MICROLINK INVESTMENTS PTY LTD AFT MYALUP OPERATIONS TRUST T/AS MYALUP BEACH CARAVAN PARK and QUINN
[2025] WASAT 55
•16 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: MICROLINK INVESTMENTS PTY LTD AFT MYALUP OPERATIONS TRUST T/AS MYALUP BEACH CARAVAN PARK and QUINN [2025] WASAT 55
MEMBER: PRESIDENT GLANCY
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 16 JUNE 2025
FILE NO/S: CC 131 of 2025
BETWEEN: MICROLINK INVESTMENTS PTY LTD AFT MYALUP OPERATIONS TRUST T/AS MYALUP BEACH CARAVAN PARK
Applicant
AND
PAUL QUINN
Respondent
Catchwords:
Enforcement - State Administrative Tribunal Act 2004 (WA) s 86(2)(c) - Application for certificate of enforcement of non-monetary order - Factors for consideration - Whether order is appropriate for filing in the Supreme Court - Whether evidence of non-compliance - Whether order clear and umambiguous - Whether agreed to accept performance in different way - Whether other means to secure performance - Enforcement of orders made pursuant to Residential Parks (Long-Stay Tenants) Act 2006 (WA) s 67 - Order to give vacant possession of caravan site - Prima facie evidence of non-compliance - Appropriate to issue certificate - Suitable for enforcement
Legislation:
Residential Parks (Long-Stay Tenants) Act 2006 (WA), s 67
State Administrative Tribunal Act 2004 (WA), s 3, s 60(2), s 86, s 86(1), s 86(2), s 86(2)(c)
Result:
Certificate of appropriateness to issue
Category: B
Representation:
Counsel:
| Applicant | : | Mr AJ Aristei |
| Respondent | : | No Appearance |
Solicitors:
| Applicant | : | Irwin Legal |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Rogers and the Owners of the Linx at Nexus Strata Plan 47739 [2021] WASAT 70
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Applicant in this proceeding has applied to the Tribunal for the grant of a certificate under s 86(2)(c) of the State Administrative Tribunal Act2004 (WA) (SAT Act). The certificate pertains to orders made by the Tribunal on 15 April 2025 which the Applicant wishes to enforce in the Supreme Court.
The respondent to the proceeding took no part in it.
The primary proceeding out of which the s 86 application arises involved a dispute between the Applicant, which operates the Myalup Beach Caravan Park (Caravan Park) and the Respondent who, at the time of the Tribunal's decision occupied, and seems to continue to occupy, site 422 at the Caravan Park.
On 15 April 2025 the Tribunal made orders in the primary proceeding pursuant to s 67 of the Residential Parks (Long-Stay Tenants) Act 2006 (WA):
1.terminating the long stay agreement in respect of site 422 between the parties effective on 24 April 2025; and
2.requiring the Respondent to give vacant possession of the site to the park operator by 5 pm on 24 April 2025.
The Applicant wishes to enforce the Tribunal's orders in the Supreme Court because it says that the Respondent has not complied with the order to give vacant possession of site 422 and continues to occupy site 422.
Outcome
For reasons set out below I have concluded that it is appropriate for the orders to be filed in the Supreme Court.
Determination on the documents
Pursuant to s 60(2) of the SAT Act this matter was determined entirely on the documents.
Those documents were:
1.the affidavit of Brian Swain sworn 20 May 2025;
2.the affidavit of Jane Hiotis sworn 28 May 2025;
3.the orders of the Tribunal made 15 April 2025; and
4.the submissions of the Applicant attached to an email dated 22 May 2025.
The Respondent did not participate in this matter. In order to give him an opportunity to do so he was notified that the Tribunal had listed the matter for a directions hearing on 27 May 2025. The orders listing the matter for directions were extracted to the email address used for service in the primary proceeding on 23 May 2025. The affidavit of Ms Hiotis states that the notice of listing was given to the Respondent by delivering it to him at site 422 at the Caravan Park on 23 May 2025. Additionally, on 26 May 2025, my Associate spoke to the Respondent by telephone informing him that there was to be a directions hearing in relation to the application for a certificate of enforcement which had been listed for 27 May 2025. The Respondent informed the Associate that he did not think the Tribunal was entitled to contact him and he was intending to make a complaint to the police about it.
In the circumstances I am satisfied that it was appropriate to proceed to determine this matter without the involvement of the Respondent.
Section 86 applications
Decisions of the Tribunal that are not monetary orders may be enforced in accordance with s 86 of the SAT Act.[1] Section 86(2) of the SAT Act provides:
A person seeking to enforce a decision under this section may file in the Supreme Court –
(a)a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and
(b)the person's affidavit as to the non-compliance with the decision; and
(c)a certificate from a judicial member stating that the decision is appropriate for filing in the Supreme Court.
[1] SAT Act, s 86(1).
A 'decision' of the Tribunal includes an order, direction, or determination of the Tribunal.[2]
[2] SAT Act, s 3.
Once the documents referred to in s 86(2) are filed in the Supreme Court, the 'decision' is taken to be a decision of the Supreme Court and may be enforced accordingly,[3] including by proceedings for contempt.
[3] SAT Act, s 86(4).
The Applicant's evidence in support of the certificate
In support of its application the Applicant relies upon the affidavit of Brian Swain sworn 20 May 2025. In that affidavit Mr Swain says:
(a)that he is the sole director of the Applicant, which is the park operator for the Caravan Park;
(b)from his own personal observations he could see that the Respondent was still in occupation of site 422 shortly before he swore the affidavit;
(c)since 15 April 2025 the Respondent has remained in occupation of the site and has shown no intention to vacate; and
(d)the Applicant needs to enforce the orders as a matter of some urgency and that the Respondent has not paid his outstanding rent or outgoings for the site for many months.
It also relies upon the affidavit of Ms Hiotis sworn 28 May 2025. Ms Hiotis swore that:
(a)she is an employee of the park operator;
(b)on 16 April 2025 she delivered to the Respondent a copy of the Tribunal's orders of 15 April 2025 at site 422; and
(c)the Respondent was at site 422 on 23 May 2025 when she gave him the notice of the listing of the directions hearing.
Meaning of s 86(2)(c)
The meaning to be given to the requirement in s 86(2)(c) that the certificate given by the judicial officer state that the decision 'is appropriate for filing in the Supreme Court' was considered by the then President of the Tribunal, Pritchard JA, in Rogers and the Owners of the Linx at Nexus Strata Plan 47739.[4] After considering the statutory context of s 86(2)(c) and broader contextual considerations her Honour concluded:[5]
[T]he purpose behind s 86(2)(c) of the SAT Act is that the issue of the certificate involves a screening or filtering process, performed by a judge of the Tribunal, to determine whether the decision is one which is appropriate (that is, suitable, fitting or proper) for filing in the Supreme Court, with the consequence that it may be the basis for enforcement proceedings, including proceedings in the nature of contempt proceedings. That purpose will be served by the judge considering whether there is any reason why it would not be suitable, fitting or proper for the decision to be filed, and thus enforced, including by contempt proceedings, in the Supreme Court, but subject always to the overarching principle that the proper administration of justice requires that the Tribunal's orders be complied with, and in the event that they are not, that they are able to be enforced.
[4] Rogers and the Owners of the Linx at Nexus Strata Plan 47739 [2021] WASAT 70 (Rogers).
[5] Rogers at [73].
I agree with and respectfully adopt her Honour's reasoning and conclusion and her Honour's subsequent conclusion.
Her Honour identified the following matters as matters to which the Tribunal must have regard in determining whether to grant a certificate under s 86(2)(c):[6]
1.whether the applicant for the certificate has provided prima facie evidence of non-compliance with an order of the Tribunal, because the judge could not be satisfied that the order was appropriate for filing in the Supreme Court without such evidence;
2.the nature of the order made by the Tribunal, because as her Honour Justice Pritchard observed it would not be appropriate to enforce the Tribunal's programming orders in the Supreme Court;
3.whether there has been a complete failure to comply, or a partial failure to comply with the Tribunal's order, because where there has been partial compliance further directions by the Tribunal (in the exercise of its power to make ancillary orders) may facilitate complete compliance and obviate the need to issue the certificate;
4.whether the failure to comply is attributable to ambiguity in the order of the Tribunal, because where the order is not clear and unambiguous it is unlikely to be appropriate for enforcement in the Supreme Court because it could not be the basis for a contempt proceeding and nor could the Court appoint another person to perform an order which was not clear in its terms;
5.whether the party entitled to the benefit of the order has agreed to accept performance in a different way, because if the parties have agreed to performance in a manner different from that required by the terms of the order itself, it may not be appropriate to enforce the order itself; and
6.whether other means exist for the party alleging noncompliance or partial compliance with the order to secure performance.
[6] Rogers at [84].
Her Honour noted that the matters she identified were not exhaustive. Again, I adopt her Honour's explanation of the matters which the Tribunal will consider in determining an application for a certificate under s 86(2) of the SAT Act.
Findings
From the documents filed in support of the application I am satisfied of the following matters and I find:
1.the order of the Tribunal made 15 April 2025 requiring the Respondent give vacant possession of the site to the park operator by 5 pm on 24 April 2025 is unambiguous;
2.the statements made by Mr Swain and Ms Hiotis that the Respondent was still in occupation of site 422 on 24 April 2025 provide prima facie evidence of non-compliance by the Respondent;
3.the Tribunal's orders of 15 April 2025 are final orders;
4.there is no basis for thinking that the Applicant has agreed to accept performance in some other way or at some later time; and
5.there is no means by which the Applicant can secure performance of the order that the Respondent give vacant possession of the site to the park operator other than through enforcing the order in the Supreme Court.
Conclusion
In those circumstances, I am of the view that it is appropriate to issue the certificate stating that the order of the Tribunal made on 15 April 2025 is suitable for enforcement.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JD
Associate to the Hon Justice Glancy
16 JUNE 2025
1
1
2