· The Contentions of Fact set out the plaintiff's position as to the conduct which it is alleged is misleading, deceptive and/or unconscionable.
· A number of principles can be drawn from the s 52 cases in the Federal sphere. These are, in summary:-
Section 42 (misleading and deceptive conduct) and s 43 (unconscionable conduct) apply across the spectrum from conduct directed at the public at large to private negotiations between two parties: Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594.
Conduct alleged to be misleading and deceptive must appear so to the reasonable person within a class made up of persons to whom the conduct was directed - Compomar Sociedad, Limitada v. Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at 85-87, pars [103]-[105]:-
"The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the class".
It is submitted that the relevant class here is "holders of residential site agreements within a residential park".
· There is no requirement to prove that there was an intention to mislead or deceive. In Yorke v. Lucas, (1985) 158 CLR 661 at 666, the High Court said:-
"It is, of course, established that contravention of [s 52] … does not require any intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that is misleading or deceptive".
· Section 51A of the Trade Practices Act deals with unconscionable conduct. The following principles may be useful:-
Unconscionable conduct is that which supports the grant of relief on the principles set out in specific equitable doctrines established by courts of Equity - see ACCC v. Samton Holdings Pty Ltd [2002] FCA 62; (2002) 189 ALR 76.
The concepts in Blomley v. Ryan (1956) 99 CLR 362 are relevant. Fullagar J said (at 415):-
"The circumstances adversely affecting a party, which may induce a court of Equity either to refuse its aid or set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other".
· The Macquarie Dictionary defines the term "unconscionable" as "1. Unreasonably excessive. 2. Not in accordance with what is just or reasonable; unconscionable behaviour. 3. Not guided by conscience, unscrupulous".
Restraining and mandatory orders arising out of various sections of the RP Act (orders 6 …)
· The orders sought here relate to:-
breaches of s 30 of the Act (access to the Park).
…..
Again, the declarations sought elsewhere in the Amended Summons are the jurisdictional basis for the injunctive relief.
Plaintiff's contention of fact
146 The following is an extract from the plaintiff's "Contentions of Fact" document.
Access to the Park
· Boom gates were installed at the Park entrance to regulate traffic in and out of the Park in November 2001. The gates were left open while testing was undertaken and cards issued to the residents, and on 28 November 2001 the boom gates commenced operation. Mr Kafer, the security guard, was asked to operate the gates that day since a number of residents had not yet received their cards.
· The new boom-gate regime was announced in the "Village News" of 13 November 2001. It said, in part:-
"We would like the boom gates to start operation on the 28th November, 2001. In order for the procedure to be carried out efficiently we would appreciate if all residents would kindly observe the following steps to ensure that all residents are issued with a card. Failure to pay for the boom gate card will result in your car being locked out of the park".
· The resident was requested to bring their driver's licence and registration papers, together with a fee for $15.00, to the Park office on a particular day to be issued with a card. The Village News did not disclose that the registration details and driver's licence number was to be entered into the computer.
· A number of residents gave evidence about having difficulties in obtaining access cards. All of the witnesses dealt with Lynda Tschannen.·
• Mr Adams had a Site Agreement which had the space in standard clause 32.2 ruled out. That clause reads:- "The resident agrees to pay a deposit of $------- (no more than $15.00 ) for each boom gate key". Lynda said to him, "I don't care about the terms of your agreement". He also objected to his driver's licence and registration details being entered into the computer. ·
• Mr Flanagan, who is elderly and needs a scooter to get about the Park, and who has carers and helpers to assist with his daily activities, was told by Lynda Tschannen that without a drivers licence and vehicle registration his application for an access card was "no go".·
• Mr Hogg sought an access card, and was willing to show his documents but not willing for the driver's licence and registration to be entered into the computer. He asked for an access card on a number of occasions before obtaining an order from the Tribunal for an access card.·
• Mr Jackson sought a card but did not wish his details to be recorded. While he was waiting for the Tribunal order, his car was stranded outside the gates.
• Mr Jones was refused a card until he provided his registration number, and had to obtain a Tribunal order for a card for his carer, since he suffers from lymphoma. ·
• Mr Luback had to pay $15.00 for a card when his agreement specified that he did not have to pay. The money was later refunded. He obtained an order for access for his visitors on the basis of the Park Rule relating to visitor parking in the relocatable section.·
• Mr McGowan was refused a card without production of his licence and registration.
• Mrs McGowan provided her licence number to Ms Tschannen but was refused a card without provision of her licence and registration papers. She was told, "No licence, no registration, no card".·
• Mr Shepherd offered to provide his car registration number, but without provision of his driver's licence and registration papers Lynda told him, "you are not getting a card".
Most of the listed residents obtained a Tribunal order granting them an access card against the park owner. There are now no problems in relation to access cards, except that Mrs Knight was informed by way of these proceedings that hers was available at the office. She has still not received it. She is now living in a retirement village..
· A number of residents gave evidence as to problems arising from time to time with the operation of the boom gates.·
• Mr Clark's car was towed away in September 2002 when he was stranded at the front gate by the boom gate failing to work. He had not had any previous problems, and was not cross-examined on whether he had used the gates in a way which would cause the card to cancel.
• Mrs Hughes gave evidence of being locked out due to the "anti-passback" effect of the boom gates, after she had been taken to hospital by ambulance and returned by taxi.
• Mrs McGowan had a litany of problems with her access card.
Again, there are currently no problems with the ongoing use of the boom gates.
· The plaintiff submits that the conduct of the defendants in relation to the boom gate was unconscionable, misleading and deceptive. Many of the residents are elderly, some are ill (such as Mr Clark and Mrs Hughes in particular) and many of the witnesses live in the far section of the Park. Mr Clark gave evidence of his difficulties in walking from the front gate when stranded outside the Park. He was not cross-examined on the explanation given by Mr Tschannen for card cancellations, that is, that cards were cancelled only when residents misused them by "tailgating" or "double-dipping" (ie, following another car into the Park, thus disturbing the "anti-passback system"). While it is accepted that the system does function in this way, the manner in which the keys to the boom gates were controlled, as well as the waving away of the witnesses' concerns about privacy by Mr Tschannen in the witness box and the office staff in the residents' evidence, indicate a dismissive attitude on the part of Park management to the legitimate issues raised in these proceedings.
· There was also an issue raised in the proceedings relating to visitor parking. Visitor parking is not dealt with in the Residential Parks Act, but in this case it is covered by the Park Rules. At various times there have been rules in place which cover visitor parking within the park (see the relocatable section visitor parking rule, referred to above). Some of the residents bought their homes in the park at a time when the relocatable section visitor parking rule was part of the Park Rules.
· Mr Kafer, the security guard at the time, met with Mr Freire and Mr Tschannen in about mid-December 2001. He says that he was given a list with names on it and was told by Mr Freire, "Here is a list of residents, and their site numbers, who have caused us aggravation in the Tribunal. If any of these people have visitors or anyone attending their site then they are to be told to park in the visitor's car park and walk". Mr Kafer replied, "That's discrimination". Mr Freire said, "So what" and Mr Tschannen said, "Be careful with the list. Make sure no-one sees it". The list was a copy of a list attached to the computers in the shop which was a reminder that the residents listed had applications before the Tribunal relating to the validity of a rent increase. However, on the list given to Mr Kafer (which became Exhibit D), that heading was removed. Mr Tschannen and Mr Freire disclaimed the conversation alleged by Mr Kafer. Mr Kafer's contemporaneous notes (both to the Park in the security report and to his employer in the IPA logbook) provide corroboration of the policy and Mr Kafer's involvement in it. Mr Tschannen's denials of the conversation (given in cross-examination; on affidavit, he said he did not recall the conversation) were not believable given the corroboration of Mr Kafer's notes.
· On 27 December 2001, Mr Kafer was approached by Mrs Jackson, a resident of site 233, in the relocatable section. She said to him, "How come my neighbours are permitted to have visitors and for those visitors to park on their site, whereas I'm not permitted? I had visitors over Christmas that were told to park in the visitor's car park and walk down". He said, "What site are you from?" She said, "233". He then checked his list, and saw her site number. He said, "Have you had any dealings with the Tribunal"? She said, "Yes". He said, "That's probably the reason". Mr Kafer was cross-examined on this evidence, as was Mrs Jackson. Neither of them agreed that the conversation was to the effect as put by the defendant, that Mrs Jackson gave Mr Kafer a message for Mr Tschannen. Mr Kafer made a note in the memo book, the original of which was handed in to the office at the end of his shift, and noted the following account of the conversation:- "#233 conversation tell Warren to be careful with discriminatory practice of access by not allowing Tribunal people visitors but allowing non-tribunal in". It was put to Mr Kafer that this note was a report of a message to Warren from Mrs Jackson to be passed on by him, but he denied that, and it was also denied by Mrs Jackson. The entry made by Mr Kafer on the same day in the IPA logbook (which was not given to the Park) reads:- "1600 Has conversation with occupant of 233 knows about management practice of not allowing certain people visitors cars into park". Even on the contention of the defendant in cross examination of Mr Kafer - which was that the note constituted a message to Mr Tschannen, not confirmation of the practice itself - does not explain away the note in the IPA logbook which refers directly to the existence of a practice.
· There is further corroboration of the practice in the evidence that persons visiting sites on Mr Kafer's list were, in fact, denied access for their visitors, while other persons were allowed visitors:-·
• Mrs Brown gave evidence that she was denied an access card by Lynda Tschannen on the grounds that she had no car. She said that her children stopped visiting her once the boom gates were installed. ·
• Mr Clark gives evidence of two occasions when his daughter was not allowed to enter the Park, notwithstanding the fact that his site has adequate space for the parking of two cars (as acknowledged by Mr Tschannen in a letter to Mr Clark of 26 March 2002). Mr Clark said he had to attend the office and plead with Mr Frost himself, who then let her in but denied her exit later that day. Mr Clark suffers from a serious muscle-wasting disease and his site is some distance from the front gate.·
• Mr and Mrs Newnham's daughter, Lesley Dowds, gave evidence that she was not permitted to park at her parent's house in May 2002, notwithstanding that she had been able to do so before. She noted on that occasion that her parents' neighbour, Bob, had visitors.·
• Mr and Mrs Dumbleton tried to visit her brother, George Jones, and was told by Lynda Tschannen that "You'll have to park outside and walk up". Mr Dumbleton said, "My wife is very ill and can't walk up", and she replied, "You'll have to park outside". Mr Dumbleton gave evidence that on an occasion when neither Mr Tschannen nor Lynda Tschannen were in the office, they were allowed to drive to Mr Jones' site. Mr Jones lives in the relocatable section of the Park, near the river, the part of the Park the furthest distance from the entrance.·
• Mr Hogg received a letter on 5 February 2002 stating that his visitors would not be allowed to park within the Park. He, too, lives in the relocatable section.·
• Mr and Mrs Jackson's daughter was not permitted to re-enter the Park at Christmas 2001 and when Mr Jackson enquired as to why, he was told "you are on the blacklist because you had gone to the Tribunal".·
• Mr Luback's visitors are not permitted to enter the Park, notwithstanding an order from the Tribunal to that effect.
Each of these persons appears on Mr Kafer's list.
· The visitor parking areas are very restricted - there are eight visitor parking spaces at the front of the Park. If they are full, and a car is not allowed into the Park, the visitor must park outside the Park surrounds on the roadway. There was evidence from a number of residents about problems with cars being vandalised and concerns about parking cars away from the residential site.
· The conduct of the defendants, in particular the first defendant, in directing or allowing differing interpretations of the Park Rules is both unconscionable, given the level of distress it caused the residents, and misleading and deceptive, in that the park management did not comply with the contention in the Park Rules from time to time that visitors may park in the relocatable section.
· Staff of the Park have used access to the boom gates to enforce other provisions of the agreements between the residents and the Park, or to otherwise regulate the behaviour of the residents.·
• Mrs Burkitt gives evidence that she sought access on 22 June 2002, when her access card did not function. Mr Frost, the caretaker, said to her, "Are you going to park at your designated car space?" She said, "I will park at my site". He said, "I can leave you waiting there for three weeks". He left her waiting there for a short period and she was then allowed entry.·
• Mr Kafer was told by Mr Freire on 28 November 2001 to "stop Alan Shepherd from leaving", and given the reason that he was "going to Court that day". Mr Kafer raised with Mr Freire his view that "preventing people from leaving is deprivation of liberty" and that "you want to be careful". Mr Kafer was cross examined about this matter but did not resile in any important way from his evidence. Mr Shepherd was in fact blocked from exiting on that day and drove over part of a garden bed to get out.·
• Mr Flanagan gave evidence that on the Tribunal ordering that he be provided with an access key, he was given one which did not work. The Park wrote a letter to him dated 24 January 2002 claiming that provision of an access key was all that the order required, and on 27 February 2002 Mr Flanagan obtained an order that he be provided with a key that did, in fact, work.·
• Mrs Hill gave evidence (on which she was not cross-examined) that her card was cancelled after another resident, Mrs McGowan, followed her car into the Park. · Mr Luback gave evidence that Lynda Tschannen cancelled his card because "you let Grace in behind you … This is what happens when you go to the Tribunal".
• Mr Luback had to cancel an appointment with his doctor as he could not be guaranteed re-entry to the Park.·
• Mr McGowan gave evidence that his card was cancelled by Lynda Tschannen, who told him "the card was cancelled because you did not park in the designated car space near the visitor's car park".·
• Mrs McGowan was told by Rosa (cashier) and Peter (security) that "the condition you get a card is that you park your car in your designated car space at the visitor's car park".
· The cancellation of the cards is a breach of s 30 of the Residential Parks Act, in that the residents were restricted entry to the Park. Section 30 provides:-
"(1) It is a term of every residential tenancy agreement in respect of residential premises in a residential park that, if the park owner has installed any locks or other security devices (such as boom gates) to restrict entry to the residential park …
(a) the park owner must give a copy of the key or any other opening device or information required to open the locks or other security devices to the resident at the commencement of the agreement, and
(b) the park owner must maintain those locks or security devices in working order".
· Correspondence was sent by the Park, under the name of Banora Point Caravan Park and signed by Mr Tschannen on behalf of Blackington, on three occasions alleging that the use of the card with another car would automatically cancel the card. While this would be true if other factors were involved - for example, if the other car were used to enter, when the last use of the card had also been for an entry - it is not true as a general statement and, couched in the terms of the letter to Mrs McGowan dated 18 June 2002, it is misleading. That letter was exhibit H in the proceedings. In similar terms was the letter from Blackington Pty Ltd to Mrs Hughes (annexure WET 2-9, part of exhibit 5), in which it was said:-
"We wish to remind you that your boom gate key card is attached to your registration of your vehicle and subsequently does not recognise any other vehicle".
· The letter suggested that if Mrs Hughes were to continue to be ill, she may wish to make "some alternative arrangement" as to access to the Park. Mr Tschannen was cross-examined on the terms of each of these letters and, although he failed to agree that the statement was wrong, he did at length agree with the contention that the factor of using a different car would not automatically cancel the card. For the Park to write to an elderly, ill woman in such terms constitutes an unconscionable use of the management powers.
· The requests, on various occasions to various residents (see, for example, Exhibit H to Mrs McGowan), by the Park for a further $15.00 to reprogram a boom gate key, were also misleading, in that the $15.00 was a security deposit and unless a totally new key needed to be issued and the old one was not returned, no further deposit was payable. Although on the occasions when a second $15.00 was paid (or a first $15.00, where the agreement provided for no payment for a key) the moneys were refunded, the distress to residents and the confusion caused by the misleading requests must amount to unconscionable conduct on the part of the defendants.
· The defendant's choice of a system which had a built-in cancellation where a resident did not use the card strictly on an in/out basis (the "anti-passback system") arguably is in contravention of s 30 of the Act, in that the Park Owner must maintain the locks and security devices (in which term the Act includes boom gates) in "working order". The fact that, even though the gates were functioning in the manner intended by the Park, they still acted to restrict access to Mrs Hughes in circumstances where she was taken from the Park by ambulance, begs the question of whether the gates themselves breach s 30. Further, there was no compliance with the requirement in s 30(1)(a) that the park owner provide "information required to open the locks or other security devices" if that section can be read as an explanation of the "anti-passback" system. There is some indication that the information was given on an ad hoc basis as an explanation for the cancellation of the card, but none that would fulfil the requirement of the subsection.