Lawrence v Cooperative Bulk Handling Ltd - [2017] WASC 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: CORBOY J

HEARD: 24 AUGUST & 27 SEPTEMBER 2016

DELIVERED : 7 FEBRUARY 2017

FILE NO/S: GDA 6 of 2016

BETWEEN: JOAN NOREEN LAWRENCE
FRANCIS JOHN LAWRENCE
Appellants
AND
COOPERATIVE BULK HANDLING LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MS K WHITNEY (MEMBER)
File No  :CC 217 of 2016

Catchwords:

Residential parks - Application under s 67 of the Residential Parks (Long-stay Tenants) Act 2006 (WA) - Whether State Administrative Tribunal has a discretion to make orders under s 67 - Whether a periodic tenancy - Procedure adopted by the State Administrative Tribunal in hearing and determining application under s 67

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Residential Parks (Long-stay Tenants) Act 2006 (WA)
Residential Parks (Long-stay Tenants) Regulations 2007 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: In person
Respondent: Mr G A Flynn

Solicitors:

Appellants: In person
Respondent: Hotchkin Hanly Lawyers

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

Casey v Repatriation Commission (1995) 60 FCR 510
Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307
Re Barbaro v Minister for Immigration & Ethnic Affairs (1980) 3 ADL 1
CORBOY J:

Summary

The respondent operates the Cee & See Caravan Park in Rockingham (Caravan Park). The appellants and the respondent entered into a tenancy agreement in respect of a site (Site) in the Caravan Park (Tenancy Agreement). The Tenancy Agreement commenced on 1 February 2014 and was for a period of two years.
By an application dated 22 February 2016, the respondent applied to the State Administrative Tribunal (Tribunal) for orders, pursuant to s 67(2) of the Residential Parks (Long‑stay Tenants) Act 2006 (WA) (Residential Parks Act), terminating the Tenancy Agreement and requiring the appellants to give vacant possession of the Site.
The application was heard and determined by the Tribunal on 13 April 2016. The Tribunal ordered that the Tenancy Agreement be terminated with effect from 11 May 2016 and that the appellants give vacant possession of the Site on that date. However, the operation of those orders was suspended until 10 June 2016.
The appellants appealed from that decision. They alleged 14 grounds of appeal. A copy of the grounds is annexed to these reasons.
The appellants also applied for a stay of the Tribunal's decision pending the determination of their appeal. However, the respondent gave undertakings that meant that it was not necessary to determine that application.
The appellants filed various documents prior to the hearing of the appeal, including a document that added two grounds of appeal (grounds 15…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 24
Decision Date: 7 FEBRUARY 2017

CaseChat Overview and Summary

In Lawrence v Cooperative Bulk Handling Ltd, the respondent, who was a long-stay tenant in a residential park operated by the appellant, Cooperative Bulk Handling Ltd, applied to the State Administrative Tribunal (SAT) under s 67 of the Residential Parks (Long-stay Tenants) Act 2006 (WA). The respondent sought a range of relief, including compensation for the loss of her home and the costs of alternative accommodation. The appellant opposed the application on the basis that the respondent was not a long-stay tenant, and that the respondent had not suffered any loss as she had been provided with alternative accommodation. The appellant also argued that the respondent was not entitled to the costs of alternative accommodation as the accommodation provided was adequate. The respondent argued that the relief sought was within the scope of s 67, and that the SAT had the discretion to award the relief sought.

The legal issues before the court were whether the SAT had a discretion to make orders under s 67 of the Act, whether the respondent was a long-stay tenant, and whether the respondent was entitled to compensation and the costs of alternative accommodation. The court considered whether the provisions of s 32 of the SAT Act, which provide for the procedure of the Tribunal, were intended to be facilitative, not restrictive, and whether the SAT was required to observe the rules of natural justice. The court also considered whether the loss of an opportunity to cross-examine was to be disregarded in determining whether proceedings had been conducted fairly.

The court found that the provisions of s 32 of the SAT Act were intended to be facilitative, not restrictive, and that the SAT was not required to observe the rules of natural justice in the same way as a court of law. The court found that the SAT had a discretion to make orders under s 67 of the Act, and that the respondent was a long-stay tenant. The court also found that the respondent was entitled to compensation and the costs of alternative accommodation. The court held that the SAT could make findings on evidence that would not be admissible according to the rules of evidence, and that the touchstone for receiving evidence in the Tribunal should be relevance and fairness. The court held that the loss of an opportunity to cross-examine was not to be disregarded in determining whether proceedings had been conducted fairly, but that much would depend on the nature of the issues to be determined and the extent to which a party's case and supporting evidence was challenged.

The court ordered that the respondent was entitled to compensation and the costs of alternative accommodation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Provisions of the kind to be found in s 32(2) (which are common for statutory tribunals - see, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) are intended to be facilitative, not restrictive. The purpose of such provisions is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J). Further, as Hill J observed in Casey v Repatriation Commission (1995) 60 FCR 510 in relation to the corresponding provision in the AAT Act, s 32(2)(a) means what it says. The fact that material may be inadmissible according to the rules of evidence does not mean that it cannot be admitted into evidence or taken into account by the Tribunal: 'the criterion for the admissibility of material in the [AAT] is not to be found within the interstices of the rules of evidence, but within the limits of relevance': Casey (514). More particularly, the duty of an administrative tribunal to observe the rules of natural justice 'does not necessarily involve the extension of the opportunity of cross‑examination to any party against whom evidence is called': Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 [73] (Jessup J). There is no rule that natural justice 'dictates the rejection or giving of no weight to evidence which cannot be tested by cross‑examination': Rawson Finances [137] (Jogot J). That is not to say that the loss of an opportunity to cross‑examine is to be disregarded in determining whether proceedings have been conducted fairly. Much will depend on the nature of the issues to be determined and the extent to which a party's case and supporting evidence is challenged: see, for example, the observations of Davies J in Re Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ADL 1, 5. Rawson Finances and Re Barbaro are cases that involved proceedings in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions that are equivalent to s 32(1) and s 32(2). However, the Act does not contain a provision that is equivalent to s 32(6)(c). Section 32(6)(c) must be read in the context of s 32 and the SAT Act as a whole. Read in context, the subsection does not require that the Tribunal conduct hearings as though it was a court of record or that it should require all matters of fact to be strictly proven according to the rules of evidence. Such an approach would be contrary to the express provisions of s 32(2)(a) and is not required by the rules of natural justice. Plainly, the Tribunal can make findings on evidence that would not be admissible according to the rules of evidence. The touchstone for receiving evidence in the Tribunal should be relevance and fairness. Further, the procedure by which evidence is to be received will depend primarily on the nature of the evidence sought to be presented, the issues to be determined and provisions of s 32 of the SAT Act.