Director of Housing v TK  VCAT Application 2010/11921 (Unreported, 22 July 2010)
VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act has been made in breach of the Charter. This affirms the decision of Bell J in Director of Housing v Sudi  VCAT 328.
The Director of Housing applied to VCAT for a jurisdictional hearing, essentially requesting Lambrick DP to consider whether the Tribunal should follow the decision of Bell J, sitting as President of VCAT, in the case of Director of Housing v Sudi  VCAT 328. In that case, Bell J held that the Tribunal had jurisdiction to consider and determine Charter issues. In doing so, Bell J pointed out that ‘human rights remedies must be accessible in order to be effective’.
Justice Bell’s finding that the Tribunal had jurisdiction to determine Charter issues was central to the outcome and resolution of Sudi’s case. This is because Bell J ultimately held that the Director of Housing had acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of their right to family and home under s 13(a).
Justice Bell further held that this unlawfulness invalidated the Director’s application for a possession order under s 344 of the Residential Tenancies Act. Had Charter issues been incapable of determination by the Tribunal in that case, it would have been necessary for the matter to be partly heard in the Supreme Court. Justice Bell took the view that this would have been a ‘bad outcome’ for access to justice and contrary to the principles of ‘finality and complete dispute resolution’.
Lambrick DP decided to follow the decision of Bell J. The Deputy President’s reasons were primarily based on the ‘general principle of comity’, holding that:
The general principle of comity between co-ordinate divisions of the same court has great relevance to tribunals and requires that I should follow the decision of another member of the tribunal unless I am convinced that it is wrong. There is much sense in the principle. It allows for consistency of decision-making and it also enables prospective litigants to have some certainty of outcome. It is not in the interests of efficient justice to have diverse rulings of the tribunal on the same issue.
Lambrick DP went on to comment that:
There is particular efficacy for adopting such an approach in this case. The decision was a decision of the former President of the Tribunal, delivered on his last day in the role. His Honour heard extensive submissions from counsel and took considerable time and care in reaching his conclusions. He took into consideration both Australian and international jurisprudence. He referred to earlier decisions of the tribunal. He purposefully stated the case as being a test case on the issue making it clear that it was his intention that members of the tribunal should follow the decision. Cases, including this one, were adjourned by parties in consequence of the decision being delivered.
Significance to the application of the Charter
Lambrick DP summarised the significance of Justice Bell’s approach in the following terms:
There is no doubt that Sudi’s case has the potential for changing the manner in which some matters will proceed before the tribunal. In some possession applications, involving public authorities time will be dedicated to arguments surrounding the Charter issues in addition to the application of the Residential Tenancies Act 1997.
Lambrick DP then went on to note that the necessity to dedicate time to Charter arguments in some possession applications ‘[i]s not a reason to disregard significant Victorian legislation. Nor is the fact that the Residential Tenancies Act does not, (for the most part), distinguish between private and public landlords’.
Lambrick DP observed that:
The Charter is in its infancy in terms of jurisprudence. The extent of its application within courts and tribunals is yet to be fully determined. Although I have some sympathy with the applicant’s contention that the tribunal as a creature of statute must never venture outside the enabling enactments which give it its jurisdiction, there is also some considerable force in the findings of Justice Bell in Sudi’s case, that the tribunal should not and cannot entertain an application founded on illegality.
As pointed out by Lambrick DP, Sudi’s case has been taken on appeal and it is possible that the decision of Bell J could be overruled by the Court of Appeal. The decision of Lambrick DP has not been published.
Jacqui Bell is on secondment to the Human Rights Law Resource Centre from Blake Dawson