Melbourne public housing tower resident's claim summarily dismissed for having "no real prospect of success", plaintiff given chance to reformulate claim
Berih v State of Victoria (No 2) [2024] VSC 230
Summary
The Victorian Supreme Court upheld the defendants' application for summary dismissal but granted leave for the plaintiff to reformulate his claim, in a representative proceeding (class action) challenging the validity of the decision to demolish three public housing towers in Melbourne. Justice Richards held the plaintiff's claim had no real prospect of success because the claim did not identify a decision that the plaintiff had standing to seek judicial review remedies for. The lack of justiciability of the decision was fatal to both the jurisdictional error ground and the Charter grounds in this matter.
Facts
Mr Berih (plaintiff) lived in a North Melbourne public housing tower under a rental agreement with the third defendant, Homes Victoria. The plaintiff lives with a mild disability and his flat was modified to accommodate his needs. Homes Victoria owned and managed the tower pursuant to the Housing Act 1983 (Vic) (Housing Act) and was subject to the direction and control of the Minister for Housing (at the relevant time, the Honourable Harriet Shing).
On 20 September 2023, the Victorian Government published Victoria's Housing Statement: The decade ahead 2024-2034 (Housing Statement). The Housing Statement announced a plan to retire ageing high-rise towers across Melbourne because these towers did not meet minimum design standards regarding noise, sustainability, waste and recycling, accessibility and amenities. The towers' retirement was planned to begin with towers in Flemington, North Melbourne and Carlton (Towers). Homes Victoria began informing renters in the Towers immediately following publication of the Housing Statement and offered these individuals support to relocate.
On 24 January 2024, the plaintiff commenced representative proceedings on behalf of himself and other renters in the Towers (Group Members). The plaintiff brought the proceedings against the State of Victoria, Minister for Housing and Homes Victoria (defendants). The plaintiff sought judicial review of the decision to demolish the Towers on three grounds:
That in making the decision, Cabinet effectively usurped the power to develop and manage land that is exclusively vested in Homes Victoria by section 15 of the Housing Act, and that the decision was therefore affected by jurisdictional error;
That Cabinet did not give proper consideration to relevant human rights of the Group Members, contrary to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter); and
That Cabinet acted incompatibly with Group Members' human rights under the Charter; specifically, their right not to have their home and family unlawfully or arbitrarily interfered with (section 13) and their right not to be deprived of their property other than in accordance with the law (section 20).
On 26 March 2024, the defendants sought that the proceeding be summarily dismissed and declassed (not continue as a class action). On 3 April 2024, Justice Keogh refused to grant an interlocutory injunction restraining the defendants from demolishing the Towers, undertaking preparatory works or advising tenants about the demolition.
Decision
Justice Richards held the claim had no real prospects of success and must be summarily dismissed. Her Honour granted leave for the plaintiff to reformulate his claim and deferred ruling on the declassing application until this was complete.
Summary dismissal
The defendants sought summary dismissal of the claim, pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (Vic). Sections 62 and 63 require a claim to have no real prospect of success (in whole or part) for a court to grant summary judgment. Summary judgment will not be granted when a claim has a real rather than fanciful chance of success. Section 64 does allow a matter with no real prospect of success to proceed to trial but only when it is not in the interests of justice to summarily dismiss the proceeding or the dispute is of such a nature that only a full hearing on the merits is appropriate.
Does the jurisdiction error ground (claim 1) have a real prospect of success?
The plaintiff argued that Cabinet's decision to retire the Towers exercised the power exclusively vested in Homes Victoria pursuant to sections 15(a) and (b) of the Housing Act. The plaintiff submitted that it was clear from the evidence that it was Cabinet who decided to retire the Towers and therefore, this was a decision made beyond Cabinet's power. The plaintiff argued the power to develop land and buildings is vested exclusively in Homes Victoria under section 15(1) of the Housing Act. The plaintiff also argued that "there is no general principle that … decisions made in the public interest and/or which are politically controversial are immune from judicial review", relying on Chief Justice Mason's reasons in South Australia v O'Shea (1987) 163 CLR 378, 387-8 (O'Shea).
The defendants argued that the Housing Act did not preclude Cabinet from making the decision to retire the Towers by exercising non-statutory powers to determine policy according to the general public interest. Further, the defendants indicated that the Housing Statement did not purport to exercise powers under section 15 of the Housing Act. The defendants also argued that the decision to retire the Towers did not affect any legal rights or interests.
The defendants outlined that Housing Victoria is embedded within the Victorian executive government and sits below Cabinet and the Minister for Housing in the executive government hierarchy. The defendants stated that Cabinet is the supreme policy-making body in the system of representative and responsible government, accordingly, Housing Victoria are expected to have regard to relevant policies as determined by Cabinet and the Minister for Housing. Further, the defendants argued that the decision was a policy decision of Cabinet that courts are unfit to review. To support these arguments, the defendants relied on the following key authorities where Cabinet decisions were held to be non-justiciable:
Australian Education City Pty Ltd v Victorian Planning Authority (2020) 66 VR 597.
Minster for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274.
Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147.
Consideration of the jurisdiction error ground
Justice Richards ruled that the relevant provisions of the Housing Act do not "preclude the Cabinet from making high-level policy decisions about public housing". Rather, her Honour held that the Housing Act emphasises ministerial control and presupposes that Cabinet's deliberations will inform the Minister for Housing's direction and control of Homes Victoria. Her Honour noted that it is unexceptional that a significant policy decision to replace a large component of Victoria's public housing would be subject to a Cabinet decision, indeed "it would be extraordinary if it were not" (at [44]). Further, the judgment notes there was no evidence to suggest that Cabinet purported to exercise any power under the Housing Act, rather, Cabinet's decision formed part of a high-level policy on the large and complex issue of housing supply and affordability.
Her Honour concluded that the decision to retire the Towers was a policy decision "involving competing political, social, financial, economic and land use planning considerations" that the court was not in a position to review. Her Honour distinguished authorities referred to by the plaintiff (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 and O'Shea) as these decisions were exercising statutory power, had legal consequences and were based on considerations separate to the individuals that were affected by those decisions. As such, Justice Richards concluded the jurisdictional error ground, as formulated, had no real prospect of success and should be summarily dismissed.
Justice Richards clarified that her conclusion regarding the jurisdiction error did not necessarily bring the matter to an end. Her Honour noted the conduct of Homes Victoria following the announcement of the Housing Statement strongly suggests that Homes Victoria made its own decision to implement Cabinet's decision and exercise its powers under the Housing Act in relation to the Towers (at [49]).
Do the Charter grounds (claims 2 and 3) have a real prospect of success?
The plaintiff argued that the decision to retire the Towers was contrary to section 38(1) of the Charter which provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. The plaintiff claimed that Cabinet's decision was contrary to both substantive and procedural limbs of section 38(1) of the Charter.
The plaintiff argued that Cabinet's decision to retire the Towers unlawfully or arbitrarily interfered with the Group Members' human rights, including (Charter, sections 13 and 20):
the Group Members' rights to not have their home and family unlawfully or arbitrarily interfered with;
the protection of families;
the protection of children in their best interests; and
the right not to be deprived of property other than in accordance with law.
The plaintiff also argued that Cabinet's decision did not consider, or improperly considered, the Group Members' human rights and that any proper consideration would have involved consultation.
The defendants contended the Charter grounds had no real prospects of success because:
Cabinet is not a public authority for the purposes of the Charter;
Cabinet's decision did not limit the Group Members' rights as required to fall foul of the Charter;
the decision was not justiciable and as such, the plaintiff could not seek relief via legal proceedings under section 39(1) the Charter;
the plaintiff would be unable to discharge the onus of proof because the documents considered by Cabinet when making its decision would be immune from production due to public interest immunity; and
Cabinet's decision was not arbitrary.
Consideration of the Charter grounds
Justice Richards considered that as she had ruled Cabinet's decision was not reviewable by the court, the only argument she needed to consider under the Charter grounds was whether the plaintiff could claim relief under section 39(1) of the Charter. Her Honour noted that authority was not settled on whether section 39(1) of the Charter supported an application for relief based only on Charter grounds. However, the parties agreed for the purposes of the summary dismissal application that her Honour should adopt a broad view that a "person who has standing to seek remedies in relation to a decision that is amendable to judicial review may seek those remedies on Charter grounds alone". To be successful under this broad approach, the plaintiff had to identify a justiciable decision that he could seek the remedies of certiorari (to quash a decision), declarations and an injunction. Her Honour found that the plaintiff had not identified a justiciable decision and accordingly, the plaintiff did not have standing to seek judicial review remedies.
Justice Richards noted that the defendants sought an order pursuant to section 33N(1) of the Supreme Court Act 1986 (Vic) to declass the application. Her Honour did not rule on this in the summary judgment application. Her Honour also noted that the plaintiff sought leave to reformulate his claim. Her Honour held that considering the case management already invested in the proceeding and due to the complaint relating to both a policy decision of Cabinet and operational decisions undertaken by Homes Victoria, the appropriate course was to grant the plaintiff leave to reformulate his claim.
Commentary
This case highlights that if a plaintiff is challenging a decision on Charter grounds, the decision needs to be justiciable in order to claim a remedy or relief under section 39(1) of the Charter. The lack of justiciability of the Cabinet's decision in this matter was fatal to both the jurisdictional error ground and the Charter grounds. The necessity of a decision being justiciable means that plaintiff must take care in the formulation of claims for judicial review or under the Charter.
The full decision can be read here.