COLLIE RIVER VALLEY TOURIST PARK and HUGHES - [2022] WASAT 34

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION:   COLLIE RIVER VALLEY TOURIST PARK and HUGHES [2022] WASAT 34
MEMBER:   MR J O'SULLIVAN, SENIOR MEMBER
MS P LE MIERE, MEMBER

HEARD:   13 JANUARY 2022
DELIVERED          :   2 MAY 2022
FILE NO/S:   CC 1768 of 2021
BETWEEN:   LH & PG HONEYWILL T/A COLLIE RIVER VALLEY TOURIST PARK
Applicant
AND
STEPHEN HUGHES
MELINDA HAMILTON
Respondents

Catchwords:

Residential park - Whether notice of termination of long-stay agreement without grounds was justified - Whether park operator was motivated to terminate agreement wholly or partly because of complaint to a public authority or because tenants took steps to secure or enforce their rights as tenants - Turns on own facts

Legislation:

Interpretation Act 1984 (WA), s 19, s 19(2)(f)
Residential Parks (Long-stay Tenants) Act 2006 (WA), s 5B(1)(a), s 38, s 42, s 42(1), s 42(2), s 42(3)(b), s 68
Residential Tenancies Act 1987 (WA), s 64

Result:

Application granted
Long-stay tenancy terminated
Vacant possession ordered

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondents	:	In Person

Solicitors:

Applicant	:	N/A
Respondents	:	N/A

Case(s) referred to in decision(s):

Batavia Coast Caravan Park and Hansel [2012] WASAT 91
Batavia Coast Caravan Park and Thomas [2012] WASAT 88
Blanket v The Housing Authority [2014] WASC 409
Dall and Tyson [2016] WASAT 111
Howe and Kelmscott Caravan Park [2010] WASAT 148
Josey and Batavia Coast Caravan Park [2012] WASAT 176
Re-Magistrate Steven Malley, Ex-parte the Housing Authority [2017] WASC 193
Van Heerden v Hawkins [2016] WASCA 42

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

On 2 November 2021, Mr Honeywill lodged an application in the Tribunal seeking an order terminating a residential park[1] longstay agreement (site-only agreement) and requiring Stephen Hughes and Melinda Hamilton (respondents) to give vacant possession of the premises pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP Act). The respondents continue to reside at the Collie River Valley Tourist Park (the Park).
[1] A residential park is a place, including a caravan park where there are: '(a) sites on which relocatable homes may be parked, assembled or erected in accordance with a tenancy …' - Residential Parks (Long-stay Tenants) Act 2006 (WA), s 5B(1)(a).
The respondents do not contend that the applicant failed to give the required notice of termination or otherwise did not comply with the RP Act in issuing the notice of termination.
The hearing was directed to resolving two questions:
1)Was the park operator wholly or partly motivated to issue the notice of termination by the fact that the respondents had complained to a public authority (Shire of Collie) about the park operator's conduct in relation to the long-stay agreement, or taken steps to secure or enforce their rights as tenants under the longstay agreement (see s 68(5) of the RP Act)?
2)Bearing in mind that the termination of the long-stay agreement was without grounds (see s 42 of the RP Act), was the termination justified in all the circumstances (see s 68(4)(b) of the RP Act)?
Ultimately, we concluded that the notice of termination was not issued wholly or partly because of the complaint to the Shire of Collie or because of steps taken by the respondents to secure or enforce their rights as tenants. On the contrary, we are satisfied that the tenancy was terminated as a consequence of Mr Hughes' conduct. Further, we are also satisfied that termination of the tenancy is justified in all the circumstances.

The legislative scheme

Section 42(1) of the RP Act provides that a park operator may give a notice of termination to a long-stay tenant to terminate the long-stay agreement without grounds.
The notice of termination must state:
a)that the park operator intends to terminate the long-stay agreement under s 42 of the RP Act; and
b)specify the day on or before which the park operator requires the long-stay tenant to give vacant possession of the agreed premises to the park operator; and
c)comply with s 38[2] of the RP Act.
[2] Section 38 of the RP Act provides: '(1) Except as provided in subsection (2), a notice of termination must - (a) be in writing in the approved form; and (b) be signed by the person who is giving the notice; and (c) identify the agreed premises; and (d) include any prescribed information. (2) A notice given under section 45A(1) must be in a prescribed form'. (see s 42(2) of the RP Act).
Relevantly for present purposes, the specified day for a site-only agreement is at least 180 days after the day on which the notice of termination is given (see s 42(3)(b) of the RP Act).
Section 68 of the RP Act empowers the Tribunal to make an order terminating the agreement and for vacant possession in the event that the park operator has given a notice of termination without grounds to a long-stay tenant and the tenant has failed to give vacant possession of the premises to the park operator on the specified day.
Section 68(4)(b) of the RP Act materially provides that the Tribunal may only make the orders (in s 68(2) of the RP Act) if a notice of termination was given in accordance with the RP Act and the Tribunal is satisfied that terminating the agreement is justified in all the circumstances.
Section 68(5)(a) of the RP Act says further that the Tribunal may refuse to make the orders if satisfied that the park operator was wholly or partly motivated to give the notice of termination by the fact that the long-stay tenant had complained to a public authority about the park operator's conduct in relation to the long-stay agreement, or taken steps to secure or enforce his or her rights as a tenant under the agreement.
Where the notice of termination is issued within six months of the tenant complaining to a public authority about the park operator's conduct in relation to the long-stay agreement, or the tenant taking steps to secure or enforce his or her rights as a tenant under the longstay agreement, the burden is on the park operator to prove that the park operator was not to any extent motivated by that fact when giving notice of termination to the tenant (see s 68(7) of the RP Act).
A curious feature of the legislative scheme is the apparent inconsistency between s 42 and s 68(4)(b) of the RP Act. Section 42, subject to certain requirements, enables a park operator to terminate a long-stay agreement without grounds, whereas s 68(4)(b) requires the Tribunal, before making an order for vacant possession, to examine whether the termination is justified in all the circumstances. Notwithstanding that the termination is without grounds, s 68(4)(b) of the RP Act necessarily requires the Tribunal to examine the park operator's reasons for terminating the tenancy.
In Howe and Kelmscott Caravan Park (Howe),[3] Senior Member Raymond determined that s 68(4)(b) applied to a notice of termination without grounds. This decision has been followed by other members of the Tribunal.[4]
[3] Howe and Kelmscott Caravan Park [2010] WASAT 148.
[4] Batavia Coast Caravan Park and Thomas [2012] WASAT 88; Batavia Coast Caravan Park and Hansel [2012] WASAT 91; Josey and Batavia Coast Caravan Park [2012] WASAT 176.
Section 19 of the Interpretation Act 1984 (WA) (Interpretation Act) acknowledges that if any material not forming part of the written law (extrinsic material) is capable of assisting in the ascertainment of the meaning of a provision, consideration may be given to that material:
…
a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provisions taking into account its context in the written law and the purpose or object underlying the written law; or
b)to determine the meaning of the provision when -
i)the provision is ambiguous or obscure; or
ii)the ordinary meaning conveyed by the text of the provisions taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable.
The materials that may be considered in interpreting a provision of a written law includes the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion Bill containing the provision be read a second time in that House (see s 19(2)(f) of the Interpretation Act).
The Hon John Kobelke in introducing the Residential Parks (Long-stay Tenants) Bill 2005 (WA) (Bill) to the Legislative Assembly on 20 October 2005[5] observed:
… The bill addresses a fundamental problem for residents who own their caravans or park homes but do not have fixed-term leases. Currently, the majority of agreements between residents and owners of caravan parks have been made on an informal or oral basis. Under the current residential tenancy laws these are periodic tenancy agreements that are renewed with each payment of rent. Residents with periodic tenancy agreements are particularly vulnerable. A park owner is legally able to issue a notice of termination without reason, such that these residents must remove and relocate their caravan or park homes. The costs of relocation and resettlement of a park home can be substantial. The situation is particularly onerous for seniors on fixed incomes. The government's bill will require park owners who seek to terminate a tenancy for no reason to give these residents a minimum of 120 days notice of termination. The bill will ensure that residents are given at least this period to relocate their dwellings to new locations or, where permitted, to sell their homes on-site[.]
[5] See Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005, 6737.
In the second reading of the Bill in the Legislative Council on 11 May 2006, the Hon Kate Doust, Parliamentary Secretary[6] remarked:
… Another suggestion was that a park operator should not be unreasonably able to refuse to extend a lease or agreement. Surprise was expressed about the subclause regarding the termination of agreement without grounds by an operator. The bill has been prepared to reflect appropriate sections of the Residential Tenancies Act 1987 so that it is consistent with that act. It is appropriate that legislation regarding tenancy within Western Australia is consistent. Moveover, a fetter on the capacity to review or extend agreements is likely to result in an undesirable increase in disputes about what may or may not be reasonable. The Department of Consumer and Employment Protection is reviewing other tenancy legislation under is administration. Any improvements that are made as a result of these reviews will, if relevant, be considered for inclusion in the legislation[.]
[6] See Western Australia, Parliamentary Debates, Legislative Council, 11 May 2006, 2588.
Two things are apparent from these extracts from the second reading speeches. The legislature intended that:
a)the RP Act be consistent with the Residential Tenancies Act 1987 (WA) (RT Act); and
b)park operators can terminate a long-stay agreement without providing a reason.
To the extent that the legislature sought to protect the interests of longstay tenants, that resulted in a requirement to give an extensive period of notice. Notably, the RT Act does not include an equivalent provision to s 68(4)(b) of the RP Act.
In Re Magistrate Steven Malley, Ex parte the Housing Authority[7] (Malley), Le Miere J considered s 64 of the RTA Act which provides:
A lessor may give notice of termination of a residential tenancy agreement to the tenant without specifying any grounds for the notice[.]
[7] Re-Magistrate Steven Malley, Ex-parte the Housing Authority [2017] WASC 193.
His Honour observed that:[8]
At common law the lessor can give a notice to quit to the tenant for any reason or no reason at all. The Act modifies the common law by increasing the amount of notice to quit to 60 days. The Act provides that a shorter period of notice may be given, or an application may be made to the court to terminate the tenancy and order the tenant give possession of the premises to the lessor in circumstances where that is justified such as where the tenant has breached the tenancy agreement and failed to remedy the breach or has engaged in objectionable behaviour. Where the lessor gives notice to quit under s 64 the lessor may do so for any reason or no reason at all and it is not possible for the sufficiency of the reason to be challenged in court[.]
[8] Malley, [40].
Malley was referred to with approval by Pritchard J in Blanket v The Housing Authority[9] wherein her Honour remarked:
… [T]he intention of the Parliament in enacting s 64 of the RT Act was to ensure that owners retained the ability to bring about the termination of a tenancy agreement without needing to specify a particular reason for doing so, but to protect the position of the tenant in that case by requiring a reasonable period of notice to enable the tenant to find alternative accommodation.
[9] Blanket v The Housing Authority [2014] WASC 409, [112].
In light of the conclusion we have reached, as to whether termination of the long-stay agreement is justified in all the circumstances, it is unnecessary to resolve the apparent tension between s 42 and s 68(4)(b) of the RT Act. We do, however, acknowledge the observations of Buss JA (as he then was) in Van Heerden v Hawkins:[10]
As Crennan J noted in Northern Territory v Collins [2008] HCA 49, (2008) 235 CLR 619: '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 at [22] per Gleeson CS, Gummow, Hayne and Haydon JJ), not least because such material may confuse what was 'intended … with the effect of the language which in fact has been employed' (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC) [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act. In other words, the statutory text, and not nonstatutory language seeking to explain the statutory text is paramount. See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

The issues

[10] Van Heerden v Hawkins [2016] WASCA 42, [102].

As the notice of termination is without grounds in accordance with s 42(1) of the RP Act, Mr Honeywill was not required to provide the respondents with a reason for terminating the long-stay agreement.[11]
[11] None of the fields in the prescribed form (Form 11) require that the park operator specify a reason for issuing the notice of termination.
The respondents contend, consistent with s 68(5) of the RP Act, that:
a)Mr Honeywill was wholly or partially motivated to issue the notice of termination because they had complained to a public authority (the Shire of Collie) about Mr Honeywill's conduct in turning off the hot water to one of the shower blocks in the Park; and
b)also (so far as Mr Hughes was concerned) the notice of termination was issued because the respondents were taking steps to enforce their rights as tenants by complaining to Mr Honeywill about his failure to enforce the Park rules and maintain the Park's facilities.
As noted earlier, because the notice of termination was issued within six months of the respondents' complaint to the Shire of Collie and the respondents taking steps to secure or enforce their rights under the long-stay agreement, Mr Honeywill bears the onus of proving on the balance of probabilities that he was not to any extent motivated to issue the notice of termination by that fact.[12]
[12] See s 68(7) of the RP Act.
The respondents also contend that termination of the tenancy is not justified in all the circumstances.

The evidence

The respondents' evidence focused on a period in February 2021 during which the park operators turned off the hot water to one of the shower blocks in the Park in response to a COVID-19 lockdown imposed by the State Government.
The respondents testified that they had approached Mr Honeywill on a number of occasions complaining about the fact there was not a functional shower block within 90 metres of their lot. Both respondents gave evidence about a conversation with Mr Honeywill on 9 February 2021 during which he is alleged to have said 'if you keep complaining about the water being turned off, you will be asked to leave'.
The respondents also contend that the notice of termination dated 23 April 2021 was issued shortly after the intervention (around 9 February 2021), at Mr Hughes' request,[13] of Ms Allison Fergie, Director Corporate Services, Shire of Collie, whereupon Mr Honeywill was advised that the distance of the operational shower block from some occupied areas of the Park was greater than that permitted under the regulations. This is confirmed in an email from Ms Fergie dated 11 January 2022[14] although it does not identify what regulations she is referring to.
[13] Book of Documents (BOD), page 122.
[14] BOD, page 191.
Mr Hughes also testified that he would regularly complain to Mr Honeywill, both before and after the notice of termination was issued, about his failure to enforce the Park rules. This included, for example, dogs being left to roam unrestrained, noise and parking issues. Mr Hughes said he also complained about Mr Honeywill's failure to maintain the Park's facilities.
Mr Honeywill testified that there had been a number of complaints about Mr Hughes' behaviour from guests and staff working at the Park. These complaints were set out in a document prepared by the applicant.
Bearing in mind the notice of termination was issued on 23 April 2021, a number of the complaints are alleged to have occurred after that date. As a consequence, those complaints could not have informed the decision to issue the notice of termination. It is sufficient to observe, however, that the relationship between the respondents and Mr Honeywill has not improved since the notice of termination was issued.
Mr Honeywill relied in particular on a number of incidents that were outlined in letters to Mr Hughes dated 17 February 2017, 23 December 2017, 4 April 2018 and 6 March 2021.
The letter of 17 February 2017[15] refers to Mr Hughes behaving aggressively and using foul language when asked to turn down music emanating from his lot. The letter includes the following passages:
The Rules of the Park are included in your Site Agreement and an updated version has been included on each receipt given to you fortnightly. These state:
iAll noise, including conversations, radios and TVs to be kept at a level that does not disturb other tenants. NO noise after 10.00 pm.
ii(Added in updated version)
BEHAVIOUR: Anti-social or disruptive behaviour, foul language, illegal drug uses, indecent exposure, public nudity or lewd behaviour is not permitted and immediate eviction will result. Police will be called to lay charges if necessary.
…
Our reputation as a clean, friendly and quiet park is critical to the success of the park and frequent visitors mean that I can keep price increases down and employ staff. Your assistance is requested and we hope we never have to raise this issue again.
[15] BOD, pages 70-71.
The letter also refers to the Police being called and includes the following warning:
Should this occur again, the power will be turned off to your van. The police will be called to remove you from the property. You will then be asked to leave the site and find somewhere else to live.
The letter dated 23 December 2017[16] includes the following passage:
It has come to our attention that Steve, you are approaching guests and making their stay uncomfortable. It is not your role to direct or control any of the guests in the park. If you have any issues or concerns we ask that you direct them to us so that we can resolve them. We also ask that you control your language in the presence of our guests and the use of the F work is considered foul language.
[16] BOD, page 72.

Mr Hughes was sent a further letter on 4 April 2018. It referred to complaints from three separate families of anti-social behaviour and foul language. The particular incident the subject of these complaints concerned Mr Hughes allegedly saying 'I don't like fucking kids' in an intimidating manner.
The letter says:
The impact to the park is that people will choose not to return to the park and will tell their friends about the negative aspects of the Collie River Valley Tourist Park. This is made even more impacting with social media reports on Facebook and web reviews. We work hard to build up the business and these outbursts/behaviour negate our efforts. If the visitors leave we have to put up fees for the residents to cover expenses.
This is a Tourist Park, first and foremost. We will always have guests staying in the park and we will not turn them away because they are near you. You did choose to move to a spot near the campground and there will always be children playing nearby. We do encourage them not to play ball when we see them and did stop some on the weekend. There are also better ways of asking them not to play near your home.
This is not the first time occurred. The last time we lost a guest and had to refund them over $60 as they left early, after just extending their stay before your outburst[.]
The letter goes on to repeat the passage from the letter of 23 December 2017 about not approaching guests and making their stay uncomfortable and reiterates the Park rule prohibiting anti-social behaviour and foul language set out in the letter of 17 February 2017. The final paragraph of the letter says:
Based on the above rules, as outlined to you in your first letter, you should be evicted immediately. As this is your home, we'd like to discuss these allegations with you and [Molly] and see why the eviction should not be done and how this might be avoided in the future.
The letter dated 6 March 2021[17] refers to a report of Mr Hughes abusing a woman for parking on the wrong side of the road near the campers kitchen and 'confronting a guest fixing his car with anti-social behaviour'. Consistent with the letter dated 4 April 2018, this letter restates the Park rule prohibiting anti-social behaviour and warns that immediate eviction is justified but hopefully can be avoided.
[17] BOD, page 74.
Mr Hughes did not dispute that the various interactions in the letters had taken place. He acknowledged, for example, that he had told the father of the children climbing under his van that he hated children. Mr Hughes did, however, deny in relation to all these incidents that he was aggressive and swears at people. He said:[18]
If the park operator would actually go and do his job when - when we give complaints, then we wouldn't have to go and approach people. I don't approach them in a hostile notion – way. Like anybody, if you're being dressed down because you're doing something wrong, you always take it as something bad, and then, of course, you're going to run back to your parents, ie, management and cry about it[.]
[18] ts 37 and 39, 13 January 2022.
Mr Hughes said further:[19]
… I know we have complained a lot, and I know he [Mr Honeywill] doesn't - doesn't seem to know his 2006 regulations or - or adhere to his own park rules. His staff are lacklustre in going and - and fronting people if - if there is a problem. His due care - you can see by the photos his due care for - for, you know, taping off dangerous things and - and fixing things in appropriate timeframe is just beyond. But, yes, apart from that, I really think this without grounds is - is based on that turning the hot water off and then our complaints … same as our sacking. It was - there was no need for us to be sacked.
[19] ts 49-50, 13 January 2022.
Having referred to him and Ms Hamilton losing their causal employment at the Park, Mr Hughes was asked why he was terminated after his first employment stint:[20]
…
HUGHES, MR:          … you sacked me, because I - because I whipper-snipped too - mowed too close to another person's vehicle and they had a cry about it.
HONEYWILL, MR:     What did they say, and what did you say to them?
HUGHES, MR:          I said, 'Fuck you very much'.
HONEYWILL, MR:     Okay. I then terminated your employment at that point in time (indistinct)
HUGHES, MR:          Yes, and then you were back - six months later, you were back asking me to come back to work for you[.]
[20] ts 73-74, 13 January 2022.
We note that Mr Hughes' admission that he swore at the person referred to is inconsistent with the representation earlier in his testimony that he does not swear at people.[21]
[21] ts 37, 13 January 2022.
Mr Honeywill in turn was specifically questioned about his motivation for issuing the notice of termination and in particular its timing.[22]
… the issue … came to a head and I sought legal advice on what conditions to try and maintain the caravan park in a clean and orderly fashion because we had a number of instances from Mr Hughes predominately with aggressive behaviour from – with residents, with – well, rather – not residents, but with guests and staff members, an none of the normal terms for termination, ie, non-payment of rent or damage to property, were relevant.
The damage to property was open to interpretation, and was it physical or was it intellectual damage that was created. And at the same time we also realised that this is not a good period for people to be looking for rentals and figured that the best way to do it was to terminate without grounds and not because of retaliation – retaliation but, rather, on trying to maintain a good reputation that we have through Trip Advisor, WikiCamps, Google Business, a number of - Facebook within the travel and tourism industry.
So we went down that path, but the motivation for kicking this off was to try and maintain the peace in the park and a way to, you know, handle the aggressive behaviour and non-compliance[.]
[22] ts 96-97, 13 January 2022.
Mr Hughes responded to Mr Honeywill's reference to the potential damage to the Park's reputation:[23]
We're not on Facebook. We're not on Facebook. We don't do the Travel Advisor - Trip Advisor. None of that means nothing to us. We haven't even got a computer. Why's he worried about us damaging his property or intellectual property or some shit, like - - -
[23] ts 102, 13 January 2022.
As to the timing of the notice of termination, Mr Honeywill said:[24]
I think it was that the aggressive behaviour at times like when we had people who came down from Perth/Peel and they were encouraged to wear masks and the onus of the Health Department will tell you is it's not up to the caravan park operator or manager to enforce that. That is up to the individuals. We encouraged it and Mr Hughes went around taking photographs without permission and they wrote a letter to us to say they weren't happy with the behaviour and the aggressive behaviour of Mr Hughes. So it's episodes like that.
It was the pregnant lady. It was the gentleman who had his car that he had brought down. It wasn't a - it was a racing car but it was a licensed touring car insofar as it was his car that he came down from Perth[25] with to the - going back. It was a number of instances like that that all just culminated in time to say enough, you know. If the approach had been different in saying, 'Hey, guys. How about we try and open it [the shower block]', rather than the aggressive approaches that were made to the staff, to myself, to my wife, just brought to a head. At that stage we did not know until 2 December who had actually made that complaint.
You know, we had a number of people that had come to us, asking us to open, and we've heard that tonight, you know - today, rather, that at this stage, you know, I wasn't aware, and that wasn't my motivation. You know, turning off the hot water system wasn't a biggie. The safety of the staff was. The safety of our guests was. But, you know, the safety of our guests and, you know, the - I guess the situation at the park wasn't a peaceful one and we're looking to try and reinstate that.
[24] ts 96-97, 13 January 2022.
[25] We understand this to be a reference to the matters the subject of the letter of 6 March 2021.
Mr Honeywill was also questioned about the conversation with the respondents on 9 February 2021 at which time he is alleged to have warned the respondents that if they continued to complain about the hot water being turned off, they would be asked to leave. Mr Honeywill responded:[26]
That's not the sort of words I would use. I - I would use that for people who were aggressive, who approach in an aggressive way. That's, you know - if - if you want to misbehave then that's it. If it's to do about hot water systems, you know, that to me is not an - an issue. As they say, you know, pick your fights, and for me, you know, you can hassle them, but I've got to try and protect the staff. But, you know, come to us in - in a – in a reasonable fashion and I'm happy to talk to you about it, but come in and aggressively demand and shout at me and bang the doors, that's not good behaviour.
…
I don't recall that conversation on the telephone, but in the past when he [Mr Hughes] has come into the office and – and made, you know, aggressive behaviours and shouting, 'Steve, you know, if you're going to be aggressive leave the park. I can't have you'.

Disposition

[26] ts 98, 13 January 2022.

As we explained earlier the resolution of this application rests on two questions:
1)Was the motivation to issue the notice of termination based in whole or in part on the respondents' complaint to the Shire of Collie or them securing or enforcing their rights as tenants?
2)Is termination of the tenancy justified in all the circumstances?
Turning to the first question, it is invariably the case that complaining to the Shire of Collie about the hot water being turned off can also be characterised as the respondents taking steps to secure or enforce their rights as tenants. It is less clear whether all of the issues about which the respondents complained are capable of being characterised as rights under the long-stay agreement. Ultimately, we have concluded that it is unnecessary to resolve this question of construction. This is because we are satisfied on the balance of probabilities that the notice of termination was not issued either wholly or partly as a consequence of the complaint to the Shire of Collie or the complaints to Mr Honeywill referred to above.
A key issue in the proceeding concerned the timing of the notice of termination which was served on 23 April 2021. The respondents contend that the proximity between the intervention of the Shire of Collie on or around 9 February 2021 and the issuing of the notice of termination in April 2021 inexorably leads to the conclusion that the complaint to the Shire of Collie was the motivation for terminating the tenancy.
That the respondents may hold that view is readily understandable. However, having regard to the whole of the evidence, we find on the balance of probabilities that this was not the case.
It is clear from Mr Honeywill's testimony corroborated by the documentary evidence that he had concerns about Mr Hughes' conduct well before February 2021. Furthermore, after Ms Fergie's intervention in February 2021, Mr Honeywill again wrote to Mr Hughes on 6 March 2021 about another incident that is alleged to have occurred on 2 February 2021.
A reoccurring theme in both the letters sent to Mr Hughes and the evidence of Mr Honeywill was not that Mr Hughes had complained, but the way he went about doing so. The letters from Mr Honeywill (and Mrs Honeywill) repeatedly encouraged Mr Hughes to bring his complaints to the park operator rather than deal with them himself. We find that there have been longstanding issues concerning the way Mr Hughes approached guests and staff with whom he had an issue. We accept that ultimately Mr Honeywill reached the point where the situation could not continue.
Turning now to the question as to whether termination of the longstay agreement is justified in all the circumstances. Selfevidently, much of the evidence to which we have already referred is relevant to that question.
We acknowledge that the respondents have resided at the Park for 12 and 15 years respectively[27] and regard the Park as their home. It would seem that notwithstanding their complaints about Mr Honeywill, the respondents are happy living in the Park.[28] We also acknowledge that disconnecting their van and finding alternate accommodation will involve expense and inconvenience. Mr Hughes made particular mention that there is a considerable homeless problem in Collie and that rentals have disappeared.[29] We note, however, that the notice period for the termination of a long-stay (site-only) agreement without grounds is 180 days.[30]
[27] BOD, 113-116.
[28] ts 107, 13 January 2022.
[29] ts 107, 13 January 2022.
[30] Section 42(3)(b) of the RP Act.
In our view, as the references provided indicate,[31] Mr Hughes is a loyal person. It is also apparent that he will stand up for what he believes is right. This includes acting to protect Ms Hamilton's interests. We also accept that Mr Hughes may not subjectively believe or even intend to act in an intimidating manner. However, the evidence supports the view that his conduct is reasonably perceived by others as intimidatory.
[31] BOD, 113-117.
Mr Hughes' lack of insight is exemplified by the extract of his evidence reproduced at [42] above. Having said he does not approach people in a hostile manner, Mr Hughes volunteered that he 'dressed down' those who he believes have done something wrong. Mr Hughes seemed unsurprised by the subsequent complaints to management. On the contrary, Mr Hughes appeared to see these complaints as a natural consequence of dressing people down and did not demonstrate any appreciation that he ought approach people in a more conciliatory manner.
While we accept that Mr Hughes has been frustrated and is entitled to complain if he has reason to believe Mr Honeywill is not taking appropriate action to enforce the Park rules and maintain the facilities, the fact remains he had repeatedly been told not to take matters into his own hands and not to behave in an intimidatory manner.
In considering whether termination of the long-stay agreement is justified in all the circumstances we are obliged to also consider the interests of the park operator. As Senior Member Raymond observed in Howe:[32]
… It is necessary to understand that this legislation endeavours to achieve a balance between the interests of park owners and those of tenants. Park owners are generally private owners who have invested in land for the purposes of profit[.]
[32] Howe, [38].
There is no doubt that park operators have a legitimate interest in ensuring that guests report having had a positive experience. Selfevidently negative reviews, which can spread by word of mouth and be readily and widely disseminated via social media, have the potential to harm a park operator's business. As the extract from Mr Hughes' evidence reproduced at [47] above demonstrates, this issue was not readily appreciated by Mr Hughes.
During the course of the hearing, it became obvious that complaints from guests about Mr Hughes is not the only issue. Based on the evidence as to the parties' interactions and the interactions between the parties we observed during the hearing, it is clear that the relationship between the parties had irreconcilably broken down.[33] Unlike the circumstances in Howe, the issues between the parties cannot be described as 'relatively trivial' or 'relatively minor'.[34]
[33] Dall and Tyson [2016] WASAT 111, [43].
[34] C/f Howe, [28].
We formed the view that were the tenancy to continue, it is unlikely the situation will improve.
For all the reasons outlined above we have regrettably come to the difficult decision that termination of the tenancy is justified having regard to all the circumstances.

Conclusion

For the reasons set out above we are satisfied that the requirements of s 68 of the RP Act have been established, namely that:
•the applicant gave a notice of termination to the respondents (long-stay tenants) in accordance with s 38 and s 42 of the RP Act: s 68(1)(a);
•the respondents did not give vacant possession of the agreed premises to the park operator on the specified day (27 October 2021): s 68(1)(b);
•within 30 days after the specified day, the applicant made an application for an order terminating the longstay agreement and requiring vacant possession: s 68(2) and s 68(3);
•we are satisfied that the notice of termination was not issued for any of the reasons in s 68(5); and
•we are satisfied that termination of the agreement is justified in all the circumstances: s 68(4)(b).

Orders

For these reasons the Tribunal orders:
1.The long-stay agreement between the applicant and the respondents is hereby terminated.
2.The respondents shall give vacant possession of the premises to the park operator pursuant to s 68 of the Residential Parks (Long-stay Tenants) Act 2006 (WA) no later than Tuesday, 31 May 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J O'Sullivan, SENIOR MEMBER
2 MAY 2022