LAWRENCE -v- COOPERATIVE BULK HANDLING LTD [2017] WASC 24 (7 February 2017)

4 The appellants appealed from that decision. They alleged 14 grounds of appeal. A copy of the grounds is annexed to these reasons.

5 The appellants also applied for a stay of the Tribunal's decision pending the determination of their appeal. However, the respondent gave undertakings that meant that it was not necessary to determine that application.

6 The appellants filed various documents prior to the hearing of the appeal, including a document that added two grounds of appeal (grounds 15 and 16). The supplementary grounds alleged that the Tribunal had erred in finding that the parties had not made an agreement for a periodic tenancy at the end of the term of the Tenancy Agreement.

7 The Residential Parks Act does not expressly provide for an appeal from a decision of the Tribunal under the Act. Accordingly, s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) applies so that an appeal requires the leave of this court and can only be on a question of law.

8 The appellants, who were unrepresented, did not attempt to formulate any question of law on which they brought their appeal. However, it was not difficult to identify questions of law within their grounds of appeal and the grounds raised matters that were within the limited jurisdiction conferred on this court by s 105(1) of the SAT Act.

9 The test of whether leave to appeal should be granted under s 105(1) is ordinarily whether the appeal has a reasonable prospect of success. However, my research suggested that this court has not previously considered the meaning and effect of the Residential Parks Act. I will grant the appellants leave to appeal. However, I have concluded that the appeal should be dismissed for the reasons that follow.

10 The object of the Residential Parks Act is to regulate the relationship between the operators of residential parks and tenants who live in the parks for extended periods.

11 The Residential Parks Act applies to, among other things, longstay agreements. A longstay agreement is defined to mean a residential park tenancy agreement for a fixed term of at least three months or for a periodic tenancy that continues for at least three months: s 5 and s 6 of the Residential Parks Act. A residential park tenancy agreement is defined to mean an agreement made between an individual and a park operator under which the park operator, for valuable consideration, grants to the individual the right to occupy a relocatable home on a site in a residential park. A residential park is defined to mean a caravan park in which there are long-stay sites: cl 1 of the Glossary.

12 Part 2 of the Residential Parks Act contains provisions relating to the form and contents of longstay agreements. The part does not distinguish between fixed term and periodic longstay agreements. For example, both fixed term and periodic longstay agreements must be in writing and must contain such clauses and provisions as are prescribed by the Act and the Residential Parks (Longstay Tenants) Regulations 2007 (WA) (the Regulations): s 10 of the Residential Parks Act.

13 Section 7 of the Residential Parks Act recognises the obvious possibility that a periodic tenancy will be created that continues for three months but which does not comply with the Act. In that circumstance, the park operator is required to attempt to make a longstay agreement that complies with the Act. Where a longstay agreement that complies with the Act has not been made within a period of five months after the periodic agreement was made, either party may apply to the Tribunal for the termination of the agreement or for a determination in respect of the terms of the agreement. Section 7(3) provides that the Act applies to the agreement, to the extent that it can be applied, as if the agreement had been made in accordance with the Act once a noncomplying periodic tenancy agreement has continued for at least three months. The Act applies pursuant to s 7(3) until either the agreement is terminated or a new agreement is made that complies with the Act.

14 In summary, the Residential Parks Act does not apply to any form of occupation of a residential park site that is for less than three months. Rather, the Act applies to any residential park agreement that continues for at least three month regardless of the form of the agreement. The intent is that the Act should regulate the relationship between all park operators and long-stay tenants (that is, tenants who, on providing valuable consideration, are granted a right to occupy a site in a residential park over a period of at least three months). Section 7 applies to a periodic tenancy that has continued for at least three months but which does not comply with the Act - for example, because it is not in writing or because it does not contain the provisions that have been prescribed by the Act or the Regulations. Subject to s 7, a periodic tenancy must comply with the provisions of the Act in the same way as a fixed term longstay agreement.

15 Part 3 of the Residential Parks Act provides for the termination of longstay agreements. Section 33(2) provides that a longstay agreement for a fixed term is terminated when both of the following events have occurred:

(b) the tenant has given vacant possession of the site to the park operator.

16 Accordingly, a fixed term longstay agreement is not automatically terminated at the end of the term; it is also necessary for the tenant to give vacant possession. Further, s 36 of the Act states that the failure by a tenant under a fixed term longstay agreement to give vacant possession at the end of the term does not constitute a breach of the agreement and s 34 provides that the terms of the agreement apply where a longstay agreement continues beyond the day on which it would, upon its terms, have ended as a result of the passage of time.

17 Consequently, it is necessary for a park operator to apply to the Tribunal for orders if it wishes to obtain vacant possession of a site leased under a fixed term longstay agreement where the term of the agreement has expired but the tenant has not given vacant possession. In those circumstances, the tenant will not have breached the longstay agreement, the agreement will not have come to an end and the holding over by the tenant will be pursuant to the fixed term longstay agreement. Further, a periodic tenancy will not be created by the tenant holding over and paying rent that is accepted by the park operator. The occupation of the site and the payment and receipt of rent will be pursuant to the fixed term long-stay agreement.

18 Section 67 of the Residential Parks Act applies where:

(a) the fixed term under a longstay agreement for a fixed term has ended;

(b) there is no agreement between the longstay tenant and the park operator to continue the tenancy as a periodic tenancy; and

(c) the tenant has not given vacant possession of the site to the park operator (s 67(1)).

19 In those circumstances, the park operator can apply to the Tribunal and the Tribunal may make orders terminating the agreement and requiring the tenant to give vacant possession of the site.

20 Section 68 of the Residential Parks Act applies where:

(a) a park operator has given a notice of termination to a longstay tenant or a longstay tenant has given a notice of termination to the park operator; and

(b) the tenant does not give vacant possession of the site to the park operator on the day specified in the notice of termination (s 68(1)).

21 The section enables a park operator to apply for orders terminating the agreement and requiring the tenant to give vacant possession. The Tribunal may make those orders on being satisfied that the tenant has breached the agreement or that terminating the agreement is justified in all the circumstances. However, s 68(5) further provides that the Tribunal may refuse to make orders under the section if it is satisfied that:

(a) the park operator was wholly or partly motivated to give the notice by the fact that the longstay tenant had complained to a public authority about the park operator's conduct in relation to the agreement, or had taken steps to secure and enforce his or her rights as a tenant under the agreement;

(b) the tenant had remedied any breach which was the subject of the notice of termination; or

(c) the consequences of continuing the agreement would not be unduly burdensome to the park operator where the notice was given on the ground of frustration.

22 Sections 39 42 of the Residential Parks Act specify the circumstances in which a park operator may give a notice of termination. A park operator is not required to give a notice of termination to end a long-stay agreement for a fixed term where the term has expired.

23 The appellants referred in their grounds of appeal to s 42. That section provides that a park operator may give a notice of termination to a longstay tenant to terminate the agreement on any grounds. The notice must:

(a) state that the park operator intends to terminate the long-stay agreement under s 42;

(b) specify the date by which the tenant is to give vacant possession;

(c) comply with the requirements as to form set out in s 38.

24 Section 42 stipulates the minimum period that the notice must specify within which a tenant is required to give vacant possession. The effect of the section is that a notice of termination for a fixed term longstay agreement cannot specify a date for termination and vacant possession that is prior to the end of the fixed term.

25 An application under s 67 of the Residential Parks Act comes within the Tribunal's original jurisdiction: see s 15(1) of the SAT Act. In exercising its original jurisdiction, the Tribunal is required to deal with a matter in accordance with the SAT Act and the enabling Act: s 16(1) SAT Act.

26 Section 32 of the SAT Act contains the following provisions relating to the practice and procedure to be adopted by the Tribunal in both its original and review jurisdiction:

(a) the Tribunal is bound by the rules of natural justice (s 32(1));

(b) the Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings and the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record (s 32(2));

(c) the Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2));

(d) the Tribunal may inform itself on any matter as it sees fit (s 32(4));

(e) the Tribunal is required to take measures that are reasonably practicable to ensure that the parties have the opportunity in a proceeding to give and call evidence; to examine, crossexamine or reexamine witnesses; and to be heard or otherwise have their submissions considered (s 32(6)(c));

(f) the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding (s 32(7)).

27 Section 34 of the SAT Act provides that the Tribunal may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. It is clear from s 34(5) that the Tribunal may make directions requiring a party to produce a document or other material or provide information.

The proceedings in the Tribunal The material filed for the hearing

28 Consistent with the Tribunal's usual practice, the respondent filed a bundle of documents prior to the hearing of the application (Respondent's Bundle). The respondent also filed a statement of issues, facts and contentions.

29 The second appellant made a lengthy affidavit prior to the hearing. The appellants also filed a response to the respondent's statement of issues, facts and contentions and a bundle of documents (Appellants' Bundle).

30 The documents filed by the parties prior to the hearing included a copy of the Tenancy Agreement, notices of default and termination issued by the respondent to the appellant prior to 31 January 2016 and emails transmitted by the appellants to the respondent immediately before and after that date concerning the end of the term of the Tenancy Agreement.

31 It is only necessary to note two provisions of the Tenancy Agreement. Clause 9 provided that if the appellants remained in possession of the Site after expiry of the term of the Tenancy Agreement with the consent of the respondent, the appellants would be monthly tenants on the same terms and conditions as the Tenancy Agreement. Clause 14 provided that any notice, or other communication, including any consent or approval to or by a party to the Tenancy Agreement, was to be in writing.

32 The Respondent's Bundle included a default notice sent to the appellants on about 9 July 2015 and a termination notice sent on about 31 July 2015. The respondent subsequently applied to the Tribunal for orders pursuant to s 68(2) of the Residential Parks Act that the longstay agreement be terminated and the appellants give vacant possession of the Site (First Application). The application was dated 3 September 2015. The Tribunal referred the application to mediation and the proceedings were settled by orders made by Member De Villiers at the mediation on 29 October 2015. The orders included an order that 'it is acknowledged that the [Tenancy Agreement] expires on 31 January 2016'.

33 It is apparent that there was considerable conflict between the appellants and the management of the Caravan Park at that time. The appellants had complained about aspects of the park management and the behaviour of other residents to the respondent's management. Indeed, the first appellant had written to the chairman of the board of the respondent regarding problems that the appellants had experienced at the Caravan Park. The second appellant's affidavit made prior to the Tribunal hearing outlined those problems.

34 The Respondent's Bundle also included a letter dated 14 January 2016 from the respondent's solicitors to the solicitors who had acted for the appellants in the First Application. The letter was headed 'Notice of Termination of Lease' and stated that, pursuant to s 33 of the Residential Parks Act, the respondent gave notice to the appellants that the Tenancy Agreement was terminated with effect from midnight, 31 January 2016. The letter further stated that a new tenancy agreement or an extension of the Tenancy Agreement would not be offered to the appellants prior to or upon the termination of the Tenancy Agreement. The balance of the letter dealt with arrangements that the appellants might make for disposal of the caravan that was located on the Site.

35 The Appellants' Bundle included a letter that was sent by the appellants to the respondent regarding the possibility of a new tenancy agreement following the expiry of the Tenancy Agreement. The gist of the letter was that the appellants asserted that any default under the Tenancy Agreement had been remedied and that there had been no 'adverse dealings' with the management of the Caravan Park since the mediation in the First Application. Accordingly, they maintained that there was no reason why a new tenancy agreement should not be made.

36 The Appellants' Bundle also included a note made by the first appellant of a meeting held with Mr Mathew Mews, who was described in other documents as the 'Commercial Manager Rail' for the respondent. The meeting was held on 5 February 2016, although it is apparent from its contents that the note was made sometime after that date. The note recorded, among other things, that:

We [the appellants] asked where we are going as our lease payments were due on Sunday 7/2/2016. He advised us to keep paying our rent. I did make payment which takes me up to 2/4/2016.

Both my wife and myself did not think that Matthew was saying too much, but we had confidence as we know in our own mind we have not done anything wrong to be refused.

We waited a couple of weeks and eventually made contact with Matthew re this matter ...

I have had a message from one of the Directors that they are not allowed to speak to me, which I assume as we are going to SAT.

37 A single Member constituted the Tribunal. The appellants were assisted, with the permission of the Tribunal, by a layperson, Mr Noye.

38 The Tribunal commenced the hearing by identifying the following issues to be determined on the respondent's application:

(a) whether the appellants and the respondent had entered into a longstay agreement for a fixed term;

(c) if so, whether the appellants had been permitted to stay at the premises pursuant to a periodic tenancy;

(d) if not, whether the appellants had given vacant possession of the premises.

39 The Tribunal explained the usual practice in relation to taking evidence:

What I normally do is I just take the documents that have been submitted, and subject to any objections I say, 'are you happy for me to take them into evidence and give it the weight that it merits in light of the legislative framework?' So I am happy to take it into evidence, subject to any objections and - but unless you convince me that there's anything in here, apart from maybe discussions with the park operator about whether - about what happened after 1 February, unless you convince me that anything else in there goes to any of those other issues, then I simply wouldn't consider it. It would not be relevant (ts 6).

40 The Tribunal further explained that the procedure to be applied was informal and appellants were invited to explain the relevance of the documents that they had filed to the issues that had been identified. There followed an exchange in which:

(a) The first appellant explained that the appellants had purchased the caravan that was accommodated on the Site and had done so in the expectation that they would remain at the Caravan Park for life. They appreciated that they had entered into a lease for a period of two years but they expected that the respondent would automatically renew the lease.

(b) The first appellant referred to the First Application and the disputes that had been mediated in that application. The Tribunal stated that the dispute, the previous proceedings and whatever was agreed in order to resolve the dispute, were irrelevant to the issues to be determined on the respondent's application.

(c) The first appellant acknowledged that the Tenancy Agreement had expired but added that the appellants had received legal advice to the effect that a periodic tenancy would be created if they remained at the Site and paid the rent.

(d) In answer to a query by the Tribunal about a possible mediation, counsel for the respondent advised that the respondent had determined not to extend the Tenancy Agreement as the appellants had been in default. Counsel referred to the letter dated 14 January 2016 in which the appellants had been notified that the Tenancy Agreement would not be renewed so that they could make arrangements, if they chose, to sell the caravan located at the Site.

(e) Mr Noye enquired whether the Tribunal might make an order extending time to enable the appellants to sell their caravan. The first appellant again acknowledged that he understood that the Tenancy Agreement was to expire on 31 January 2016 but explained that he required further time to sell the caravan.

41 The Tribunal briefly adjourned the proceedings to enable the parties to discuss whether an agreement could be reached to enable time to be extended to facilitate the sale of the appellants' caravan (that is, the time within which the appellants were to give vacant possession). Following the adjournment, counsel for the respondent advised that the respondent was not prepared to withdraw its application but would consent to an order that termination of the Tenancy Agreement and vacant possession be deferred for the maximum period allowed by s 67(5) of the Residential Parks Act.

42 In further exchanges with the Tribunal, the first appellant accepted that the Tenancy Agreement was a longstay agreement within the meaning and for the purpose of the Residential Parks Act and that the agreement was for a fixed term expiring on 31 January 2016. However, he also stated that the appellants had corresponded with Mr Mews in January and early February 2016 and had been advised that the respondent would 'not be going to court' and that the Tenancy Agreement would be 'sorted out'.

43 In answer to further questions from the Tribunal, the first appellant accepted that an express agreement for a periodic tenancy had not been made but reiterated that the appellants had been advised that a periodic tenancy would be created if they remained in possession of the Site and paid rent. Counsel for the respondent advised that the respondent had deposited money paid by the appellants after 31 January 2016 into a trust account rather than applying the money to payment of rent so as to avoid any inference that it had agreed to or granted a periodic tenancy.

44 The Tribunal noted that it was not in issue that the respondent was the operator of the Caravan Park and that the appellants and the respondent had entered into a longstay agreement for the lease of the Site for a term of two years expiring on 31 January 2016. The Tribunal observed that the appellants had also 'effectively conceded' that no agreement for a periodic tenancy had been made on expiry of the Tenancy Agreement. Rather, the 'focus' of the appellants' submissions at the hearing had been on 'the hardship they would experience by operation of the orders' (that is, the orders sought by the respondent) (ts 44).

45 Accordingly, the Tribunal held that the respondent was entitled to orders under s 67(2) of the Residential Parks Act. The Tribunal also found that it was reasonable to permit the appellants time to 'attempt to wrapup their affairs' (ts 45). The Tribunal ordered that the Tenancy Agreement be terminated, effective on 11 May 2016 and that the appellants give vacant possession of the Site on that date.

46 The appellants abandoned ground 6 of the grounds of appeal in a document that was filed prior to the hearing of the appeal and which reproduced the appellants' grounds of appeal and incorporated their submissions on those grounds (Appellants' Submissions).

47 The remaining grounds can be conveniently grouped into the following complaints:

(a) the Tribunal erred by not applying the rules of evidence and, in particular, by not requiring the respondent to prove its entitlement to orders under s 67 of the Residential Parks Act by evidence that was only admissible in legal proceedings according to those rules (grounds 1 4, ground 13 and, in part, ground 16);

(b) the Tribunal erred by failing to find that the respondent lacked 'clean hands' in applying to terminate the Tenancy Agreement and obtain vacant possession of the Site (ground 5); further or alternatively, that the respondent was biased against the appellants (ground 12);

(c) the appellants were prevented from properly presenting their case and/or the Tribunal failed to have regard to material provided by the appellants (ground 7 and ground 8);

(d) the Tribunal failed to have regard to matters that were relevant under the Residential Parks Act (grounds 10 and 11);

(e) the Tribunal's decision was unreasonable or involved rejecting 'key tenets' of the appellants' claims that were 'eminently arguable' (grounds 9 and 14);

(f) the Tribunal erred in finding that the appellants and the respondent had not made an agreement for a periodic tenancy following the expiry of the Tenancy Agreement (grounds 15 and 16).

48 Although the appellants did not attempt to do so, it is possible to identify the following questions of law for the purposes of s 105 of the SAT Act:

(a) whether the Tribunal made findings for which there was no evidence or no admissible evidence and/or whether the Tribunal conducted the hearing of the respondent's application according to the provisions of the SAT Act;

(b) whether the appellants were denied natural justice by the manner in which the Tribunal conducted the hearing of the respondent's application;

(c) whether the Tribunal was required to consider the respondent's conduct in operating the Caravan Park in deciding whether to grant the application (that question also involved related questions concerning whether, on a proper construction of the Residential Parks Act, the respondent was required to prove that the appellants were in default under the Tenancy Agreement; whether the Tribunal retained a discretion to refuse to make orders under s 67 even though the conditions specified in s 67(1) had been satisfied and whether, in the circumstances, s 68 of the Residential Parks Act applied);

(d) whether the Tribunal had decided all of the issues that it was required by the Residential Parks Act to determine;

(e) whether the Tribunal's decision was so unreasonable as to constitute an error of law;

(f) whether the appellants and the respondent by their conduct created a periodic tenancy for the lease of the Site on the expiry of the Tenancy Agreement.

49 The appellants filed and served other documents in the appeal apart from their grounds of appeal and the Appellants' Submissions: two affidavits made by the first appellant on 1 August and 14 September 2016; a chronology; and a document entitled 'Appellants' Summary of Problems since commencing Tenancy of Bay 44 in approximately September 2012'.

50 The affidavit dated 1 August 2016 was made in support of the appellants' application for a stay of the Tribunal's decision. The first appellant deposed to the appellants' dealings with the respondent during the term of the Tenancy Agreement, including immediately prior to and following 31 January 2016. The affidavit made on 14 September 2016 identified the evidence that the appellants contended they were prevented from presenting at the hearing in the Tribunal. I have taken into account the statements made in both affidavits in determining whether there is evidence that the appellants did not adduce at the hearing that might have affected the Tribunal's decision.

51 The document containing a summary of the problems that the appellants alleged that they had experienced during the term of the Tenancy Agreement consisted of factual assertions not made on oath or affirmation. Again, I have considered the matters stated in that document in determining whether there was material that was not presented in the Tribunal but which might have affected the outcome of the respondent's application. I have adopted that approach as the appellants appeared in person and the proceedings in the Tribunal were conducted informally.

52 It is convenient to first consider grounds 5 and 12 of the appeal. The allegation that the respondent was motivated by an improper purpose to apply for orders under s 67 of the Residential Parks Act was central to the appellants' arguments on appeal.

53 The background to that allegation was that the appellants had complained to the Consumer Protection Division of the Department of Commerce in late 2014 about the way in which they had been invoiced for electricity at the Caravan Park (pages 88 89, Appellants' Bundle). It was alleged in the Appellants' Submissions that rent money had been converted by the manager of the Caravan Park to pay electricity accounts without the appellants' consent and that this practice had resulted in the respondent issuing default notices for nonpayment of rent. The manager had been interviewed by officers of the Department of Commerce as a result of the complaint. The appellants alleged that they had been bullied and harassed following their complaint and that this course of conduct had culminated in the respondent making the First Application.

54 Against that background, the appellants made two related submissions. First, that the Tribunal had wrongly determined that the circumstances surrounding the disputes that had been mediated in the First Application were irrelevant to the respondent's application under s 67 of the Residential Parks Act and, by inference, had prevented the appellants from raising and giving evidence about the conduct of the manager of the Caravan Park and the various problems that the appellants had experienced as residents of the park:

The Respondents/Appellants are, moreover, concerned that the learned Member next rejected (as hereunder) all the preceding issues ventilated in the previous hearings, etc., and failed to grasp the relevance of the Respondents'/Appellants' case that these 'defaults' were deliberately constructed by staff of CBH with one end in mind, namely the eviction of the Respondents/Appellants under orders obtained by application to the SAT. (appellants' grounds of appeal, page 4).

The reference to 'defaults' was to the allegation made by the respondent in the First Application that the appellants had been in default of the Tenancy Agreement.

55 Second, that the Tribunal had failed to consider s 68 of the Residential Parks Act, in particular s 68(5). The appellants contended that the Tribunal was obliged to consider whether the respondent was wholly or partly motivated to give a notice of termination by the fact that the appellants had complained to the Department of Commerce about the manager of the Caravan Park.

56 The appellants also referred in the Appellants' Submissions to an exchange between Mr Noye and the Tribunal in which Mr Noye alleged that 'what we say is that these default notices have been wilfully constructed to block or to blacken [the appellants'] characters'. The Tribunal responded to that assertion by stating:

Well, it hasn't worked. If that's what they were for, it hasn't worked because I'm not considering them. I'm not interested in them. I'm not taking any notice of them that they are bad tenants, or that you don't follow the rules. I'm focusing on the issues that are raised by the current application (ts 18).

57 The appellants contended that Tribunal had missed the point of Mr Noye's submission, 'namely that it was obvious that the concocted default notices and the overall campaign of bullying and harassment (including the issues surrounding the rent payments/power accounts) were all deliberately constructed by the then site caretaker ... on a fraudulent and improper basis'. The appellants also contended that they had not been allowed to explain the 'obvious nexus' between the actions of the Caravan Park manager and their allegations of malice and improper purpose on the part of the respondent nor were they permitted to refer to documents that were relevant to that explanation.

58 A significant aspect of the protection provided to longstay tenants by the Residential Parks Act is that a fixed term longstay agreement is not automatically terminated on expiry of the term - the agreement will only be terminated by the tenant voluntarily surrendering possession of the leased site or by an order made by the Tribunal. However, a park operator is only required to establish the three matters specified in s 67(1) to be entitled to an order terminating the agreement and requiring a tenant to give vacant possession. That is, s 67(1) contains both the conditions necessary to establish the Tribunal's jurisdiction to make orders under s 67 and the park operator's entitlement to orders. Consequently, the Tribunal is not required to consider the reason why a park operator wishes to terminate a fixed term longstay agreement and the Tribunal does not retain a discretion to refuse to make orders under s 67 once it has been found that the conditions specified in s 67(1) have been satisfied. The protection provided to a longstay tenant by s 67 is confined to the power to defer the operation of orders made under s 67(2) by the periods specified in s 67(4) and s 67(5).

59 That result is hardly surprising given that s 67 applies where the term that had been agreed between the parties to a written tenancy agreement had expired and no new agreement for a tenancy had been made. The Residential Parks Act does not confer a power on the Tribunal to force a new tenancy agreement on the parties where the term of their existing agreement has expired and it would be most surprising, as a matter of policy, if the Act did confer such a power on the Tribunal.

60 Section 68 applies where either party to long-stay agreement has given a notice of termination. A notice of termination may be given under s 39 42 of the Residential Parks Act. As has been noted, s 42 provides that a notice of termination may be given without grounds. However, s 42(3) requires that the date for vacant possession specified in the notice cannot be before the end of the term where the longstay agreement is for a fixed term. It is, therefore, not apparent why a park operator who did not wish to renew a fixed term longstay agreement on expiry of the term would issue a notice of termination under s 42 and rely on s 68 if the tenant did not give vacant possession at the end of the term. Nevertheless, that aspect of the Residential Parks Act does not detract from the clear wording of s 33 and s 67.

61 The respondent's solicitors sent a document dated 14 January 2016 headed 'Notice of Termination of Lease' to the appellants' former solicitors. However, the contents of the document made it clear that it was not a notice of termination issued under s 42 but rather, a notice to the appellants that the Tenancy Agreement would not be renewed on expiry of the term. Further, the respondent's application in the Tribunal was expressly stated to be under s 67 (in contrast to the First Application which was made under s 68 after the respondent had issued a notice of termination alleging that the appellants had breached the Tenancy Agreement).

62 It follows that the matters alleged in ground 5, and substantially repleaded in ground 12, did not raise any issue that the Tribunal was required to decide in determining the respondent's application. Section 68(5) did not apply to the application and the respondent was entitled to orders under s 67 on the Tribunal finding that the conditions specified in s 67(1) had been satisfied.

63 Section 67(3) of the Residential Parks Act provides that the Tribunal may make orders terminating a fixed term longstay agreement and requiring the tenant to give possession. The appellants contended that the use of the word 'may' in s 67(3) conferred a discretion on the Tribunal to grant or refuse an application for orders under s 67(2).

64 However, in my view s 67(3) does not confer upon the Tribunal a general discretion as to whether to make orders once the conditions specified in s 67(1) have been satisfied. As has been explained, there is nothing in the wording or objects of the Residential Parks Act that would support the conclusion that Parliament intended that the Tribunal could compel the continuation of a fixed term long-stay agreement once the term of the agreement had expired and the parties had not made a new agreement for a periodic tenancy. The word 'may' in s 67(3), when read in context, has a meaning that reflects the effect of s 67(1) - that is, that the Tribunal may make (is empowered to make) orders under s 67(3) on being satisfied about the matters specified in s 67(1). The protection afforded to a tenant by s 67 is not that a park operator can be required to remain in a fixed term longstay agreement that has expired but rather, that the tenant may have the benefit of orders under s 67(4) and s 67(5).

65 Grounds 8 and 9 alleged that the Tribunal had failed to consider or rejected matters raised by the appellants in answer to the respondent's application. The Appellants' Submissions referred back to their submissions on ground 5. Grounds 8 and 9 do not disclose any error by the Tribunal for the same reasons that ground 5 has not been made out.

66 Ground 10 alleged that the Tribunal erred by failing to have regard to the provisions of s 42 of the Residential Parks Act. As has been noted, that section permits a park operator to give a notice of termination requiring the tenant to give vacant possession by a specified date without grounds. Section 42(3) provides that the date specified in the notice for a siteonly agreement must be at least 180 days after the day on which the notice was given but in any case, if the agreement is for a fixed term, not before the end of the term. The appellants contended that the effect of the section was that the respondent was obliged to specify a date for termination of the Tenancy Agreement that was at least 180 days after the date on which a notice of termination was given.

67 However, as has been explained, the respondent did not give a notice of termination under s 42. Rather, the respondent applied for orders under s 67 following the end of the term of the Tenancy Agreement and the appellants' failure to give vacant possession of the Site. The respondent was not required to give the appellants a notice of termination prior to the expiry of the term of the Tenancy Agreement or to specify a date for termination that was at least 180 days after 31 January 2016. The fact that the Tenancy Agreement was to expire on 31 January 2016 was, of course, acknowledged by the parties in the orders made by the Tribunal at the mediation in the First Application.

68 Grounds 15 and 16 took the form of a submission to the effect that a periodic tenancy agreement had been made by the appellants and the respondent following the end of the term of the Tenancy Agreement. The periodic tenancy was alleged to have been made and/or evidenced by a combination of communications between the appellants and Mr Mews and the appellants' conduct in continuing to occupy the Site and pay rent.

69 The appellants alleged in their written submissions on grounds 15 and 16 that:

(a) Mr Mews invited the appellants to apply to continue their tenancy of the Site in a conversation held on 20 January 2016;

(b) the appellants submitted an application to continue the tenancy several days later and then spoke by telephone with Mr Mews. The effect of the conversation was that 'the matter of [the appellants'] continued tenancy would be resolved in their favour as proposed by the [appellants] without the matter having to go to Court';

(c) it was more likely than not that a 'form of implied consent between the parties was sufficiently in place for the [appellants] to believe that, pro tem, they had a clear agreement with [the respondent] for them to remain in the [Caravan Park] on an extension of their expired lease, in the terms of a periodic tenancy';

(d) as a consequence, the appellants continued to make regular payments of rent;

(e) money paid by the appellants ought to have been accounted for as the payment of rent rather than held in trust, and the respondent had deliberately prevented the appellants from obtaining a 'formal periodic tenancy' by holding money in trust rather than applying the money to the payment of rent;

(f) the respondent did not present any evidence at the hearing in the Tribunal that a periodic tenancy had not been made or which would have contradicted the matters stated by the appellants in the appeal.

70 The appellants also referred to an exchange between counsel for the respondent and the Tribunal regarding the effect of the appellants' holding over on expiry of the term of the Tenancy Agreement. The Tribunal tentatively expressed a view that the Tenancy Agreement remained on foot having regard to s 36 of the Residential Parks Act. The Tribunal added that, 'what it is, I don't really know, and I'm not sure I need to be too concerned about it'. Counsel for the respondent replied by suggesting that the appellants retained a right of occupation of the Site until the Tribunal made an order for vacant possession (ts 34).

71 The appellants submitted that the statement by the respondent's counsel was an admission that the appellants had a right to lawfully occupy the Site but the respondent had, nevertheless, sought to evict the appellants to 'solve a problem that had been deliberately created by the [respondent]' and which they could only resolve by 'wrongfully and maliciously' commencing proceedings against the appellants pursuant to s 67 of the Residential Parks Act.

72 Several points can be made about the appellants' submissions. First, s 67 does not apply, and the Tribunal has no jurisdiction under the section, unless each of the three matters specified in s 67(1) have been established. It is for the applicant for orders under s 67 to satisfy the Tribunal that the section applies.

73 Second, as has been explained, the combined effect of s 33(2), s 34 and s 36 is that a fixed term longstay agreement remains in force after the expiry of the fixed term until such time as the tenant gives vacant possession of the leased site. That is so whether possession is surrendered voluntarily by the tenant or pursuant to an order made by the Tribunal. Consequently, a periodic tenancy is not made within the meaning and for the purpose of s 67(1)(b) merely by a tenant holding over and paying rent after the fixed term of a longstay agreement has ended.

74 Third, the first appellant accepted in the Tribunal hearing that a periodic tenancy agreement had not been made. That concession was rightly made. The respondent had made its position clear in the letter of 14 January 2016 from its solicitors to the solicitors who had acted for the appellants in the First Application. Accepting the appellants' statements as to what had occurred in their dealings with Mr Mews, those dealings did not create a periodic tenancy by express agreement. Mr Mews did not bind the respondent to granting a periodic tenancy over the Site at the end of the term of the Tenancy Agreement. At most, he agreed to consider an application by the appellants for a new tenancy (by inference, a new fixed term longstay agreement) and observed that the matter could be resolved without the parties going to court.

75 Fourth, the respondent was not obliged to grant any form of tenancy on expiry of the term of the Tenancy Agreement even if the appellants had not been in default of the agreement. The Residential Parks Act does not compel a park operator to offer a new tenancy on completion of the fixed term of a longstay agreement unless the tenant is in default.

76 Fifth, the Tenancy Agreement expressly provided for the circumstances in which a monthly tenancy might be created on expiry of the term of the agreement (cl 9). The agreement required the respondent to consent to the monthly tenancy and for that consent to be given in writing (cl 14). There was no written consent by the respondent to the appellants holding over after 31 January 2016 on a monthly tenancy.

77 In my view, the Tribunal did not make any error in finding that the appellants and the respondent had not made a periodic tenancy within the meaning and for the purpose of s 67(1).

78 The appellants submitted that a tribunal or court should not make an order or judgment against any person except on sworn evidence that has been tested by crossexamination. They complained that no 'sworn documentary evidence' or 'sworn evidence' was adduced by the respondent; that the respondent did not call any witnesses and that the respondent's case was presented by its counsel giving hearsay evidence. It was contended that the Tribunal erred by allowing the respondent to present its case in that way.

79 The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit, provided that it applies the rules of natural justice. Accordingly, the procedure adopted by the Tribunal at the hearing of the respondent's application was consistent with the provisions of the SAT Act, subject to two matters: whether the procedure adopted by the Tribunal accorded with the rules of natural justice and whether the Tribunal had regard to and complied with the obligation imposed by s 32(6)(c) of the SAT Act.

80 Those matters are interrelated. The requirement imposed by s 32(6)(c) that the Tribunal take measures that are reasonably practicable to, among other things, ensure that the parties have the opportunity in a proceeding to call or give evidence; to examine, crossexamine or reexamine witnesses; and to be heard or otherwise have their submissions considered is an aspect of the obligation imposed on the Tribunal by s 32(1) to apply the rules of natural justice.

81 The object of the rules of natural justice is to avoid practical injustice. The basic requirement of natural justice is that the parties to a proceeding are to be given a fair opportunity to present their case to a decisionmaker who is free from bias. However, the specific content of the requirement - that is, the procedure to be adopted to give effect to the rules of natural justice - will depend upon the particular circumstances of the case: Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67 [11]. In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149, Martin CJ said (in relation to proceedings in the review jurisdiction of SAT) [3] [4]:

It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at 503 504 ...

A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].

Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ...

The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction [55] [56].

83 Provisions of the kind to be found in s 32(2) (which are common for statutory tribunals - see, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) are intended to be facilitative, not restrictive. The purpose of such provisions is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J).

84 Further, as Hill J observed in Casey v Repatriation Commission (1995) 60 FCR 510 in relation to the corresponding provision in the AAT Act, s 32(2)(a) means what it says. The fact that material may be inadmissible according to the rules of evidence does not mean that it cannot be admitted into evidence or taken into account by the Tribunal: 'the criterion for the admissibility of material in the [AAT] is not to be found within the interstices of the rules of evidence, but within the limits of relevance': Casey (514).

85 More particularly, the duty of an administrative tribunal to observe the rules of natural justice 'does not necessarily involve the extension of the opportunity of crossexamination to any party against whom evidence is called': Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 [73] (Jessup J). There is no rule that natural justice 'dictates the rejection or giving of no weight to evidence which cannot be tested by crossexamination': Rawson Finances [137] (Jogot J). That is not to say that the loss of an opportunity to crossexamine is to be disregarded in determining whether proceedings have been conducted fairly. Much will depend on the nature of the issues to be determined and the extent to which a party's case and supporting evidence is challenged: see, for example, the observations of Davies J in Re Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ADL 1, 5.

86 Rawson Finances and Re Barbaro are cases that involved proceedings in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions that are equivalent to s 32(1) and s 32(2). However, the Act does not contain a provision that is equivalent to s 32(6)(c).

87 Section 32(6)(c) must be read in the context of s 32 and the SAT Act as a whole. Read in context, the subsection does not require that the Tribunal conduct hearings as though it was a court of record or that it should require all matters of fact to be strictly proven according to the rules of evidence. Such an approach would be contrary to the express provisions of s 32(2)(a) and is not required by the rules of natural justice. Plainly, the Tribunal can make findings on evidence that would not be admissible according to the rules of evidence. The touchstone for receiving evidence in the Tribunal should be relevance and fairness. Further, the procedure by which evidence is to be received will depend primarily on the nature of the evidence sought to be presented, the issues to be determined and provisions of s 32 of the SAT Act.

88 What s 32(6)(c), in particular, requires is that the parties to proceedings in the Tribunal be given a reasonably practicable opportunity to present evidence that is relevant to the issues to be determined, to have their submissions considered and, where witnesses are necessary to present relevant evidence, to call those witnesses for the purpose of having their evidence taken by examination, cross-examination and reexamination. The subsection does not require witnesses to be called where the relevant facts can be proved by documents or other means such as admissions made in statements of issues, facts and contention. Similarly, it is not necessary that a witness be called to give evidence about matters that are not contested between the parties.

89 Accordingly, it is necessary to consider what was in issue in the respondent's application, the nature of the evidence required to decide whatever matters were in contention and the evidence that was received in the Tribunal to determine grounds 1 4 and the related grounds 7 and 13.

90 The appellants accepted that they had entered into a fixed term longstay agreement that had expired on 31 January 2016. That was, in any event, a matter that was capable of being established by the Tenancy Agreement. Accordingly, the only matter that the respondent was required to prove under s 67(1) of the Residential Parks Act that might have been contentious was whether an agreement for a periodic tenancy had been made following the end of the term of the Tenancy Agreement.

91 In my view, the Tribunal explored that issue in a way that was fair to the parties once the issue had been raised by the appellants. The Tribunal questioned the parties in order to ascertain the parties' position on the issue. It did so as part of a process of informing itself about the matters that were raised by the respondent's application and which might require resolution. The focus of the Tribunal's questioning was on ascertaining the parties' positions and what was relevant to the application according to the terms of the Residential Parks Act.

92 The Tribunal also discharged the requirement imposed by s 32(6)(a) and s 32(6)(b) by that process. It did so in a way that was fair to the appellants. For example, there was no suggestion that the Tribunal did not accept the statements made by the first appellant as to what had occurred in the appellants' dealings with the manager of the Caravan Park or the respondent more generally. Rather, the Tribunal assessed those statements against the provisions of the Residential Parks Act first, to determine what was relevant to the application and second, to find (correctly) that no periodic tenancy had been made in light of the Act, the terms of the Tenancy Agreement and the first appellant's admission that no express agreement had been made. It was not necessary for the respondent to formally tender any document or call any witnesses in light of the facts established by the documents filed in the Respondent's Bundle and the statements made by the first appellant and Mr Noye at the hearing.

93 As has been mentioned, the filing of bundles of documents prior to a hearing and the use of those documents as evidence at the hearing of an application in the Tribunal is a practice that is almost invariably adopted (the practice is also followed by the AAT where similar statutory provisions apply). The practice promotes expedition and economy in an administrative tribunal that primarily exercises a no costs jurisdiction. There is nothing in the practice that is inconsistent with the SAT Act (although it would be prudent for the Tribunal at the outset of a hearing to identify what material has been received from the parties and what documents have been read by the Tribunal prior to the hearing; there is also merit in the practice adopted by the AAT of formally receiving and marking as an exhibit the bundles of documents filed by the parties, at least to the extent that the bundles contain relevant documents).

94 The Tribunal indicated that much of the material in the Appellants' Bundle was irrelevant to the issues to be determined on the respondent's application. That material concerned the appellants' complaints about the operation of the Caravan Park and matters connected with the First Application. It was apparent that the Tribunal was familiar with the documents in the Appellants' Bundle that concerned those matters. It rightly regarded the appellants' complaints about the Caravan Park and the respondent as irrelevant to the issues to be decided on the respondent's application for the reasons that have been given.

95 Finally, the purpose in conferring jurisdiction on the Tribunal in respect of matters arising under the Residential Parks Act is to provide a procedure for enforcing the provisions of the Act and resolving disputes between residential park operators and tenants. It is to be expected that ordinarily the parties before the Tribunal will be unrepresented and that the issues to be determined will be narrowly defined. It will be appropriate generally for the Tribunal to adopt a relatively informal procedure for dealing with matters under the Act.

96 The procedure adopted by the Tribunal in this matter was, in my view, fair to the parties and did not involve a breach of any of the requirements imposed by s 32 of the SAT Act, including the requirement to apply the rules of natural justice.

97 Mention has already been made of the procedure adopted by the Tribunal in relation to receiving, as evidence, the documents filed by the parties prior to the hearing of the respondent's application. As has been explained, that procedure was consistent with the provisions of the SAT Act and the Tribunal's usual practice.

98 The appellants further contended that they were not invited to comment on whether they objected to the Tribunal considering any of the documents filed by the respondent; conversely, the Tribunal rejected as irrelevant all the documents filed by the appellant. It is apparent that in reaching its decision the Tribunal only had regard to a limited number of documents filed by both parties which were considered to be relevant to the issues to be determined on a proper construction of s 67. The appellants' submissions on this ground reflected submissions that they made on other grounds concerning the effect of s 67 and the application of s 42 and s 68 of the Residential Parks Agreement which have been rejected.

99 As has been explained, the procedure adopted by the Tribunal to hear and determine the respondent's application was consistent with the provisions of the SAT Act and the requirements of natural justice. The Tribunal's comment that 'the way we do things in the tribunal is very informal' and involves 'a bit of a chat' was simply a colloquial way of expressing the procedure that was to be adopted.

100 Although this ground alleged that the Tribunal's decision was unreasonable, the Appellants' Submission raised two matters. First, the appellants were denied natural justice by the way the Tribunal conducted the hearing of the respondent's application. Second, the failure to accord the appellants natural justice and the unreasonableness of the Tribunal's decision was exemplified by the Tribunal's observations during the hearing about s 42 and s 67 of the Residential Park Act. The observations were to the effect that the sections did not require the Tribunal to find reasons why a notice of termination had been issued under s 42 or an application had been made under s 67.

101 The Tribunal's observations reflected the effect of s 42 and s 67 properly construed. They did not indicate that the Tribunal was indifferent to the proper construction and application of the Residential Parks Act or that the Tribunal had a closed mind to the appellants' submissions or that the decision was unreasonable.

The learned Member erred in law in that she granted the Applicant's Application in full by making a decision against the Respondents/Appellants insofar as:

1. No sworn documentary evidence was presented by the Applicant;
2. No sworn evidence in support of application was given by the Applicant;
3. No material witnesses were presented by the Applicant;
4. The Applicant's case was presented by a third party offering hearsay evidence;
5. The Applicant filed its application against the respondents without clean hands;
6. The Respondents were not permitted to present sworn testimony in their defence;
7. The Respondents were not permitted to admit or present their bundle documents filed in their defence, the learned Member referring briefly to the documents stating only that the documents had been noted by her and they would be discarded from the hearing as irrelevant to the issue;
8. The learned Member gave no adequate explanation for rejecting the Respondents' defence being filed as ordered by Judge Sharp on 9th March 2016 which documents included sworn evidence by way of an affidavit relevant to the Respondent's defence from the Second Respondent/Appellant;
9. The Respondents had formally rejected key tenets of the Applicant's claims, which rejections were eminently arguable;
10. No adequate consideration were given nor remarked upon by the Learned Member in respect of s.42 (Residential Parks (Longstay Tenants) Act 2006) being legislation pertinent to the Applicant's application namely 180 days;
11. The learned Member failed to consider that s.67(3) of the Residential Parks (Longstay Tenants) Act 2006 provides discretion for the Tribunal in exercising the provisions of s.67(2)(a) and (b) to grant or refuse all or in part the Orders sought and thereby failed to acknowledge or give consideration to the exercise of such discretion by way of rejecting the Applicant's claims under s.67(2)(b) without giving consideration that to do so would allow the Respondents/Appellants to stay in situ by way of a periodic tenancy;
12. The Respondents/Appellants have a reasonable perception of bias held against them by the Applicants by way of retaliation for making complaints against them to the Chamber of Commerce, which perception was not considered by the learned Member;
13. The learned Member described the proceedings of the Tribunal as 'a very informal chat' (sic);
14. The decision of the learned Member was manifestly unreasonable given all of the circumstances.

CITATION : LAWRENCE -v- COOPERATIVE BULK HANDLING LTD [2017] WASC 24 (S)

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Appeal - Costs - Appeal from decision of State Administrative Tribunal - Whether unsuccessful appellants should pay the costs of the appeal

Appellants to pay the respondent's costs of the appeal

1 CORBOY J: The respondent is the operator of a caravan park. The appellants and the respondent entered into a tenancy agreement in a respect of a site in the caravan park (the Tenancy Agreement). The Tenancy Agreement commenced on 1 February 2014 and was for a fixed term of two years.

2 The respondent successfully applied to the State Administrative Tribunal (Tribunal) under s 67(2) of the Residential Parks (Longstay Tenants) Act 2006 (WA) (Residential Parks Act) for an order terminating the Tenancy Agreement. The appellants appealed from that order. I granted leave to appeal but dismissed the appeal. The respondent subsequently applied for an order that the appellants pay the costs of the appeal.

3 The appellants' notice of appeal contained 14 grounds. The appellants also filed documents prior to the hearing of the appeal that had the effect of adding additional grounds and applied for a stay of the Tribunal's decision pending determination of their appeal. However, the respondent gave undertakings that meant it was not necessary to decide the stay application.

4 Section 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) applied to the appeal so that the court's jurisdiction was limited to questions of law. The appellants were not represented in the appeal. They filed affidavits and a number of documents in the appeal. Much of that material concerned conflicts between the appellants and the management of the caravan park. However, it was possible to identify a number of questions of law from the material that was filed. The questions of law were identified in the reasons that I delivered in dismissing the appeal: Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 [48].

5 The respondent's primary submission in its application for the costs of the appeal was that the ordinary principle that costs follow the event should be applied. It added that it participated in the appeal in a manner that was consistent with the principles that apply to a model litigant.

6 The appellants opposed the application for costs. In summary, they submitted that:

(a) They are elderly and are pensioners and, by implication, have limited financial means.

(b) There was a long history of conflict between the appellants and the manager of the caravan park. According to the appellants, the genesis of the conflict lay in a dispute over a fence they had erected to control access to an area around their site. However, the appellants made a number of complaints about the caravan park manager and other employees of the respondent.

(c) The respondent had issued default notices under the Tenancy Agreement. The appellants contended that the notices had been issued without justification. The respondent commenced proceedings in the Tribunal to terminate the agreement pursuant to the notices but the application was resolved by mediation. The appellants were represented in those proceedings and the cost of representation 'almost exhausted all' of their savings.

(c) The respondent subsequently commenced proceedings under s 67(2) of the Residential Parks Act upon expiry of the term of the Tenancy Agreement. The appellants contended that the respondent's action in seeking to terminate the agreement was 'harsh' and 'oppressive'. A mediation conference was convened but it was unsuccessful. The appellants complained about the conduct of the caravan park manager in the mediation and also alleged representatives of the respondent had not kept promises to investigate the appellants' complaints and had acted to prevent them from taking appropriate steps to vacate the site and dispose of their caravan. The time of the Tribunal and the court had been 'misused' as a consequence of the respondent's actions.

7 Neither party addressed the effect of the SAT Act on the respondent's application for costs.

8 Section 14 of the SAT Act provides that a matter in which the Tribunal has jurisdiction comes within either its original or its review jurisdiction. Section 15(1) further provides that 'if the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction'. Accordingly, the respondent's application under s 67(2) of the Residential Parks Act was an application in the Tribunal's original jurisdiction.

9 Division 5 of pt 4 of the SAT Act concerns costs. Section 87(1) provides that unless otherwise specified in the SAT Act, the enabling Act or an order of the Tribunal made under s 87, parties bear their own costs in a proceeding of the Tribunal. That is consistent with the 'no cost' jurisdiction that is generally exercised by administrative tribunals. However, s 87(2) confers power on the Tribunal to make an order for costs and s 87(3) extends that power to enabling the Tribunal to make an order for the payment of an amount to 'compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceed was brought'.

10 The power to order costs under s 87(2) of the SAT Act was considered by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81. Murphy JA concluded that the power conferred by s 87(2) is to be exercised 'if it is fair and reasonable in all of the circumstances of the case to do so' [49]. However, 'unlike curial litigation, the important principle commonly referred as the 'usual order as to costs', under which the successful party is prima face entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs' [50]. His Honour further explained:

Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in the statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour [51].

11 Section 105 of the SAT Act contains three provisions relating to the costs of an appeal against the decision of the Tribunal.

12 First, s 105(9) empowers the court dealing with an appeal from the Tribunal to make any order that it considers appropriate. The Court of Appeal noted in Commissioner of State Taxation v EDI (Maryborough) Pty Ltd [2010] WASCA 17(S) that the section provided the source of the court's power to make an order for the costs of an appeal from a decision by the Tribunal. In Minniti v Motor Vehicle Industry Board [2011] WASCA 275(S), the Court of Appeal also referred to s 37 of the Supreme Court Act 1935 (WA) as a source of power to award the costs of an appeal.

13 Second, s 105(11) states that if the Tribunal's decision is made in a proceeding prescribed by the regulations, a party could not apply for leave to appeal unless it agreed to indemnify each other party to the proceeding against that other party's reasonable legal costs of the appeal. There are no proceedings prescribed by State Administrative Tribunal Regulations 2004 (WA) for the purpose of s 105(11).

14 Third, s 105(12) makes provision for the payment of costs where leave to appeal is granted to a decisionmaker from a decision made in the Tribunal's review jurisdiction. The section provides that the costs of the appeal are to be paid by the decisionmaker unless the court considers that this would be 'unjust or unreasonable'. However, there is no equivalent provision where an appeal is commenced against a decision made by the Tribunal in its original jurisdiction.

15 The legislative history of s 105(12) was referred to by the Court of Appeal in Commissioner for Consumer Protection v Carey [2014] WASCA 7(S). The Court said:

Section 105(12) was inserted on the recommendation of the Legislative Council Standing Committee on Legislation: Report of the Standing Committee on Legislation in Relation to the State Administrative Tribunal Bill 2003, Report 24, October 2004 pars 9.18 - 9.20. The Standing Committee said:

The Committee is concerned to ensure that, in the cases of appeals to the proposed SAT from the decisions of government administrators (that is, local governments, Government departments or agencies), the Government administrator is not able to use its greater financial resources to appeal a decision of the SAT to the Supreme Court to the significant financial detriment of the other party or parties [9.20].

The relevant broader statutory context is that ordinarily SAT is a 'no cost' jurisdiction, at least in relation to its review jurisdiction: s 87 of the SAT Act; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 [28]. The concern of the Standing Committee was that persons affected by government decisions may be deterred from exercising their right to a SAT review because of the possibility of an adverse costs order against them in any appeal to the Supreme Court [5] - [6].

16 There is an obvious symmetry between the power to award costs conferred by s 87(2) and s 105(12) of the SAT Act. However, s 105(12) is confined to appeals from decisions made in the Tribunal's review jurisdiction. It is significant that, in amending the SAT Act, Parliament did not consider that it was necessary to make special provision for the costs of an appeal from a decision made in the Tribunal's original jurisdiction.

17 The court has a wide discretion to determine by whom, and to what extent, the costs of proceedings are to be paid under s 37 of the Supreme Court Act and s 105(9) of the SAT Act. However, the discretion is not unfettered; the discretion must be exercised judicially according to established legal principle: Keet v Ward [2011] WASCA 139 [17]. Further, O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides:

Without limiting the general discretion conferred on the Court by the [Supreme Court Act], and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.

18 Accordingly, the usual rule that costs follows the event provides the starting point for exercising the discretion to award costs in an appeal from a decision made in the Tribunal's original decision. However, the rule is not to be applied reflexively. In Perrett v Commissioner for Superannuation (1991) 29 FCR 581, the Full Federal Court observed in relation to the power to award the costs of an appeal from a decision of the Administrative Appeals Tribunal:

The Tribunal has no power to make orders for costs in relation to cases of this nature and it seems to us undesirable that persons who unsuccessfully challenge a decision of the Tribunal should automatically be visited with a costs order in this Court. The Court should consider the matter of costs, bearing in mind the result but also taking into account the reasonableness of the applicant in bringing that appeal and the general importance of the clarification of the law for such an authority as the respondent (594) (emphasis added).

19 In that case, the Full Court declined to make an order for costs in circumstances where the appeal was reasonably brought on a question of law that involved some difficulty.

20 The Federal Court has also recognised that it may not be appropriate to make an order for costs where an appeal from the Administrative Appeals Tribunal raised a question of law about the interpretation or administration of legislation that has a wide application. For example, the Full Court of the Federal Court stated in Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587:

Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the court by the Federal Court of Australia Act 1976 (WA) should not be automatically exercised adversely to the losing party (590).

21 The appeal was from a decision of the Tribunal granting the respondent's application under s 67 of the Residential Parks Act. That section permits a park operator to apply to the Tribunal for orders terminating a fixed term longstay tenancy agreement and requiring the tenant to give vacant possession of the site if three conditions have been satisfied:

(b) no agreement has been made to continue the tenancy as a periodic tenancy;

(c) the tenant has not given vacant possession of the site to the park operator.

22 The section further permits the Tribunal to suspend the operation of an order requiring vacant possession for a period of not more than 30 days.

23 The grounds of appeal and the questions of law that were identified in the primary decision concerned:

(a) the procedures adopted by the Tribunal in determining the respondent's application under s 67 of the Residential Parks Act - questions concerning the admissibility and effect of the evidence presented by the respondent; whether the Tribunal had fulfilled its obligation to give the appellants natural justice; and whether the Tribunal had decided all relevant issues;

(b) whether the Tribunal was required under s 67 to consider the respondent's management of the caravan park;

(c) whether the parties had by their conduct created a periodic tenancy;

(d) whether the Tribunal's decision was so unreasonable as to constitute an error of law.

24 The object of the Residential Parks Act is to regulate the relationship between park operators and park tenants. The Act may be broadly viewed as consumer protection legislation. It confers a dispute resolution and oversight function on the Tribunal in that broad context. However, the Act deals with 'private' commercial relationships and the Tribunal is not concerned with decisions made by public entities. The questions of law on which the appeal was founded did not possess the public character identified by the Federal Court in cases such Perrett and Shelton.

25 The issues that the Tribunal was required to determine under s 67 of the Residential Parks Act were straight-forward - whether the fixed term had ended and whether the appellants had not given vacant possession were not in issue. The question of whether the parties had made an agreement for a periodic tenancy was also not difficult. As the Tribunal observed, the question was effectively conceded by the appellants and the tenancy agreement expressly required the written consent of the respondent for a monthly tenancy to be created on expiry of the fixed term of the tenancy.

26 Much of the hearing in the Tribunal concerned allegations made by the appellants about the respondent's management of the caravan park. Those allegations were repeated in the appeal. The allegations might have been relevant to an application under s 68 of the Residential Parks Act but the respondent's application in the Tribunal was confined to s 67. Accordingly, the allegations were irrelevant to the issues to be decided in the Tribunal and to the determination of the appeal.

27 The appellants were unrepresented in the appeal. Regrettably, their grounds of appeal reflected various misconceptions - that the respondent was obliged to serve a notice of termination under pt 3, div 2 of the Residential Parks Act so that s 68 applied; that the history of conflict with the manager of the park was relevant; that the respondent was required to act with 'clean hands' when the fixed term of the tenancy expired; that a periodic tenancy was created merely by the appellants holding over; and that the Tribunal was bound to apply the rules of evidence. The appeal did not raise difficult questions of law or matters of general importance in the interpretation of the Residential Parks Act. While it may be readily understood that litigants acting in person may misapprehend the law that applies to their dispute, that does not provide a basis for withholding costs to another party who has succeeded in the determination of the dispute.

28 Finally, in my view there was no reasonable basis for the allegations made by the appellants about the procedures adopted by the Tribunal in hearing and deciding the respondent's application. The Senior Member was at pains to explain the Tribunal's procedures and to accord a fair hearing to the appellants.

29 I accept the respondent's submissions that it adopted a reasonable approach to the appeal and there was nothing in its conduct of the appeal that would disentitle it to costs. The appellants' submissions concerning the history of conflict with the manager and other residents of the park were not relevant to the question of costs given the conclusions that were reached in the appeal. It cannot be said that the court's time in the appeal was, in some way, misused because of the respondent's conduct having regard to the issues that the Tribunal was required to decide in the respondent's application, the outcome of the appeal and the reasons for which it was dismissed.

30 The appellants' financial position is to be regretted but it does not provide a basis for denying the respondent an order for costs to which it would otherwise be entitled.

31 For these reasons, I do not consider that there is any reason to depart from the general rule stated in O 66 r 1(1) of the Rules of the Supreme Court. An order will be made that the appellants pay the respondent's costs of the appeal, those costs to be agreed or taxed.