White v Homes Victoria [2026] VSC 2

1 The applicant (Mr White) is a disability support pensioner. He has an acquired brain injury, a schizophrenia diagnosis and various physical health concerns. Since March 2019, he has lived in a property at Unit 23, 8 Canowindra Place, Grovedale, 3216 (Grovedale unit) rented to him by the respondent (Homes Victoria), a body corporate established under s 9(2) of the Housing Act 1983 (Vic).

2 In this proceeding, Mr White seeks leave to appeal from an order of the Victorian Civil and Administrative Tribunal (Tribunal) made 4 March 2025 in proceeding number R2024/37611/00 (possession order). Mr White was, inter alia, ordered to vacate the Grovedale unit. By his application, Mr White asks that the Court set aside the possession order, and remit the matter to the Tribunal (differently constituted) for hearing and determination in accordance with law.

3 Mr White's Notice of Appeal was filed on 7 May 2025, outside the 28 day time period provided for by s 148(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Consequently, he also makes application for leave to commence his appeal out of time.

4 For the reasons that follow, I have determined to:

(a) grant Mr White an extension of time in which to seek leave to appeal;

(b) grant Mr White leave to appeal and allow his appeal, on the basis that the Tribunal failed to accord Mr White procedural fairness on the hearing of Homes Victoria's application against him; and

(c) remit the proceedings to the Tribunal, differently constituted, for hearing and determination in accordance with law.

5 On 3 March 2019, Mr White entered into a residential rental agreement with Homes Victoria for the Grovedale unit.[1] The background circumstances which led to the Tribunal making the possession order against him some six years later are relevant to some of the grounds of appeal, and require some explanation.

6 On 24 November 2023, Homes Victoria issued a breach of duty notice to Mr White pursuant to s 208 of the Residential Tenancies Act 1997 (Vic) (RT Act), alleging that Mr White had breached s 60(1) of the RT Act, using the Grovedale unit '...in a way that caused a nuisance'(nuisance notice).[2] It was asserted that there had been 'ongoing complaints about abuse and threatening behaviour towards neighbours and nuisance behaviour within the unit complex'.[3] Mr White was required by the nuisance notice to remedy the breach within seven days by stopping verbal abuse and threatening behaviour towards his neighbours, refraining from parking his car in an obstructive way and ceasing to prevent bin collection at the complex.[4]

7 On 13 February 2024, Homes Victoria issued a further breach of duty notice to Mr White, this time alleging a breach of s 64(1A)(a) of the RT Act (modifications notice).[5] The modifications notice alleged that Mr White had installed fixtures onto the Grovedale unit without Homes Victoria's consent. Those fixtures appear, based on photographs attached to the notice, to be sensor activated floodlights and a security video camera. It was said that the fixtures impacted the privacy of other residents and posed a safety risk.[6] The modifications notice required Mr White to remedy the breach within 14 days.[7]

8 Also on 13 February 2024, Homes Victoria applied to the Tribunal for a compliance order against Mr White under s 209 of the RT Act, relying on his failure to remedy the breach alleged in the nuisance notice (nuisance application).[8] The nuisance application relevantly states that Homes Victoria had 'continued to receive ongoing complaints about abusive and threatening behavious [sic] towards neighbours and nuisance behaviour within the complex'.[9]

9 On 6 March 2024, Homes Victoria made a further application to the Tribunal for a compliance order against Mr White, relying on his failure to remedy the breach alleged in the modifications notice (modifications application).[10]

10 On 24 May 2024, the Tribunal heard both the nuisance and modifications applications and determined to grant the compliance orders sought by Homes Victoria pursuant to s 212(1) of the RT Act.

11 The order made in the nuisance application (nuisance order) relevantly provided:[11]

1. The renter must comply with section 60(1) by stopping all verbal abuse and threatening behviour [sic] towards the neighbours.

2. The renter must not commit a similar breach of section 60(1) of the Act.

12 The order made in the fixtures application (modifications order) relevantly provided:[12]

1. The renter must comply with section 64(1A)(a) by removing all floor lights [sic] and security cameras by 1 June 2024.
2. The renter must not commit a similar breach of section 64(1A)(a) of the Act.

13 Further, pursuant to s 212(4) of the RT Act, each of the nuisance and modifications orders expressly warned Mr White that a notice to vacate the rented premises could be issued pursuant to s 91ZO in the event of non-compliance.

14 On or around 30 October 2024, Homes Victoria served Mr White with a notice to vacate pursuant to s 91ZO of the RT Act, requiring that he vacate the Grovedale unit on or before 23 November 2024 (Notice to Vacate).[13] The Notice to Vacate relied only on Mr White's alleged failure to comply with the nuisance order. It relevantly stated: [14]

I am giving you this notice for the following reason:

Section 91ZO Failure to comply with Tribunal order

You have failed to comply with a compensation or compliance order of the VCAT under s212 of the [RT] Act.

You have failed to comply with VCAT order dated 24 May 2024.

VCAT Order item 1) The renter must comply with section 60(1) to cease all verbal abuse and threatening behaviour towards neighbours.

VCAT Order item 2) The renter must not commit a similar breach of section 60(1) of the [RT] Act.

...

Please refer to included supporting information for incidents supporting this Notice to Vacate being applied due to failure to comply with the VCAT Order.

...

Is documentary evidence attached? Yes

Please provide details of the evidence attached:

Photo's [sic] and reported incidents to housing officer since VCAT Order issued on 24 May 2024.

15 The evidence was that the Notice to Vacate served on Mr White included a copy of the nuisance notice, nuisance application and nuisance order, together with a document on Department letterhead entitled 'Record of Incidents'[15] and related photographs (Record of Incidents). The Notice to Vacate did not attach any of the formal documents concerning the modifications application or modifications order.

16 The Record of Incidents was prepared by Homes Victoria on the basis of complaints from Mr White's neighbours. It is in tabular form, identifying incidents or complaints by time and date and providing summaries and supporting information. In the case of complaints made by neighbours, the Record of Incidents does not identify the neighbour's name or address. The matters recorded span the period 24 May 2023 to 28 October 2024 and concern not only reports of offensive or threatening behaviour said to contravene the nuisance order, but also alleged non-compliance with the modifications order, along with other matters.

17 Mr White did not vacate the Grovedale unit by 23 November 2024. On 5 December 2024, Homes Victoria issued an application against him in the Tribunal seeking a possession order pursuant to ss 322(1) and 91ZO of the RT Act (possession application).[16] The application form expressly identified Mr White's failure to comply with the nuisance order. It also drew to Mr White's attention the necessity for him to engage with the Tribunal in relation to his hearing. It relevantly said:[17]

You have the right to appear at the hearing and present your case. Please bring to the hearing all documents and witnesses on which you intend to rely.

18 On 13 February 2025, Homes Victoria filed materials in support of its possession application. The evidence was that the materials filed included:

(a) a document entitled 'Summary of Proofs', which outlines the basic features of the application and its service on Mr White;[18] and

(b) an updated version of the Record of Incidents, detailing further reports in the period from 4 November 2024 to 30 January 2025.[19]

19 The hearing of the possession application was initially listed for 21 February 2025. The Tribunal's Notice of Hearing for 21 February 2025 included a section entitled 'What to do next' and directed Mr White, as the Respondent, to the Tribunal website for further information on preparing for the hearing or, alternatively, advised that he call the Tribunal or 'get legal help'.[20] The evidence does not disclose whether Mr White received the Notice.

20 In any event, on 21 February 2025, the Tribunal adjourned the hearing for administrative reasons to 4 March 2025 at 3.00 pm. The Tribunal directed that the parties file any materials on which they sought to rely by no later than 27 February 2025.[21]

21 Mr White did not file any materials in compliance with the Tribunal's direction, or at all.

22 On 4 March 2025, the Tribunal heard and determined Homes Victoria's possession application at a hearing conducted by telephone conference. Ms Rebecca Parker appeared for Homes Victoria. Mr White appeared on his own behalf, accompanied by Mr Keith Hunt, a support worker from Tenancy Plus. After hearing from both parties, the Tribunal granted the possession order sought by Homes Victoria.

23 The findings of the Tribunal and the form of order made on 4 March 2025 (possession order) were expressed in the following terms:[22]

1. The residential rental provider gave the renter not less than 14 days' notice to vacate under section 91ZO of the Residential Tenancies Act 1997 on the basis that the renter failed to comply with VCAT's order of 24 May 2024.
2. With reference to section 332 of the [RT] Act, the renter's failure to comply with the order was not trivial or remedied as far as possible and/or the breach was a recurrence of a previous breach of duty.
3. Having regard to the matters in section 330A of the [RT] Act, it is reasonable and proportionate to make a possession order.
4. The residential rental provider is entitled to a possession order in the terms set out below.

1. The renter must vacate the rented premises by 04 March 2025.

1. At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 30 days after the date of issue. This request may be made after 04 March 2025 and no later than 04 September 2025 .

Although Homes Victoria and Mr White were both present by telephone for the hearing of the application, the possession order erroneously stated that there had been `[n]o appearance by or on behalf of any party at hearing scheduled for 03.00pm on 04 March 2025'.[23]

24 On 8 April 2025, Mr White lodged an application to re-open the possession order pursuant to s 120 of the VCAT Act, which permits the making of an application for review in circumstances where a person did not appear and was not represented at a hearing at which an order was made. Mr White stated in his application:[24]

I supplied all the information to Homes Victoria (DHHS) but they did NOT supply the information to VCAT, the Judge. The Judge was informed the information was withheld, Homes Victoria (DHHS) should have passed on the Information to VCAT, the Judge.

...

I was not properly represented at the hearing because I gave all the Information to Homes Victoria (DHHS) but they did NOT pass it on to VCAT, the Judge.

...

It was mentioned at the hearing Information was withheld, the hearing should have been Adjourned until the judge, VCAT had all the information. I am innocent and asking a date in Court to prove that, the information should not have been withheld.

On the same date, the Tribunal made orders staying the possession order, pending the hearing of Mr White's application.[25]

25 On 22 April 2025, the Tribunal made orders amending the possession order to state that Mr White attended the hearing on 4 March 2025.[26] The Tribunal refused Mr White's application to re-open the possession order, finding that Mr White had appeared at the hearing when the order was made. The Tribunal also found that it was 'not appropriate to hear and determine the application because ... the renter does not have a reasonable case to argue in relation to the subject matter of the order' and that 'to rehear and determine the application would cause prejudice to' Homes Victoria.[27] The Tribunal dismissed the application for review, confirmed the possession order and extended the time for execution of the warrant of possession to 22 May 2025.[28]

26 On 30 April 2025, Mr White emailed his Notice of Appeal in this proceeding to the registry of the Court.[29] It was later accepted for filing on 7 May 2025. Mr White's Notice of Appeal described the 'question of law' upon which his proposed appeal was brought in the following terms:[30]

I did give Information to Homes Victoria but they withheld the Information, it wasn't shown to the Judge and with that I did not have representation.

27 On 8 May 2025, the Tribunal made orders prohibiting the execution of the warrant of possession made in the possession application until 5:00pm on 24 May 2025, unless the Court made orders dismissing Mr White's leave application before that date.[31]

28 An Amended Notice of Appeal was filed 17 July 2025 after Mr White obtained legal representation and identified five questions of law for consideration:[32]

1. Did the Tribunal have jurisdiction to make the possession order?

2. Did the Tribunal have regard to irrelevant considerations?

3. Did the Tribunal fail to provide procedural fairness to Mr White?

1. Did the Tribunal fail to apply the correct standard of proof or make a decision that was legally unreasonable?
2. Did the Tribunal fail to take into account the impact of the possession order on Mr White, as required by s 330(1)(f) of the RT Act?

29 It is helpful to set out the statutory provisions that are directly relevant to this appeal before considering the applicant's grounds.

30 The parties' written submissions dealt comprehensively with the provisions of the RT Act which impose duties on renters under a residential rental agreement, the provisions which facilitate a residential rental provider such as Homes Victoria giving a notice asserting a breach of duty, and the compliance order enforcement regime. It is unnecessary to rehearse those provisions here.

31 Division 9 of Part 2 of the RT Act sets out how a residential rental agreement may be terminated. One method of terminating a residential rental agreement is by a rental provider giving a renter a notice to vacate.[33]

32 Section 91ZO provides that a notice to vacate may be given where there has been a failure to comply with a compliance order made under s 212.

33 Section 91ZZO confirms that such a notice to vacate is not valid unless:

(a) it is in the relevant prescribed form;[34] and

(b) it is addressed to the renter; and

(c) it is signed by the person giving the notice or by that person's agent; and

(d) it specifies the reason or reasons for giving the notice; and

[...]

(f) it specifies the termination date which is the date by which compliance is required.

34 Pursuant to s 322(1), a rental provider may apply to the Tribunal for a possession order 'if the residential rental provider has given the renter a notice to vacate the rented premises'. An application under s 322(1) 'may be made at any time after the notice to vacate is given but not later than 30 days after the termination date specified in the notice'.[35] Further, s 329 provides that the Tribunal must not determine the application `earlier than the termination date specified in the notice to vacate... accompanying the application'.

35 Section 330 regulates the making of a possession order by the Tribunal, and relevantly provides:

(1) The Tribunal must make a possession order requiring a renter, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied -

(a) in the case of an application where notice to vacate has been given, that -

(i) the residential rental provider [...] was entitled to give the notice; and

(ii) the notice has not been withdrawn; and

...

(c) that the residential rental provider, rooming house operator, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 142ZO or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998; and

(d) that the renter, resident or site tenant is still in possession of the rented premises [...] after the termination date specified in the notice to vacate or notice of intention to vacate; and

...

(f) that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order -

(i) the residential rental provider, rooming house operator, caravan park owner, site owner or mortgagee, as the case requires;

(ii) the renter, resident or site tenant;

(iii) any co-tenants or co-site tenants or other residents;

(iv) any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter, resident or site tenant to whom the notice to vacate was given.

36 Section 330A prescribes mandatory considerations for the Tribunal in determining whether it is 'reasonable and proportionate' to make a possession order, namely:

(a) the nature, frequency and duration of the conduct of the renter, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement, residency right or site agreement;

(c) whether the breach was caused by the conduct of any person other than the renter, resident or site tenant;

(d) whether the renter, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order and -

(i) if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and

(ii) if a notice or order was made, whether it included an exclusion condition; and

(iii) any other matter in relation to family violence or personal violence the Tribunal considers relevant;

(e) whether the breach has been remedied as far as is practicable;

(f) whether the renter, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement, residency right or site agreement, as the case requires;

(g) the effect of the conduct of the renter, resident or site tenant on others as a renter, resident or site tenant;

(h) whether any other order or course of action is reasonably available instead of making a possession order;

(i) as the case requires, the behaviour of the residential rental provider, the provider's agent, the rooming house operator, the caravan park owner, the caravan owner or the site owner;

(j) any other matter the Tribunal considers relevant.

37 Section 97 of the VCAT Act provides that the 'Tribunal must act fairly and according to the substantial merits of the case in all proceedings'.

38 Section 98 sets out matters of general procedure by which the Tribunal ought to conduct itself:

(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.

...

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

39 Section 102 concerns the general procedure relating to evidence in the Tribunal and provides:

(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.

(5) This section does not apply to any RDRV proceeding.

40 Pursuant to s 148(2)(a) of the VCAT Act, an application for leave to appeal must be filed within 28 days of the Tribunal's decision. Here, the Tribunal's decision was made on 4 March 2025 but the Notice of Appeal was not accepted for filing until 7 May 2025, or more than four weeks after the expiration of the appeal period.

41 Accordingly, Mr White's Amended Notice of Appeal seeks an extension of time to bring the appeal pursuant to s 148(5) of the VCAT Act, in the exercise of the Court's discretion.

42 In Secretary to the Department of Justice and Regulation v Bhatia, Richards J (as her Honour then was) summarised the principles relevant to the exercise of the discretion:

...While the discretion to extend time is at large, the authorities identify factors typically taken into account in order to do justice between the parties. These factors include the length of the delay, any explanation for the delay, any prejudice to the respondent due to the delay, and whether there is an arguable case for leave to appeal. No single factor is determinative, although ordinarily time is not extended unless the applicant explains the delay and provides the Court with a good reason for excusing it.[36]

43 In the present case, for the reasons that follow, I have determined that there is merit in Mr White's appeal. That determination is ultimately the most powerful factor in the exercise of my discretion. However, it is not the only matter to which I have had regard.

44 In considering the application to extend time, I have also taken into account the following matters:

(a) although the Notice of Appeal was filed some four weeks out of time, that delay is relatively short in duration;[37]

(b) importantly, prior to filing his Notice of Appeal, Mr White had sought to review the Tribunal's decision through a misconceived application made pursuant to s 120 of the VCAT Act, but which may have relied in part on the erroneous form of possession order that the Tribunal initially issued. When that application was dismissed, Mr White both sought the assistance of Victoria Legal Aid and promptly sought to file his Notice of Appeal by email;

(c) Mr White's Notice of Appeal was not served on Homes Victoria as required by the Supreme Court (General Civil Procedure) Rules 2025 (Vic).[38] Mr White's application did not come to the attention of Homes Victoria until 16 June 2025, and was not formally served until 26 June 2025. Homes Victoria points out that whilst the delay in commencing the appeal might be only 28 days, the failure to serve Homes Victoria in a timely fashion resulted in an effective delay of 86 days;[39]

(d) the solicitors for Mr White filed evidence which explained the difficulties he had experienced as a self-represented litigant initially in filing his Notice of Appeal, the timing and circumstances in which they were retained, and an oversight within Victoria Legal Aid that caused a further 10 day delay in the ultimate service of the Notice of Appeal; and

(e) at the hearing of the appeal, Homes Victoria also relied on the impending expiration of paragraph 2 of the possession order, which permitted the purchase of a warrant of possession by no later than 4 September 2025 (noting that the warrant of possession previously issued and extended had since expired). On 2 July 2025, Homes Victoria gave an undertaking to this Court that it would not purchase such a warrant without giving seven days' notice to Mr White.[40] However, following the hearing on 28 August 2025, Homes Victoria wrote to the Court to advise that it now intended to purchase such warrant, on the basis that its execution be stayed until such time as judgment was given in the proceeding. On 2 September 2025, I ordered that Homes Victoria be released from its undertaking to the extent necessary to facilitate its purchase of the warrant so as to preserve the position of both parties until the delivery of judgment.[41]

45 On balance, I am satisfied that I should exercise my discretion to extend time for the appeal. I consider that the delay in filing and serving the Notice of Appeal has been satisfactorily explained. I accept that the delay in filing and service caused real inconvenience to Homes Victoria. However, the ultimate resolution of the issue of the purchase of the warrant for possession has ameliorated any substantial prejudice that might flow from the late commencement of the appeal. Most significantly, the Amended Notice of Appeal identifies at least one argument of importance which I consider would otherwise dispose of the appeal in Mr White's favour.

46 I will therefore make an order pursuant to s 148(5) of the VCAT Act to extend time.

1. RESOLUTION OF QUESTIONS ON APPEAL: THE POSSESSION ORDER SHOULD BE SET ASIDE

47 Five questions of law and related grounds of appeal were identified by Mr White. Ultimately, I have come to the conclusion that Question 3 is dispositive - Mr White was denied procedural fairness in the hearing of the possession application, and that denial of procedural fairness could have made a difference to the result at the hearing below. In those circumstances, leave to appeal should be granted and the appeal allowed.

48 I deal with Question 3 first and then briefly address the remaining questions.

D.1 Question 3 - Mr White was denied procedural fairness on the hearing of the application

49 Mr White alleges that the Tribunal failed to provide him with procedural fairness in three distinct ways.

50 First, Mr White alleges that it was procedurally unfair for the Tribunal to permit Homes Victoria to raise matters relating to the modifications order and, consequently, determine the application based partly on those matters.

51 Second, Mr White alleges that the Tribunal failed to provide Mr White with a sufficient opportunity to test Homes Victoria's evidence by not allowing him an opportunity to cross-examine Homes Victoria's witnesses, particularly where the Record of Incidents contained hearsay from unidentified persons.

52 Third, Mr White claims that procedural fairness was denied because the Tribunal failed to give Mr White a sufficient opportunity to present his own evidence. Mr White relied on portions of the transcript of the Tribunal hearing which were said to show that he had collected evidence on which he sought to rely, but the Member instead spoke over him and ignored that evidence.[42]

53 I address the first issue of the Tribunal's reliance on the modifications order separately from the second and third issues concerning evidence at the hearing.

The Tribunal did not impermissibly rely on the modifications order

54 Mr White submits that, having regard to the text of both the Notice to Vacate and possession application, he was entitled to proceed on the basis that the hearing on 4 March 2025 only concerned his compliance with the nuisance order.[43] As set out above at paras [14] and [16] respectively, those documents do not refer to the modifications order.

55 By contrast, Homes Victoria says that by reason of the provision of the Record of Incidents to him, which expressly referred to the modifications order and three incidents involving the installation and use of cameras at the rented premises, Mr White was on notice that the issue of his failure to comply with the modifications order might be raised at the Tribunal hearing. It is also notable that Mr White freely acknowledged to the Tribunal that, notwithstanding the modifications order, there were still cameras in place at the Grovedale unit and that he had no written approval to keep them.

56 Having regard to the entire transcript of hearing, I am not satisfied that it proceeded unfairly by reason of any reference to the modifications order. Although it is plain that both Homes Victoria and the Tribunal member raised the modifications order, I am not satisfied that the Tribunal member determined the application on that basis alone (which might otherwise have given rise to an error of law), nor am I satisfied that the Tribunal member erroneously conflated the nuisance and modifications orders in arriving at her finding.

57 At the outset, the Tribunal member asked Mr White about 'a [singular] compliance order', which can readily be inferred to be the nuisance order, being the only order attached the possession application.[44] Then, when given an opportunity to first address the Tribunal, Ms Parker referred to 'these [two] orders'.[45] She made a primary submission with respect to the nuisance order that 'Mr White has continued to threaten numerous neighbours in the complex'.[46] She then made a submission that I consider in context to be supporting or ancillary that: 'He has also refused to take down the cameras and lights, there was also an order made about that'.[47] After discussion, the Tribunal member then returned to the primary issue of the nuisance order by asking Mr White: 'You have failed to comply with a VCAT order dated 24 May 2024 that you must comply with s 61 [of the RT Act] to cease all verbal abuse and threatening behaviour towards your neighbours. Has it ceased?'.[48] The member went on to ask for particulars of the breaches of the nuisance order, and Ms Parker canvassed specific allegations of misconduct based on the Record of Interview (albeit with again some reference to cameras).[49] The Tribunal member then returned to the nuisance order: 'well, apart from the cameras, Ms Parker has just highlighted to me 12 incidents [by] which you have breached' the nuisance order.[50] Further references are made by her to a singular 'order',[51] being the nuisance order.

58 Taking all of these parts of the transcript into account, I consider that the Tribunal's attention was properly focussed on the nuisance order at the hearing. Moreover, I am satisfied that consideration of the apparent breach of the modifications order was permissible in the context of possession application. It was not an irrelevant consideration in circumstances where the Tribunal was required to actively consider whether the making of a possession order was reasonable and proportionate under s 330A of the RT Act. In particular, in considering the exercise of her power, the Tribunal member was required to consider whether Mr White had the capacity to comply with his obligations under the rental agreement (s 330A(f)) and whether any course of action was reasonably available other than making a possession order (s 330A(h)), together with any other matters that she considered relevant (s 330A(j)). It was thus open to the Tribunal to consider an asserted breach of the modifications order in that context.

The Tribunal did fail to accord Mr White procedural fairness

59 It is helpful to reproduce some parts of the transcript in order to understand these issues. The transcript records that Homes Victoria intended to call the viva voce evidence of two of Mr White's neighbours, Ms Sinfield and Ms Bazin.[52] The witnesses were identified at the outset of the hearing by Homes Victoria's representative, Ms Parker, in the following terms:

WITNESS PARKER: ... we have two witnesses on the line, as well, that [sic] are wanting to give evidence. That is Ms Sinfield and Ms [Bazin].

MEMBER: Look, we'll just see how we proceed.[53]

60 As the hearing unfolded, Ms Parker summarised and read from the Record of Incidents, which recorded complaints apparently made by some of Mr White's neighbours. In addition, the Tribunal had a series of exchanges with Mr White, during which he spoke of his efforts to compile documents and photographs in support of his defence of the application, and his delivery of some of those materials to Homes Victoria.[54] Those materials were in the possession of Ms Parker. However, as Mr White had not filed them with the Tribunal, they were not immediately available to the Tribunal member at the hearing.

61 The following exchange between the Tribunal member and Homes Victoria's representative gives context:

MEMBER: All right. So, have you seen his photos and his evidence?

WITNESS PARKER: I have and I have gone through that. A lot of it is hearsay, Member, so things like he's saying that one of the ladies, Ms [Bazin], poisoned his fern. Well, we can't prove things like that. Bird water bowl pushed over by Ms [Bazin], we can't prove that. Sign fallen off and thrown on the floor by Lyn [Bazin]. It's just like a lot of it's hearsay. We wouldn't be able to take any action. We wouldn't be able to take any action against anything like that about any, against any renters. Yeah, so I have spoken to Mr White in the past about these parts of complaints and advised him that we just can't take, can't take any action if we don't have evidence.[55]

62 Mr White thereafter again sought to emphasise the importance to him of the documentary evidence and photographs that he wished to rely on:

WITNESS WHITE: Your Honour, might I say something?

MEMBER: They try to do whatever they can. Mr White, what are we going to do?

WITNESS WHITE: Your Honour, my - that's what I was about to say, Your Honour. All - I've given Lorna approximately about 90 photos. They're all dated and timed and everything and the person who did them and all that sort of things. Now, all that information - - -

MEMBER: So what's the photos of? The cameras?

WITNESS WHITE: No, the damage done to my property and the date of - and everything.

MEMBER: So your - - -

WITNESS WHITE: No, Your Honour. May - Your Honour, may I say something?

MEMBER: You're saying your behaviour hasn't changed, but it's in response to other people's behaviour. Is that what you're saying?

WITNESS WHITE: I haven't done anything, Your Honour. I am sitting here.

MEMBER: No (indistinct words).

WITNESS WHITE: I'm sitting in -

MEMBER: If you're producing evidence of photographs, what's that going to tell me?

WITNESS WHITE: That's what I was about to explain to Your Honour. Now, all this - because of the severity of - right, as I wrote down in writing and which actually happened about what Michelle White did with her part of this, getting the (indistinct words) and I've got a phone right here and I can show the (indistinct) right now. I've already shown police. Everything in this went to the police, not to [DH]HS. The police. Now, all those photos I've got, the damage and everything, all that went to the police, not to DHHS. The police. Now, there's a policewoman by the name of Senior Constable Alicia Gangel. Now, her and I were - - -

MEMBER: Did you (indistinct words).

WITNESS WHITE: Senior Constable Alicia - - -

MEMBER: Is she here today?

WITNESS WHITE: - - - Gangel. She's (indistinct) police. And there's also Senior Constable - - -

MEMBER: Is she here today? Is she here in this room?

WITNESS WHITE: No, no.

MEMBER: Well, I can't hear evidence that's hearsay evidence.

WITNESS WHITE: Okay, Your Honour.

MEMBER: She could've produced a report if you wanted to rely on that.

WITNESS WHITE: I asked her to, but she - - -[56]

63 What followed was a lengthy exchange between the Tribunal member and Mr White concerning the continuing presence of cameras at the Grovedale unit, and an intervention order and ongoing intervention order proceedings which appeared to involve Ms Bazin. Mr White conceded that there was an intervention order in place and an ongoing dispute with Ms Bazin over security cameras on both properties: 'that's why we're going to Court, Your Honour', he told the Tribunal.[57]

64 Thereafter, the Tribunal member directed questions to Mr White concerning of the allegations of threatening behaviour towards his neighbours identified in the Record of Incidents. In the course of that exchange, in which Mr White denied the alleged conduct, he again raised with the Tribunal member the issue of documents and photographs:

MEMBER: I've just heard from Ms Parker evidence -

WITNESS WHITE: Is that what they (indistinct) no, that - that was - -

MEMBER: by - about 12 incidents which you have breached

WITNESS WHITE: And I've given you - and - and I said -

MEMBER: - - - (indistinct) and threatening neighbours. Is that correct?

WITNESS WHITE: No.

MEMBER: Okay. All right.

WITNESS WHITE: It wasn't (indistinct) Your Honour, I am sitting here right now at the moment with 14 - that is 14 128 A4 page books of diaries here. Now, the question is - I've got 14 books of them.

MEMBER: And have I got them?

WITNESS WHITE: The - the - the - the quick amount was get in the week where I could get - I gave a copy to Lorna.

MEMBER: You've provided a copy to me?

WITNESS WHITE: To Lorna.

MEMBER: Well, I can't consider any evidence that's not before me, and I can consider the evidence from Housing.

WITNESS WHITE: (Indistinct words.)

MEMBER: That has been - - -

WITNESS WHITE: Well, that's up to - that's up to Lorna to give to you.

MEMBER: Okay.

WITNESS WHITE: When I went in - when I went in - - -

MEMBER: (Indistinct words.)

WITNESS WHITE: Your Honour. Your Honour, when I went in.

MEMBER: Ms Parker.

WITNESS WHITE: Your Honour, when I went in and gave all the information to DHSS last week, the male what took all the - all the information, he said Lorna doesn't work there anymore and there's no case worker that - to our units at this time. I said, "Well, what can I do?" So I gave all the photos, all the information and everything to that gentleman. He said, "No, no, I'm just a receptionist". I gave that gentleman, which was supposed to gone to Lorna, about 90 photos.

WITNESS PARKER: We do - we do have those. They're the ones I was referring to that I said were all hearsay and we couldn't take any action on.

WITNESS WHITE: Right. Now (indistinct words).[58]

65 Immediately following this exchange, the Tribunal member returned to the issue of Homes Victoria's witnesses. What followed bears not only on the evidence of Homes Victoria, but on the evidence that Mr White told the Tribunal that he wished to rely on:

MEMBER: Okay. Look, I don't really need to hear anything else. If you bear with me. Just reflect on whether there's anything else you want to say, Ms Parker. Witnesses are on the phone. I haven't sworn them in, I haven't heard from them. But it's pretty straightforward in terms of, you know, there was an order made. If Mr White has breached that order and there is evidence to that effect produced by Homes Victoria, there's no evidence in defence produced by Mr White, I can make an order.

WITNESS WHITE: Your Honour, I gave my reply. As I said, I've got 14 128-page A4 books, and they are all diaries. There's 14 of them. The rest of them are in hands of my lawyer in Melbourne which is Stary Norton Halphren, because I am taking these people to court, Your Honour. And I've got 14, that is - - -

MEMBER: There's nothing to prevent you from doing that, Mr White (indistinct).

WITNESS WHITE: Well, Your Honour - Your Honour, they cannot say that I've been writing these lies. There's 14 128-page A4 books. They can't say I've been writing these lies, the 14 books for years, because (indistinct) do this. That is ridiculous, Your Honour. I've got 14 128- page A4 books right here, right now. And the - the best - the best - - -

MEMBER: (Indistinct). Well, I mean, I can make an order. Is there anything else you want to say, Ms Parker?

WITNESS PARKER: No, I don't. I don't think so.

MEMBER: And thank you for your submissions. I can see all that evidence that you've called upon. Now, you've brought witnesses here. Do you really want them to say anything or not?

WITNESS PARKER: Not unless you need to hear from them.

MEMBER: Look, sometimes (indistinct words).

WITNESS PARKER: For further clarification. Exactly. Yes.

MEMBER: But, you know, they're_ entitled to a say, but I'd have to swear them in.

WITNESS PARKER: Yes.

MEMBER: And Mr White has an opportunity to cross-examine them too. So, you know, I can understand that.

WITNESS WHITE: Your Honour, regarding what you just said, in the short time that I had in - in that last week, I got as much as I could get out of my diaries - Your Honour, here's 14 of them now - and gave a copy of those to Lorna. And (indistinct) - - -

MEMBER: Sorry, I've said that four times now.

WITNESS WHITE: Thank you, Your Honour. Thank you.

MEMBER: I DON'T NEED TO (Indistinct)

WITNESS WHITE: And I also - - -

MEMBER: Thank you. Thank you. Thank you ... [59]

The Tribunal member then directed a procedural question to Homes Victoria's representative. Homes Victoria did not seek to call evidence from either Ms Sinfield nor Ms Bazin.

66 Later, and immediately prior to the Tribunal member delivering her ruling, Mr White again denied that he had breached the Tribunal's orders, and went on to raise the question of supporting evidence once again:

WITNESS WHITE: That's - I've got a - - -

MEMBER: All right. (Indistinct) evidence you have -

WITNESS WHITE: I've got as much evidence I could get to get in the short week, and I gave it to Lorna, and that is out of these A4 pages I've got.

MEMBER: Okay. All right. Thank you. Okay.[60]

67 In the midst of the ruling, there was this further exchange:

WITNESS WHITE: Your Honour. Your Honour. That's what I've tried to explain to Your Honour. All this information went to the police, not to DHHS. This went to the police because of the severity of what they were doing to me. Now, I will ask Lorna, "Lorna, did you get the paperwork, what I gave to you about Michelle White"?

MEMBER: She said she got the paperwork, Mr White, but I haven't got it, and I'm the decisionmaker.

WITNESS WHITE: Okay.

MEMBER: And I make my decisions (indistinct words).

WITNESS WHITE: Well, what I could do was give them to Lorna, Your Honour.[61]

Indeed, immediately following the ruling, Mr White again repeated that he had given information that he considered important to the application to Homes Victoria.[62]

68 Mr White contends that the Tribunal member failed to accord him procedural fairness in two key respects:

(a) in respect of Homes Victoria's proposed witnesses, by:

(i) interceding to discourage Homes Victoria from calling the viva voce evidence of witnesses who had been brought to the hearing, thereby denying Mr White the opportunity to test those witnesses in cross-examination on matters identified in the Record of Incidents;

(ii) adopting that course without explaining to Mr White that he had the right to request that the witnesses be called and made available for cross-examination; and

(b) in respect of Mr White's documentary evidence, by failing to give him a reasonable opportunity to call that evidence in circumstances where the evidence was not voluminous and was already in the possession of Homes Victoria.

69 In assessing the complaint about procedural fairness, it is important first to acknowledge that the Tribunal hears many thousands of residential tenancy cases each year.[63] Hearings in the Residential Tenancies List are often conducted by telephone (as occurred in this case), and Tribunal members are regularly listed to hear many contested hearings each day. Justice is required to be dispatched as efficiently as is possible in that particular context, and the Residential Tenancies List discharges that obligation in the overwhelming majority of cases it determines.

70 For that reason, it would be wrong to compare the approach of Tribunal members sitting in the Residential Tenancies List to the approach that might be taken to a contested hearing in a Court.

71 That said, telephone hearings in the Tribunal's residential tenancies list are still subject to the requirements of natural justice.

72 It is trite to note that what natural justice requires depends on the circumstances of the case.[64] The content of the obligation in this case is informed by, inter alia:

(a) the competing demands on the time and resources of the Tribunal;

(b) the Tribunal's power to regulate its own procedure;

(c) the nature of the decision to be made - in this case, an order that Homes Victoria regain possession of Mr White's home;

(d) the complexity of the evaluative exercise required to be conduct by the Tribunal on the possession application, as required by ss 330 and 330A of the RT Act;

(e) the significance to Mr White of a decision adverse to him; and

(f) the fact that Mr White was self-represented (although accompanied by a support worker).

73 Homes Victoria maintains that Mr White's right to procedural fairness was not infringed at the hearing. In summary, it says that:

(a) the opportunity to confront the two witnesses was 'available' to Mr White and, in particular, he was 'aware' that they could be sworn in so that he could cross-examine them if he wished. Homes Victoria says further that it was not the obligation of the Tribunal to ensure that he availed himself of that opportunity;

(b) viewed as a whole, the transcript of hearing discloses that Mr White was invited on several occasions to comment on Homes Victoria's case and present his own case in reply;

(c) despite Mr White having not filed his material with the Tribunal, he was permitted to explain how he considered that material assisted his case; and

(d) even if the Tribunal should have permitted Mr White to file his material late, it would not have changed the outcome of the case - Homes Victoria says that the photographs and comments on which Mr White sought to rely were not germane to the allegations of abusive and threatening behaviour towards his neighbours in contravention of the nuisance order.

75 Notwithstanding the evident demands of a busy Residential Tenancies List, the inherent limitations of telephone hearings and the obvious challenges associated with managing self-represented litigants like Mr White in respect of difficult subject matter, I have ultimately come to the view that the Tribunal did not discharge its obligation to accord procedural fairness to Mr White at the hearing of the possession application and this failure could have made a difference to the application's outcome.

76 I accept that it was open to the Tribunal to be satisfied that it did not require Homes Victoria to call viva voce evidence from the tenant witnesses in order to find that the nuisance order had been breached. Indeed, s 102(2) of the VCAT Act operates to permit the Tribunal to refuse to allow a party to call evidence on a matter where the Tribunal is satisfied that sufficient evidence on that issue is already before it.

77 One can also well understand why the Tribunal might wish to avoid the calling of unnecessary evidence. This is particularly so in circumstances where the evidence was to come from other tenants involved in the incidents that had resulted not only in the nuisance orders, but in at least one intervention order and an ongoing intervention order proceeding. At least in the immediate term, Mr White would also have continued to reside at the Grovedale unit within the complex with the witnesses as neighbours.

78 However, in the absence of viva voce evidence, the evidence of the alleged breach of the nuisance order was principally limited to documented, but anonymised, hearsay reports from other tenants living in proximity to Mr White (contained in the Record of Incidents). A number of the allegations made against Mr White in the Record of Incidents were serious, and on their face suggested that Mr White had engaged in further harassing or threatening conduct in breach of the nuisance order. In those circumstances, it is difficult to envisage the Tribunal refusing a request that those witnesses be called if either party to the application had pressed the issue.

79 Importantly, there is a real unfairness in seeking to fix Mr White with the responsibility of understanding that it was open to him to ask that Homes Victoria call its witnesses, so that he might cross-examine them. The Tribunal member, in discussions with Homes Victoria's representatives, did identify the process that would unfold if those witnesses were called. However, I am not satisfied that those exchanges were sufficient to inform Mr White, a self-represented litigant, that he might request that the witnesses be called. Mr White may for example have asked questions of the witnesses to challenge their accounts that he had engaged in harassing or threatening conduct, or to elicit concessions about their own conduct towards him that might have given relevant context to the decision under consideration by the Tribunal. Homes Victoria's emphasis on Mr White saying 'regarding what you just said' after the Tribunal member remarked that '[he] has an opportunity to cross-examine [the witnesses] too' does not, in context, show that Mr White had a genuine understanding of the evidentiary procedure that was open to him.[65]

80 If advising Mr White of his opportunity to test Homes Victoria's evidence had ultimately led to a course that was not practicable in the short telephone hearing that was listed, then another form of hearing to accommodate the evidence was required. Contrary to Homes Victoria's contentions, Mr White was not positively assisted by the Tribunal member to make an effective choice about how he might conduct his case before it at the hearing.[66]

81 On the question of Mr White's own proposed evidence, it is self-evident that he did not file the documentary materials that he wished to rely on within the six day time frame directed by the Tribunal in its orders of 21 February 2025.[67] It is of course important for the efficient conduct of Tribunal hearings that parties comply with directions as to the filing of relevant materials. However, Mr White did explain to the Tribunal the difficulties that he had experienced in complying in the short period of time given to him. He had given those materials to Homes Victoria, and Ms Parker had access to them at the hearing. The only person who did not have access to the materials was the Tribunal member. That defect could have been cured with relatively little formality, even if a short adjournment was required.

82 However, the possibility of reviewing Mr White's materials was not entertained by the Tribunal member, who appears to have proceeded on the basis that the documents were not before her. Further, the member appears to have accepted that it was sufficient for the effect of Mr White's documents to be explained to her by Homes Victoria's representative.

83 It may be inferred that the Tribunal member concluded that Mr White's materials were either not relevant, or not sufficiently relevant that she should afford him a further opportunity to put them before her. Indeed, it might be accepted on the basis of the explanation of them given to the Tribunal by both Mr White and Ms Parker that those materials were of themselves unlikely to bear directly on whether particular incidents identified in the Record of Incidents had or had not occurred. They concerned alleged damage caused to Mr White's car, cameras, a bird water bowl and his garden, and allegations that his neighbours had moved his personal property.

84 However, I accept Mr White's submission that they might have been relied on by him, together with further submissions, to give the Tribunal relevant context. This is particularly so in circumstances where the Tribunal otherwise appears to have concluded that Mr White did not adduce any relevant evidence.

85 Context was important to the Tribunal's task, because the decision to be made on the application was not limited to the question of whether the nuisance order had been breached. The Tribunal's task was also to consider in all of the circumstances whether it was 'reasonable and proportionate' to make the possession order as required by ss 330(f) and 330A of the RT Act.

86 I am satisfied that had Mr White been afforded both the opportunity to test the evidence of his neighbours, and to put his documentary evidence before the Tribunal, there was a realistic possibility of a different result having been achieved - that is, there was the possibility of a different outcome that was not `fanciful or improbable'.[68]

87 First, it is at least possible that Mr White could have made good his bare assertion that the conduct complained of in the Record of Incidents, or at least some of it, did not occur or occurred differently from what was reported by his neighbours. Even if the Tribunal was inclined to find that Mr White had breached the nuisance order, the nature and extent of any breach or breaches was directly relevant to the Tribunal's consideration of whether a possession order was a "reasonable and proportionate" outcome. The circumstances in which any breach occurred might reasonably have provided relevant context in the weighing of the various considerations to which the Tribunal was obliged to have regard. Second, and relatedly, if Mr White had been in a position to better establish his assertions that other residents had engaged in harassing behaviour towards him, that too was a matter that could have realistically borne on the question of whether the Tribunal should make the possession order against him in all of the circumstances of the case.

88 When these issues of evidence are considered collectively, I am satisfied that the effect of the hearing overall was to deny Mr White procedural fairness. Further, I am satisfied that the relevant threshold of materiality has been met. The Tribunal's error was a vitiating error.

89 Having formed that conclusion, the decision of the Tribunal below will be set aside and the matter remitted to a differently constituted Tribunal for hearing and determination in accordance with law.

90 Given that conclusion, it is strictly unnecessary to consider the other proposed questions of law on appeal. However, I propose to give short reasons as to why in my view Mr White's other grounds of appeal would have failed.

D.2 Question 1 - The Tribunal had jurisdiction to make the possession order

91 Mr White submitted that the Notice to Vacate which preceded the possession application was invalid, with the consequence that the Tribunal did not have jurisdiction to make the possession order. It was alleged that the Notice to Vacate was defective in that it failed to adequately particularise the alleged breach of the nuisance order in the body of the Form 6 Notice. Further, it was contended that particularisation of the breach or breaches by reference to the attached Record of Incidents was insufficient to achieve compliance with s 91ZZO(d) of the RT Act. This was especially so in circumstances where the Record of Incidents also contained reference to alleged breaches of the modifications order in addition to the nuisance order. It was also submitted that I ought to draw an analogy between alleged deficiencies in the Notice to Vacate here and the one in Liu v Tang.[69] In that case, Gorton J found a notice to vacate for non-payment of rent to be invalid because it specified unpaid rent in an amount that was more than what was in fact outstanding.[70]

93 I am satisfied that in accordance with s 91ZZO, the Notice to Vacate given by Homes Victoria was given in the relevant prescribed form, was addressed to Mr White, signed on behalf of Homes Victoria and specified both the reasons for giving the notice, and the relevant termination date.

94 In particular, I do not accept the contention that the specified `reasons or reasons for giving the notice' failed to comply with the requirement of s 91ZZO(d). I find that the Notice to Vacate in fact specified the reason for its delivery - namely, that Mr White had failed to comply with a compliance order of the Tribunal made under s 212 of the RT Act.

95 In considering the s 91ZZO(d) obligation to specify reasons for the delivery of a notice to vacate, it is important to recall that Division 9 of Part 2 of the RT Act provides for the delivery of a notice to vacate on numerous different grounds including, by way of example only, where a renter's visitor has endangered the safety of others (s 91ZJ), where a renter or other occupier has seriously threatened or intimidated the residential rental provider or its contractor or employee (s 91ZK), where the premises are unfit for human habitation or have been destroyed totally or in such a way as to be rendered unsafe (s 91ZL), or upon the failure to pay a bond (s 91ZN). In each such case, the form and content of the notice to vacate is governed by s 91ZZO.

96 Thus, in the present case, the identification of the reason for the notice as a failure to comply with a Tribunal order under s 91ZO was, of itself, a relevant and important description of the reason for the notice within the meaning of s 91ZZO(d). However, that was not the end of the matter. The Notice to Vacate went on to identify the date of the nuisance order made under s 212, and set out the essential text of the nuisance order. It was only at that point that reference was made to attached `supporting information' and `evidence' in the form of `photos and reported incidents'. Further, the attached Record of Incidents identified the date, time and location of each alleged incident, and a summary of what occurred, together with photographs, thus serving to particularise the alleged breaches of the nuisance order relied on as the reason for which the Notice to Vacate had been given.

97 I accept Homes Victoria's contention that the Notice to Vacate in this form, incorporating the Record of Incidents, did not breach the obligation to give reasons under s 91ZZO(d). Overall, the Notice to Vacate gave Mr White sufficient information to understand why it had been given to him and, if he wished, to challenge the matters identified in the notice. The fact that some of the matters identified in the attached Record of Incidents may have more correctly been characterised as asserted breaches of the modifications order did not of itself affect the validity of the Notice to Vacate and, thereby, the jurisdiction of the Tribunal to determine the possession order application.

98 Further, this case is not analogous with Liu v Tang.[71] It is relevant to note that in accordance with s 91ZM(1)(b), a Form 6 notice to vacate makes express provision for remediation of a breach in cases where notice is given based on a failure to pay rent: if the renter pays all of the unpaid rent on or before the termination date in the notice, the notice has no effect. The issue identified as problematic in that case was that the notice to vacate put the renter in a 'very difficult position'[72] by requiring payment of more than what was owed in outstanding rent to prevent the making of an order for possession. The analogy sought to be drawn between the circumstances of that case and the particularisation of the Notice to Vacate given to Mr White is inapt. Mr White was not in the difficult position identified by his Honour; he was not asked to do more than what was required by law to remain in possession of his property.

D.3 Question 2 - The Tribunal did not take into account irrelevant considerations

99 This question of law raised by Mr White concerns the Tribunal's apparent reliance on evidence and submissions concerning floodlights and security cameras which were strictly the subject of the modifications order, rather than the nuisance order. These matters were addressed in the context of Question 3 at para [54], above.

100 It follows that I am satisfied that it was permissible for the Tribunal to consider evidence and submissions regarding alleged breaches of the modifications order as part of its consideration of whether the possession order should be made, with particular regard to ss 330A(f), (h) and (j) of the RT Act.

D.4 Question 4 - The Tribunal did not fail to apply the correct standard of proof or make a decision that was legally unreasonable

101 Mr White's grounds of appeal in respect of Question 4 concern the Tribunal's reliance on the second hand hearsay evidence contained in the Record of Incidents as proof of what was recorded therein. Mr White complains that the Tribunal accepted that evidence without interrogating the document, or questioning Homes Victoria as to its reliability or veracity, thus failing to apply the correct standard of proof.

102 I am not satisfied that there is any evidence that the Tribunal failed to apply the correct standard of proof, being the civil standard. Importantly, there was no obligation on the Tribunal in the circumstances of this case to apply what is commonly described as the Briginshaw test.[73] Mr White relied on the Tribunal's decision in Homes Victoria v Galasso[74] in support of his contention that the Briginshaw test ought to apply. I note that when the Tribunal member applied the test in that case, she was making a finding relating to an alleged stabbing.[75] Further, the Tribunal member said the following about the relevant standard of proof:

The relevant standard of proof is on the balance of probabilities, and the Tribunal must be reasonably satisfied that the applicant has proven each allegation to such a standard. The Tribunal must consider the seriousness of the allegations and the gravity of the consequences which may follow a particular finding.[76]

Respectfully, that observation reflects an accurate summary of the relevant principles. I am not satisfied that there was any failure of the Tribunal member to apply those principles in this case.

103 Further, I am not satisfied that the Tribunal's decision to make a possession order was legally unreasonable by reason of its primary reliance on matters contained in the Record of Incidents, a document which clearly identified the allegations made against Mr White. Rather, it was open to the Tribunal in all the circumstances to reject Mr White's denial of those allegations. This is particularly so given Mr White freely conceded that an intervention order had been made in favour of one of his neighbours, and that a Court dispute about those matters remained on foot. Finally, to the extent that the Tribunal relied on statements made by Ms Parker that were properly characterised as evidence rather than submission, it is relevant to note that Ms Parker had been sworn as a witness.[77]

D.5 Question 5 - The Tribunal did not fail to take into account the effect of the possession order on Mr White

104 Mr White contends that the Tribunal failed to take into account the impact of the proposed possession order on Mr White as required by s 330(1) of the RT Act.

105 The particular complaint identified in submissions was to the effect that although the Tribunal member had asked Mr White's support worker questions about his future accommodation in the event that the possession order was made, she had not squarely asked Mr White what eviction and homelessness would mean for him. This failure, it was submitted, meant that the Tribunal member did no more than make a 'make a cursory, dismissive or passing reference to the impact of the order on the renter'[78], and did not confront the impact that that a possession order would have on Mr White personally (including rendering him homeless for a long period).

107 I am satisfied that in the context of the hearing, the Tribunal member gave active and careful consideration to the impact that the possession order would have on Mr White. Importantly, the Tribunal enquired directly of Ms Parker and Mr Hunt as to the effect of a possession order on Mr White. Ms Parker told the Tribunal that the making of a possession order would render Mr White homeless, but also explained that he would be able to submit a new application for social housing with Homes Victoria, and that work would be done to get him housed more quickly. Mr Hunt explained that he could submit a transfer application and work with Homes Victoria to see whether Mr White could be relocated as soon as possible.

108 The Tribunal's ruling demonstrates that it was well understood that a possession order would render Mr White homeless, notwithstanding that efforts would be made to find alternative accommodation which Mr White would be encouraged to accept. [79] The Tribunal was required to weigh the prospect, or even likelihood of homelessness against other s 330A factors in s 330A of the RT Act, including whether Mr White would be capable of complying with his obligations under the residential rental agreement (s 330A(f)), and the effect of his conduct on other tenants (s 330A(g)). There was no error in this approach.

109 I have found that Mr White was denied procedural fairness on the hearing of the possession application and that the threshold of materiality has been met. Leave to appeal is granted, and his appeal is allowed. The possession order must be set aside, and the matter remitted to the Tribunal for further hearing and determination in accordance with law.

(a) whether or not the Tribunal is to be constituted for the rehearing by the same member;

(b) whether or not there should be the hearing of further evidence; and

(c) otherwise, to make any order that I consider appropriate.[80]

111 In this case, I consider it is appropriate to remit the proceeding to a hearing before a differently constituted Tribunal. The Tribunal member, in admittedly difficult circumstances, demonstrated at least a disinclination to allow Mr White to cross-examine Homes Victoria's witnesses and to consider the evidence on which Mr White sought to rely. To avoid any appearance of unfairness to Mr White,[81] it is appropriate that the re-hearing of the application for a possession order be conducted before a different member.

112 Further, I consider that it is appropriate that before the possession application is heard, the Tribunal give directions for the filing and service of any additional evidence on which Homes Victoria or Mr White rely. I am particularly conscious that the hearing the subject of this appeal was conducted on the basis of matters arising prior to March 2025, and largely concerned events arising in 2023 and 2024. On the assumption that Mr White remains in residence at the Grovedale Unit, it is important that both parties have the opportunity to advance evidence of additional matters which are relevant to the question of whether or not a possession order should now be made.

113 Finally, whilst entirely a matter for the Tribunal, it may be appropriate in the circumstances that consideration be given to conducting any re-hearing in person, given the volume of Mr White's prospective evidence and his position as a self-represented litigant with genuine health-related vulnerabilities.

(a) Pursuant to s 148(5) of the VCAT Act, the time for filing the application for leave to appeal is extended to 7 May 2025.

(b) Leave to appeal is granted and the appeal is allowed.

(c) The order of Member Topp in the Tribunal in proceeding R2024/37611 on 4 March 2025 is set aside.

(d) The proceeding is remitted to the Tribunal for further hearing and determination according to law before a differently constituted Tribunal.

(e) The Tribunal give further directions on the filing and service of further evidence by both parties and any other matter considered appropriate.

115 My preliminary view is that each party should bear its own costs of the appeal. On the one hand, Mr White has ultimately succeeded on grounds of appeal relating to one of the five questions of law advanced in the Amended Notice of Appeal and argued at the hearing of the appeal. On the other hand, delays in the commencement of the appeal and service of the initial Notice of Appeal did cause inconvenience and additional cost to Homes Victoria. Notwithstanding, I will reserve liberty to the parties to apply for some further or different order as to costs and provide an opportunity for short written submissions to be filed.

[1] Prior to 7 September 2022, Homes Victoria was known as the Director of Housing. See Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Act 2022 (Vic), ss 2(2), 19.

[2] Notice to Renter, exhibit "ML-1" to Affidavit of Mahalia Lodge affirmed 17 June 2025 (First Lodge Affidavit) Court Book (CB) 29.

[3] Anthony John White, 'Applicant's Annotated Outline of Submissions', 26 August 2025 (Applicant's Annotated Outline of Submissions) [19].

[5] Notice to Renter, exhibit "ML-3" to Affidavit of Mahalia Lodge affirmed 1 August 2025 (Third Lodge Affidavit) CB 194.

[8] Application to VCAT R20244895/00, exhibit "ML-1" to First Lodge Affidavit (n 2) CB 33.

[9] Applicant's Annotated Outline of Submissions (n 3) [21].

[11] Order of Member V Topp in Homes Victoria v Anthony White (VCAT, R2024/4895/00, 24 May 2024) CB 164.

[12] Order of Member V Topp in _Homes Victoria v Anthony White (_VCAT, R2024/8476/00, 24 May 2024) CB 39.

[13] Anthony John White, 'Applicant's Outline of Submissions', 1 August 2025 [27] CB 266-267.

[14] Notice to Vacate, exhibit "ML-1" to First Lodge Affidavit (n 2) CB 16-18.

[15] Affidavit of Stephanie Hussen sworn 22 July 2025 [6] CB 157.

[16] Application to VCAT R202437611/00, exhibit "ML-1" to First Lodge Affidavit (n [1845] EngR 1261; 2), CB 15.

[18] Summary of Proofs, exhibit "ML-1" to First Lodge Affidavit (n 2) CB 21.

[19] First Lodge Affidavit (n 2) [12] CB 11. It is noted that the copy of the Notice to Vacate attached to the possession application filed with the Tribunal did not attach the Record of Incidents. The only version of the Record of Incidents before the Tribunal at the hearing on 4 March 2025 was the updated version of the document.

[20] Notice of Hearing, exhibit "ML-1" to First Lodge Affidavit (n 2) CB 19.

[21] Order of Member I Scott in Homes Victoria v Anthony White (VCAT, R2024/37611/00, 21 February 2025) (Filing Deadline Order) CB 73.

[22] Order of Member V Topp in Homes Victoria v Anthony White (VCAT, R2024/37611/00, 4 March 2025) CB 74.

[24] Application to reopen order, exhibit "ML-1" to First Lodge Affidavit (n 2) CB 75-78.

[25] Order of Registrar A Jacobs in Homes Victoria v Anthony White (VCAT, R2024/37611/00, 8 April 2025) CB 79.

[26] Order of Tribunal Member V Topp in Homes Victoria v Anthony White (VCAT, R2024/37611/01, 22 April 2025) CB 92.

[29] Notice of Appeal dated 30 April 2025, CB 6.

[31] Order of Tribunal Member S Pandya in Homes Victoria v Anthony White (VCAT, R2024/37611/01, 8 May 2025) CB 192.

[32] Amended Notice of Appeal filed 17 July 2025 CB 146-150.

[34] The 'relevant prescribed form' for a notice to vacate under s 91ZZO(a) is Form 6, set out in Schedule 1 to the Residential Tenancies Regulations 2021.

[36] [2018] VSC 500 at [42], citations omitted.

[37] In Mazi v Kao (No 2) [2025] VSC 598 an application to extend time was granted where the notice of appeal was filed four weeks out of time, even though the Court otherwise dismissed the application for leave to appeal.

[38] Chapter II, Rule 4.06(2)(b) requires service 'as soon as practicable after filing the notice of appeal'.

[39] Homes Victoria, 'Updated Respondent's Outline of Submissions', 26 August 2025 [33].

[40] Other Matter C. of the Orders of Judicial Registrar Lorenz dated 2 July 2025.

[41] See order 1 of Orders of the Honourable Justice Hannon dated 2 September 2025. It is noted that Mr White reserved the right to argue that a second warrant of possession issued pursuant to the possession order would not be valid. This question ultimately does not need to be determined.

[42] Transcript of proceeding, Homes Victoria v Anthony White (Victorian Civil and Administrative Tribunal, Member V Topp, 4 March 2025) (Transcript of VCAT Hearing), T18, line 19 - T19, line 10 CB 132-133; T20, line 10-24 CB 134.

[43] It is noted that Question 3 overlaps with Question 2, being relevantly whether the modifications order and related documents were irrelevant considerations to which the Tribunal impermissibly had regard. I answer Question 2 in the negative later in these reasons.

[44] Transcript of VCAT hearing (n 42) T2, line 23-24 CB 116.

[45] Ibid T4, line 10 CB 118.

[46] Ibid T4, line 11-12 CB 118.

[47] Ibid T4, line 12-14 CB 118.

[48] Ibid T9, line 21-24 CB 123.

[49] Ibid T9, line 28 - T19 CB 123-133.

[50] Ibid T17, lines 17-24 CB 131.

[51] Ibid T19, lines 6-9 CB 133; T20 lines 19-28 CB 134; T21 lines 14-17 CB 135.

[52] Homes Victoria's Updated Outline of Submissions dated 26 August 2025 notes at footnote 12 that the spelling of Ms Bazin's surname has differed across various documents and transcript in this matter. The witness is referred to as 'Ms Bazin' in that document and this judgment adopts that spelling

[53] Transcript of VCAT Hearing (n 42) T1 line 23-26 CB 115.

[54] Ibid T2 line 31 - T3 line 3 CB 116-117; T3 line 21-28 CB 117.

[55] Ibid T4 line 23 - T5 line 4 CB 118-119.

[56] Ibid T14 line 5 - T15 line 25 CB 128-129.

[57] Ibid T15 line 28 CB 30. It is unclear whether the intervention order was an interim or final order, as it was not produced to the Tribunal.

[58] Ibid T17 line 20-T18 line 31 CB 131-132.

[59] Ibid T19 line 1- T20 line 19 CB 133-134.

[60] Ibid T21 line 29-T22 line 3 CB 135-136.

[61] Ibid T24 line 1-12 CB 138.

[63] Reference may be had to the Tribunal's Annual Report 2024-25, 30 September 2025 (Justice Ted Woodward and Fiona Chamberlain).

[64] See, for an explanation of fundamental principle, Mason J in Kioa v West (1985) 159 CLR 550 at 584-585.

[65] Transcript of VCAT Hearing (n 42)T20 line 8-9 CB 134.

[66] See, for example, the summary of relevant authorities on procedural fairness considerations attending the manner of matters involving self-represented litigants in MZAIB v. Minister for Immigration [2015] FCA 1392; (2015) 238 FCR 158 at [59]-[72], Mortimer J.

[67] Filing Deadline Order (n 21) CB 73.

[68] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14].

[69] [2022] VSC 243.

[71] [2022] VSC 243.

[73] Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336, 362.

[74] Homes Victoria v Galasso [2024] VCAT 642.

[75] Homes Victoria v Galasso [2024] VCAT 642 [40]-[44].

[76] Homes Victoria v Galasso [2024] VCAT 642 [44].

[77] Transcript of VCAT Hearing (n 42) T1 line 12 CB 115.

[78] Adapting the analysis of Walker AJA in Hanson v Director of Housing [2022] VSC 710 [44]-[46].

[79] Transcript of VCAT Hearing (n 42) T23 line 4-11 CB 137; T26 line 3-10 CB 140.

[80] VCAT Act, ss 148(7)(c), 148(7)(d) and 148(8).

[81] [2017] VSC 290 (Emerton J, as her Honour then was) at [56] citing Vegco Pty Ltd v Gibbons [2008] VSC 363; (2008) 30 VAR 1 at [33] (Kyrou J).