In this section
The Residential Tenancies Amendment Act 2018 (Vic) (RTAA) introduced a reasonable and proportionate test into the Residential Tenancies Act 1997 (Vic) (RTA). This page details:
The Tribunal will have regard to whether an order is “reasonable or proportionate” in determining whether to:
Under s 330(3)(f) RTA, the Tribunal can only make a possession order in relation to a residential rental, rooming house, caravan or Part 4A site agreement if the Tribunal is satisfied that it is reasonable and proportionate to do so having regard to the interests of:
To determine whether it is reasonable and proportionate to make a possession order, the Tribunal must consider the criteria under section 330A RTA. These are:
The Tribunal has held that criteria (a) to (g) are irrelevant where the ground for seeking the order is not based on any action or conduct of the tenant. On this, see Rizio v XEP  VCAT 882 at  which concerned an application for the landlords to move into the property.
The decision as to whether the reasonable and proportionate test is satisfied has been framed by reference to whether on balance the impact of making the order on the renters is “harsher” or “more severe” than the impact on the residential rental provider of not making the order, or whether the hardship to the renter outweighs the hardship to the residential renter provider. See Mikho v Burgess  VCAT 691 at ; Rizio v XEP  VCAT 882 at ; Struth v Thwaites  VCAT 788 at .
It has been held that when taking into account the interests of the relevant parties it is necessary to consider their case at its highest at the time of the hearing: LKZ v BSL  VCAT 909  and .
The impact of a possession order on the renter is a ‘fundamental aspect’ of the analysis required by the Tribunal under the reasonable and proportionate test. The Tribunal should give active intellectual consideration to the impact of the order on the renter, as opposed to a ‘cursory, dismissive or passing reference’: Hanson v Director of Housing  VSC 710 at  to .
The Supreme Court in Hanson discussed the standard of consideration that was relevant. The question of impact under s330(1)(f) was said to concern a ‘forward-looking, hypothetical matter’. The Court found that the Tribunal needed to consider not whether renter would be rendered homeless by the making of a possession order, but whether it was likely that he would be rendered homeless (at ).
Factual considerations which have influenced the Tribunal’s decision on the reasonable and proportionate test have included:
Some early cases on the reasonable and proportionate test were decided under the COVID-19 tenancy regime provided for in the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (Vic). This regime included s 538, which is equivalent to the current s 330A. It is important to consider that cases from that time were decided at the height of the pandemic and in the context of significant COVID-19 related restrictions, and this likely impacted the Tribunal’s interpretation. Nonetheless, the case law on s 538 provides guidance as to how the Tribunal will interpret the reasonable and proportionate test in s 330A.
The case law on the reasonable and proportionate test under s 330A continues to develop. VCAT decisions have demonstrated that the outcome will likely turn on the facts and circumstances of the case, which also illustrates the types of arguments that can be made.
In addressing the Tribunal on whether eviction is reasonable and proportionate, it may be relevant to raise the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
Pursuant to s 32 of the Charter, so far as it is possible to do so consistently with their purpose, statutory provisions must be interpreted in a way that is compatible with human rights. It may be arguable that specific human rights lend weight to an argument that eviction would not be reasonable and proportionate.
Charter rights that may be relevant include:
In making submissions in relation to the application of s 32 of the Charter to the reasonable and proportionate test, you should be aware of the decision of Momcilovic v The Queen  HCA 34 (8 September 2011) noting that s 32 does not permit a court to strain the language of a provision.
The way in which the reasonable and proportionate test will be interpreted will likely only be fully known as the body of case law on each of the criteria in the reasonable and proportionate test continues to develop.
In preparing to defend a possession order application at VCAT, it will be important to consider the reasonable and proportionate test and how it applies to your client’s individual circumstances. You should consider each of the factors that the Tribunal must consider pursuant to s 330, and what instructions or evidence you need to gather.
At a minimum, this should include:
If they are made available at the hearing, you should also prepare to cross examine the RRP about their circumstances, and consider making submissions about that the relative impact of a possession order on the parties.
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