Internal review - Administrative tribunals - Procedure - Jurisdiction - Reviewable decision - Where adjournment decision was not reviewable

Residential Parks Act 2007 ss 50, 103

South Australian Civil and Administrative Tribunal Act 2013 ss 70, 33

South Australian Civil and Administrative Tribunal Regulations 2015 reg 4

The applicant was represented by Mr T Keenan who appeared by telephone

The respondent and his representative, Mr D Sobkowaik, appeared by telephone

Dismissal of internal review for lack of jurisdiction (H&C)

Dismissed under the South Australian Civil and Administrative Tribunal Act 2013 s 70

1. This is an application for internal review of a decision made by the Tribunal dated 10 October 2024 relating to a dispute that has arisen under the Residential Parks Act 2007.
2. The applicant is the operator of Woodcroft Tourist Park (Woodcroft). The respondent is Mr Barlage, whose mother lived at Woodcroft in a house on one of its sites. She passed away in early 2022 and Mr Barlage is the executor of her estate.[1]
3. Following his mother's death, Mr Barlage in his capacity as executor of his mother's estate, took possession of the house at Woodcroft. Mr Barlage's mother was a party to a residential parks agreement with Woodcroft. Under that agreement, Mr Barlage's mother owned the dwelling, but rented the site on which it is placed from Woodcroft. Amongst other things, the agreement governed the process for a resident to sell the dwelling and assign their interest in the site to a third party, subject to the provisions of the Act.
4. Mr Barlage wishes to sell the dwelling and assign his mother's interest in the site to a purchaser.
5. The sale is a private arrangement between the resident and the purchaser. The assignment of the interest in the site, however, involves the resident, the purchaser and Woodcroft.
6. Section 48 of the Act provides that a resident may assign their interest in the site to a third party but may not do so without the written consent of the site owner, which must not be unreasonably withheld.
7. For Mr Barlage to achieve the outcome he wants, the prospective purchaser needs to enter into a contract to buy the dwelling, and almost simultaneously be assigned the site under an agreement with Woodcroft.
8. Mr Barlage says that he has secured willing buyers for the dwelling, but that Woodcroft has unreasonably withheld consent for the assignment of the site to any of them.
9. The timing of the steps entailed in the sale of the dwelling and the assignment of the agreement are relevant to the dispute. The contract for sale of the dwelling is executed, and during the cooling off period the assignment is executed. On two occasions, a purchaser has exercised the right to withdraw from a sale contract with Mr Barlage, upon learning that Woodcroft has withheld consent for the assignment.
10. When this first occurred, Mr Barlage applied to the Tribunal seeking an order to set aside what he said was Woodcroft's unreasonable withholding of consent. Woodcroft maintains that its withholding of consent has not been unreasonable. The basis upon which Woodcroft has withheld consent is its belief that the dwelling is uninhabitable and that an assignment will potentially burden Woodcroft with liability for injury or damage to the purchaser arising out of their use of the dwelling.
11. By the time the dispute reached the Tribunal in June 2024, there was no longer a transaction underway. The purchaser had cooled off. The Tribunal Member decided that there was nothing to set aside, because there was no longer an interested purchaser. However, because the dispute had the potential to revive, the Tribunal adjourned Mr Barlage's application, and gave the applicant the right to an urgent hearing if the situation arose again. The 19 June 2024 orders:
    • Adjourned the application;
    • Gave a right to Mr Barlage to apply for an urgent hearing without paying a fee, for a period of six months; and
    • Provided that if Mr Barlage did not make a request for an urgent hearing within six months, the application "is dismissed without further hearing, by force of this order".
12. The same circumstances arose a second time. On this occasion, the sale had again fallen through by the time the matter came on before the Tribunal in October 2024.
13. The Tribunal said:
    1. The Park's stated reasons for declining to consent to the assignment are based on the park's assertions concerning the condition of the dwelling (essentially, that it is uninhabitable) and what that condition means in relation to the Park's obligations and potential liability. Mr Barlage disputes the Park's conclusions and reasoning regarding the condition of the dwelling.
    2. A site agreement confers a right on a person to occupy a site, but does not relate at all to any dwelling placed on the site. Typically, as is the case here, any dwelling on the site remains the property and the responsibility of the resident, not the Park. Under the Act, the resident owes no duty to the park owner in relation to the conditions of the dwelling: section 36 of the Act limits the resident's duties in that respect to "the rented property" (in this case, the site itself) and "any common area". Conversely, the park owner owes no duty to the resident (or to anyone else for that matter) in relation to the conditions of the dwelling - see sections 34 and 35 of the Act.
    3. After considering the scheme of the Act, I consider that the condition of a dwelling is not relevant to the decision of a park owner as to whether or not to consent to an assignment of a site agreement. Had Ms O'Dea not already opted to discontinue with the proposed transactions, that view could provide a basis on which to order the Park to give consent. However, as the assignment and purchase are no longer proceeding, no such order is possible.
14. The Tribunal stated that it made "no orders in relation to the discontinued attempts to a) assign interests under the residential parks site agreement to Ms O'Dea and b) sell the dwelling to Ms O'Dea." The Tribunal further stated that its orders dated 19 June 2024 "remain in force".
15. Accordingly, as the 6-month period referred to in the June 2024 orders has now elapsed, Mr Barlage's application has been dismissed.

1. Woodcroft was dissatisfied with Tribunal's decision and, on 5 November 2024, lodged an application for internal review pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). Section 70 provides that on an internal review, the Tribunal must reach the correct or preferable decision but in doing so must have regard to and give appropriate weight to the original decision. On review, the Tribunal may affirm, vary or set aside the decision under review and may make interim, ancillary or consequential orders.
2. Woodcroft is aggrieved by the Tribunal's decision of 10 October 2024 because, amongst other things, the Commissioner for Consumer and Business Affairs has issued Woodcroft with a warning letter based on the Tribunal's October 2024 decision. The letter was dated 18 October 2024 and warned Woodcroft that it is an offence under s 50(2)(a) of the Residential Parks Act 2007 to hinder or attempt to hinder the sale of a dwelling by a resident. The letter said:

CBS has also received copies of SACAT orders that have been made in relation to the abovementioned site agreement. It is noted that SACAT determined that the condition of a dwelling is not relevant to the decision as to whether or not to consent to an assignment of a site agreement. Therefore, it cannot form the basis on which to withhold consent.

3. It may be inferred from the warning letter that the Commissioner accepts the legal correctness of the statements in paragraphs 8 and 9 of the Tribunal's decision of 10 October 2024, and that the warning is preliminary to possible prosecution action against Woodcroft.
4. Woodcroft considers that the legal conclusions expressed by the Tribunal Member in the decision with respect to the criteria upon which Woodcroft may withhold consent are incorrect and seeks to have them corrected on internal review.
5. An application for internal review requires permission to proceed pursuant to s 70(1a) of the SACAT Act. In other words, a right of internal review is not automatic; it is subject to a filtering process to ensure that only those matters that it would be just and reasonable in all the circumstances proceed.
6. At a directions hearing on the internal review, I foreshadowed that there was a preliminary issue that also required consideration by the parties even before the question of permission could be considered: was the Tribunal's decision dated 10 October 2024, a decision to which an internal review is permitted? This issue concerns the definition of "decision" in the SACAT Act.
7. I sought written submissions on the issue of permission, and whether what the Tribunal did on 10 October 2024 was a "decision" in the sense required by s 70 of the SACAT Act. I received submissions on 6 December 2024 and 16 January 2025 from the applicant and respondent, respectively.
8. Woodcroft submitted that it should be granted leave to proceed with the internal review because the effect of the Tribunal Member's decision was to foreshadow that the Member considered that withholding of consent on the grounds that Woodcroft had previously relied upon would be unreasonable. Woodcroft says that the state of the dwelling is a proper basis for withholding consent and that other decisions of the Tribunal support that proposition, and that the site agreement supports it as well.
9. Mr Barlage argued that the outcome of the October hearing is not a "decision" that is capable of being reviewed. He considers that any action taken by the Commissioner is a matter for the Commissioner and not relevant to the issue of whether leave should be granted.

Was what the Tribunal did on 10 October 2024, a decision for the purposes of s 70 of the SACAT Act?

1. Only a decision that may be reviewed can be granted permission. Whether or not what the Tribunal did on 10 October 2024 was a "decision" must be decided first.
2. On 10 October 2024, the Tribunal Member made no orders in relation to the facts and circumstances before him except to affirm earlier orders that he had made, adjourning the application and conferring a right on Mr Barlage to make a further application to the Tribunal for an urgent hearing within six months if the circumstances arose again.
3. It has not been suggested that this was not open to the Tribunal. The Tribunal was exercising original jurisdiction.[2] Subject to the Residential Parks Act 2007, the Tribunal has a broad discretion to act as the decision-maker, resolve a dispute or "adopt any other course of action that the Tribunal considers appropriate to deal with the matter."[3] Section 116 of the Residential Parks Act 2007 lists the Tribunal's powers to resolve disputes as including the powers to "do anything else necessary or desirable to resolve a residential park dispute". The Tribunal was seized of the task of determining a dispute between the parties which the Tribunal assessed, properly in my view, as being broader than a single incident of alleged unreasonableness, and rather a contest as to the criteria for unreasonableness within the context of Mr Barlage's continued attempts to sell the dwelling and assign rights in the site.
4. I consider that it was open to the Tribunal to adjourn the application in order to ensure that the dispute could be resolved in the context of a particular factual circumstance promptly when that circumstance arose. An alternative would have been to dismiss the application but grant ancillary orders that permitted the applicant to make a subsequent application without paying a fee and to be listed for urgent hearing before the same Tribunal Member.
5. As the application had no utility (both in June and again in October), another alternative for the Tribunal Member would have been to have dismissed the application. The Tribunal would then have been "functus officio" in relation to the decision that has been made, meaning that its task had been completed and its power is exhausted. The Tribunal Member in this case considered that this would be likely to send the parties into a potentially endless cycle of applications because by the time an application on a new proposed sale where Woodcroft withheld consent, was made, the purchaser would have cooled off. The Tribunal Member instead adjourned the application in June, and maintained that adjourned status in October, presumably with an intention to allow the applicant to amend the application such that it attached to a further instance of the withholding that occurred.
6. At the time that Woodcroft sought internal review, the orders made on 19 June 2024 had not expired. They have since expired, on 19 December 2024.
7. A "decision" is defined in the SACAT Act as including a "direction, determination or order of the Tribunal". However, the definition goes on to say, "but, in prescribed circumstances, does not include an interlocutory determination or order". The "prescribed circumstances" are set out in regulation 4 of the South Australian Civil and Administrative Tribunal Regulations 2015 as follows:

For the purposes of the definition of decision in section 3(1) of the Act, a decision of the Tribunal does not include the following interlocutory directions, determinations or orders in respect of the operation of sections 70 and 71 of the Act:

(a) the adjournment of proceedings by the Tribunal or the refusal of the Tribunal to adjourn proceedings (including without limitation, such an order made in respect of a conference under section 50 of the Act);

...

1. It is clear from this that Parliament did not intend that an adjournment decision should be able to be amenable to internal review. If the review is considered to be against the orders, then it is evident that it is not available.
2. But Woodcroft maintains that it is not the adjournment that it objects to, but the statements in paragraphs 7-10 of the accompanying reasons. I do not consider that this is a sustainable argument. It is evident that the reasoning is not a decision separate to the orders made. It does not have any immediate effect on either party's legal rights in relation to a sale. It would undermine the purpose of excluding some types of decisions from the class of decisions that can be reviewed, if a party could avoid that outcome by challenging the reasons instead.
3. The Tribunal recognises that, in this case, a third party (the Commissioner) has seen fit to rely upon the Tribunal's statements in its October 2024 decision to issue a warning letter to Woodcroft. That is perhaps unfortunate, given that the Tribunal Member was only expressing an opinion as to what he would decide if the matter came before him again. Nevertheless, this consequence does not bear on the question of whether the Tribunal's statements on 10 October 2024 are amenable to review or not. That is entirely governed by the legislation.
4. I conclude that the decision reflected in the document issued to the parties on 10 October 2024 is not a 'decision' within the meaning of that term for the purposes of section 70. Therefore, it cannot be internally reviewed.
5. It is not necessary to proceed to the question of permission to proceed. Given that the orders have now expired, it is unlikely that this would have been granted at any time after 19 December 2024, as Mr Barlage's original application has been dismissed.

1. The application for internal review is dismissed.

[1] The relevant probate documents were filed on the original application: 2022/SH006343.

[2] Residential Parks Act 2007 s 103, SACAT Act s 33.