MILLS and TANAH MERAH PARK PTY LTD AS TRUSTEE FOR THE GOLDEN BAY TRUST TRADING AS ALBANY HOLIDAY PARK
[2025] WASAT 14
•13 FEBRUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION: MILLS and TANAH MERAH PARK PTY LTD AS TRUSTEE FOR THE GOLDEN BAY TRUST TRADING AS ALBANY HOLIDAY PARK [2025] WASAT 14
MEMBER: MR E CADE, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 FEBRUARY 2025
FILE NO/S: CC 563 of 2024
BETWEEN: SANDRA MILLS
Applicant
AND
TANAH MERAH PARK PTY LTD AS TRUSTEE FOR THE GOLDEN BAY TRUST TRADING AS ALBANY HOLIDAY PARK
Respondent
Catchwords:
Residential Parks (Long-stay Tenants) Act 2006 (WA) - Costs - Application dismissed as lacking in substance - Whether applicant's conduct in all the circumstances was reasonable - Application for recovery of the cost of the time of the respondent's non-legal employees and directors - Turns on its own facts
Legislation:
Residential Parks (Long-Stay Tenants) Act 2006 (WA), s 74C(1)
State Administrative Tribunal Act 2004 (WA), s 47(2), s 87, s 87(1), s 87(3), s 88, s 88(2)
Result:
No order as to costs
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Danni and Town of Cambridge [2023] WASAT 123
Madame Ma's Proprietary Ltd and City of Perth [2019] WASAT 131 (S)
Saint and Law Complaints Officer as The Delegate of The Legal Profession Complaints Committee [2023] WASAT 104
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This application for costs arises from a decision by me on 16 December 2024 pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to dismiss, as lacking in substance, the applicant's application under s 74C(1) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP Act).
The applicant in her application was seeking orders under s 74C(1) of the RP Act for reimbursement by the respondent of camping fees in the sum of $1,755 and payment of compensation by the respondent in the sum of $10,000.
The application was heard by me on 16 December 2024 as a hearing to determine as a preliminary issue whether I had jurisdiction to hear the substantive application. The preliminary issue was concerned with whether the applicant had entered into a long-stay agreement with the park operator on 16 February 2024, that is, whether she was a long-stay tenant within the meaning of the RP Act.
At the hearing of the preliminary issue, I heard oral evidence from the applicant, two directors of the respondent and an employee of the respondent. I also considered a number of documents filed by each of the parties which were relevant to the preliminary issue.
After considering the totality of this evidence I found that the applicant had not entered into a long-stay agreement with the park operator on 16 February 2024 and so was not a long-stay tenant within the meaning of the RP Act.
I delivered my oral reasons for decision on the preliminary issue on 16 December 2024 and, pursuant to s 47(2) of the SAT Act, I then dismissed the application as lacking in substance.
After I delivered my oral reasons, the respondent made an oral application for its costs. As the respondent was not prepared to make submissions on its application, I made orders requiring the respondent to file, on or before 24 January 2025, a schedule of costs together with any supporting documents on which the respondent wished to rely, as well as written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed.
I also made orders that the applicant may file written submissions opposing the application by 7 February 2025.
I then ordered that if the respondent made an application for costs, the Tribunal would determine the application on the documents after 7 February 2025 and will fix the amount of any costs awarded in the same determination.
On 24 January 2025, the respondent filed 10 pages of documents including a schedule of costs which in total claimed $5,820 in costs.
The respondent's costs were claimed at the rate of $80 per hour for the work of its non-legal employees in preparing for the hearing and at the rate of $500 per hour for the attendance of its non-legal directors at a directions hearing, a compulsory conference and at the hearing. The respondent also sought orders from the Tribunal requiring the applicant desist from 'posting offensive and malicious statements about the Directors' and their businesses on the social media pages of various residential parks operated by the respondent.
On 6 February 2025, the applicant filed 15 pages of submissions opposing the respondent's costs claim on the basis that the respondent is only able to claim for the costs of a legal practitioner and is not able to claim for the time of its non-legal employees and directors. The applicant also claimed costs in the sum of $5,820, damages in the sum of $9,765, travel costs in the sum of $1,800, accommodation in the sum of $500, compensation in the sum of $3,000,000 for pain and suffering incurred by 100 un-named 'pensioners' and the death of one unnamed 'pensioner', as well as an un-quantified and un-particularised claim in 'defamation'.
On 7 February 2025 I reserved my decision on costs.
The legislative context
The provisions which govern the respondent's application for its costs within the Tribunal's original jurisdiction is set out in s 87 and s 88 of the SAT Act. It is useful to set out the relevant provisions of s 87 here:
87.Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party …
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
…
It is also useful to set out the relevant provisions of s 88 of the SAT Act here:
88.Costs of proceeding
(1)In this section — costs of a proceeding means costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party.
(2)The Tribunal may order that all or any of the costs of a proceeding be paid by a party.
…
Consideration of the applicant's costs claim
The applicant was wholly unsuccessful in the proceeding. Consequently, she is unable to claim for her costs under either s 87(3) or s 88(2) of the SAT Act.
Further, as the Tribunal is functus officio as from the making of the order dismissing the proceeding for lack of substance I have no power at this point in the proceeding to make orders which provide a substantive remedy to the applicant, such as orders for compensation: Saint and Law Complaints Officer as The Delegate of The Legal Profession Complaints Committee [2023] WASAT 104.
Additionally, as I am possessed of only the jurisdiction which is conferred on the Tribunal by the SAT Act and the RP Act, I have no jurisdiction in this proceeding to determine any proceedings in defamation.
I will, consequently, not make the orders sought by the applicant.
Consideration of the respondent's costs claim
When considering the respondent's claim for its costs I am mindful of s 87(1) of the SAT Act which states that '[u]nless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal'.
As the RP Act contains no provisions to the contrary, I have begun consideration of this matter in reliance of the statements of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 where s 87:
49Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.
50… the 'important principle commonly referred to as the "usual order as to costs", under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs'.
51Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
In this proceeding I am persuaded that the applicant's conduct in bringing and maintaining an application without substance made it fair and reasonable that the respondent should recover its legal costs to the extent it is proper to do so. However, for reasons which I will now give, I will not make any order as to costs.
The primary reason I will make no order as to costs is that the respondent in its application for costs is claiming only for the cost of the time for its non-legal employees and directors and is not claiming any legal costs, and I have no power to award the respondent its costs for the time of its non-legal employees and directors.
In support of this proposition, I adopt the explanation given by this Tribunal in Danni and Town of Cambridge [2023] WASAT 123 at [41]:[1]
41In terms of the Applicant's claim for costs for his own time, I agree with the analysis in Madame Ma's Pty Ltd and City of Perth,[2] where the Tribunal set out, in the context of where a party, in effect, chooses to represent itself, their costs of doing so are not recoverable. The Tribunal explained:
… Apart from some (minor and somewhat rare) exceptions not relevant to these proceedings, such as that found in s 87(3) of the SAT Act, a party who represents himself or herself in the Tribunal will not be granted costs for his or her own time preparing and presenting his or her case (this includes a Director of a company) …
[1] I note that this case refers in turn to other decisions made by the Tribunal. However, for convenience, and as I accept that the decisions are correctly summarised, I will refer only to this decision.
[2] Madame Ma's Proprietary Ltd and City of Perth [2019] WASAT 131 (S) [24].
Some decisions of the Tribunal indicate that an exception to this general rule may be where a party is represented by a non-legal advocate or is claiming for its travel costs. For example, in Springmist Pty Ltd and Shire of AugustaMargaret River (Springmist),[3] the Tribunal, after examining the operation of similar legislation in the Victorian Civil and Administrative Act 1998 (Vic) stated:
64The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal. For example, the costs may include the costs of a non lawyer advocate, the expenses of a party having to travel to a hearing or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
[3] Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207.
However, even on the basis of these exceptions I would find the respondent is not able to recover its costs. This is because the respondent did not seek leave for the respondent to be represented by a non-lawyer advocate, but rather chose to be (capably) represented by its directors at the hearing. The respondent has also not claimed for travel costs or other incidentals.
I therefore find that there should be no order as to costs.
Finally, I turn to the respondent's claim that I should make orders requiring the applicant desist from 'posting offensive and malicious statements about the Directors' and their businesses on the social media pages of various residential parks operated by the respondent.
I do not, however, have any power under the RP Act or the SAT Act to make such an order, and so I will not make the order.
Orders
The Tribunal orders:
1.There is no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER
13 FEBRUARY 2025
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