the Rules of Court, by filing a compliant affidavit in support of that application which amongst other things exhibits the applicant's proposed Notice of Appeal. The process of obtaining leave, the grant of leave and the prosecution of the appeal thereafter, are regulated by the Rules of this Court including Rule 4.07(2) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2008 (Rules).

29 In this matter the plaintiff has not strictly complied with the VCAT Act or the Rules to which I have referred.

30 The Director at [30] of his written submissions dated 22 February 2016, made the following submission concerning procedure:

The Court may order that the application for leave be heard and determined by the Court, if leave is granted, that is to hear and determine the appeal (see Rule 4.14(3) of Chapter II of the RSC). The Director does not oppose this course in this proceeding.

31 During oral submissions Mr Bruno, counsel for the Director, clarified that the Director's position is that he opposes leave to appeal being granted to the plaintiff in this proceeding and, if leave were granted, opposes the appeal on the substantive grounds outlined in the Director's written submissions of today's date and in Mr Bruno's oral argument.

32 However, notwithstanding the plaintiff's non-compliance with parts of the VCAT Act and a number of relevant Rules, the Director does not seek to prevent the plaintiff from applying and arguing for leave to appeal and in relation to his substantive proposed appeal. Nor does the Director, as noted in his written submissions at [30], seek to prevent the plaintiff arguing for leave to appeal at the same time he argues the matters he contends should result in his proposed appeal being upheld.[3]

33 For leave to appeal to be granted pursuant to s 148 of the VCAT Act it is necessary for the plaintiff to identify a question, or questions, of law arising from the Tribunal's decision of 29 October 2015 and for the plaintiff to discharge his onus to establish that the decision of VCAT under review is attended with sufficient doubt to justify the grant of leave and that in the relevant circumstances it is just to grant leave.[4]

34 The Director submits that the plaintiff has not complied with the substantive requirements for leave in this regard. The submission of the Director is that the plaintiff should be refused leave to appeal because:

(a) the VCAT order under proposed review is not attended with sufficient doubt to justify the grant of leave principally because it is clear that VCAT did not misconceive its functions on 29 October 2015. The content of this argument is addressed below;

(b) the relief which is sought in Order 2 of the Amended Originating Motion is relief in the nature of, or arising from, a merits review in connection with what has transpired at VCAT on 29 October 2015 and exceeds the scope of a permissible review under s 148 of the VCAT Act;

(c) in the event that the plaintiff seeks an order that the orders of VCAT be set aside and the matter remitted for hearing at VCAT, any such proceedings would ultimately be futile and would in any event have limited practical impact. Further, the Director argues that there would be no substantial injustice in this case if any error, were one identified, was left uncorrected. This, the Director submits, is because VCAT would not, in any event, have jurisdiction to grant an order under s 233(1) of the RTA in this case, because the Director is, and has been since 29 October 2015, in possession of the property and the plaintiff is no longer in residence there.

35 I also observe in relation to the last mentioned submission by the Director that a Warrant of Possession was issued in respect of the property on 19 October 2015, well before 29 October 2015. Furthermore, that Warrant was issued pursuant to orders which had been made on 8 October 2015. The processes resulting in the issue of the Warrant for Possession are not impugned, accordingly the Director was entitled to possession of the property, at the latest by 8 October 2015.

36 The plaintiff's submissions in support of leave to appeal and the plaintiff's substantive reasons why his appeal should ultimately succeed have been summarised above. The plaintiff emphasised in his submissions before me that at VCAT on 29 October 2015 his application was for a tenancy agreement with the Director under s 232(1) of the RTA in respect of any accommodation available. He contended that his application was not an application seeking to negate or review or stay the orders earlier made by VCAT from ejecting him from the property. Further, the plaintiff by his affidavit asserted that he had been residing at 144/76 Canning Street, North Melbourne since October 2014 and that he has been doing so with the full knowledge of the Director since November 2014.

37 The plaintiff also stated that he has been homeless since his eviction on 29 October 2015 with little prospect of securing long term accommodation in the near future.

38 The submissions made by the Director and the responses of the plaintiff in connection with the leave application and in respect of the substantive arguments as to why the plaintiff's proposed appeal should ultimately succeed were merged during the course of argument before me. The substantive issues which the plaintiff and the Director, in particular, has addressed inform the question of whether or not leave to appeal should be granted and specifically inform whether there is sufficient doubt attendant upon VCAT's decision such as to justify rejecting the application for leave.

39 The Director submits that on 29 October 2015 the Tribunal appreciated the substance of the plaintiff's application to VCAT and correctly characterised it as misconceived.

40 In his submissions the Director notes that VCAT is empowered to summarily dismiss or strike out all, or any part, of a proceeding pursuant to s 75(1) of the VCAT Act. The Director notes that the Tribunal may do so in circumstances where it concludes that a proceeding is vexatious or frivolous, lacking in substance or misconceived, or otherwise an abuse of process. Further, the Director notes that such summary action may be exercised on the Tribunal's own initiative, pursuant to s 75(4) of the VCAT Act.

41 The Director submits that notwithstanding that it appears that reference to s 452 and s 472 of the RTA in VCAT's order of 29 October 2015 was incorrect, those orders should be read and understood in light of the whole of the proceeding and the transcript of the hearing before Member Tilley on 29 October 2015. The Director submits that when so considered it can be seen that VCAT was not mistaken about the nature of the application.

42 The Director submits that so viewed it is also evident that the application before the Tribunal was one in which Member Tilley correctly characterised the plaintiff's application as an application under s 232(1) of the RTA as an attempt to re-open the subject matter of the hearing which had occurred before Member Lightfoot on 8 October 2015, and negate or stay the order for possession made in respect of the property.

43 On 8 October 2015, Member Tilley expressed concern that the plaintiff was attempting to use another form of application as a device in effect to stay the Warrant of Possession issued on 19 October 2015. Member Tilley also referred to the plaintiff as seeking to have her set aside or suspend the operation of the warrant.

44 It is clear from a review of the transcript of 29 October 2015 that the above submissions made by the Director are substantiated and justified.[5] Furthermore, the transcript of the hearing of 29 October 2015 at VCAT demonstrates that Member Tilley was focusing on, and concerned by, what she perceived as an application by the plaintiff, after issue of a Warrant of Possession, to stay or re-agitate the issues underlying the issue of that Warrant.

45 The transcript of the hearing on 29 October 2015, in particular Member Tilley's statements, reflect the view of the Member that in the circumstances she considered that she did not have power to allow the plaintiff's application to proceed because it sought, without any sound basis, to impugn an earlier issued Warrant of Possession and to gainsay the outcome at VCAT before Member Lightfoot on 8 October 2015. It was on this basis that Member Tilley justifiably concluded that the application was misconceived.

46 I return to the language used by the plaintiff in his application of 29 October 2015. The plaintiff's application of 29 October 2015, I consider, makes it clear that the substance of that application was to ensure that the plaintiff remained in occupation of the property.

47 The plaintiff's submission that his application of 29 October 2015 was not an application for orders to ensure he remained in occupation of the property, but for an order more generally under s 232 of the RTA seeking an injunction or a direction requiring the Director to enter into some other unspecified tenancy agreement with the plaintiff, is in my view unsustainable.

48 The plaintiff's application of 29 October 2015 was in terms, as I have explained above,[6] directed to ensuring that the plaintiff remained in the property and thereby in substance it sought to review and displace the earlier VCAT orders made by Member Lightfoot on 8 October 2015.

49 Accordingly, Member Tilley's concerns and her characterisation of the application which came before her on 29 October 2015 (the day of the earlier execution of the Warrant of Possession for the property and the day after the application to an Associate Justice of this Court to stay the same Warrant of Possession and in effect to stay the orders made by Member Lightfoot on 8 October 2015) as a misconceived and unmeritorious attempt to traverse or in some other way overturn or stay the Warrant for Possession which had been earlier issued on 19 October 2015, were correct.

50 I consider that in the circumstances which I have outlined, no arguable error of law arose on 29 October 2015 as a result of the Tribunal dismissing the plaintiff's application as misconceived.

51 Furthermore, for the reasons I have earlier outlined, I do not consider that because Member Tilley's orders refer incorrectly to s 452 and s 472 of the RTA, that the Member failed to appropriately address and decide the substance of Mr Tatana's application of 29 October 2015.

52 In my view, the plaintiff has failed to establish that there is arguable doubt attending the orders of Member Tilley at VCAT on 29 October 2015.

Leave to appeal - Relief sought by the Amended Motion of 19 February 2016 in any event unlikely to be available on appeal

53 Additionally, s 232(1) of the RTA does not provide a likely basis for the relief sought by the plaintiff in the circumstances of this matter.

54 Section 232(1) of the RTA entitles a person residing in the relevant rented premises, who is not a party to a tenancy agreement, to apply to the Tribunal for an order requiring the landlord to enter into a tenancy agreement. That provision does not appear to entitle a person who no longer resides at the relevant premises to make such an application.

55 This construction of s 232(1) of the RTA is indicated by the phrase "has been residing" in the opening sentence of the section which utilises the present continuous tense to describe an action or circumstance that has already commenced and is ongoing. Those words, used in conjunction with the words, "if he or she were compelled to leave the premises" in s 233(1)(b) of the RTA, appear to indicate Parliament's intent that s 232(1) applies to an applicant who is in occupation of the premises in question. Section 232(1) of the RTA is unlikely to apply to an applicant who no longer resides at the relevant premises, as is the case in this instant.

56 The above construction of s 233(1) of the RTA is also supported by the likelihood that Parliament intended that this legislation interfere to the least extent with private property rights, in this case the private property rights of the landlords, while being consistent with the apparent purpose of the section. A construction of the section which limits the Tribunal's power to make an order to circumstances where the plaintiff is at all material times residing in the rented premises is such a limit on the operation of the section.

57 Therefore, s 232(1) of the RTA appears to preclude the plaintiff's entitlement to any order or declaration requiring the Director to enter into a tenancy agreement with the plaintiff. Quite apart from any discretionary considerations, this is because the plaintiff was not residing at the property at the time of the relevant application was decided, and was at least since 8 October 2015, not entitled to be in possession or occupation of the property. The latter factor is also likely to be fatal to such an applicant's attempt to have the Tribunal exercise its discretion under that section, in his or her favour.

58 Further, there are practical reasons why it would be unlikely that the Tribunal would order a tenancy agreement to be entered into after issue of a Warrant for Possession of a subject premises.

59 By the time of the issue of a Warrant for Possession a landlord will ordinarily have exhausted all steps available to recover a property under the RTA. Once a Warrant for Possession has issued it must be executed within the time specified by the Tribunal in the underlying possession order. If not so executed, time will lapse and the landlord will lose the right to regain possession pursuant to that process.

60 Real difficulties may well arise in circumstances where, for example as the plaintiff in effect sought here, a Warrant of Possession has been issued by the Principal Registry at VCAT and a third party, for example the Victoria Police, or some other authorised person, seeks to compel an occupant of premises to render up possession and vacate that premises, and at some time concurrent with that process an order was made under s 233(1) of the RTA establishing a tenancy agreement.

61 Finally, the ultimate relief sought by the plaintiff appears to be beyond the permissible scope of an application under s 148 of the VCAT Act. This is because the plaintiff's appeal, if allowed to proceed, would necessarily require a review of the merits of the plaintiff's earlier VCAT application under s 232(1) of the RTA.

62 Such a review would, if allowed to proceed, also be most unfair to the Director who did not appear at the hearing below because he was not served with, or otherwise made aware of, the plaintiff's application. At the VCAT hearing on 29 October 2015, there was no evidence of the type which it is readily envisaged the Director might well have been able to adduce in relation to the merits of the plaintiff's application pursuant to s 232(1) and in relation to other considerations relevant to the exercise of the Tribunal's discretion under that section and s 233(1) of the RTA.

63 For the above reasons I consider that the plaintiff should not be given leave to appeal the VCAT decision of 29 October 2015.

(a) The plaintiff's application for leave to appeal be dismissed.

(b) The plaintiff's application by its Amended Originating Motion dated 19 February 2016 be dismissed.

[1] The RTA applies to all residential tenancies in Victoria. The Act does not distinguish between a private or a public landlord.

[2] Giotopoulos v Director of Housing [2011] VSC 20, [89].

[3] Ref: Rule 4.14(3) of Chapter II of the Rules of Court.

[4] Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[5] Affidavit of Michele Marie Rowland "MMR-3"; T14 L30; T16 L3; T18 L6-8 and 14-18; T23 L1-2 and 4-8; T24 L8-9.