JOHNSTON and REALISE RETIREMENT WA 1 PTY LTD - [2024] WASAT 136

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION:   JOHNSTON and REALISE RETIREMENT WA 1 PTY LTD [2024] WASAT 136
MEMBER:   MR E CADE, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   CC 110 of 2024
BETWEEN:   RITCHARD JOHN JOHNSTON
Applicant
AND
REALISE RETIREMENT WA 1 PTY LTD
Respondent

Catchwords:

Interim application - Abuse of process - Whether a proceeding is based wholly or substantially on the facts of a claim made by the same party in an earlier proceeding

Legislation:

Residential Parks (Long-stay Tenants) Act 2006 (WA), s 10C, s 59(1), s 62C
State Administrative Tribunal Act 2004 (WA), s 46(1), s 46(2), s 47, s 47(1)(c), s 49, s 56, s 60(2), s 62(2), s 88(2), s 105

Result:

Interim application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Duckham & Co
Respondent	:	Linfoot Commercial Law

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

Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29
Laurent and Commissioner of Police [2009] WASAT 254
Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131
Legal Services and Complaints Committee and Young [2023] WASAT 108

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 22 February 2024 Ritchard John Johnston (applicant) filed an application under s 62(2) of the Residential Parks (Long-stay Tenants) Act2006 (WA) (RP Act) with the Tribunal under matter number CC 110 of 2024 (Current Proceeding). The respondent to the application is Realise Retirement WA 1 Pty Ltd (respondent).
The applicant and Ms Thi Thom Johnston (who is not an applicant in the Current Proceeding) are tenants under a fixed-term long-stay siteonly agreement pursuant to the RP Act (the long-stay agreement) at site 76, Sierra Lifestyle Village, 51 Jocoso Rise, Wundowie (park or village). The applicant and Ms Johnston entered into the longstay agreement on 1 July 2014 when the park was owned by Fermora Pty Ltd. The long-stay agreement expires on 30 April 2073.
The respondent is the owner and operator of the park, having purchased it on 3 August 2023 from Equity Trustees Wealth Services Limited as the Trustee for the Noongar Charitable Trust (Equity Trustees). Equity Trustees had in turn purchased the park on 23 March 2020 from Fermora Pty Ltd. Prior to 3 August 2023 the park was known as El Caballo Lifestyle Village.
The Current Proceeding is within the original jurisdiction of the Tribunal. Both the applicant, and the respondent are legally represented in the proceeding.
Relevantly, the Current Proceeding is not the first the applicant has commenced with the Tribunal in respect of the park. The applicant has commenced proceedings against previous operators of the park, being CC 1983 of 2014 (2014 Proceeding), CC 698 of 2016 (2016 Proceeding) and CC 763 of 2020 (2020 Proceeding).

Current Proceeding - The respondent's Interim Application under s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA)

On 28 August 2024 the respondent[1] applied to the Tribunal for the following interim orders (respondent's application):
(1)The applicant's Current Proceeding be dismissed and/or struck out pursuant to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
(2)The applicant pay the respondent's costs in the Current Proceeding pursuant to s 88(2) of the SAT Act.
[1] While the park operator is the applicant for the interim orders the Tribunal will, for convenience, refer to the park operator as the respondent in these reasons.
The respondent in its submissions dated 16 September 2024 contends the Current Proceeding should be dismissed or struck out as an abuse of process because:
(a)the applicant is seeking to re-litigate matters that were substantively determined by the Tribunal in earlier proceedings, namely the 2016 Proceeding and 2020 Proceeding; and
(b)alternatively, the applicant is seeking to litigate matters in the Current Proceeding that it ought to have raised in the 2016 Proceeding or the 2020 Proceeding.
The applicant in his submissions in reply dated 24 September 2024 opposes the respondent's application and in turn contends:
(a)the Current Proceeding does not re-litigate matters determined by the Tribunal in the 2016 Proceeding;
(b)the 2020 Proceeding was 'discontinued without any adjudication or determination and most significantly, with a Deed of Release having been specifically rejected and thus the applicant preserved the claims';
(c)the respondent is bound by 'representations' made by Fermora Pty Ltd in 2013 or 2014 and as it has not fulfilled those representations 'it is not entitled to any remedy';
(d)even if a matter has been previously litigated by the applicant, a repeat or ongoing breach by the respondent allows a further application; and
(e)the respondent has departed from a previous court settlement which 'could amount to misleading and deceptive conduct under the [Australian Consumer Law]'.
Pursuant to order 5 of orders dated 6 September 2024, under s 60(2) of the SAT Act, the respondent's application is to be determined 'entirely on the documents'.
When considering the respondent's application the Tribunal relied on:
(1)books of documents lodged by the parties in the Current Proceeding, 2016 Proceeding and 2020 Proceeding; and
(2)the recording of the final hearing in the 2016 Proceeding;
(3)the Tribunal's written reasons and orders in the 2016 Proceeding and the consent orders made in the 2020 Proceeding; and
(4)submissions filed by the parties pursuant to the Tribunal's orders in the Current Proceeding.

Principles relevant to determining an application under s 47(1)(c) of the SAT Act

The relevant part of s 47 of the SAT Act is:
47.Frivolous etc. proceedings, dismissal of etc.
(1)This section applies if the Tribunal believes that a proceeding —
(a)…; or
(b)…; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
The principles relevant to determining an application under s 47(1)(c) of the SAT Act are set out in Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 (McCardle [No 2]) at [117] to [126]. It is helpful to restate these fundamental principles, which this Tribunal respectfully adopts:
117.The term 'abuse of process' has a well-established meaning in the context of litigation.
118.Abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing. Abuse of process extends to proceedings which are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.
119.The circumstances in which an abuse of process may arise are extremely varied and the courts have refrained from attempting any exhaustive categorisation of those circumstances. However, although the circumstances in which an abuse of process may arise are incapable of being described exhaustively, it has also been said that at least one of three characteristics will be apparent in many cases of abuse of process, namely:
(i)a court's processes being invoked for an illegitimate or collateral purpose; or
(ii)the use of a court's procedures being unjustifiably oppressive to a party; or
(iii)the use of a court's procedures bringing the administration of justice into disrepute.
120.Recognised categories of abuse of process include:
(i)commencing successive proceedings which cause oppression, or are likely to be oppressive, to a party because they constitute an attempt by a litigant to run the same case again.
(ii)bringing two extant civil actions where one will lie, if the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. That will be so irrespective of whether the two proceedings are in separate courts or one, and even if the parties, or the relief sought, are not identical.
(iii)it will also be an abuse of process for a party to make a claim in later proceedings which is based wholly or substantially on the facts of a claim made by the same party in earlier proceedings, such as by pursuing the same claim against a different defendant. An abuse of process may even arise where there is no identity of parties.
(iv)further, not only will it be an abuse of process to attempt to re-litigate an issue which has, in substance, been determined in earlier proceedings, but it will also be an abuse if a party attempts to litigate an issue which should have been raised and determined in earlier proceedings. However, estoppel will arise in that case only if there is a relevant connection or sufficient identification between the two litigants.
121.Whether a subsequent action constitutes an abuse of process must be assessed by reference to guiding considerations of 'oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice'. Sometimes the assessment is described as a 'broad merits-based decision'. All matters which are logically or rationally relevant to the determination must be taken into account.
122.Among the matters which may be relevant to that issue will be:
(i)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;
(ii)the opportunity available and taken to fully litigate the issue;
(iii)the terms and finality of the finding as to the issue;
(iv)the identity between the relevant issues in the two proceedings;
(v)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(vi)the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(vii)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
123.The court should also consider whether there was reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like.
124.Arguments about abuse of process in the context of subsequent actions will often overlap with the concepts of res judicata and the various forms of estoppel (cause of action estoppel, issue estoppel and Anshun estoppel. The three forms of estoppel have the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies.
125.When a party asserts rights or obligations, or raises issues, in successive proceedings, there may be, simultaneously, a res judicata or estoppel which has resulted from the final judgment in the earlier proceeding and conduct which constitutes an abuse of process in the subsequent proceeding.
126.However, abuse of process is broader and more flexible than estoppel.
When considering the respondent's application the Tribunal has reminded itself that it should approach an application to dismiss or strike out a proceeding 'with a great deal of caution': Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [18], and to only make orders when 'satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process': Legal Services and Complaints Committee and Young [2023] WASAT 108 at [45].

The respondent's application

The Tribunal began its consideration of the respondent's application by comparing the orders sought and the grounds on which orders should be made in the Current Proceeding with the orders sought and grounds in the 2016 Proceeding and 2020 Proceeding.
The Tribunal did not consider the 2014 Proceeding, as the Tribunal on 22 September 2015, under s 46(1) of the SAT Act, gave the applicant leave to withdraw the proceeding and the proceeding was withdrawn.

Current Proceeding - Ritchard John Johnston and Realise Retirement WA 1 Pty Ltd

The applicant in the Current Proceeding seeks the following orders under s 62C of the RP Act:
(1)An Order that the Respondent do pay compensation by way of reduction/refund of rent and loss of value in respect to the entry into a residential park site agreement dated 1 July 2014 made between The Applicant and Thi Thom Johnston and Fermora Pty Ltd ABN 89 525 060 588.
(2)The Respondent do pay to the Applicant damages pursuant to Residential Parks (Long-stay Tenants) Act [2006].
(3)The Respondent do maintain and repair boundary fences on Lot 90 on Plan 72807.
(4)The Respondent remove all personnel under the age of 45 from the said Lot 90 insofar as the occupancy of Lot 90 by such persons breaches the Theme of the village as set out in clause 6.17 of the Agreement.
The grounds for the orders sought are stated in the application as:[2]
[2] The Tribunal has replaced the numbering system used by the applicant to number his grounds with its own numbering system.
(1)Fermora Pty Ltd, with whom the Applicant signed the original Agreement, represented to the Applicant complete and continuous access to the facilities and this has not been [fulfilled]:
(a)Indoor & Outdoor Pools & Spas
(b)Additional Bowling Greens & Tennis Courts.
(c)Licence[d] Cafe/Restaurant.
(d)Cocktail Lounge with Grand Piano & Fireplace.
(e)Wine Bar & Garden Terrace.
(f)Banquet Room
(g)Business Centre Facilities
(h)Extensive Gymnasium
(i)Cinema/Theatre
(j)Stunning Landscaped Gardens
(k)Luxury Coach.
(2)In addition, the below represented facilities have since been removed:
(a)Old Tennis Court & Bowling Green.
(b)Library & Internet Hub.
(c)Billiard and Games Room
(d)Arts & Craft Centre
(e)Family Centre
(f)Lockup Self Storage
(3)Represented future construction not implemented:
(a)New Club House
(4)Breach of the Act and the Agreement in:
(a)Failure to preserve the fences
(b)Permitting Residents under the age of 45 on Lot 90
(c)Denying full and free access to Lot 90.
(d)Failure to appoint and allow the Residents the ability to form a Park Liaison Committee (sect 29).

While not being the subject of any orders sought by the applicant, ground 4(d) suggests that the applicant does seek a remedy in relation to an issue involving the Park Liaison Committee (PLC).
As the Tribunal is mindful that its procedures are informal and that 'proceedings before the Tribunal are not conducted by reference to formal pleadings': Laurent at [18], the Tribunal considers that ground 4(d) should be considered by it in these reasons as if it were an order sought by the applicant.
As the orders sought and grounds given by the applicant in the Current Proceeding will be referred to throughout these reasons, the Tribunal will refer to these as:
(1)order 1 - the facilities claim;
(2)order 2 - the damages claim;
(3)order 3 - the fences claim;
(4)order 4 - the age restriction claim; and
(5)order 5 - the PLC claim.
However, as the damages claim is a claim for relief which is dependent on the orders sought and the grounds relating to the facilities claim, the fences claim, the age restriction claim and the PLC claim, the Tribunal will not consider the damages claim in these reasons.

2016 Proceeding - Ritchard John Johnston and Fermora Pty Ltd as Trustee for the El Caballo Trust

The 2016 Proceeding was commenced by the applicant on 20 May 2016. The respondent to this proceeding was Fermora Pty Ltd.[3] The applicant represented himself throughout the proceeding.
[3] The name of the respondent in the 2016 Proceeding is 'Femora' Pty Ltd. However, it is not in dispute in these proceedings that the entity named 'Femora Pty Ltd' is the entity 'Fermora Pty Ltd'.
On 7 June 2016 the applicant lodged a statement of issues facts and contentions (SIFC).
On 9 August 2016 the applicant filed an amended SIFC. In this amended SIFC the applicant stated:
AElection of the current liaison committee has been interfered with by the park operator and is illegal under the Residential Park (Long Stay Tenants) Act 2006
…
CThe Park operator has breached this agreement under the [following] sections:
3.4Regular maintenance on facilities
ATennis Court
BMens wood room not maintained, roof [leaks] every time it rains
CFamily House only has half a fence
DStore room [leaks] and no repairs
ECCTV has not worked for 3 months and no work done to fix
3.9Boundary Fences
ANorth side completed
BEast side fence completed only approx 150 [metres] [unfenced] approx 800 [metres]
CSouth side approx 800 [metres] [unfenced]
DWest Side approx 200 fenced 600 [metres] unfenced
…
4.3Shared Premises. We do not have most of shared premises as stated in this agreement not finished
AClub rooms
BSwimming pools
CSpa
DSauna
EBowling green
FOpen space
The applicant, in the amended SIFC, sought the following orders:
(1)That Fermora Pty Ltd comply with the Agreement (Residential Park Site Agreement) in that they borrow enough money to complete the security fence around the village and to finish all the shared premises as in our agreements.
(2)If this is unable to be done, then that I be compensated for not having the use of shared premises as promised in our Agreement and not having a secure village:
APaying me an amount of $85 per week from the time I moved into my home and then $85 per week until the security fence and all our shared facilities are completed.
…[4]
CReplacement cost of my golf clubs, stolen due to no security fence around the village $1100.00
DOrder to conduct a new election for Liaison Committee.
[4] There is no item 'B'.
The final hearing of the application was held on 12 October 2016. On 28 October 2016 the Tribunal gave reasons and made orders in respect of the application. The Tribunal in its reasons said:
…
Ritchard Johnston complains about aspects of the operation of the El Caballo Lifestyle Village by the park operator, Femora Proprietary Limited as trustee for the El Caballo Lifestyle Village. In his original application Mr Johnston sought orders for compensation for breach of contract and establishment of liaison committee.
…
Mr Johnston abandoned some of his claims at the hearing. The effect is that it falls for me to determine only the claims of interference with the election of members of the PLC, failure to maintain facilities in respect of the men's wood room and storeroom and failure to provide facilities. I will deal with each of the claims in turn.
Interference with Election of the Applicant Representatives to PLC:
…
Looked at in this way it cannot be said that the respondent acted in breach of the commissioner's guidelines because the tenants had embarked on a folly of their own outside of the requirement that the operator (indistinct) the PLC. Even if I am wrong in my view the invitation by the respondent for tenants to nominate other residents to be members of the PLC issued on the same day as the tenants meeting when the three residents were elected and the subsequent indication by email that nominations for those same members could still be made rendered any breach of the guidelines otiose.
In the event four nominations were made, one of which was common with one of the three nominations received at the residents' meeting. Each of the four nominees was appointed by the respondent to the PLC. The decision of the nominators of the two other residents successful through the residents' meeting process not to nominate the same residents resulted in them not being appointed or considered. That was the decision of the nominators for which the respondent is not responsible.
…
Failure to provide facilities. Mr Johnston claims that the respondent has failed to deliver a number of facilities at the village for use by the residents, namely, club rooms, swimming pools, spa, sauna, bowling green and open space. At the hearing he made clear that this claim is totally dependent upon clause 4.3 of the residential park sites agreement in the following terms:
The homeowner acknowledges that the village other than the residential site and other residential sites within the village is shared with other homeowners at the village. This includes but is not limited to the club house, swimming pools, spas, sauna, bowling greens, tennis courts, barbecues and open space landscaped areas. The village policy details the condition of use for these shared facilities.
In my view, this claim is based upon a misconstruction of clause 4.3. The clause is concerned with the rights of individual owners in respect of those parts of the village which are not part of a residential site described as shared premises. In clause 4.3 those rights are acknowledged by the owners to be shared with other owners. The second sentence upon which Mr Johnston relies is for the purpose of identification of shared premises, not for the purpose of imposing an obligation upon the respondent to provide such of the named facilities as did not exist at the time the agreement was entered into.
Mr Pavlinovich's evidence was to the effect that of the named facilities some had been provided, alternative arrangements were in place for some of the others by making the same type of facility at the adjoining El Caballo resort available to village residents pending completion of stage 3 of the village redevelopment which included most of the named facilities. Once those facilities come on stream clause 4.3 will apply to them but it is not open to construe the clause in the way Mr Johnston does to impose a positive obligation upon the respondent regarding their provision. No element of the claims pursued by Mr Johnston having been successful the application shall be dismissed[.]

Following the final hearing the respondent unsuccessfully applied for its costs against the applicant.

2020 Proceeding - Ritchard John Johnston (First Applicant) Thi Thom Johnston (Second Applicant) and Fermora Pty Ltd (First Respondent) Matthew Marinko Pavlinovich (Second Respondent) Equity Trustees Wealth Services Limited (ABN 33 006 132 332) atf The Noongar Charitable Trust (Third Respondent)

The 2020 Proceeding was commenced by the applicants on 11 July 2020.
The applicants and the three respondents were each legally represented throughout this proceeding.[5]
[5] On 9 April 2021, the application regarding the third respondent was, pursuant to s 46(1) of the SAT Act, withdrawn.
The orders sought in the application were:
1.An order that the First Respondent do pay compensation by way of reduction/refund of rent and loss of value in respect to the entry into of a Residential Park Site Agreement dated 1 July 2014 made between the Applicants and the First Respondent.
2.An order that the Second Respondent as a party to the conduct of the First Respondent do compensate the Applicants.
3.An order that the Third Respondent do pay to the Applicants damages as above claimed pursuant to the [RP Act].
The grounds on which the orders should be made were stated in the application to be:
1.Breach by the First Respondent to which the Second Respondent was a party of consumer legislation in respect to the inducement to the Applicants to enter into a Residential Park Site Agreement dated 1 July 2014 made between the Applicants and the First Respondent in respect to Site 76, El Caballo Lifestyle Village, 51 Jocoso Rise, Wundowie in the State of Western Australia.
2The assumed liability of the Third Respondent for the above as a succeeding owner of the property pursuant to Residential Parks (Long Stay) Applicants Act 2006 - 2018, section 10(c).
On 2 October 2020 the applicants filed a Statement of Particulars of Grounds pursuant to an order of the Tribunal dated 21 August 2020.
On 15 December 2020 the Tribunal gave leave to the applicants to amend the orders sought and grounds set out in the application with the orders sought and the grounds set out in the 'Minute of Substitute Statement of Particulars of Grounds' dated 11 December 2020 (the Minute).
Relevant to the respondent's application the Minute added grounds and orders sought in relation to a boundary fence, the erection of a fence to surround the family centre and rent reduction.
The claim in the Minute in respect of the boundary fence is said to be that the boundary fence is incomplete on the eastern and south side and that fence has become dilapidated.
The claim in the Minute in respect of the family centre is that the first respondent committed to but did not build a fence around the family centre.
The claim in the Minute as to the amended grounds and orders in relation to the rent reduction at paragraph 35 is:
There has been a significant non-availability and reduction in the extent and quality of the facilities on offer before and after the Applicants entered into the Agreement. This includes the failure to make the facilities fully available and the denial by the Third Respondent of certain facilities to the Applicants and other residents as pleaded in paragraph 24 above justifies a reduction of rent as contemplated in section 63 of the Residential Parks Long Stay Tenants Act 2006.
The substituted orders sought in the Minute are:
(a)The First Respondent or alternatively the Third Respondent to provide a boundary fence to the Family Centre located in the Village.
(b)The First Respondent or alternatively the Third Respondent do obtain the approval of the Shire of Northam for an alfresco area and car port in the residence occupied by the Applicants at Site 76 of the Village.
(c)The First Respondent or alternatively the Third Respondent lodge a caveat over Lots 1 - 35 on Strata Plan 49035 by way of compliance with Clause 6.1(3) of the Agreement.
(d)The First Respondent or alternatively the Third Respondent complete the facilities/amenities not completed as referred to in annexure "A".
(e)The Third Respondent do cease to allow children to reside in the Village.
(f)The Third Respondent allow to the Applicants a reduction in rent pursuant to Section 63 (or otherwise) of the Residential Parks (Long Stay Tenants) Act 2006.
(g)The First Respondent and the Third Respondent do all necessary acts and things in order that the Third Respondent become bound by the Agreement pursuant to Clause 6.1(1) thereof.
(h)The First Respondent or alternatively the Third Respondent do install and repair the boundary fence to the Village.
(i)The First Respondent and the Second Respondent pay damages and interest pursuant to Section 32 of the Supreme Court Act1935 at the rate of 6% per annum calculated from the accrual of a cause of action in each respect.
(j)Further or other relief.
On 14 September 2021 the parties filed a minute of proposed consent orders signed by each of the parties. On that same day the Tribunal made the following orders:
By consent of the parties, the Tribunal orders that:
1The respondents pay to the applicants the sum of three thousand ($3,000.00) within 14 days of the date of these orders.
2The applicants claims against the respondents be dismissed.
3There be no order as to costs.
While the Tribunal's orders dated 14 September 2021 do not state that order 2 was made pursuant to the Tribunal's powers under s 46(2) and s 56 of the SAT Act, it is clear from the terms of the orders that this must be the case.

Is the Current Proceeding an abuse of process?

The respondent contends the Current Proceeding should be struck out as an abuse of process as the applicant 'is seeking to relitigate matters that were substantively determined in' the 2016 Proceeding or 2020 Proceeding.
The respondent, however, was not a party to either the 2016 Proceeding or the 2020 Proceeding. Nevertheless, as is said in McCardle [No 2] the respondents in a proceeding do not need to be a party in the earlier proceedings if the 'claim in later proceedings … is based wholly or substantially on the facts of a claim made by the same party in earlier proceedings, such as by pursuing the same claim against a different defendant'.
The issues the Tribunal must therefore determine is whether a claim in the Current Proceeding is 'based wholly or substantially on the facts of a claim made by the same party in earlier proceedings', and if so, whether the claim will 'cause oppression or are likely to be oppressive' to the respondent.
This requires the Tribunal to consider whether all or part of the claims in the 2016 Proceeding or 2020 Proceeding are sufficiently identical to the claims in the Current Proceeding such that they constitute an attempt by the applicant to run the same claim again. This, in turn, requires the Tribunal to consider the seven matters identified in McCardle [No 2] at [122].
While the Tribunal will now consider each of these seven matters it will, however, commence this task by beginning with the fourth issue identified in McCardle [No 2], the identity of the orders sought and grounds in the various proceedings. This is because the Tribunal considers that if there is not a substantial identity between one or more of the orders and grounds in the Current Proceeding and the orders and grounds in the 2016 Proceeding or 2020 Proceeding, then the respondent's application must fail with respect to that order and grounds.

The identity between the relevant issues in the two proceedings

The facilities claim

The orders sought in the facilities claim in the Current Proceeding is for reduction or refund of rent paid by the applicant to the respondent, and for compensation to be paid by the respondent to the applicant for the 'loss of value' of the applicant's home.
The ground for these orders is the allegation the applicant entered into the long-stay agreement in reliance upon representations made by Fermora Pty Ltd that it would build certain new facilities at the park and that it would provide certain other facilities at the park. However, the applicant contends that as at the date of this proceeding, the promised new facilities have not been built and that some of the facilities that had once been provided have now been removed.
In the 2016 Proceeding the applicant sought orders that Fermora Pty Ltd 'borrow enough money' to 'finish all the shared premises as in our agreements', or alternatively, that the applicant 'be compensated for not having the use of shared premises as promised in our agreement'. The ground for these orders is the allegation that certain facilities Fermora Pty Ltd had promised to the applicant would be built have not been built, and that Fermora did not properly maintain the roofs of certain facilities with the result they leak in wet weather.
In the 2020 Proceeding the applicant sought orders that either Fermora Pty Ltd or Equity Trustees 'complete the facilities/amenities not completed' and that Equity Trustees 'allow the applicants a reduction in rent pursuant to section 63 (or otherwise)' of the RP Act. The grounds for these orders is the allegation the applicant entered into the long-stay agreement in reliance upon representations made by Fermora Pty Ltd that it would build certain new facilities at the park and that it would provide certain other facilities at the park, but that as at the date of the proceeding the new facilities had not been built and that certain facilities have been removed from the park, or that the quality of some of the remaining facilities has been reduced.
In the applicant's affidavit sworn 29 March 2021 in the 2020 Proceeding the applicant swore that on or about 25 March 2020 he has been 'denied access' to certain facilities at the park.
The Tribunal has compared the orders sought and grounds set out above and on the basis of this comparison it is satisfied and so finds that there is a substantial identity between the facilities claim in the Current Proceeding, and the applicant's claims in the 2016 Proceeding and 2020 Proceeding for compensation due to a failure to build certain facilities at the park.
The Tribunal also finds that there is a substantial identity between the facilities claim in the Current Proceeding and the applicant's claims in the 2020 Proceeding that some facilities were removed from the park, or that the quality of some of the facilities at the park has been substantially reduced.

The fences claim

The orders sought in the fences claim in the Current Proceeding is for the respondent to 'maintain and repair boundary fences on Lot 90 on plan 72807'.[6] The ground for these orders is the claim the respondent is in '[b]reach of the Act and the Agreement' by failing to 'preserve the fences'.
[6] The park is situated on Lot 90.
In the 2016 Proceeding the applicant sought orders that Fermora Pty Ltd 'borrow enough money' to 'complete the security fence around the village' and to pay compensation to the applicant for the failure to complete the boundary fence and for the theft of the applicant's golf clubs. The applicant, however, withdrew this claim during the final hearing on 12 October 2016.
In the 2020 Proceeding the applicant sought orders that either Fermora Pty Ltd or Equity Trustees 'do install and repair the boundary fence to the Village'. The ground for these orders is the claim that the boundary fence is incomplete on the eastern and southern boundaries and that parts of the fence have fallen into disrepair.
Based on this comparison of the orders and grounds set out above the Tribunal is satisfied and so finds that there is a substantial identity between the fences claim in the Current Proceeding and the applicant's claim in the 2020 Proceeding that the respondent is obliged to maintain and repair the park's boundary fence.

The age restriction claim

The orders sought in the age restriction claim in the Current Proceeding is that the respondent is to 'remove all personnel under the age of 45 from the said Lot 90 insofar as the occupancy of Lot 90 by such persons breaches the Theme of the village as set out in clause 6.17 of the Agreement'. The ground for these orders is the allegation the respondent is in '[b]reach of the Act and the Agreement' by '[p]ermitting Residents under the age of 45 on Lot 90'.
In the 2020 Proceeding the applicant sought orders that Equity Trustees 'cease to allow children to reside in the Village'.
The Tribunal observes that the applicant's affidavit sworn 29 March 2021 deposed that in or around 2020 Equity Trustees was permitting children to reside at the park in the buildings at 'Sub 8' which is also known as 'the round house' and at 'Sub 2' which is also known as 'the triplex unit'. This, along with all other parts of the applicant's application was, for the reasons set out above, dismissed by the Tribunal on 14 September 2021.
However, this comparison of the orders and grounds shows there is no substantial identity between the age restriction claim in the Current Proceeding that persons under 45 years are permitted to reside in the park and the claim in the 2020 Proceeding that Fermora Pty Ltd was permitting children to reside at two homes in the park.
As a consequence, the Tribunal is satisfied and so finds that the applicant's claim that persons under 45 years of age are residing at the park is the first time this claim has been litigated, and that therefore the age restriction claim in the Current Proceeding cannot constitute an abuse of process.
Consequently, the Tribunal will not further consider the age restriction claim in these reasons.

The PLC claim

It is not clear to the Tribunal what orders the applicant is seeking in the Current Proceeding in respect of the PLC claim. It is, however, clear that the applicant complains that the respondent has failed to appoint and allow the park tenants the ability to form a PLC as is required if, in a park with 20 or more long-stay sites, a majority of the long-stay tenants vote to ask the park operator to form a PLC: s 59(1) of the RP Act.
In the 2016 Proceeding the applicant sought orders requiring Fermora Pty Ltd to 'conduct a new election' for the long-stay tenants' representatives on the PLC. The ground for this order is that 'the current liaison committee has been interfered with by the park operator'. This claim by the applicant was dismissed by the Tribunal on 28 October 2016.
Given that the respondent did not become the park operator until 3 August 2023, the conduct which the applicant complained in the 2016 Proceeding cannot be the same conduct the applicant complains about in the Current Proceeding.
Therefore, the Tribunal is satisfied and so finds that as there is no substantial identity between the PLC claim in the 2016 Proceeding and the PLC claim in the Current Proceeding, that the PLC claim in the Current Proceeding cannot constitute an abuse of process.
Consequently, the Tribunal will not further consider the PLC claim in these reasons.

The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue

The facilities claim

The facilities claim in the Current Proceeding are an ultimate issue in the proceeding. As the applicant contends the respondent should be required to construct a number of facilities and pay compensation to the applicant, the claim potentially also involves a substantial (but as yet unquantified) sum of money. For these reasons the Tribunal is satisfied and so finds that the facilities claim is an important issue in the Current Proceeding.
For like reasons, this is also the case with the substantially identical claims in both the 2016 Proceeding and 2020 Proceeding.

The fences claim

The fences claim in the Current Proceeding are also an ultimate issue in the proceeding. As the applicant contends the respondent should be required to maintain and repair parts of an extensive boundary fence and also to pay compensation to the applicant, the claim potentially also involves a reasonably substantial (but as yet unquantified) sum of money. For these reasons the Tribunal is satisfied and so finds that the fences claim is an important issue in the proceeding.
This is also the case with the substantially identical claim in the 2020 Proceeding.

The opportunity available and taken to fully litigate the issue

The facilities claim

The applicant in the 2016 Proceeding filed with the Tribunal a bundle of documents along with written submissions relating to the facilities claim. At the final hearing the applicant was permitted to give and call evidence, to cross-examine a witness called by the respondent, and to make closing submissions.
In the 2020 Proceeding, the applicant argued the facilities claim in multiple submissions lodged prior to a mediation on 14 September 2021. He was also given the opportunity to consider the respondents written submissions on this claim prior to the settlement and orders made on 14 September 2021.
For these reasons the Tribunal is satisfied and so finds that the applicant was given every opportunity to fully litigate the facilities claim in both the 2016 Proceeding and the 2020 Proceeding.

The fences claim

In the 2020 Proceeding the applicant argued the fences claim in multiple submissions lodged prior to the settlement and orders made on 14 September 2021. He was also given the opportunity to consider the respondents written submissions prior to the mediation.
For these reasons the Tribunal is satisfied and so finds that the applicant was given every opportunity to fully litigate the fences claim in the 2020 Proceeding.

The terms and finality of the finding as to the issue

The facilities claim

In the 2016 Proceeding, the facilities claim was dismissed after a final hearing.
In the 2020 Proceeding, the Tribunal made orders with the consent of the applicant to dismiss the entirety of the proceeding, which included the facilities claim. This order can only have been made under s 46(2) and s 56 of the SAT Act to give effect to a settlement.
As is explained in Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 (25 February 2010) at [59]:
… An order made by consent under s 56 of the SAT Act is a 'decision' for the purposes of the Act. Subject to obtaining leave of the appeal court, a party to a proceeding may appeal on a question of law from a consent order under s 105 of the SAT Act. Consequently, a consent order is a decision of the Tribunal and may form the basis for a finding that a subsequent proceeding involves an abuse of process by relitigation of a matter decided by the making of the consent order.
Therefore, the Tribunal is satisfied and so finds that the orders made by the Tribunal dismissing the 2016 Proceeding and the 2020 Proceeding are both orders 'which may form the basis for a finding that a subsequent proceeding involves an abuse of process'.[7]

The fences claim

[7] Subject to a grant of leave by a judicial member under s 49 of the SAT Act. However, as the applicant has not made such an application with respect to the proceedings the order is, for the purpose of these reasons, a final order.

In the 2016 Proceeding, during the final hearing, the applicant withdrew that part of his application which made a claim with respect to the park's boundary fences.
As discussed above, the Tribunal on 14 September 2021made orders dismissing the entirety of the 2020 Proceeding, which included the fences claim. Consequently, the orders made by the Tribunal on 14 September 2021 dismissing the 2020 Proceeding are orders 'which may form the basis for a finding that a subsequent proceeding involves an abuse of process'.

Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings

The facilities claim

Without being the subject of any findings, it appears that since the respondent took over the park it may, in or about November 2023, have erected a fence and excluded the park tenants from the part of the site known as 'The Ranges'. [8] That is, since 14 September 2021 there may have been a significant change to a facility on the site, and there may also have been a reduction in the area of the site accessible to tenants of the park. This is potentially important new evidence in the context of the proceeding.

The fences claim

[8] Letter from Sam Bastian, Sierra Lifestyle Village Property Manager to park tenants, 20 November 2023.

In respect of claim 3, while no express claim is made that the boundary fence is any more dilapidated now than it was on 14 September 2021, given the passage of time it is certainly open to the applicant to argue that it is.[9] Again, this is potentially important new evidence in the context of the proceeding.

The extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice

The facilities claim

[9] Item 22 of the applicant's affidavit sworn 29 March 2021 may be relevant to this issue.

The respondent in the Current Proceeding was not a party to the 2016 Proceeding or the 2020 Proceeding. The respondent is therefore not itself exposed to the prejudice of being required to expend the expense and effort of responding again to the same claim.
It does, however, need to go to the expense and effort of responding to the facilities claim in circumstances where it has no direct knowledge as to what transpired and what representations, if any, were made to the applicant at the time he entered into the long-stay agreement in 2014. The respondent's difficulty is compounded yet further by the time period, greater than 10 years, which has transpired since those events.
Even putting aside issues such as whether the respondent is liable for the representations, acts or omissions of an earlier owner and operator of the park, and whether the Tribunal is possessed of jurisdiction to determine issues raised by a claim of false or misleading representations to the applicant, the respondent is clearly at a disadvantage in having to respond to claims involving parties who are a stranger to it, and which are said to have occurred so long ago. This is particularly so when the applicant had this part of his claim dismissed by the Tribunal in 2016 and then in 2021 voluntarily compromised his claims and consented to orders dismissing the 2020 Proceeding.
To permit the applicant to re-litigate the same claim on yet another occasion in the Current Proceeding, the Tribunal finds, would be seriously oppressive to the respondent, would seriously undermine the principle of finality of a prior determination of the Tribunal and would also seriously undermine public confidence in the administration of justice.

The fences claim

The situation is similar with respect to the fences claim, although in this case the claim with respect to the park's boundary fences was not resolved at the final hearing in the 2016 Proceeding, as the applicant abandoned that claim during the final hearing.
Nonetheless, the applicant was given every opportunity to litigate this claim in the 2020 Proceeding and when legally represented he chose to compromise the proceeding and consent to it being dismissed.
To permit the applicant to re-litigate the same claim on yet another occasion in the Current Proceeding, the Tribunal finds, would be seriously oppressive to the respondent, would seriously undermine the principle of finality of a prior determination of the Tribunal and would also seriously undermine public confidence in the administration of justice.

(VII) An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process

The Tribunal, for the reasons given above, considers that it is proper to strike out those parts of the facilities claim and fences claim in the Current Proceeding which are an attempt to re-litigate claims that were finalised in the 2016 Proceeding or in the 2020 Proceeding. However, in order to preserve those parts of the Current Proceeding which are not an attempt to re-litigate a claim, the Tribunal considers it should very carefully distinguish between those aspects of the claims in the Current Proceeding which are finalised in earlier proceedings and those which are not.
For the avoidance of doubt, the Tribunal does not strike out:
(1)that part of the facilities claim which is a claim that a park operator since 14 September 2021 has removed or reduced in quality facilities provided by the park;
(2)that part of the fences claim which is a claim that since 14 September 2021 some part or parts of the boundary fence have deteriorated;
(3)any part of the age restriction claim; and
(4)that part of the PLC claim which is a claim that the park operator since 3 August 2023 has failed to appoint and allow the park tenants the ability to form a PLC.
This is not, of course, to say anything about the merits of any of these claims.

Conclusion

Given that the number of claims that will be in dispute at the final hearing are now reduced, the Tribunal considers it would be assisted by the applicant filing a revised minute of proposed orders and by both the applicant and respondent filing a revised SIFC. To that end the Tribunal will make orders programming the filing of these documents by the parties. Additionally, as the respondent has claimed its costs in the interim application the Tribunal will make orders programming the filing of submissions on costs by both parties, should either party wish to do so.

Orders

The Tribunal orders:
1.The respondents' application under s 47(1)(c) is upheld in part:
(a)the part of the proceeding which is a claim the respondent is liable for a failure to construct facilities in accordance with representations made by or on behalf of Fermora Pty Ltd to the applicant on or before 12 October 2016, or which is a claim the respondent is liable for a failure to construct facilities in accordance with the long-stay agreement dated 1 July 2014, is struck out;
(b)the part of the proceeding which is a claim the respondent is liable for the removal of facilities or a reduction in the quality of the facilities at the park due to acts or omissions of Fermora Pty Ltd or Equity Trustees on or before 14 September 2021 is struck out; and
(c)the part of the proceeding which is a claim the respondent is liable to repair and maintain the park boundary fence and which relies upon acts or omissions by the respondent Fermora Pty Ltd or Equity Trustees on or before 14 September 2021, or as to the condition of the fence on or before 14 September 2021, is struck out.

2.By 23 December 2024 each of the parties is to file (lodge) with the Tribunal all the dates in January, February and March 2025 on which they and their witnesses are available for a final hearing of a duration of one day.
3.The proceeding is adjourned to a final hearing on a date to be determined by the Tribunal.
4.By 6 January 2025 the applicant must file (lodge) with the Tribunal and give to the respondent a revised minute of proposed orders.
5.By 6 January 2025 the applicant must file (lodge) with the Tribunal and give to the respondent a revised statement of issues, facts and contentions it says arise in the proceeding.
6.By 20 January 2025 the respondent must file with the Tribunal and give to the applicant:
(a)their own revised statement of issues, facts and contentions setting out:
(i)by reference to each paragraph number in the applicant's revised statement whether the respondent accepts or rejects the issue, fact or contention identified by the applicant; and
(ii)any other issues, facts and contentions the respondent says arise in the proceeding.

7.By 20 January 2025 the parties must file (lodge) with the Tribunal and give to the other party a written statement of the evidence of each person, including any expert, who the parties intend to call as a witness at the final hearing.
8.The applicant is at liberty to seek leave to apply for its costs of the respondent's interim application and file with the Tribunal and giving to the other party the following documents on or before 20 January 2025:
(a)written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed; and
(b)a schedule of the costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded, together with any supporting documents upon which the applicant wishes to rely.

9.If the respondent opposes the applicant's application for costs, the respondent may file with the Tribunal and if so, must give to the applicant's written submissions opposing the application by 27 January 2025.
10.The respondent is at liberty to seek leave to apply for their costs of its interim application and file with the Tribunal and giving to the other party the following documents on or before 20 January 2025:
(a)written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed; and
(b)a schedule of the costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded, together with any supporting documents upon which the respondent wishes to rely.

11.If the applicant opposes the respondent's application for costs, the applicant may file with the Tribunal and if so, must give to the respondent written submissions opposing the application by 27 January 2025.
12.If a party makes an application for costs in the respondent's interim application, the Tribunal will under s 60(2) of the State Administrative Tribunal Act 2004 (WA) determine the application on the documents after 27 January 2025 and will fix the amount of any costs awarded in the same determination.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER
6 DECEMBER 2024

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Citations

JOHNSTON and REALISE RETIREMENT WA 1 PTY LTD [2024] WASAT 136

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

2

Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131

Laurent v Commissioner of Police [2009] WASAT 254

LEGAL SERVICES AND COMPLAINTS COMMITTEE and YOUNG [2023] WASAT 108