Franklin & Ors v Burleigh Town Village Pty Ltd
[2014] QCATA 183
•30 June 2014
| CITATION: | Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183 |
| PARTIES: | Leslie (Glen) Franklin Ronald James Caddell Gai Hampson Michael Hampson Edwin Gunder Rhelma Gunder Marlene Barber Lauri Neibling David Noice Kathy Noice Sandra Hawkins Douglas Pacholke Margaret Pacholke Josephine Saveall David Rands-Trevor Hazel Rands-Trevor Ian Wiltshires Isabella Wiltshire Margaret L Farek Mary Rose Whiffin Margaret Clark Cheryl Riley Russell Staader Karl Krepela Marie Brown Zofia Mazurkiewice Witold Mazurkiewice Maureen Randle Daphne Sellwood Jan Kollen Wilma Kollen Shirley Gailbraith Brian Peterson David Nichols Mihaly Lukacs Ivan Lukacs John W F Damon Rosemary Osborne Gem Howe Noela Lucht Kath Gibson Ann Hollingsworth Alan Chauncy John Warren Marilyn Warren Henk Koning Ursula Koning Brian McAulliffe Shirley Houlihan Millicent Ann Fraser Judith Ethel Berg Ernst A A de Vreede Don Giddens Sylvia Giddens Jacoba Lupina de Klerk Lynne Newport Allan Arthy Bette Arthy Eileen E Smith Kenneth Smith Jan Westall Judy King Derek Waller Maureen Waller Lynette Baker Barbara Pignatelli Joseph Pignatelli Allan Brown Babette Davidson Patricia Tierney Julie Knight Tony Van Krevel Elaine Brass Joan Cross Marjorie Keepers Dianne Caddell Ronald Caddell John Carthew Carole McPherson Ian McPherson Shirley Bargeman Beryl Sheedy Faye Campbell Anthony C Dodd Cynthua Margaret Tomkinson Don Iles Helen Iles Maureen Wood Gregory McKenzie Valma Spence Margaret Ahrens Vivienne Armstrong Roberta Cava Dian Buttress-Grove Valma Briggs Lynn Bull Colin Milnes Marie Milnes Peter Malcolm Dunning Sheila Dunning Tamala Thornley Evelyn Harper Gail Deacon Faye Feldbauer Alan Dudley Wright Anita Dawn Hall Valda McPhee Fay Towerton Vladimir Hejduk Geoffrey Parsons Ellis Ivor Shirley Semple Nancy Kae Wright Marilyn Williams Elaine M Lyme Marie Kathleen Buttenshaw Diana Bourn Phil Plews Marg Plummer Alan Scown Valda Scown Narelle Porthouse Neville Hunter Veronica Hunter Marilyn Roland John Cummins Judy Cummins Maureen Woolsey Norma Wagland Gael Patricia George Sandra Allen Maria Robel Garry Scarlett Susan Scarlett Lily Randabel Edith Betty Robertson Noel Andrew Robertson Kaye Vawser Maureen Prosser Judith Dewar Ivan Harris Jewell Harris Fay Cross Doreen Koniaras Elaine Joy Laughlin Joan Hall John Hall Phyllis Ahearn Noelene Kay Sayer Elisa Kaiser Heinz Kaiser Richard James Foulkes Colleen Hardwick Rachel Guarnieri John Gillett Pam Gillett Frederick Jones Susan Jones Crystal O’Loan Iris Shephard Jan Collis Neil Collis Barry Gadsden Norma Gadsden Beverley Knight Robyn Diane Phillips Kathleen E Newman T Soellaart Claire Riera Alex Kosorukson Winsome Oost Trevor Bartholomew Hyacinth Davis Francis Happ Elsie Burnell T E Syred Diane Menso B Sheehan Lynn Smith Norman Smith Greg Smith Marion Jones Alan Moore Jeanette Moore Kevin McGarry Lois McGarry Frances Keyte Ken Keyte Jean Ann Moss Yvonne Fitzgerald Francis Fullerton Valmae Fullerton Edward Dyson Verna Dyson Leonie Barker Deborah Landers John Landers Sharon Leabourne Warwick Leabourne Helen Watt Roger Gathercole Margery Gathercole M Cooper Ken Whiteman Roseann Whiteman Carol Whelan William Mullen Gladys Mullen Beverley Elliott William Elliott David Melrose Marie Melrose Penny Carthew Jack Gilbert Janice Browett Rita Worboys Annette Gulliver Norman Gulliver Norma Forlonge Delma J Bourke Helen Gately John Townsley Elaine Arch-Rowe Peter Arch-Rowe Barry Hughes Dianne Hughes Dennis Mepstead Rodney McKenzie Kristin Moore Paul Buttenshaw Caroline Cambrey (Appellants/Applicants) |
| v | |
| Burleigh Town Village Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL054-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President Member Howard |
| DELIVERED ON: | 30 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. In respect of the persons named in Annexure B(3) attached, the application for leave to appeal and appeal is dismissed. 2. An extension of time is granted for the appellants named in Annexures B(1) (original applicants in OCL083-11 who are parties to the application for leave to appeal and appeal) and B(2) (applicants for joinder in OCL083-11 who are parties to the application for leave to appeal and appeal) to file their application for leave to appeal and appeal by 30 January 2013. 3. The appeal is allowed in respect of order 1 of the tribunal’s orders of 12 December 2012 as follows: (i) Order 1 of 12 December 2012 is set aside in respect of all original applicants named in Annexure A(1); (ii) It is declared that all original applicants named in Annexure A(1) were properly parties to the application pursuant to s 141 of the Manufactured Homes (Residential Parks) Act 2003 (Qld). 4. Leave to appeal is refused in relation to the grounds of appeal specified by the appellants in their application which do not relate to errors of law. 5. The appeal is otherwise dismissed and the orders of 12 December 2012 confirmed. |
| CATCHWORDS: | APPEALS – MANUFACTURED HOMES –PARTIES TO APPEAL – ERROR OF LAW – where joint application made – where tribunal considered whether an order for joinder should be made under s 42 of the QCAT Act when application made by joint applicants under s141 of Manufactured Homes (Residential Parks) Act 2003 (Qld) – where application for joinder dismissed for many original applicants – where oral application for joinder of small number of additional applicants – where time prescribed for filing an application expired – whether joinder should be allowed – where no explanation for delay – whether appeal should be allowed APPEALS – LEAVE TO APPEAL – MANUFACTURED HOMES – SITE RENT INCREASE – where park owner gave notice of increase in site rent – where tribunal Member found site rent increase fair and reasonable – where valuer’s report considered by tribunal Member – whether tribunal Member erred in regard of s 70 (3) of Manufactured Homes (Residential Parks) Act 2003 (Qld) – whether grounds for leave to appeal Manufactured Homes (Residential Parks) Act 2003 (Qld), s 70, s 141 Benson v Ware [2012] QCATA 24 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Home owners from Burleigh Town Village Pty Ltd applied (the original application) under s 70 of the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act) for orders setting aside a site rent increase imposed by the park operator.
The original application was dismissed and the site rent increase confirmed. The tribunal also made orders dismissing applications by some home owners to be joined to the proceedings.
An application for leave to appeal or appeal (the application) was filed by Leslie Glen Franklin “and ors”. As directed by the tribunal, the appellants filed a list of appellants and copies of authorities signed by those on the list to have Mr Franklin represent them in the appeal proceeding.[1]
[1]APL054-13, Directions dated 11 April 2013.
Issues arise in the proceeding about the persons who are properly parties to the application. These are discussed later.
Preliminary Issue: extension of time
The tribunal’s decision and reasons for the decision were received by the appellants on either 19 or 20 December, 2012.[2] The application was not filed until 29 or 30 January 2013.[3]
[2]See application for leave to appeal and appeal filed 30 January 2013 and cover letter to QCAT registry enclosing the application. The former indicates it was received on 20 December 2012 and the latter, on the 19 December 2012.
[3] ` 29 January 2013 is stamped above the office use section on the front page, but the document is stamped received by QCAT registry on 30 January 2013.
Section 143 of the QCAT Act prescribes that the timeframe for filing an application for leave to appeal or appeal is essentially 28 days after the person is given the written reasons for the decision.
Working on the basis that the reasons were received on 20 December, 2012, even if the application was filed on the earlier date, that is, 29 January 2013, it was filed outside of the prescribed time frames, by some 12 days. A letter signed by Glen Franklin dated 29 January 2013, which appears to have been received with the application asserts that the appeal period ends on 1 February 2013. It also refers to the reasons not being received until 19 December, essentially because Mr Caddell had been in hospital at the time and only allowed home for Christmas. Medical information about his ailment said to be attached, was not.
If an application is filed outside of the prescribed time limits, an extension of time must be sought. It has not been, it seems, because the applicants believed the application was filed in time.
The park owner submits that the application must be dismissed because it was made out of time, and no extension of time has been sought or granted. An extension of time issue would usually be dealt with at an early stage after the filing of the application. Unfortunately, it appears that this issue was not discovered by the tribunal earlier, nor was an application made by the respondents to dismiss the application on this basis.
The tribunal may, on application or on its own initiative, in its discretion, extend a time limit for the start of a proceeding.[4] It may do so if it would not cause prejudice or detriment to a party, which can not be remedied by an order for costs or damages.[5] Relevant considerations include the reasons for the delay and the length of it; the merits of the appeal; any prejudice caused to the other side;[6] and overall whether it is in the interests of justice.[7]
[4]QCAT Act , s 61(a); s 61(4).
[5]QCAT Act, s 61(3).
[6]Benson v Ware [2012] QCATA 24 at [9].
[7]Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 at [8]-[10].
In this case, the reasons for decision were sent to the parties in the period immediately before Christmas and New Year. It is apparent however, that Mr Caddell was hospitalised for some time around the time the reasons were given. In light of his hospitalisation, it is reasonable to infer that he was significantly unwell at that time. The appeal was filed outside of the prescribed time frames by a short period of about some 12 or 13 days.
In this instance, there is no identifiable prejudice to the park owner in allowing an extension of time, since it has had notice of the application and the opportunity to make submissions. Indeed, it has made extensive submissions in response.
In view of the disruption of Christmas and the New Year period shortly after the reasons were given; Mr Caddell’s illness and hospitalisation at about the same time; the short duration of the extension required; and in circumstances where there is no prejudice to the park owner; and in light of our view of the merits of the matter (as discussed below), an extension of time is granted to those persons entitled to be appellants (as discussed later), on the tribunal’s initiative, for the application to be filed by 30 January 2013.
Preliminary issue: who are the appellants?
Burleigh Town Village submits, in effect, that the appeal can only be brought by Mr Franklin and Mr Caddell, having regard to the grounds of appeal and in view of the decision made by the tribunal which is the subject of this appeal. It also suggests (but without identifying them) that the list of appellants filed in the proceeding contains home owners who were not residing at the village at the time of the relevant increase or did not receive a notice of increase.
The issue of who were the applicants in the original application and who were applicants for joinder is considered later. Suffice it to say at this stage that we do not accept that Mr Franklin and Mr Caddell are the only persons entitled to be appellants. Those who were properly applicants to the original application (see later discussion) are entitled to be appellants. Those original applicants who filed authorities in this application for leave to appeal and appeal are ultimately accepted as being appellants. Further, those persons in respect of whom application for joinder was made and refused, and who filed authorities in this application for leave to appeal and appeal, are also accepted as properly being appellants in so far as the appeal relates to the joinder application. These persons are identified and set out in Annexure B(1) and B(2) respectively to these reasons for decision.
As to any of the would-be appellants who were not parties to the decision appealed, the application for leave to appeal and appeal made by them is dismissed, as they have no basis to bring an application for leave to appeal or appeal. These persons are identified in Annexure B(3).
Background
An unofficial transcript was filed by the appellants in the appeal. It is unhelpfully not page numbered. For the purposes of this appeal, we have nominally numbered the pages consecutively in order to reference it in these reasons for decision. (We make the observation that the respondent, while referring to it not being an official transcript does not suggest that it is not generally correct, despite noting numerous typographical errors.)
The applicants
Mr Franklin and Mr Caddell ‘plus list of residents attached’ filed the original application under the MHRP Act on 20 June 2011. Attached was a list of names, together with documents signed by numerous persons to the effect that they each objected to the site rent rise. The names of the persons on the list and the persons who provided the authorities are not the same in all cases.
There are several persons named on the list from whom there is no authority. There are also numerous persons who are not named on the list who provided authorities. To confound the matter even further, in excess of some 35 of the authorities provided post-date the filing date of the original application. None of the names of the persons signing the authorities which post-date the application are included in the names on the list, although there are several persons whose authorities pre-date the filing of the application whose names do not appear on the list.
It is not apparent from the file how it was achieved that some authorities which post-date the application are with the bundle of authorities filed with the application. The most likely explanation appears to be that, on the request of the applicants, the registry has later placed some additional authorities with the bundle received with the application.
On 2 August 2011, the tribunal directed that the applicants file and serve a full list of applicants and the orders being sought. On 19 October 2011, following a compulsory conference, the tribunal further directed that each joint applicant sign an agreement to be joined to the application and to be represented by nominated persons which was to be filed in the tribunal by 21 November 2011. The tribunal’s directions of 19 October 2011 did not require the applicants to serve the authorities filed on the respondents.
In August 2011,[8] a list of applicants was provided, being attached to a document setting out ‘what we seek from the tribunal’. On 17 November 2011, the applicants filed a bundle of documents and a list of names with a copy of the direction of 19 October 2011. The documents are authorities signed by numerous persons in the following terms:
We the undersigned agree to have Mr Ron Caddell and Mr Glen Franklin (co applicants in the Tribunal (case OCL83/11) both residents of Burleigh Town Village represent me/us the undersigned, and to act on our behalf in this manner and to make final decisions on our behalf.
Site …………………………
Name/s………………………..
Signature/s…………………….
[8]The file reveals that the document was initially filed on 5 August 2011, but a better quality version was filed on 8 August 2011.
The list is attached to an unsigned document which says:
The names that are listed on the attached lists are residents who have signed consent forms giving Mr Ron Caddell and Mr Glen Franklin authority to make decisions and act on their behalf in the Tribunal Case OCL 83/11. Burleigh Town Village Occ.Ass.Inc.
Again, the names of the persons on the list do not coincide in all respects with the persons from whom authorities were received with it. Further, we note that not all persons on the list filed with the application, or who provided an authority with it which pre-dated the filing of the application, provided the further authority directed.
There was discussion at the hearing about who Mr Franklin and Mr Caddell represented.[9] The tribunal indicated that it had a list of people which it understood were joined to the claim and represented by them.[10] It also indicated it was aware that some others wished to be parties. It was indicated by Mr Caddell, that there were a number of other people who wished to be joined.[11] The tribunal Member said during the hearing that if Mr Caddell gave evidence that ‘all of these people have signed these documents… then I’ll accept that….’[12] Mr Beck also seems to acknowledge the same.[13]
[9]Unofficial Transcript, page 14-15, 42-46.
[10]Unofficial Transcript, page 14.
[11]Unofficial Transcript, page 15.
[12]Unofficial Transcript, page 45.
[13]Unofficial Transcript, page 44.
Mr Caddell gave evidence to the effect that each person who signed an authority in the bundle provided had indicated that they wished to be a party to the application.[14] He apparently provided the tribunal with a copy of a new list of the names.[15] The tribunal did not mark the materials before it as exhibits. However, it appears that a document entitled ‘Burleigh Town Village-Objections to Proposed Rent Rise Under Section 69’ is the new list. The tribunal refers to the document at paragraph [4] of its reasons for decision.
[14]Unofficial Transcript, page 45-46.
[15]Unofficial Transcript, page 46.
During the hearing the tribunal acknowledges that a large number of home owners had joined in the proceedings,[16] although it is apparent from his comments that the learned Member had not cross-checked the lists for accuracy. Throughout the transcript, it appears that Mr Beck (for the respondent) also acknowledges large numbers of homeowners were applicants. Later in its written submissions,[17] the respondent asserted that it understood that there were only 2 applicants.
[16]Unofficial Transcript, page 44.
[17]Park Owners submissions filed 22 June 2012, page 4.
The increase in site rent
The park operator gave notice to home owners of Burleigh Town Village of an increase in site rent. A copy of the Notice of Increase, sent to Mr Franklin and his wife and dated 30 May 2011, was provided to the tribunal with the application. Under that notice, the increase represented an increase of $65.90 or 11.12% for each 4 week period from $592.50 to $658.40.
The tribunal was not provided with copies of any other notices received by the individual applicants or would-be applicants. At the time notice of the increase was given, there were a number of different rents being paid by home owners, depending on the site agreement in place between them and the park owner.
The village has been operating since about 1986, that is, before the current MHRP Act came into effect. In about 2007, home owners were given the option of staying on the ‘old’ agreement with annual site rent increases of 5% or CPI, whichever was greater; transferring to a more comprehensive site agreement with annual site rent increases of 5%, or CPI whichever was greater; or, transferring to a new more comprehensive agreement with annual rent increase at CPI and a market review in July 2011 and each 5 years thereafter.[18] Ongoing transition to the new agreements was provided for. Some home owners transferred to new agreements effective each financial year from 2008 onwards. During March 2007, steps were also taken to separately bill home owners for water. A rent reduction was agreed at this time because of this change.
[18]Statement of Brendan Beck filed 6 September 2011, pages 7-10.
As at July 2011, some 47[19] home owners were parties to agreements with 5% or CPI annual increase. As we understand it, some 155 home owners had moved (although not all in the same year) to an agreement providing for annual CPI increases and market review in 2011 and each 5 years thereafter.[20] Which category each of the individual would-be applicants falls into is not disclosed in the evidence or material relied upon. However, Mr Franklin’s and Mr Caddell’s agreements both provide for CPI and 5 year reviews.
[19]Although the further unsigned submission filed on behalf of the respondent on 17 April 2012 refers at page 16 to 48 home owners being on the 5% or CPI annual increase.
[20]Statement of Brendan Beck filed 6 September 2011, page 20.
Home owners were paying between $592.50 up to $627.05 per 4 week period at the time the relevant site rent increase was notified. The notices of increase in site rent given brought all home owners in line, all then paying $658.40 per 4 week period.[21] This is the amount that was payable by the group of home owners who had maintained agreements under which they agreed to automatic CPI or 5%, whichever was greater, annual increases. The monthly increase which the increase effects therefore varies: for some home owners it is up to a $65.90 monthly increase (11.12%) for those who moved to CPI and market review in 2007. For those who remained on 5% annual increase, it is an increase of $31.35 (5%).
[21]Statement of Brendan Beck filed 6 September 2011, pages 11-12 and Attachment BTV 4.
The park owner filed and relied upon an Assessment of Market Site Rents prepared by Mr Laurie Hamilton, Registered Valuer, from Taylor Byrne, Valuers. Mr Hamilton assessed site rent at $162.50 per week. Mr Hamilton referred to a previous version of s 70(3) in preparing his assessment. He considered that there was no directly comparable park in the locality. However, he includes a rental comparison schedule, setting out site rents in various parks which he considers relevant, together with details about location, facilities and house sales in the parks. He nominates Riverside Residential Park and Ruby Gardens as the most comparable parks, although he considers them to be in inferior locations. He makes his assessment based on a free to market assessment at $162.50 per week. He says that he considers park viability a relevant factor, although it is not set out in s 70(3), and he does not describe how he has factored this matter into his assessment. However, the park owner placed evidence before the tribunal about increases in costs exceeding CPI.
The home owners did not file a valuation, although they make some observations about some of the comparison villages referred to by Mr Hamilton. The comments are not supported by any expert evidence, they are the opinions of the homeowners. For example, they assert that some of the villages used as comparisons are high quality ‘5 and 6 star new lifestyle complexes’, unlike Burleigh Town Village which they say is ‘a maximum of 2 star’.[22] They provide a table of villages which they say are more comparable and within a 17.5 kilometre radius, whereas they say those referred to by Mr Hamilton are located throughout the Brisbane/Beaudesert region. The site rents for those complexes provided range between $104 and $131 per week, and they say that some include water charges.
[22]Applicants’ submissions filed 31 January 2012.
They assert that the site rent at Burleigh Town Village is the highest or probably the highest in Queensland allowing for the financial position of residents, poor facilities, at a 27 year old park next to an industrial area. They make a range of complaints about the facilities and the standard of upkeep of the village and assert that there have been no improvements or upgrades in the park over a ten year period.
Further, the home owners say that 116 of the 202 homes are occupied by single home owners, and that 96% of residents are pension-dependent. They equate the rent after the recent increase to 45% of the single pension. They say that the park owner is profiteering and not meeting its moral obligation to keep prices affordable for the home owner demographic. They point to other price increases, for example, in the cost of food, health, electricity and water. Combined, they say that home owners can not afford the site rent increase and that it is unjust, unwarranted, unfair and inequitable in the financial circumstances of home owners who are pensioners and who face cost increases in food, petrol, electricity and water. (The financial circumstances of particular home owners are not set out.) Calculations of alleged estimated profits made by the park owner are provided.
The park owner denies many of these allegations. It provides photographs of facilities and maintenance and various improvements. Through its manager, it presented evidence that there were 14 new residents after the site rent increase demonstrating that new residents are prepared to pay the rent imposed. The manager also provided evidence of the park owner’s increased costs, for example, for rates ($53,663 in excess of CPI over the period 2007 to 2011) and waste water (increase of $11,574).[23] The learned Member set these out in more detail in paragraphs [53]-[56] of his reasons for decision.
[23]Respondent’s Material filed 14 April 2012.
The tribunal’s decision
The tribunal made orders dismissing the applications by any persons seeking to be joined in the application of Mr Franklin and Mr Caddell. The learned Member observed that the direction of 19 October 2011 was not complied with. He further says that at the hearing, the applicants sought to join a further possible 177 applicants. The learned Member says that the park owner was aware of only 2 applicants.
The learned Member notes that a joint application may be made under s 141 of the MHRP Act, but says that if persons were to be joined they would need to be accurately identifiable and that the respondents would have to have an opportunity to consider the impact of joining them as applicants. He further refers to s 42 of the QCAT Act under which the tribunal may join a person as a party.
He decided that because the additional would-be applicants did not bring their applications within the applicable timeframe (under s 70(2) of the MHRP Act, the application must be made by a home owner within 28 days after receiving the site rent increase notice), that they should not be joined as applicants.
The learned Member found the increase in site rent to be fair and reasonable. He outlined the relevant provisions of the MHRP Act under which he was entitled to make orders either reducing the increase, setting it aside or confirming the increase: s 70(2). In coming to his conclusions, he discussed and considered evidence about the factors set out in s 70(3) of the MHRP Act: see paragraphs [33] – [62] of the reasons for decision.
He says that the reference by Mr Hamilton to the factors in a repealed version of the MHRP Act limits the weight he places on the report, but appears to accept all of Mr Hamilton’s evidence, and in any event, gives it greater weight than he gives the applicants assertions about other comparable parks on the basis that ‘there is no independent evidence to support this submission.’[24]
[24]Reasons for decision at [37].
In paragraphs [63]–[67], he draws conclusions and sets out findings. He was satisfied that the rent proposed is a little above that assessed by Mr Hamilton, and that 14 new residents have accepted the rent. While accepting that some residents will experience an increase of up to 11.12%, that none of them, ‘with the possible exception of Mr Caddell’, have in the past taken opportunities to challenge the site rent. He finds the site rent increase fair and reasonable in the circumstances.
The grounds of appeal
The appellants have produced a large volume of submissions in this appeal proceeding. A significant portion of the submissions do not appear to relate to the grounds of appeal they raise in the application.
The submissions which do not directly address the grounds of appeal specified in the application are unhelpful. We have extracted, as far as that is possible, those submissions which appear to be made in relation to the grounds of appeal.
Preliminary Observations
As the QCAT Act envisages, many persons coming before the tribunal are not legally represented. Parties are very often self-represented and not experienced in preparing documents for the tribunal. The tribunal receives documents in many formats and considers them, whatever format they take.
That said, we make the observation that submissions which are made in personally disparaging terms about a tribunal Member, alleging personal shortcomings in the tribunal Member’s skills and making ill-informed allegations about their background, experience and motivations, are unhelpful in an appeal process. What is required on appeal is to identify error on the part of the tribunal in making its decision.
The submissions also contain specious allegations that the tribunal generally supports park owners, and that this is ‘endemic in the enabling legislation, the statistics prove it.’[25] The tribunal is required to make its decisions based on the evidence before it and according to law. Appellants’ submissions should be focussed upon the issues relevant in the particular case.
[25]Appellants’ submissions entitled ‘Preliminary’ filed 13 May 2013 at page 13.
The specified grounds of appeal
The application for leave to appeal and appeal sets out various grounds of appeal. These are to the effect that the valuer’s report was ‘irrelevant, out of date and did not constitute sound evidence’; that the Member erred by not complying with s 70(3) of the MHRP Act; that the Member erred by not applying the objectives of the MHRP Act or the QCAT Act; that the Member erred in ignoring the evidence of the applicants and accepting the evidence of the respondent; that the Member made an ‘unprovoked personal attack upon the character of an applicant, Mr Franklin, that was ‘false in every respect’; and that the member denied the sworn oath given by Mr Caddell which he said he would accept.
Although an application has not been made by the applicants to rely upon additional evidence in the appeal proceedings, various attachments to their submissions were not before the learned Member, and were not material which was before the tribunal at the hearing.
Observations regarding other primary issues arising from the submissions
As foreshadowed, the submissions traverse a myriad of complaints and criticisms of many things, only some of which relate to the decision appealed. Although technically we are not required to consider these extraneous issues, for the sake of completeness and because the appellants are not represented by lawyers, we have considered the irrelevant material and make the observation that it does not reveal any error of the tribunal.
The issues traversed include that the application involved a “non-legal“ issue and that therefore the tribunal Member who determined it was not qualified to hear it because he was a lawyer. Rather the applicants contend that it should have been heard by the Financial Assessments Team, (an administrative team of persons employed in the tribunal registry who consider accounts produced by administrators appointed under the Guardianship and Administration Act 2000 and who are not entitled under the QCAT Act to constitute the tribunal for any proceeding). The tribunal was properly constituted in accordance with the QCAT Act and the enabling Act (which does not contain any particular requirements about constitution of the tribunal) by a Member of the tribunal. No error is revealed.
Further, the submissions raise events which happened at or following the compulsory conference, notes left behind by the applicants, and orders made at directions hearings (that is, which are not related to the hearing and the learned Member’s decision following the hearing). In all, it is apparent that the appellants seek to raise any and every issue with which they were unhappy since the commencement of the proceedings, which are not relevant to the tribunal’s decision now appealed. These matters do not relate to the decision made and whether it contained any error. They reveal no error made by the tribunal in making its decision.
Also, there are submissions that the tribunal ‘cleared the file’ of material from the home owners.[26] It is apparent, however, from the transcript of the proceeding, that the tribunal went to some length to ascertain the material that was relied upon by the home owners,[27] but ultimately not all of the documents that they had filed were relied upon by them at hearing.
[26]Appellants submissions entitled ‘answers to the decision’ filed 23 May 2013, page 9.
[27]Transcript pages 2-8.
That said, it appears (due to some very confusing answers given by the applicant’s representative, in response to the tribunal’s request to identify the documents to which they wanted the tribunal to have regard) that it may have been intended to rely upon a document filed on 31 January 2012, which the applicants refer to as an objection to the valuer’s report, to the extent of relying upon ‘7 points’ referred to in the document. The reasons for decision do not identify that document as taken into account.[28]
[28]Reasons for decision, [24-26].
The 7 points are in the nature of submissions (that is, arguments about how the tribunal should take the report into account) rather than evidence in response to it. The applicants later provided extensive written submissions following the hearing, including submissions regarding how the valuer’s report should be viewed by the tribunal. Therefore, if the tribunal was mistaken about reliance on this document, it is not significant and we would have refused leave to appeal in respect of it, had it been raised as a ground of appeal.
Leave to appeal and appeal
By virtue of section 142 of the QCAT Act, an appeal on a question of law may be made against a final decision of the tribunal. However, appeals on questions of fact or mixed law and fact may be made only with leave of the appeal tribunal.
The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application.[29] A concise and helpful summary appears, in our view, in this passage from a decision of the Supreme Court of Canada:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.[30]
[29]See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
[30]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35] per Iacobucci J.
Determining whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[31] Is there a reasonable prospect that the applicant will obtain substantive relief?[32] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[33]
[31]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[32]Cachia v Grech [2009] NSWCA 232 at 2.
[33]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Pickering v McArthur [2005] QCA 294 at [3].
In relation to mistake of fact, it is not enough that the appeal tribunal comes to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the appeal tribunal can interfere.[34] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision- maker below were able to be made on the evidence before them,[35] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[36] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[37]
[34]Lovell v Lovell (1950) 81 CLR 513
[35]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[36]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[37]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Additional evidence will only be admitted in an appeal proceeding if it was not reasonably available at the time of the original hearing, and would probably have an important impact on the result.[38] The obligation to provide reasons and their adequacy are questions that must be considered in the light of the nature of the tribunal itself, and its work. Although QCAT has some judicial features, it is generally accepted that a Tribunal is not intended to imitate a Court by conducting its proceedings in the same manner or deciding disputed questions in precisely the same way as a court.[39]
[38]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd r 404; Walton v New, Lakelands Pty Ltd [2013] QCATA 49.
[39]Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd R 462; see also QCAT Act, s 28; CCYPCG v Grose [2013] QCATA 348; To v Choi .[2013] QCATA 27.
Adequate reasons for a decision will refer to the evidence which was important to the determination of the matter, and will set out material findings of fact, giving reasons for those findings and stating the basis upon which the tribunal has come to prefer one body of evidence over a competing body of evidence.[40]
[40]Camden v McKenzie (2008) 1 Qd R 39 at 47.
Additional evidence
The additional evidence attached to the submissions consists of photographs, brochures and information regarding other parks. This evidence was reasonably available at the time of the original hearing. It would not have an important impact on the outcome of the application. Leave to rely upon this evidence is refused.
Ground of appeal: Who were the applicants?
As discussed earlier, the tribunal made orders dismissing the applications by any persons seeking to be joined in the application.
The respondent says that the applicants did not appeal in respect of the decision about joinder. The ground is poorly articulated. However, we are satisfied that the applicants did appeal that aspect of the decision. The ground of appeal articulated by the appellants, as relating the decision bearing no resemblance to the hearing and to the learned Member having ‘denied the sworn oath in his decision’ (which we understand to be the events discussed in paragraphs 25 and 26 of these reasons for decision), on a fair reading of their submissions, is about the tribunal’s decision to dismiss what are referred to in the reasons for decision as the applications for joinder.
As discussed earlier, the tribunal and the park owner during the hearing referred to there being numerous applicants. The park owners material filed before the hearing refers to the ‘Principal Applicants’ as Mr Caddell, Mr Franklin and ‘Additional Applicants: refer to list provided by Principal Applicants’ and ‘to be advised’.[41] It is only in submissions filed following the hearing that the park owner says it was only aware of two applicants.[42] It refers to not having received the list of persons to be joined which was provided to the tribunal at the hearing.
[41]Filed by park owner on 6 September 2011 and 17 April 2014 respectively.
[42]Submissions filed by park owner on 22 June 2012.
In our view, on a fair reading, the application filed by Mr Caddell and Mr Franklin ‘plus the list of residents attached’, was a joint application as provided for in section 141 of the MHRP Act. It was poorly worded to the extent that the signed authorities provided with the application referred to the persons as objecting to the site rent increase, as opposed to making the application together. However, it is sufficiently clear, particularly as the parties were not legally represented, that this was a joint application.
The tribunal’s directions made before the hearing on 2 August 2011 and 19 October 2011 about the naming of and agreement of each of the joint applicants were framed in a manner which acknowledges that this was the case, and are apparent attempts to provide greater certainty given the poor drafting of the filed documents. Such inadequacies in drafting are not uncommon in the tribunal where parties are generally expected to represent themselves[43] and the tribunal is expected to operate in a way that is accessible and informal.[44] Where the intention is clear, the drafting inadequacy should not be allowed to disadvantage the parties concerned.
[43]QCAT Act s 43.
[44]QCAT Act especially ss 3(b), 4(a), 4(c), 4(e).
The directions of 2 August 2011 and 19 October 2011 were complied with, although the respondents were not provided with a copy of the documents provided in response to the October direction, no doubt because the direction made did not require it. That said, it is apparent from the material discussed that the park owner was aware of a broader range of applicants than Mr Franklin and Mr Caddell having been served with the application (which contained an extensive list) and the August submissions and attached list. As discussed earlier, the transcript reveals that the learned tribunal member acknowledged having a list of people understood to be parties who were represented by Mr Franklin and Mr Caddell. Mr Beck, the park owner’s representative, acknowledged the same.
The orders ultimately made by the tribunal dismissing applications for joinder by all persons concerned are therefore perplexing. We are satisfied that the learned tribunal Member erred when considering the question of who the applicants were, and interpreted it as a question of whether parties should be joined to the proceedings, except as far as it relates to those persons whose names were not a part of the original list or did not provide a signed authority with it which predates it and who did not file an authority as later directed on 19 October 2011 by the Tribunal and whom it was indicated at the hearing wished to be joined.
The learned tribunal Member discussed s 42 of the QCAT Act and s 141 of the MHRP Act, as well as the 28 day time limit for the application to be brought under s 70(2) of the MHRP Act. However, he ultimately proceeded on the basis that the application was one for joinder in respect of all of the persons concerned, including discussing that they had brought their application outside of the 28 day time frame prescribed in the MHRP Act, rather than lodging a joint application within time.[45] He found that they should not be joined.
[45]Reasons for decision at [14].
He was in error in determining that the applicable legal test was whether the persons on the list filed on 17 November 2011, who provided an authority referred to in paragraph [22] and who were also on the list filed with the application or filed an authority with it which predated it should be joined in the proceeding. They were joint applicants under s 141 of the MHRP Act and had made their applications in the time frames prescribed by s70(2). Because he applied the incorrect legal test, this constitutes an error of law. Leave is therefore not required to appeal this issue. (If we are wrong about this and the error made is one of mixed fact and law, in light of the tribunal’s apparent confusion about who were parties to the original application, we would grant leave to appeal in any event as there is a reasonably arguable case of error by the original tribunal about this).
It is sufficiently clear that many home owners excluded as parties as a result of the tribunal’s order were parties as of right to the original application. We allow the appeal in respect of whether these persons are parties to the proceeding. Any person whose name was on the original list and/or who provided an authority (that is, an authority which pre-dates the filing of the application) filed with the application and who later provided a written authority as set out in paragraph [22] of these reasons for decision for Mr Caddell and Mr Franklin to represent them and make decisions on their behalf in the proceeding, is a party to the proceeding. The names of those parties concerned are listed in Annexure A(1) to these reasons. Mr Caddell suggested at the hearing that a small number of them may have since left the village since the application. Those persons are not identified and had not sought to withdraw their applications, and so remain parties.
For completeness we note that those persons who were on the original list filed with the application and/or provided an authority which pre-dated the filing of the application, but who did not provide an authority with the bundle of 17 November 2011, are not included.
We make the observation that, because of our view on the other grounds of appeal, it is ultimately irrelevant that there is no evidence about which form of site agreement each of the home owners who is an applicant has with the park owner.
In respect of the persons whom it was indicated at the hearing also wished to become parties, and who were included in the list tendered[46] at the hearing, but were not original applicants as determined above, the considerations are different. This group of persons who, although not parties to the original application (notwithstanding that they may have provided an authority which post-dated the application but which is with it on the tribunal file), provided an authority as per paragraph [22] which was filed with the list on 17 November 2011. In respect of those persons whose names are set out in Annexure A(2) to these reasons, although a formal written application for joinder to the proceeding was not made, the oral submissions and evidence of Mr Franklin and Mr Caddell suggest that, in effect an oral application was made for their joinder. In light of the tribunal’s orders, it appears to have proceeded on the basis that an oral application was before it (although it incorrectly considered it related to all persons named on the list discussed during the hearing).
[46]The names of these persons are handwritten on the list identified earlier in these reasons.
In respect of these persons, s 42 of the QCAT Act is relevant as modified by ss 70(2) and 141 of the MHRP Act.[47] In our view, although the learned tribunal Member could perhaps have articulated his reasoning more clearly, he did so sufficiently, and tribunal properly reached the conclusion that these persons should not be joined; their application being considerably out of time, and without any explanation for the delay. (We make the observation that the park owner suggests that at least some of them were not residents at the time the notice of site rent increase was given. If that is so, there would have been another basis to conclude that those persons should not be joined.)
[47]QCAT Act s 7 provides that the provisions of the enabling Act (in this case the MHRP Act) prevail over the provisions of the QCAT Act to the extent of any inconsistency.
In respect of these persons, no error of law is demonstrated. No error of fact is demonstrated. The appeal must fail in respect of these persons.
For completeness, we note that there were a small number of persons who provided authorities which post-dated the application but which are with it on the file, who did not provide further authorities as directed with the bundle dated 17 November 2011. There is no basis upon which these persons can reasonably considered to have been either a party to the application or an applicant for joinder to it.
Ground of appeal: the valuer’s report was irrelevant, out of date and unsound
The submissions about irrelevance and unsoundness of the valuer’s report relate primarily to the valuer’s reference to an earlier version of s 70(3) of the MHRP Act and the manner in which Mr Hamilton deals with comparable parks in the locality or comparable localities.
The tribunal referred to the report of the valuer, Mr Hamilton, as setting out details of considerations set out in an earlier version of the MHRP Act. The learned member reviewed the report with this ‘in mind.’[48] He said that the ‘oversight’ limited the weight he gave it. That said, he had no other expert evidence about comparable sites and no other expert evidence about assessment of market rent.
[48]Reasons for decision at [33].
Consideration of the contents of Mr Hamilton’s report reveals that despite quoting an outdated version of s 70(3), he did nevertheless address matters essential to matters in the relevant version of s 70(3)(a) and (b). In particular, he opined that there was no comparable park in the locality (s 70(3)(a)), but that there were comparisons relevant to s 70(3)(b). It was then a matter for the tribunal Member to determine whether it was just and equitable to consider those comparisons made. The learned Member discussed the comparisons made and accepted them as relevant, as he was entitled to do.
Although the tribunal did not frame its consideration of the report in this manner, it was entitled, if it considered it relevant, to have regard to any additional matters referred to in Mr Hamilton’s report, which are not specifically contained in s70(3)(a) to (k), by virtue of s70(3)(l).
The appellants further submit that the report was out of date. The argument appears to be made variously because it was more than 3 months old and, was said, not provided in accordance with the tribunal’s directions.
However, what was directed was a report which provided a comparative analysis of site rental fees at the relevant date, i.e. 1 July 2011. In any event, the park owner was entitled to file any material it relied upon. The report was the assessment made by Mr Hamilton in accordance with his professional opinion. Although the report is dated 1 July 2011, he prepared the report with knowledge of the tribunal’s directions of 19 October 2011.[49] Accordingly, the date on the report appears to be the date at which market rent was assessed, rather than when the report was compiled.
[49]Transcript, page 16.
The directions did not include a specific date for the filing of the report, although it was to be filed within 7 days of receipt. There is no evidence to suggest that this was not complied with, but in any event, the home owners had it well in advance of the hearing. The home owners submit that it should be ‘rejected’ because of the rejection notice they sent to the tribunal (document filed 31 January 2012, which identified 7 points referred to earlier). However, even if it was filed outside of the 7 day time frame, it was filed on 29 November 2011, well in advance of the hearing. The hearing was not until 25 May 2012. The home owners had adequate time to respond to it, including obtaining their own expert report if desired before the hearing. They had until 14 days before the hearing to file material relied upon, in accordance with the tribunal’s directions.
They argue,[50] based on legal advice which they say was received by the park owner in 2007, that valuers are often incorrect in assessing market rent. They say this issue was not addressed by the tribunal Member. Legal advice to a party in the proceedings is, of course, irrelevant to the tribunal’s own assessments about market rent. The tribunal’s obligation in determining an application is to consider relevant matters and submissions. It is not necessary for a tribunal to respond to each and every submission made by a party, irrespective of how unmeritorious it may be.
[50]Submissions filed 23 May 2013.
For these reasons we conclude that there is no merit in the ground of appeal which concern alleged error of fact and law. We would refuse leave to appeal in relation to this point.
Ground of appeal: the Member did not comply with s 70(3)
There is no argument that s 70(3) of the MHRP Act sets out matters for the tribunal to consider in determining the application. An error of law is not alleged, except possibly to the extent it is said that the tribunal had regard to a matter that it was not entitled to consider.
It is apparent from the Member’s written reasons for decision that he did consider the matters referred to in s 70(3), discussing the evidence about each of the factors. As the appeal tribunal has previously observed, s 70(3) only requires that the tribunal may have regard to the matters set out; it does not require that the decision be based on any particular consideration.[51] It exercises discretion in deciding the matter.
[51]Paton v New ConceptDevelopments Pty Ltd [2012] QCATA 132 at [9].
The appellants’ submissions provide commentary on the paragraphs in which the tribunal considered s 70(3) factors. Some of the issues raised in the home owners’ submissions indicate that they do not agree with his conclusions or the weight given to evidence. Some relate to a failure to give weight to particular evidence. Other issues relate to the tribunal’s reference to evidence, which the home owners say the tribunal was not entitled to consider under s 70(3).
The home owners raise particular issues about the valuer’s report, which have been dealt with above in considering the ground of appeal specifically about the valuation. They also submit Mr Beck agreed that the Bungalows (which has a considerably lower rent) is a comparable park. The transcript reveals otherwise. Mr Beck said that he did not accept it was comparable for reasons explained by Mr Hamilton (essentially relating to the park not being for a similar demographic and not being rented at ‘market’ rates.)
Further, they make submissions about the tribunal’s decision to give no weight to a series of photographs provided with the applicants’ written submission following the conclusion of the evidence at the oral hearing.[52] On 19 October 2011, both parties had been directed to file and serve any further material on which they relied 14 days prior to the hearing. Why the photographs in question were not filed in accordance with this direction is not revealed.
[52]Reasons for decision, [38].
At the end of the hearing, each party was directed to file written submissions. No further evidence was contemplated or allowed. If parties were allowed to continue to submit material following the conclusion of the oral hearing, procedural fairness would dictate that the other party have the opportunity to respond - hearings might never come to an end – the tribunal is entitled to control its own procedures and make directions for the efficient disposal of the matter. No error is revealed in the tribunal’s refusal to give any weight to the photographs.
We would refuse leave to appeal in respect of these issues.
Additionally, there is a possible error of law raised. The home owners submit that general trends in rent for residential accommodation in the locality (the statements made by the park owner about it as set out in the notice of increase and referred to in paragraph [39] of the reasons for decision) are not applicable under s 70(3)(a)-(c). By virtue of s 70(3)(c), these general trends are only applicable when data is not available for the range of site rents set out in s70(3)(a) or (b), ‘or it is just and equitable to do so in the particular circumstances’.
That said, in reaching its conclusions in paragraphs [63]–[67], the learned Member did not rely upon general trends in rents in residential accommodation. The contents of paragraph [39] appear to do no more than record some evidence before the tribunal. Of course, under s 70(3)(l), the tribunal also may consider anything else it considers relevant.
The learned Member’s reasons do not explain as well as they could have why the evidence about general trends was included in its consideration of s 70(3) factors. That said, the findings of the learned Member were open based on the evidence. The learned Member did not rely upon the information about general trends in rent in reaching the conclusions. He was persuaded by other matters, such as the agreements with 47 residents on the 5% agreement, and 14 new entrants who accepted the rent, and Mr Hamilton’s assessment at close to the amount imposed by the site rent increase. Therefore, we do not consider it significant and would not disturb the decision made by the tribunal on this basis.
Accordingly, we would refuse the appeal as far as it relates to this issue.
Ground of appeal: the member erred in law by failing to apply the objectives of the enabling Act and the QCAT Act
The error alleged by the home owners appears to relate, essentially, to an object of the MHRP Act to protect home owners from unfair practices;[53] objects in the QCAT Act which include dealing with matters in a manner which is accessible, fair, informal;[54] and the general requirement under the QCAT Act to which we earlier referred: for parties to represent themselves.[55]
[53]MHRP Act s 4(1)(a).
[54]QCAT Act s 3(b).
[55]QCAT Act s 43(1).
The submission seems to be that the tribunal did not protect the home owners from unfair practices because it allowed the park owner to use lawyers to assist it in preparing its submissions.
Although the park owner is not represented, the home owners submit that its documents suggest it has received assistance from lawyers in conducting its case. The home owners contend this is unconscionable, or, is somehow harassment and makes them want to give up. Any party is entitled to take legal advice, whether or not they are entitled to be represented before the tribunal. Taking advice is not a matter over which orders can be made or the tribunal has any control.
There is also a submission made to the effect that the tribunal is a court, or is court-like, contrary to the objects of the QCAT Act. Many of the submissions are general in nature, rather than specifically directed to any alleged error in the decision made in this case.
There is no error identified or identifiable from the submissions made.
Ground of appeal: The Member ignored the evidence of the applicants and accepted only the evidence of the respondent
Although it is not entirely clear, the submissions suggest that the complaint made is largely that the tribunal accepted the valuer’s report over the assertions of the homeowners about comparable parks and locality; accepted Mr Beck’s evidence about increased costs to the park owner; and did not consider the difficult financial position in which the increased site rent placed home owners, and the impact on their livelihood.
As part of reaching his decision, the learned Member was required to consider all of the material or evidence before him, and then form and articulate conclusions.
The Member discussed the evidence. He explained that he gave less weight to the valuer’s report because it referred to the previous s 70(3) factors. However, he also made it clear that he gave it greater weight than the non-expert opinions of the homeowners about comparable parks. He adequately articulated his acceptance of the evidence about increased costs and rejects the home owners expressed concerns that site rent was subsidising other parts of the business.[56]
[56]Reasons for decision, [57].
The joint applicants did not present specific evidence that any home owner/s could not afford the increase. Rather, what was provided was in the nature of general assertions to the effect that other items had also increased in cost, and that this site rent increase would make it difficult for pensioner home owners to manage.
The tribunal said that it could only take into account the circumstances of Franklin and Caddell.[57] In light of our findings about the joint applicants, this was incorrect. It observed that Mr Franklin entered the park in 2010 with full knowledge of the site fees. That said, in paragraph [61], the tribunal discussed the applicants’ arguments about the impact of the financial burden and resultant hardship for residents. Therefore, the learned Member did consider the broader arguments as far as there was material about it before him.
[57]Reasons for decision [59] – [60].
Further, the learned Member made it clear that he considered it significant that 14 new entrants, including 12 pensioners, had bought into the village since July 2011,[58] and that 47 residents were on a 5% agreement.[59] He observed that the site rent increase was ‘just above’ the amount assessed by Mr Hamilton as market rent.[60] It is in fact $2.10 per week over Mr Hamilton’s assessment of $162.50. Having regard to these and other matters he concluded that the increase was fair and reasonable.
[58]Reasons for decision at [61].
[59]Reasons for decision at [65].
[60]Reasons for decision at [66].
We are of the view that the reasons are sufficiently clear and adequate to explain his conclusions. Although he says at some point that he can only consider the circumstances of Mr Franklin and Mr Caddell, he did go on to consider the evidence, as far as it was provided about the issue, about the broader position of residents.
The ground of appeal alleges a mistake of fact in accepting the evidence of the respondent. The findings of the learned Member were open on the facts and evidence before him, and we would therefore refuse leave to appeal.
Ground of appeal: The Member made an unprovoked personal attack upon the character of Mr Franklin in his decision which was false in every respect
The submissions of the home owners, although alleging an attempt to ‘isolate Mr Franklin and teach him a lesson’, do not particularise the ‘unprovoked personal attack’ said to have been made. The park owner, in its submissions, points out that it can not identify what the home owners refer to. Despite providing submissions in reply to the park owner’s submissions, the home owners do not articulate what is said to be the ‘attack.’ We can not identify any personal attack on Mr Franklin in the reasons.
In any event, the ground, which could only refer to an alleged mistake of fact, identifies no error by the tribunal, and we would refuse leave to appeal.
Conclusions
In summary, orders are made dismissing the appeal as far as it is made by persons not entitled to be appellants; granting an extension of time to file the application for leave to appeal and appeal as far as the proper appellants as determined by us are concerned; allowing the appeal in respect of the identification of the original applicants; refusing leave to appeal the application for joinder by the joinder applicants; and otherwise refusing leave to appeal (where required); and dismissing the appeal in respect of all other identified grounds of appeal.
| Full Name | Site No |
| Gai Hampson | 1 |
| Michael Hampson | 1 |
| Edwin Gunder | 4 |
| Rhelma Gunder | 4 |
| Marlene Barber | 5 |
| Lauri Neibling | 7 |
| David Noice | 8 |
| Kathy Noice | 8 |
| Sandra Hawkins | 9 |
| Douglas Pacholke | 10 |
| Margaret Pacholke | 10 |
| Josephine Saveall | 12 |
| David Rands-Trevor | 13 |
| Hazel Rands-Trevor | 13 |
| Ian Wiltshires | 14 |
| Isabella Wiltshire | 14 |
| Margaret L Farek | 15 |
| Mary Rose Whiffin | 17 |
| Margaret Clark | 20 |
| Cheryl Riley | 21 |
| Mandelaine Evans | 23 |
| Russell Staader | 24 |
| Karl Krepela | 25 |
| Allen Brown | 28 |
| Marie Brown | 28 |
| Zofia Mazurkiewice | 29 |
| Witold Mazurkiewice | 29 |
| Maureen Randle | 30 |
| Daphne Sellwood | 30 |
| Jan Kollen | 31 |
| Wilma Kollen | 31 |
| Shirley Gailbraith | 33 |
| Annette Leonore Peterson | 35 |
| Brian Peterson | 35 |
| David Nichols | 37 |
| Mihaly Lukacs | 38 |
| Ivan Lukacs | 38 |
| John W F Damon | 41 |
| Rosemary Osborne | 42 |
| Gem Howe | 43 |
| Noela Lucht | 44 |
| Kath Gibson | 45 |
| Ann Hollingsworth | 46 |
| Alan Chauncy | 48 |
| John Warren | 48 |
| Marilyn Warren | 48 |
| Pamela Browne | 49 |
| Henk Koning | 50 |
| Ursula Koning | 50 |
| Faye Bartrim-Graham | 53 |
| Brian McAulliffe | 56 |
| Shirley Houlihan | 57 |
| Millicent Ann Fraser | 58 |
| Judith Ethel Berg | 59 |
| Ernst A A de Vreede | 59 |
| Don Giddens | 60 |
| Sylvia Giddens | 60 |
| Jacoba Lupina de Klerk | 61 |
| Lynne Newport | 64 |
| Allan Arthy | 65 |
| Bette Arthy | 65 |
| Eileen E Smith | 66 |
| Kenneth Smith | 66 |
| Jan Westall | 69 |
| Judy King | 70 |
| Derek Waller | 71 |
| Maureen Waller | 71 |
| Lynette Baker | 77 |
| Barbara Pignatelli | 78 |
| Joseph Pignatelli | 78 |
| Allan Brown | 79 |
| Babette Davidson | 79 |
| Patricia Tierney | 80 |
| Julie Knight | 82 |
| Tony Van Krevel | 82 |
| Elaine Brass | 83 |
| Joan Cross | 84 |
| Marjorie Keepers | 85 |
| Dianne Caddell | 86 |
| Ronald Caddell | 86 |
| Dorothy Carthew | 87 |
| John Carthew | 87 |
| Carole McPherson | 88 |
| Ian McPherson | 88 |
| Myrna Chamberlain | 89 |
| Shirley Bargeman | 90 |
| Beryl Sheedy | 91 |
| Faye Campbell | 93 |
| Anthony C Dodd | 94 |
| Cynthua Margaret Tomkinson | 95 |
| Don Iles | 97 |
| Helen Iles | 97 |
| Maureen Wood | 98 |
| William Wood | 98 |
| Gregory McKenzie | 99 |
| Valma Spence | 100 |
| Margaret Ahrens | 102 |
| Andrew Armstrong | 103 |
| Vivienne Armstrong | 103 |
| Roberta Cava | 105 |
| Dian Buttress-Grove | 106 |
| Valma Briggs | 107 |
| Lynn Bull | 107 |
| Colin Milnes | 110 |
| Marie Milnes | 110 |
| Peter Malcolm Dunning | 112 |
| Sheila Dunning | 112 |
| Gordon Hill | 113 |
| Judith Hill | 113 |
| Tamala Thornley | 114 |
| Evelyn Harper | 115 |
| Gail Deacon | 116 |
| Faye Feldbauer | 117 |
| Alan Dudley Wright | 119 |
| Anita Dawn Hall | 123 |
| Valda McPhee | 124 |
| Fay Towerton | 125 |
| Vladimir Hejduk | 126 |
| Geoffrey Parsons | 128 |
| Neita Evelyn Parsons | 128 |
| Ellis Ivor | 129 |
| Shirley Semple | 130 |
| Nancy Kae Wright | 131 |
| Marilyn Williams | 133 |
| Elaine M Lyme | 134 |
| Des Buttenshaw | 137 |
| Marie Kathleen Buttenshaw | 137 |
| Diana Bourn | 138 |
| Phil Plews | 142 |
| Marg Plummer | 142 |
| Alan Scown | 144 |
| Valda Scown | 144 |
| Narelle Porthouse | 145 |
| Frank Vella | 147 |
| Linda Vella | 147 |
| Neville Hunter | 148 |
| Veronica Hunter | 148 |
| Marilyn Roland | 151 |
| John Cummins | 157 |
| Judy Cummins | 157 |
| Maureen Woolsey | 158 |
| Norma Wagland | 159 |
| Gael Patricia George | 160 |
| Sandra Allen | 161 |
| Maria Robel | 162 |
| Janice Franklin | 163 |
| Leslie Glenn Franklin | 163 |
| James Andrew Crawford | 164 |
| Garry Scarlett | 165 |
| Susan Scarlett | 165 |
| Lily Randabel | 167 |
| Louis Randabel | 167 |
| Edith Betty Robertson | 169 |
| Noel Andrew Robertson | 169 |
| Kaye Vawser | 170 |
| Gisela Lowe | 171 |
| Maureen Prosser | 172 |
| Judith Dewar | 173 |
| Ivan Harris | 175 |
| Jewell Harris | 175 |
| Fay Cross | 177 |
| Doreen Koniaras | 178 |
| Benjamin Victor Folwell | 179 |
| Elaine Joy Laughlin | 181 |
| Joan Hall | 182 |
| John Hall | 182 |
| Phyllis Ahearn | 183 |
| Noelene Kay Sayer | 184 |
| Elisa Kaiser | 185 |
| Heinz Kaiser | 185 |
| Richard James Foulkes | 186 |
| Colleen Hardwick | 187 |
| Tuula Jokinen | 188 |
| Rachel Guarnieri | 192 |
| John Gillett | 193 |
| Pam Gillett | 193 |
| Frederick Jones | 194 |
| Susan Jones | 194 |
| Crystal O’Loan | 195 |
| Iris Shephard | 197 |
| Jan Collis | 198 |
| Neil Collis | 198 |
| Barry Gadsden | 200 |
| Norma Gadsden | 200 |
| Beverley Knight | 201 |
| Robyn Diane Phillips | 202 |
| Full Name | Site No |
| Graham Martin | 6 |
| Sandra Martin | 6 |
| Kathleen E Newman | 16 |
| T Soellaart | 16 |
| Barry Applegate | 18 |
| Claire Riera | 27 |
| Diane Keates | 29 |
| Alex Kosorukson | 39 |
| Winsome Oost | 40 |
| Trevor Bartholomew | 54 |
| Hyacinth Davis | 62 |
| Francis Happ | 62 |
| Margaret Clegg | 63 |
| Bruce Robertson | 68 |
| Elsie Burnell | 72 |
| T E Syred | 81 |
| E Watson | 92 |
| Diane Menso | 96 |
| Pam McKenzie | 99 |
| B Sheehan | 104 |
| Lynn Smith | 108 |
| Norman Smith | 108 |
| Brad Hunt | 117 |
| Leonie Puckeridge | 118 |
| Ken Puckeridge | 118 |
| Marie Dent | 120 |
| Doug Towner | 120 |
| Stuart Henderson | 121 |
| Greg Smith | 122 |
| Jillian Blaby | 125 |
| Marion Jones | 135 |
| Martin Antonius Vlemmix | 136 |
| Alan Moore | 140 |
| Jeanette Moore | 140 |
| Kevin McGarry | 141 |
| Lois McGarry | 141 |
| Frances Keyte | 143 |
| Ken Keyte | 143 |
| Simone Askey | 149 |
| Matthys Prins | 149 |
| Jean Ann Moss | 152 |
| Ann Field | 153 |
| Trevor Fitzgerald | 154 |
| Yvonne Fitzgerald | 154 |
| Francis Fullerton | 166 |
| Valmae Fullerton | 166 |
| Hans Borrs | 174 |
| Violet Borrs | 174 |
| Edward Dyson | 176 |
| Verna Dyson | 176 |
| Leonie Barker | 179 |
| Elaine Fitzgerald | 180 |
| John Glass | 180 |
| Marie Gurney | 190 |
| Steve Gurney | 190 |
| Leslie Calcutt | 196 |
| Mary E Calcutt | 196 |
| Beverley Tremewen | 197 |
| Deborah Landers | 199 |
| John Landers | 199 |
| Full Name | Site No |
| Gai Hampson | 1 |
| Michael Hampson | 1 |
| Edwin Gunder | 4 |
| Rhelma Gunder | 4 |
| Marlene Barber | 5 |
| Lauri Neibling | 7 |
| David Noice | 8 |
| Kathy Noice | 8 |
| Sandra Hawkins | 9 |
| Douglas Pacholke | 10 |
| Margaret Pacholke | 10 |
| Josephine Saveall | 12 |
| David Rands-Trevor | 13 |
| Hazel Rands-Trevor | 13 |
| Ian Wiltshires | 14 |
| Isabella Wiltshire | 14 |
| Margaret L Farek | 15 |
| Mary Rose Whiffin | 17 |
| Margaret Clark | 20 |
| Cheryl Riley | 21 |
| Russell Staader | 24 |
| Karl Krepela | 25 |
| Marie Brown | 28 |
| Zofia Mazurkiewice | 29 |
| Witold Mazurkiewice | 29 |
| Maureen Randle | 30 |
| Daphne Sellwood | 30 |
| Jan Kollen | 31 |
| Wilma Kollen | 31 |
| Shirley Gailbraith | 33 |
| Brian Peterson | 35 |
| David Nichols | 37 |
| Mihaly Lukacs | 38 |
| Ivan Lukacs | 38 |
| John W F Damon | 41 |
| Rosemary Osborne | 42 |
| Gem Howe | 43 |
| Noela Lucht | 44 |
| Kath Gibson | 45 |
| Ann Hollingsworth | 46 |
| Alan Chauncy | 48 |
| John Warren | 48 |
| Marilyn Warren | 48 |
| Henk Koning | 50 |
| Ursula Koning | 50 |
| Brian McAulliffe | 56 |
| Shirley Houlihan | 57 |
| Millicent Ann Fraser | 58 |
| Judith Ethel Berg | 59 |
| Ernst A A de Vreede | 59 |
| Don Giddens | 60 |
| Sylvia Giddens | 60 |
| Jacoba Lupina de Klerk | 61 |
| Lynne Newport | 64 |
| Allan Arthy | 65 |
| Bette Arthy | 65 |
| Eileen E Smith | 66 |
| Kenneth Smith | 66 |
| Jan Westall | 69 |
| Judy King | 70 |
| Derek Waller | 71 |
| Maureen Waller | 71 |
| Lynette Baker | 77 |
| Barbara Pignatelli | 78 |
| Joseph Pignatelli | 78 |
| Allan Brown | 79 |
| Babette Davidson | 79 |
| Patricia Tierney | 80 |
| Julie Knight | 82 |
| Tony Van Krevel | 82 |
| Elaine Brass | 83 |
| Joan Cross | 84 |
| Marjorie Keepers | 85 |
| Dianne Caddell | 86 |
| Ronald Caddell | 86 |
| John Carthew | 87 |
| Carole McPherson | 88 |
| Ian McPherson | 88 |
| Shirley Bargeman | 90 |
| Beryl Sheedy | 91 |
| Faye Campbell | 93 |
| Anthony C Dodd | 94 |
| Cynthua Margaret Tomkinson | 95 |
| Don Iles | 97 |
| Helen Iles | 97 |
| Maureen Wood | 98 |
| Gregory McKenzie | 99 |
| Valma Spence | 100 |
| Margaret Ahrens | 102 |
| Vivienne Armstrong | 103 |
| Roberta Cava | 105 |
| Dian Buttress-Grove | 106 |
| Valma Briggs | 107 |
| Lynn Bull | 107 |
| Colin Milnes | 110 |
| Marie Milnes | 110 |
| Peter Malcolm Dunning | 112 |
| Sheila Dunning | 112 |
| Tamala Thornley | 114 |
| Evelyn Harper | 115 |
| Gail Deacon | 116 |
| Faye Feldbauer | 117 |
| Alan Dudley Wright | 119 |
| Anita Dawn Hall | 123 |
| Valda McPhee | 124 |
| Fay Towerton | 125 |
| Vladimir Hejduk | 126 |
| Geoffrey Parsons | 128 |
| Ellis Ivor | 129 |
| Shirley Semple | 130 |
| Nancy Kae Wright | 131 |
| Marilyn Williams | 133 |
| Elaine M Lyme | 134 |
| Marie Kathleen Buttenshaw | 137 |
| Diana Bourn | 138 |
| Phil Plews | 142 |
| Marg Plummer | 142 |
| Alan Scown | 144 |
| Valda Scown | 144 |
| Narelle Porthouse | 145 |
| Neville Hunter | 148 |
| Veronica Hunter | 148 |
| Marilyn Roland | 151 |
| John Cummins | 157 |
| Judy Cummins | 157 |
| Maureen Woolsey | 158 |
| Norma Wagland | 159 |
| Gael Patricia George | 160 |
| Sandra Allen | 161 |
| Maria Robel | 162 |
| Garry Scarlett | 165 |
| Susan Scarlett | 165 |
| Lily Randabel | 167 |
| Edith Betty Robertson | 169 |
| Noel Andrew Robertson | 169 |
| Kaye Vawser | 170 |
| Maureen Prosser | 172 |
| Judith Dewar | 173 |
| Ivan Harris | 175 |
| Jewell Harris | 175 |
| Fay Cross | 177 |
| Doreen Koniaras | 178 |
| Elaine Joy Laughlin | 181 |
| Joan Hall | 182 |
| John Hall | 182 |
| Phyllis Ahearn | 183 |
| Noelene Kay Sayer | 184 |
| Elisa Kaiser | 185 |
| Heinz Kaiser | 185 |
| Richard James Foulkes | 186 |
| Colleen Hardwick | 187 |
| Rachel Guarnieri | 192 |
| John Gillett | 193 |
| Pam Gillett | 193 |
| Frederick Jones | 194 |
| Susan Jones | 194 |
| Crystal O’Loan | 195 |
| Iris Shephard | 197 |
| Jan Collis | 198 |
| Neil Collis | 198 |
| Barry Gadsden | 200 |
| Norma Gadsden | 200 |
| Beverley Knight | 201 |
| Robyn Diane Phillips | 202 |
| Full Name | Site No |
| Kathleen E Newman | 16 |
| T Soellaart | 16 |
| Claire Riera | 27 |
| Alex Kosorukson | 39 |
| Winsome Oost | 40 |
| Trevor Bartholomew | 54 |
| Hyacinth Davis | 62 |
| Francis Happ | 62 |
| Elsie Burnell | 72 |
| T E Syred | 81 |
| Diane Menso | 96 |
| B Sheehan | 104 |
| Lynn Smith | 108 |
| Norman Smith | 108 |
| Greg Smith | 122 |
| Marion Jones | 135 |
| Alan Moore | 140 |
| Jeanette Moore | 140 |
| Kevin McGarry | 141 |
| Lois McGarry | 141 |
| Frances Keyte | 143 |
| Ken Keyte | 143 |
| Jean Ann Moss | 152 |
| Yvonne Fitzgerald | 154 |
| Francis Fullerton | 166 |
| Valmae Fullerton | 166 |
| Edward Dyson | 176 |
| Verna Dyson | 176 |
| Leonie Barker | 179 |
| Deborah Landers | 199 |
| John Landers | 199 |
| Full Name | Site No |
| Sharon Leabourne | 2 |
| Warwick Leabourne | 2 |
| Helen Watt | 19 |
| Roger Gathercole | 22 |
| Margery Gathercole | 22 |
| M Cooper | 23 |
| Ken Whiteman | 51 |
| Roseann Whiteman | 51 |
| Carol Whelan | 67 |
| William Mullen | 68 |
| Gladys Mullen | 68 |
| Beverley Elliott | 73 |
| William Elliott | 73 |
| David Melrose | 75 |
| Marie Melrose | 75 |
| Penny Carthew | 87 |
| Jack Gilbert | 89 |
| Janice Browett | 132 |
| Rita Worboys | 139 |
| Annette Gulliver | 147 |
| Norman Gulliver | 147 |
| Norma Forlonge | 150 |
| Delma J Bourke | 155 |
| Helen Gately | 156 |
| John Townsley | 164 |
| Elaine Arch-Rowe | 171 |
| Peter Arch-Rowe | 171 |
| Barry Hughes | 188 |
| Dianne Hughes | 188 |
| Dennis Mepstead | 189 |
| Rodney McKenzie | 190 |
| Kristin Moore | 190 |
| Paul Buttenshaw | 192 |
| Caroline Cambrey | 197 |
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