SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0017

LOUISE GOODE	Applicant	
		
v		
		
COMMON EQUITY HOUSING LIMITED	First Respondent	
		
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent	

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JUDGES:	PRIEST and BEACH JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	On the papers	
DATE OF JUDGMENT:	9 December 2020	
MEDIUM NEUTRAL CITATION:	[2020] VSCA 317	

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PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Application for leave to appeal out of time – Application for extension of time within which to seek leave to appeal – Application for leave to appeal totally without merit – Appeal having no prospects of success – Futile to grant extension of time – Application for extension of time refused.

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REPRESENTATION	Counsel	Solicitors	
			
For the Applicant	In Person		
			
For the First Respondent	Ms M Isobel of counsel	Russell Kennedy	
			
For the Second Respondent	No appearance		

PRIEST JA
BEACH JA:
1	For some years up to and including 2016, Ms Louise Goode (‘the applicant’) was the tenant of residential premises situated in Thornbury (‘the premises’).  These proceedings concern an order for possession of the premises, made against the applicant in 2016.
2	On 7 March 2016, the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made an order giving Common Equity Housing Ltd (‘CEHL’) as landlord of the premises, an order for possession on the basis of non-payment of rent by the applicant.  On 21 March 2016, the Tribunal heard an application by the applicant for review of the order of 7 March 2016.  On that day, VCAT granted a stay of the possession order, until further order, on condition that the applicant pay the amount of rent then outstanding to CEHL.  On 3 May 2016, after observing the applicant had not paid rental arrears to CEHL, the Tribunal affirmed the possession order made on 7 March 2016.  
3	On 9 May 2016, the applicant filed an originating motion in the Trial Division of this Court seeking, amongst other things, leave to appeal, and ‘a Judicial Review of’, VCAT’s order of 3 May 2016.  On 25 November 2016, after a number of hearings, that application was refused by Mukhtar AsJ, and the applicant’s originating motion was dismissed.
4	On 4 January 2017, the applicant filed a notice of appeal from the orders of Mukhtar AsJ.  That application was heard by Ginnane J on 2 May, 25 June, 5 August and 3 October 2019.  On 19 December 2019, his Honour dismissed the appeal from Mukhtar AsJ.
5	On 24 February 2020, the applicant filed an application for leave to appeal to this Court.  She also filed a written case, a list of authorities, a draft summary, a draft application book index, and an affidavit in support, affirmed by her.  In her application for leave to appeal, she identified her grounds of appeal as:
1.	Breach to Rules of law including errors of law as to procedural and judicial fairness, systemic bias and natural justice obligations;
2.	Medical;
3.	Duty of care;
4.	Charter unlawfulness/Disability discrimination;
5.	Conscious maladministration;  and
6.	Financial misconduct.
6	The application for leave to appeal was filed out of time.  Accordingly, on 27 February 2020, the applicant filed an application for leave to appeal out of time.  In that application, the applicant seeks an extension of the time for filing and serving her application for leave to appeal.  That application was referred to a single Judge of Appeal pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), then to this Court constituted by two judges of Appeal, and is now being determined, without an oral hearing, pursuant to r 64.16(1)(a) and r 64.15(5).
7	The factors that are relevant to the exercise of the discretion to extend time, under r 64.08 of the Rules, include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to the respondent.  As the merits of the applicant’s proposed appeal are relevant, we turn directly to them.  
Factual background
8	The applicant was a founding member of Access Common Equity Rental Cooperative Ltd (‘Access CERC’).  Access CERC is a small, not for profit, member-based housing cooperative, run entirely by volunteers.  From 1998 to 2008, it was the landlord of the premises.  While in occupation of the premises during this period, the applicant paid rent to Access CERC as the landlord of the premises.  
9	In 2008, there was a dispute between the applicant and Access CERC.  The applicant’s case is that, on 5 November 2008, ‘she was obliged under duress to resign from Access CERC under threat of expulsion and eviction from the property’.
10	In an exhibit to her affidavit filed in this Court on 24 February 2020, there is a document, originally dated 5 November 2008, addressed to the Chairperson of the Board of Directors of Access CERC, signed by the applicant, in the following terms:
Subject to the undertakings given by [specified individuals to the applicant’s lawyers on 5 November 2008] that [CEHL] and [Access CERC] would sign all documents and do all things necessary to effect the handing back of [the premises] to CEHL to be managed by Vic-Wide Housing with my tenancy intact and in the same terms and conditions as presently exist, I hereby tender my resignation as a member of [Access CERC], effective as and from the date of the transfer of the property to CEHL.
11	On 1 December 2008, the premises were transferred from Access CERC to CEHL.  Thereafter, the applicant paid rent for the premises to CEHL.  As Ginnane J put it, however, the events of 5 November 2008, led to the applicant commencing to see a psychologist.  One of the applicant’s complaints is that, since 2008, she has had to defend herself against attempts by CEHL management ‘to forcibly transfer her tenancy from a housing cooperative to a non-participatory shell subsidiary within the same organisation’ — VicWide, a unit in CEHL which administers the payment of rent for properties leased by it.
12	In 2014, the applicant stopped paying rent to CEHL, and commenced to pay rent to Access CERC.  Neither CEHL nor Access CERC consented to this arrangement.  Access CERC’s position, as disclosed in the material, is that it would prefer to have nothing to do with the applicant.  In correspondence, it stated:
Dealing with Ms Goode’s correspondence and unsolicited deposits into our account, has created unnecessary work and more complexity in the cooperative’s operation.  It has put a strain on our group.
All requests to Ms Goode to cease making inappropriate deposits have failed and all attempts to return these deposits to her have been refused.  
We do not consent to acting as an intermediary between Ms Goode and [CEHL] and we have no legal relationship with Ms Goode … .  Access CERC simply wishes Ms Goode to desist contacting us and depositing unsolicited moneys into the cooperative’s account.
13	The applicant’s case is that since 2014 she has either paid her rent, or sought to pay her rent, to Access CERC — notwithstanding Access CERC’s refusal or reluctance to accept her payments.  The applicant contends, supported to some extent by medical evidence, that forcing her to pay CEHL, or forcing her to be a VicWide tenant, causes her psychological or psychiatric injury.  
14	In a report dated 18 December 2019, a consultant psychiatrist, Byron Rigby, expressed the opinion that the applicant ‘is not mentally ill in the sense of suffering from an innate, diagnosable mental illness or impairment of intellectual functioning’.  Rather, ‘she suffers from an ongoing state of injury resulting from the impact of CEHL’s decision to not acknowledge as valid rental’ payments made by her to Access CERC.  Dr Rigby describes the applicant’s condition as being one ‘under a state of continuous causation resulting from ongoing difficulties with the matter of her rent’.  
VCAT proceeding
15	On 7 March 2016, CEHL’s application for possession of the premises, for non-payment of rent, came on for hearing at VCAT.  The applicant applied for an adjournment.  That application was refused.  The Tribunal’s order records the Tribunal’s view that, ‘given the extent of the arrears and without an indication of when the tenant may be able to attend a hearing, it is not appropriate to adjourn the matter for any period of time’.  The matter then proceeded in the absence of the applicant.  The Tribunal found that CEHL had given the applicant not less than 14 days’ notice to vacate, in circumstances where the applicant owed at least 14 days rent.  The Tribunal ordered the applicant to vacate the premises, and to pay rent owed in the sum of $9,461.10.
16	On 21 March 2016, the Tribunal heard an application by the applicant for review of the order of 7 March 2016.  After hearing submissions, the Tribunal granted a stay of the possession order, on condition that the applicant pay arrears of rent to CEHL in the sum of $9,783.10.  The proceeding was then adjourned to enable the applicant to obtain the moneys then held by Access CERC in her name, ‘so that she can pay outstanding rent due and owing to [CEHL] before the next hearing’.
17	The matter returned to VCAT on 3 May 2016.  On that occasion, the applicant made another application for an adjournment.  The application was refused because the Tribunal found that the applicant had breached previous orders requiring her to pay rent to CEHL.  Instead of paying rent to CEHL, the applicant had continued to pay rental amounts to Access CERC.  At the conclusion of this hearing, the Tribunal made an order affirming the possession order made on 7 March 2016.
Trial Division proceeding
18	On 9 May 2016, the applicant filed an originating motion in the Trial Division of this Court seeking, amongst other things:
•	leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’);
•	judicial review;
•	an order ‘preventing a warrant of possession by [CEHL]’;
•	orders in the nature of certiorari and mandamus;
•	an order ‘of inconsistency of previous VCAT orders’;  and
•	an order ‘of relief from all retaliatory actions by [CEHL]’.
19	The originating motion made reference to provisions of the Residential Tenancies Act 1997 and the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).  Under the heading ‘Grounds Upon Which Relief is Sought’, the applicant made assertions of jurisdictional error, failures to take into account matters required to be taken into account (including provisions of the Charter) and inadequacy of reasons.  
20	On 7 June 2016, summonses issued by both the applicant and the respondent came on for hearing before Mukhtar AsJ.  On that day, his Honour ordered the applicant to file and serve an amended originating motion by 5 July 2016.  His Honour’s orders required the amended originating motion to deal separately with the application for leave to appeal under s 148 of the VCAT Act and the relief sought by way of judicial review.  The Associate Judge gave reasons in support of the orders he made, in which he explained why it was necessary for the applicant to identify with precision questions of law, jurisdictional errors and the bases upon which judicial review was being sought.  
21	On 25 July 2016, the matter again came on before Mukhtar AsJ.  On that day, and again supported by written reasons, his Honour extended the time for the filing and serving of an amended originating motion from 5 July 2016 to 5 August 2016.  Various procedural orders were made, including an order relieving the applicant from the necessity to file an outline of submissions, and permitting her to rely on the contents of the amended originating motion which was yet to be filed and served.
22	On 5 August 2016, the applicant filed an amended originating motion of some 81 pages.  The amended originating motion contained, amongst other things, copies of letters written to various individuals of CEHL on 19 February 2015.
23	On 11 October 2016, the matter again came on for hearing before Mukhtar AsJ.  On this occasion, his Honour struck out the amended originating motion.  In ‘Other Matters’, his Honour recorded:
The motion as originally filed was far too brief to be meaningful and failed to reveal the question of law and the grounds of appeal or judicial review.  Now, the amended motion is legally embarrassing and prolix.  It does not enable [CEHL], nor the Court, to understand the application and its basis.  As narrative, it is an interior monologue spanning an amorphous body of matters exceeding the decision sought to be appealed or reviewed.  
It is not possible to discern the grounds of attack of the relevant decision of the VCAT on 3 May 2016.  It is not possible to expurgate the contents to produce a meaningful basis to proceed with the application.  Nor can there be a return to the inadequate contents of the original motion in the hope that the Court at trial can somehow make do with it.
The Court has reached the outer limits of its assistance and indulgences to [the applicant] as a litigant in person:  see Downes v Rhys & Co (2014) 46 VR 283, [23].  The Court has stated its concerns, now intensified, about the delays being caused in the conduct of this case.  A trial has been fixed for 16 February 2017 and nothing should disturb that.  Yet the amended motion was bound to embarrass or prejudice the fair trial of the proceeding.
24	In the same order, and again in Other Matters, Mukhtar AsJ recorded the Court’s willingness to hear from Dr Rigby, saying in respect of Dr Rigby:
In essence he explained that [the applicant’s] complex post-traumatic stress injury arising from interactions with [CEHL] … has resulted in a complex serious symptomology including impairment of language and prolixity.  
25	On 11 October 2016, Mukhtar AsJ gave leave to the applicant to file and serve a proposed second amended originating motion, not exceeding 10 pages in length, by 9 November 2016.
26	On 25 November 2016, the matter again returned to Court before Mukhtar AsJ.  In orders made that day, his Honour noted that a second amended originating motion had been emailed to chambers at 12:00 am that day (outside the time limit provided for in his Honour’s order of 20 October 2016).  In addition to the second amended originating motion being filed out of time, it should be observed that the document was some 42 pages in length, rather than being within the 10-page limit specified by his Honour on 11 October 2016.  The following quote from the second amended originating motion is instructive:  
On Machiavelli’s triangle of needs vs wants I had claimed place of social belonging and identity where past institutional abuses became the past until CEHL harmed me and I could no longer turn the other cheek and as a result have had to redefine my socio-personal boundaries with [CEHL] as I am a person and not the extended property of their work positions.
27	On 25 November 2016, Mukhtar AsJ concluded that the second amended originating motion was ‘just as bad as previous versions’.  His Honour concluded that there was ‘no point letting this matter proceed to trial’.  His Honour dismissed the originating motion, stating:
As I would emphasise, apart from the unacceptable state of [the applicant’s] materials, I would in any event, for myself, form the view that the transcript of the proceeding on 3 May 2016 at the Tribunal does not reveal any denial of procedural fairness and the decision was based wholly on plain facts concerning [the applicant’s] defaults.
The appeal to Justice Ginnane
28	On, 4 January 2107, the applicant filed a notice of appeal from the orders of Mukhtar AsJ.  The appeal was, pursuant to s 17(3) of the Supreme Court Act 1986, an appeal to the Trial Division constituted by a Judge of the Court.  While the appeal was initially fixed for hearing in early 2017, it was not in fact heard until 2019.
29	In her amended notice of appeal from the orders of Mukhtar AsJ, the applicant identified her grounds as follows (omitting particulars):
1.	In determining whether [the applicant’s] appeal pursuant to s 148 of the VCAT Act was competent, [Mukhtar AsJ] failed to apply the correct legal test.
2.	[Mukhtar AsJ] erred in finding that [the applicant’s] originating motion dated 24 November 2016 failed to disclose a question of law.
3.	[Mukhtar AsJ] erred in concluding that [the applicant] had not established a prima facie case that the Tribunal had failed to afford [her] procedural fairness.
30	The applicant’s appeal was heard in the Trial Division by Ginnane J over four days:  2 May, 25 June, 5 August and 3 October 2019.  During the course of the first day of the hearing, his Honour sought to discover ‘if there was some way of resolving the impasse between the parties’.  He requested the attendance of representatives of Access CERC and the Department of Health and Human Services, in order ‘to assist in ascertaining whether the underlying issues in the proceeding could be resolved without formal hearing’.
31	Notwithstanding adjournments, and creative attempts made to resolve the impasse created by the applicant’s unwillingness to pay rent to CEHL (as her landlord), but preparedness to pay rent, and actual payment of rent, to Access CERC, no solution satisfactory to the parties was ever reached.  As a result, his Honour was ultimately compelled to hear and determine the applicant’s appeal.
32	On the final day of the hearing (3 October 2019), Ginnane J adjourned the appeal for the delivery of judgment on a date to be fixed.  At the same time, he made an order that the parties were prohibited from sending any further communication to his chambers ‘save in exceptional circumstances by the process of first seeking leave by email for a further communication’.  It is sufficient for us to say at this stage that we can understand why his Honour thought it was necessary to make such an order.
33	On 19 December 2019, Ginnane J dismissed the applicant’s appeal from the orders of Mukhtar AsJ.  After setting out relevant background matters, his Honour dealt separately and comprehensively with each of the applicant’s grounds of appeal.  In rejecting ground 1, his Honour concluded that Mukhtar AsJ correctly applied the correct legal tests in dismissing the applicant’s application for leave to appeal.  In relation to ground 2, his Honour determined that the applicant had failed to establish any error in relation to the Tribunal’s decision, and thus there was no error in Mukhtar AsJ’s failure to uphold the submissions made by the applicant to him.  Similarly, with respect to ground 3, his Honour concluded that the error contended for by the applicant was not made out.
The proceeding in this Court
34	Following the dismissal of her appeal by Ginnane J, the applicant sought further orders staying the execution of the possession order:  first, in the Trial Division;  and secondly, in this Court.  Thus, there was a hearing in the Practice Court before Macaulay J during which there was discussion about what could be done to resolve matters;  and similarly in this Court (constituted by Beach and Hargrave JJA) on 24 March 2020.
35	During the course of the hearing in this Court on 24 March 2020, possible solutions that might permit the applicant to continue paying her rent to someone other than CEHL (or, more particularly, someone other than VicWide) were explored.  At one point in the hearing, the applicant said:
I acknowledge — [have] always acknowledged — that CEHL is the landlord.
36	The applicant then said that she had always wanted to pay rent to CEHL.  There was then the following exchange:
Hargrave JA:	Why not pay rent to them [CEHL]?
Applicant:	That is what I have always wanted and have been doing.
Hargrave JA:	Directly.
Applicant:	Directly.  I was doing that and they were internally transferring it to the subdivision [VicWide].
Hargrave JA:	That’s none of your business.  You know that in your heart.
Applicant:	I know in my very soul, your Honour, and I am speaking from my soul and I mean no disrespect, I am speaking with the purest respect, I am speaking from the purest and most holiest of dignity in preserving my social worth, preserving my sense of self even and this is – – –
…
Hargrave JA:	We’re trying to assist you in that.  Don’t you understand?
Applicant:	I understand that you will not be assisting me.  You will become complicit to the very – – – 
Beach JA:	Can I just — this is not helping.  This is not helping.
37	During the course of the hearing on 24 March 2020, counsel for CEHL conveyed her client’s willingness to facilitate some process whereby the rent the applicant was prepared to pay was paid to a body satisfactory to the applicant.  It was pointed out, however, that the issue is wider than one involving the mere payment of rent to the wrong entity.  Counsel said:
It’s not just about rent.  It’s about my client being able to do inspections of her home.  My client has not been allowed to go into her home for many years.  They have no idea about what the state of that home is and about safety and security issues around the state of that home.  The issue is who Ms Goode’s landlord is, not just who she’s paying rent to.  I wish it was as simple as simply the transferral of money.
The resolution of this application
38	In written submissions in support of her application for leave to appeal, the applicant made the following assertions:
Justice Ginnane’s decision does not offer a just outcome as I am left in harm’s way where medical evidence is again not given the legal weight it requires.
Justice Ginnane has failed to protect my mental health, my social wellbeing and my individual rights and freedoms.
I am declaring that Justice Ginnane’s judgement was not consistent, fair, competent or impartial.
I am challenging Justice Ginnane’s decision as his judgement does not enforce laws that are knowable, followable and fit for purpose.
39	These contentions are completely baseless.  The applicant’s proposed appeal does not have any real prospect of success.  Indeed, the proposed appeal is, within the meaning of s 14D(3) of the Supreme Court Act 1986, ‘totally without merit’.
40	The decisions the applicant complains about, wherein applications for adjournments were refused, were discretionary decisions, reviewable only in accordance with the principles in House v The King.  Critically, the decisions about which the applicant complains, refusing her an adjournment, did not involve any House type error.
41	Similarly, far from being denied procedural fairness at any level, it seems to us that the applicant has been afforded appropriate procedural fairness on each occasion the matter was listed or fixed for hearing.  Indeed, in reading the material, we have been struck by the exemplary and outstanding efforts, made by the judicial officers who have heard her case from time to time, to explain matters to the applicant and to give her every opportunity to put her case.  Even more striking are the efforts that have been made to accommodate the applicant’s position by seeking to persuade third parties to appear in the proceeding, and to persuade them to enter into transactions that might resolve the impasse caused by the applicant’s beliefs. 
42	All of that said, it cannot be contested that CEHL made out its case for an order for possession of the premises in the proceedings before VCAT.  Its claim was made out at VCAT on the facts.  Upholding that claim did not involve any error of fact, much less any error of law.  The plaintiff’s allegations of ‘Charter unlawfulness’, ‘Disability discrimination’, ‘Conscious maladministration’ and ‘Financial misconduct’, whatever the applicant might have intended these shibboleths to mean, were utterly unfounded, and should not have been made.
43	This proceeding owes its existence, at all levels of the judicial hierarchy, to a claim by the applicant, contrary to all of the evidence, that her landlord is not CEHL; alternatively, that she has an entitlement to pay rent to someone other than her true landlord.  Mukhtar AsJ was correct to refuse the applicant leave to appeal from VCAT, for the reasons he gave.  Ginnane J was correct to dismiss the applicant’s appeal from the orders of Mukhtar AsJ, for the reasons he gave.  In the circumstances, it would be futile to grant the applicant an extension of time within which to seek leave to appeal to this Court.  That application for an extension of time must therefore be refused.
Conclusion
44	The application for an extension of time within which to seek leave to appeal from the orders of Ginnane J made on 19 December 2019 is dismissed.  It follows that the stay of the execution of the warrant of possession, ordered by this Court on 10 March 2020, must be brought to an end.
45	In the event that there is any issue of costs to be determined, the parties may, within 7 days, file written submissions, limited to three pages.  Any issue as to costs will be determined by us on the papers.
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