Burgess & Anor v Director of Housing & Anor  VSC 648 (17 December 2014)
Macaulay J held that in making the decision to apply for a warrant of possession:
- The Director of Housing was obliged by law to consider the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing. The Director’s failure to do this constituted a jurisdictional error.
- The Director was obliged by law to consider the human rights of Ms Burgess and her son identified in s 17 of the Charter. Failure to take these rights into account made the Director’s decision unlawful under s 38 of the Charter -.
His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter . He invited further submissions as to any further orders that should follow from his findings.
The matter was run for Homeless Law by Leigh Howard, Pip Mitchell and Daniel Bolkunowicz of Clayton Utz and barristers Daniel Aghion and Christine Melis.
Ms Burgess had lived in the public housing property since 2006 and her teenage son regularly stayed at the property. Ms Burgess had a history of substance dependence, as well as anxiety and depression, and served a custodial sentence for trafficking offences dated 2008 and 2011. She was released from prison in December 2012 and engaged in rehabilitation and counselling. On 22 March 2013, the Director issued Ms Burgess with two notices to vacate under ss 250 and 250A of the Residential Tenancies Act 1997 (Vic) in relation to ‘illegal use’ of the property.
The Victorian Civil and Administrative Tribunal (VCAT) made an order of possession on 13 May 2013 with written reasons dated 10 June 2013 and, on 18 June 2013, the Director applied for a warrant of possession to evict Ms Burgess from the property.
Ms Burgess and her son applied to the Supreme Court of Victoria for judicial review of the Director’s decisions to issue the notices to vacate and apply for the warrant of possession. They claimed that the decisions of the Director were affected by jurisdictional error because the Director did not accord procedural fairness or natural justice before issuing the notices to vacate; failed to take into account relevant matters he was bound to consider in making the decisions to issue the notices to vacate and apply for the warrant of possession; and, in making these decisions, failed to act compatibly with or give proper consideration to Ms Burgess and her son’s Charter rights.
The plaintiffs sought relief in the nature of certiorari to quash the decisions made by the Director or VCAT, as well as associated declarations.
Decision to issue notices to vacate and the Charter
Macaulay J held that the decision of the Director to issue the notices to vacate failed to observe the rules of natural justice and failed to take into account certain matters the Director was bound to consider, including rights protected under s 17 of the Charter. Accordingly, the decision to issue the notices to vacate was affected by jurisdictional error and was unlawful within the meaning of s 38 of the Charter. However, Macaulay J found that the Director’s decision to issue the notices to vacate ceased to have ongoing legal effect once VCAT made its possession order so that, on the principles set out in Wingfoot Australia Partners v Kocak  HCA 43, this decision was not amenable to the remedy of certiorari.
His Honour found that the Director had failed to consider the rights of Ms Burgess and her household to the protection of their family group, and the best interests of any child affected by the decision, as sanctioned by s 17 of the Charter. He commented that these failures would have lead him to quash the decision if not for his finding based on Wingfoot .
In considering procedural fairness, His Honour also contemplated the effect of the Director Tenancy Management Manual. He found that the rule of natural justice applies to decisions to issue a notice to vacate: ‘a decision to issue a notice to vacate sufficiently exposes the tenant to a risk of losing the tenancy to be rightly regarded as one that affects a person’s rights and interests. The starting proposition, therefore, is that the rule of natural justice must be observed in making it’ . He found that the fact that the Manual provided a procedure for making decisions and for obtaining a tenant’s response indicated that these parts of the Manual influence the content of the rules of natural justice to be afforded to the tenant before the decision to issue the notice was made . He concluded that the Director was bound to consider the existence and content of the Manual when making the decision to issue the notice to vacate and failure to do so constituted a jurisdictional error. Again, however, the decision could not be the subject of certiorari after VCAT had made a possession order.
Decision to apply for the warrant of possession
His Honour considered whether the Director had failed to take account of a matter he was bound to consider when deciding to apply for the warrant. On this question, he found that, prior to making the decision to apply for a warrant, the Director should take into account relevant information that has come to his attention since making the decision to issue the notice to vacate that was not taken into account in making the decision to issue the notice to vacate or in making the decision to apply for possession: Such relevant information would include information about the personal circumstances of the tenant and his or her household that bore upon any negative consequence to them by reason of the proposed eviction’ -. His Honour commented that his conclusion was strengthened by these provisions in the Manual, including the note: The Department will no longer proceed with an eviction where the tenant’s personal circumstances have changed to the extent that it is considered no longer proportionate or justifiable to seek possession to achieve the policy aim and/or a reasonable alternative option other than eviction now exists to achieve the policy objective. The [Director’s delegate] will specifically need to turn his or her mind to whether or not there are changed circumstances’ -.
His Honour noted that there will always be a gap between the decision to issue a notice to vacate and the choice to apply for the warrant, ‘so a realistic potential exists for a change in the mix of factors that were first seen to justify the decision to issue a notice to vacate’. He said: ‘the significance of terminating a tenancy, and the realistic potential for a change in the justification for pursuing it, implies that the Director would at least enquire whether he had, and if so have regard to, information about such change’ .
His Honour found that there was relevant information in the possession of the Director at the point of making the warrant application that had not previously been considered, including information about Ms Burgess’s homelessness if evicted and the impact this would have on her relationship with her son and her health. He also stated that the Director should have considered the protection of Ms Burgess’s son’s best interests in accordance with the Charter in making this decision, but had not done so .
The failure to take relevant considerations into account was held to be a jurisdictional error and the failure to consider the s 17 rights of Ms Burgess and her son made the decision unlawful under s 38 of the Charter.
In terms of the obligations on the Director when making its decisions about when to pursue the eviction of its tenants, this judgment is a powerful one. The decision has significant potential to improve the accountability, consistency and fairness of the decision-making of the Director when choosing whether or not to proceed with the eviction of public housing tenants (including by affording tenants natural justice, adhering to the Director's own policies and guidelines and giving proper consideration to tenants’ rights under the Charter). The semi-automated way in which matters often progress from possession order to warrant stage may be more open to challenge on this authority.
One aspect of the decision – the finding that the Director's decision to issue a notice to vacate cannot be set aside after VCAT has made a possession order – further narrows the already small post-Sudi window tenants have to enforce their human rights when facing eviction. In practice, Macaulay J's decision means that social housing tenants facing eviction will need to commence judicial review proceedings in relation to alleged Charter unlawfulness: (a) after the Director has made the decision to issue the notice to vacate but before VCAT has made a possession order; or (b) after the Director has made a decision to purchase a warrant. This further limits the accessibility of a meaningful mechanism for ensuring the human rights compliance of social housing providers in eviction proceedings.
Overall, though, the judgment is a strong reminder about the obligations of the Director as a public authority providing housing to vulnerable tenants. It has potential to prompt the Director to reflect on its practices and take steps to make sure evictions of vulnerable tenants take place as a last resort, after careful consideration of the likelihood of homelessness, the impact on the tenant and their family and any alternatives to eviction.
The full text of the decision can be found here.
Lucy Adams is the Manager and Principal Lawyer of Homeless Law. Note that Homeless Law acted in this case.