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  4. Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park - [2016] QCATA 178

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Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park[2016] QCATA 178

Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park[2016] QCATA 178

CITATION:

Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park [2016] QCATA 178

PARTIES:

Barbara Fitzmaurice

(Applicant/Appellant)

v

GM & JM Holland t/a Cooloola Cabins & Caravan Park

(Respondent)

APPLICATION NUMBER:

APL325-15

MATTER TYPE:

Appeals

HEARING DATE:

29 June 2016 and then on the papers

HEARD AT:

Brisbane

DECISION OF:

Carmody J

Member Guthrie

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed.
  2. The appeal against the costs order is allowed.
  3. The decision of the Tribunal made 15 July 2015 is set aside and returned to the Tribunal below constituted by the same member for reconsideration with the following directions:
  1. (a)
    The original proceedings be listed for a directions hearing before the Tribunal below on a date to be fixed.
  2. (b)
    The Tribunal below determine the application filed on 4 July 2016 by GM & JM Holland to adduce further evidence.
  3. (c)
    The rehearing of the original proceeding is not to be conducted as a hybrid hearing.
  4. (d)
    The Tribunal below consider the status of the proper parties to the proceeding and whether any party ought to be joined to it.
  5. (e)
    The Tribunal below make any other directions it considers appropriate.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL –GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – FUNCTIONS OF APPELLATE COURT – FAILURE TO EXERCISE DISCRETION – where both parties sought termination order under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – where parties relied upon different grounds for termination order under the Manufactured Homes (Residential Parks) Act 2003– where termination order made by Tribunal under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – where inadequate reasons given regarding exercise of discretion to make a termination order under the Manufactured Homes (Residential Parks) Act 2003 (Qld)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS – WHERE FINDINGS CLEARLY WRONG – GENERALLY – whether ground for termination order under Manufactured Homes (Residential Parks) Act 2003 (Qld) established – where termination day set – where inadequate reasons given for fixing the termination day

APPEAL AND NEW TRIAL – APPEAL –GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where respondent applied to adduce new evidence – whether application to adduce new evidence should be determined by appeal tribunal

Manufactured Homes (Residential Parks) Act 2003 (Qld) ss 8, 38, 39, 40, 97

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 29, 32, 42, 100, 102, 146

Castlemaine Tooheys Ltd v Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Hills v Chalk & Ors (as executors of the estate of Chalk (deceased) [2008] QCA 159

Liverpool City Council v Irwin & Anor [1979] 2 All ER 39

Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Miller v Hancock [1893] 2 QB 177

O'Brien v SEQ Properties Pty Ltd [2014] QCAT 270

S & M Motors Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358

Spargo v Katz [2010] QCATA 94

Thorneton Avenue Pty Ltd v Body Corporate for the Avenues CTS 19609 [2013] QCAT 173

APPEARANCES and REPRESENTATION:

APPLICANT:

Self-represented

RESPONDENT:

Mr B Cuddihy, Jeffery Cuddihy & Joyce

Following an oral hearing, this matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Carmody J

  1. [1]
    The applicant’s site agreement was terminated by the Tribunal under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (MH Act).
  2. [2]
    The respondent’s lawyers submitted that the applicant was either:
    1. (a)
      temporarily letting to an unapproved tenant in breach of Part 1 Section 12 of the site agreement and, therefore, in breach of s 38(1)(a) of the MH Act; or
    2. (b)
      using her home for non-residential purposes contrary to s 38(1)(d); and that on one ground or the other, a termination order “followed”.
  3. [3]
    The Tribunal was misled into error by this submission in two respects.
  4. [4]
    First, as was conceded on appeal, using the site as rental accommodation is an example of a residential use and does not offend the provisions of s 38(1)(d).
  5. [5]
    Second, even if a s 38(1)(a) ground was made out based on letting of the site to an unapproved temporary tenant, a termination order did not “follow”. A termination ground merely triggers a termination discretion. It does not automatically entitle the innocent party to a termination. The termination discretion must be exercised reasonably in the circumstances. A relevant consideration in that process is the conduct of both parties, including whether respondent was acting reasonably in refusing to approve the tenant. The failure to exercise a discretion at all (or on relevant considerations) is an error of law.
  6. [6]
    For these reasons, I agree that the appeal should be allowed, the termination order set aside and the matter returned to the Tribunal for reconsideration as directed by Member Guthrie.

Member Guthrie

Background

  1. [1]
    Barbara Fitzmaurice owns a manufactured home, which is positioned on a site in the Cooloola Cabins and Caravan Park (‘the caravan park’). The site agreement in issue in these proceedings was signed by the parties on 7 November 2007.[1] The caravan park owners, at that time and at the time of the decision of the Tribunal that is the subject of this appeal, were GM and JM Holland t/as Cooloola Cabins & Caravan Park (‘the caravan park owners’). They are no longer the owners.
  2. [2]
    The site agreement provides that it is to continue until it is terminated. Ms Fitzmaurice moved out of her home in the caravan park. It is not disputed that Ms Fitzmaurice allowed another person to rent her home from at least 21 February 2014. Ms Fitzmaurice says that she and her tenant completed a tenancy agreement for a 12 month period from 21 February 2014.[2]
  3. [3]
    On 13 March 2014 the caravan park owners issued to Ms Fitzmaurice a Notice to remedy breach (Form 6) stating that she had breached the site agreement in that she had allowed ‘an unapproved tenant to reside at site 50’ which they said was a breach of section 12 of her site agreement which states:

Section 12Is the home owner permitted to let the home for temporary periods? [the box indicating the answer ‘yes’ was ticked]

State any limitations on letting the manufactured home to a tenant or the duration.

‘Manager must approve

  1. [4]
    On 3 May 2015, the caravan park owners issued another Notice to remedy breach dated 3 March 2015 detailing the breach as:

Section 12 of Site Agreement – Home Owner to obtain approval of Park Owner/Manager to let home. Home Owner has let the home without the consent or approval of the Park Owner/Manager.

  1. [5]
    Further Notices to remedy breach were issued by the caravan park owners to Ms Fitzmaurice regarding other alleged breaches such as a breach of the ‘Local Rules’ (in particular the rules relating to dogs in the caravan park) and claims that she had interfered with the quiet enjoyment of the park by other homeowners.
  2. [6]
    On 5 May 2015, the caravan park owners applied to the Tribunal for orders that the site agreement be terminated and Ms Fitzmaurice give vacant possession of the site. The caravan park owners relied on ss 38(1)(a), (d) and (e) of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the MH Act’) as providing the basis for the termination order. In her response and counter-application, Ms Fitzmaurice sought an order that the Tribunal terminate her site agreement under s 38(1)(f) of the MH Act and that the Tribunal, as a consequence, make a compensation order under s 40 of the MH Act. Sections 38 and 40 of the MH Act relevantly provide:

38 Termination of site agreement by tribunal

  1. On application by the park owner under a site agreement, the tribunal may make an order (a termination order) terminating the agreement on any of the following grounds—
  1. the home owner—
  1. has contravened a term of the agreement; and
  2. has failed to remedy the contravention after being given by the park owner a notice, in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given;

…

  1. the home owner is using the site other than as a place of residence;

Example of the home owner using the site as a place of residence—

the home owner using the site as rental accommodation

  1. the home owner, or the home owner's tenant or guest—
  1. repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park's residents; and
  2. continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour;
  1. the park owner wishes to use the residential park land, or a part of the park in which the site is located, for another purpose stated in the application (the stated purpose).
  1. An application for a termination order on the ground mentioned in subsection (1)(f) must be accompanied by a document certified by the local government for the local government area in which the residential park is situated stating it is lawful for the park land, or a part of the park in which the site is located, to be used for the stated purpose.

…

40 Compensation order

  1. This section applies if the tribunal intends making a termination order, in relation to a site agreement, on the ground mentioned in section 38(1)(f).
  2. The tribunal must, in conjunction with the order, make an order (the compensation order) that the park owner pay the home owner compensation for the termination of the agreement.

…

  1. [7]
    Section 39 of the MH Act refers to the termination date:

39 Vacant possession of site to be given after making of termination order

  1. If a termination order is made relating to a site agreement, the order must—
  1. state the day (the termination day) the termination is effective; and
  2. require the home owner under the agreement to give the park owner vacant possession of the site on or before the termination day.
  1. Subsection (3) applies if a termination order is made on a ground mentioned in section 38(1)(f).
  2. When deciding the termination day under subsection (1), if the tribunal is satisfied it is just and equitable to do so having regard to the particular circumstances of the case, the tribunal may postpone the day the termination order would otherwise have effect to a stated day not later than 1 year after the day of the termination order.

Examples of particular circumstances—

the home owner's personal and financial circumstances, including the home owner's health, age and mobility

the availability and location of alternative accommodation at a similar cost

the financial impact on the park owner, if any, of postponing the day the termination order would otherwise have effect

any other financial or social considerations the tribunal considers appropriate

  1. If unforeseen circumstances prevent the home owner under the agreement giving the park owner vacant possession of the site on or before the termination day, the home owner may apply to the tribunal before the termination day for an order extending the time for giving the park owner vacant possession of the site.
  2. Subject to subsection (6)—
  1. the termination order is suspended until the application is decided; and
  2. the termination day is changed to the day decided by the tribunal on the hearing of the application.
  1. In deciding the application, the tribunal may—
  1. extend the time for the period (the extension period) the tribunal considers reasonable; and
  2. make any other order the tribunal considers appropriate.
  1. If the tribunal extends the time under subsection (6)(a), the termination day is taken to be the last day of the extension period.
  1. [8]
    Section 97 refers to the letting of the site by a homeowner. I consider it worth setting out here:

97 Letting of site by home owner

  1. This section applies if a manufactured home is positioned on a site the subject of a site agreement.
  2. The home owner must not rent the site to a person on a temporary basis unless this is allowed under the agreement.
  3. If the home owner rents the site to a person on a temporary basis under subsection (2), the home owner must as soon as practicable after the letting give the park owner notice of the letting.
  4. The notice must state—
  1. the name of the tenant; and
  2. the period of the tenancy.
  1. [9]
    It is common ground that the managers of the caravan park never approved Ms Fitzmaurice’s tenant.
  2. [10]
    It is also not in dispute that on each of 13 March 2014 and 3 March 2015, the caravan park owners issued to Ms Fitzmaurice a Notice to remedy breach in Form 6 as outlined above.
  3. [11]
    Further, there does not appear to be any issue that despite those notices, Ms Fitzmaurice’s tenant remained in her home.
  4. [12]
    In her material filed in the original proceeding, Ms Fitzmaurice raised various concerns regarding the manner in which the caravan park owners had dealt with her. She did not regard the failure to approve her tenant as reasonable and considered that the caravan park owners should have provided reasons for failing to approve her tenant, particularly given that her site agreement allowed her to let her site on a temporary basis.

The decision of the Tribunal

  1. [13]
    On 15 July 2015, the Tribunal conducted a hybrid hearing. Having been granted leave on 12 June 2015 to do so, the caravan park owners were legally represented. Ms Fitzmaurice was not represented. The Tribunal decided that the site agreement was terminated pursuant to s 38(1)(a) and (d) of the MH Act and that the termination date was 15 September 2015.
  2. [14]
    The Tribunal also determined that Ms Fitzmaurice pay to the caravan park owners the costs of the proceedings fixed at $1,415.00. Oral reasons for the decision were given at the time of the decision; as is the usual course in a hybrid hearing.[3]

The appeal

  1. [15]
    Ms Fitzmaurice applied for leave to appeal and to appeal the Tribunal’s decision on 11 August 2015. She also applied for a stay and to extend the termination day pursuant to s 39 of the MH Act. The application to stay the decision of the Tribunal and the decision to extend the termination day were both refused by the Appeal Tribunal (differently constituted) on 21 August 2015. I observe that at that time, it was not clear that Ms Fitzmaurice sought to appeal the decision to terminate her site agreement.
  2. [16]
    Subsequently, the Appeal Tribunal made directions for the filing of submissions and supporting cases. Ultimately, an oral hearing took place 29 June 2016, during which leave was given for Ms Fitzmaurice to appeal the decision in the original proceeding and the costs order. Her application to join as the current owners of the caravan park a party to the appeal was dismissed after hearing submissions from the parties. In relation to the substantive appeal, further directions for the filing and service of additional submissions and it was directed that the appeal would be determined on the papers.
  3. [17]
    In addition to filing the written submissions as directed, the respondent also applied for leave to file a further short statement by Gregory Michael Holland concerning the non-approval of Ms Fitzmaurice’s tenant.[4] The respondent says that this is necessary as Ms Fitzmaurice changed her grounds of appeal to the effect that she no longer accepts that the site agreement should be terminated. Ms Fitzmaurice opposes that application. I will deal with that application in these reasons.
  4. [18]
    I understand that Ms Fitzmaurice’s manufactured home remains on a site in the caravan park, despite the orders made on 15 July 2015 and 21 August 2015.

Consideration

  1. [19]
    I have carefully considered the transcript of the hybrid hearing including the reasons given by the learned member. I have also considered the material before the Tribunal:
  • The caravan park owners’ application
  • Statement of Gregory Michael Holland
  • Statement of Jennifer Marion Holland
  • Ms Fitzmaurice’s affidavit dated 1 July 2015 comprising one page with extensive annexures
  1. [20]
    Mr Holland was cross-examined by Ms Fitzmaurice. The caravan park owners did not require Ms Fitzmaurice for cross-examination.
  2. [21]
    The Tribunal, as a preliminary matter, decided to strike out and therefore not consider paragraph one of Ms Fitzmaurice’s affidavit, which stated “The applicants are in contempt of the Law”. The basis for that ruling was that it was a conclusion on the law. In making the costs order, some weight was given to that ruling. The costs order is considered later in these reasons.
  3. [22]
    I have also considered the numerous written submissions made by the parties in relation to Ms Fitzmaurice’s appeal application.

Allegation of bias

  1. [23]
    Ms Fitzmaurice has said that, in relation to the order made by the learned member as to the termination date, “QCAT failed to give me the opportunity at the hearing to have a say on the time limit to terminate my site agreement. The Member and the lawyer spoke between themselves and made a decision”.[5]
  2. [24]
    I have treated the last sentence as an allegation of bias against the learned member. A party who seeks to contend on appeal that the decision of the primary court is affected by bias, actual or apprehended, should not be allowed to pursue such a contention at the same time as it seeks orders vindicating its substantive rights.[6] This means that the allegation of bias must be dealt with first. If I found the decision of the learned member infected by bias, then the appropriate order is to remit the matter or re-hearing before a differently constituted tribunal.
  3. [25]
    A claim of actual bias requires Ms Fitzmaurice to establish that the Tribunal approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision could not be swayed by the evidence.[7]
  4. [26]
    The test of apprehended bias is not what a possibly hypersensitive claimant perceives.[8] The question is not whether Ms Fitzmaurice genuinely believes that there was bias on the part of the learned member but what a disinterested and adequately informed bystander might reasonably suspect. Put another way, would that hypothetical, fair-minded person reasonably apprehend that the learned member would not bring an impartial and unprejudiced mind to the resolution of the questions he was required to decide?[9]
  5. [27]
    There is nothing in the transcript of the hearing or in the material filed by Ms Fitzmaurice in this appeal suggesting any form of prior relationship between the learned member and the caravan park owners or their legal representative.
  6. [28]
    It is not surprising that in matters of applying the law, the learned member might have found himself guided by the submissions of the only legally qualified person at the hearing. However, I do not consider that a fair-minded person would have considered or reasonably apprehended that the learned member would not bring an impartial and unprejudiced mind to the resolution of the questions he had to decide. The learned member disclosed that he had read all of the material filed by Ms Fitzmaurice prior to the hearing. He essentially determined the matter on the basis of matters he regarded as common ground – that a termination order was sought and that the caravan park owners had not given their approval for her tenant. It appears he was misdirected as to the meaning of s 38(1)(d) by the caravan park owners’ legal representative.
  7. [29]
    In relation to what I have regarded as Ms Fitzmaurice’s claim of bias, she has specifically raised the learned member’s fixing of the termination date. For reasons that follow, I have found that the learned member gave inadequate reasons as to the fixing of the termination day and in relation to other matters. The termination date he determined was the date urged by the caravan park owners. However, it is clear that he asked for Ms Fitzmaurice’s submissions in relation to the appropriate termination date. He also spent some time in the hearing and in his reasons considering s 38(1)(f), upon which Ms Fitzmaurice sought to rely. I do not consider that it is apparent from the transcript that the learned member did not bring an impartial or unprejudiced mind to the resolution of the questions he was asked to decide. Further, for those reasons, I do not consider that a disinterested and adequately informed bystander might reasonably suspect that he had not brought an impartial and unprejudiced mind to the resolution of the questions he was required to determine. I have found the learned member’s reasons to be deficient but I do not consider that a claim of bias can be substantiated.

The Tribunal’s termination order

  1. [30]
    In her application for leave to appeal and appeal, Ms Fitzmaurice states that she has always abided the MH Act, but has questioned the credibility of the caravan park owners which, she says, the Tribunal failed to address. She says it is unclear what notice to remedy breach the learned member relied upon in reaching the conclusion that the ground for termination in s 38(1) (a) was satisfied. She also argues that he failed to consider s 38(1)(e), and seeks to rely on that section to say that the caravan park owners have interfered with her quiet enjoyment of the park. She also argues that the caravan park owners have stated that they will not give consent to renting her home on a temporary basis, which she says is contemplated in her site agreement. She alleges discrimination against her tenant and a denial of justice in that ‘no evidence had been provided by the caravan park owners as to why they would not approve her tenant’, particularly as her tenant had been a previous homeowner in the caravan park.[10] She says that she has complied with s 97 of the MH Act and the caravan park owners ‘unreasonably withheld in contravention of the implied terms of my site agreement that arise from my ownership of the home located on the site’.[11]
  2. [31]
    In relation to the application of s 38(1)(d), Ms Fitzmaurice says that her manufactured home is her only permanent place of residence. She says she has been living in her mobile home. She says that her site agreement did not make it clear what period would be considered ‘temporary’. She argues that she has not operated a business from the home and no evidence was presented to the Tribunal to determine that she was using her home as permanent rental accommodation.
  3. [32]
    Ms Fitzmaurice had consistently argued that while she accepted that the caravan park owners had not given their approval for her particular tenant she had, pursuant to her site agreement, a right to rent her home. She also argued that she had never been given a proper reason as to why the tenant had not been approved.

Consideration of the member’s application of s 38(1)(f) of the MH Act

  1. [33]
    At the hearing below, Ms Fitzmaurice’s reliance on s 38(1)(f) was linked to her understanding that there were planned changes to the caravan park which would result in the removal of her site. She relied on documents that were apparently posted on the caravan park’s noticeboard, copies of which were attached to her affidavit.[12]
  2. [34]
    Consistently with her response and counter-application, Ms Fitzmaurice told the Tribunal: ‘I would like to terminate my site agreement, but not on the grounds that Mr Holland wants to terminate, because I don’t think I’ve breached the Act’.[13]
  3. [35]
    In response to the Tribunal’s question, “You want to terminate under (1)(f)?”[14] she says:

But I would – if – as Mr Cuddihy said, if I haven’t got the approved paperwork supplied by the council that this is actually happening, I can’t do it under that section of the Act. But the intent was there, because those drawings were put on the public noticeboard in the caravan park for everyone to see, including me. So I was assuming that that is what was going to happen, and that was in 2013.

  1. [36]
    The Tribunal concluded that s 38(1)(f) could not apply because there was no document certified by a local government for the local government area; and that that was a mandatory requirement.
  2. [37]
    In this appeal, Ms Fitzmaurice does not argue that the learned member’s findings in relation to the application of s 38(1)(f) were flawed. However, her reliance on s 38(1)(f) is, in our view, relevant to whether the learned member erred in the exercise of the discretion in s 38. Section 38(1)(f) is clear. I could not locate in the material a document certified by the local government as required. Ms Fitzmaurice does not argue on appeal that such a document was before the Tribunal. For completeness, I find no error in the learned member’s reasons in relation to the application of s 38(1)(f).
  3. [38]
    Ms Fitzmaurice submits that the learned member erred by failing to give reasons in relation to s 38(1)(a) and (d) of the MH Act. Ms Fitzmaurice says that the learned member did not consider or apply the evidence before him in determining whether the grounds were made out.[15]
  4. [39]
    In reply, the caravan park owners say that the member has the discretion to make the decision based on the evidence presented to the Member. It is submitted that the learned member has not erred in the exercise of the discretion in accordance with s 38 of the MH Act. The caravan park owners rely on the fact that at the hearing there was common ground as to the site agreement being terminated.[16]
  5. [40]
    In contrast to the learned member’s reasons about s 38(1)(f), there is little reasoning in relation to the application of s 38(1)(a) or s 38(1)(d) of the MH Act which formed the basis for the Tribunal’s orders. I have identified the following reasons from the transcript:

The orders sought are termination of the site agreement of the respondent and an order that the respondent vacate the site. There is an annexure (a) to the application and it states that the respondent, in summary, has breached the site agreement and the park rules – or the site rules. Specifically, it is alleged that the respondent has contravened section 12 of the site agreement in allowing a tenant to reside without the approval of the park owner or the manager of the park. There were notices to remedy breach…the first is dated 13 March 2014 and 3 March 2015. And the respondent it is alleged in the annexure has failed to remedy those breaches. Further, annexure (a) to the application states that the respondent does not use the site as a place of residence, which is alleged to be a breach of subsection (38)(1)(d) of the MH Act as there is a – to use the words in the annexure – “permanent tenant”. …

There is a response dated 13 May 2015. …It is stated in that response that it is not the intention of the respondent to rent the site on a permanent basis. It is also stated in that response dated 13 May 2015, that since 2013, the respondent has not resided at the site on a permanent basis[17]. The response – that response states that the renting is not as a business as there is no profit, to quote from the wording used in the response. …

[38(1) (d)] is that the home owner is using the site other than as a place of residence. An example is provided – example of the home owner using the site as a place of residence, the home owner using the site as rental accommodation. One (a) is the homeowner has contravened a term of the agreement and has failed to remedy the contravention after being given, by the park owner, a notice in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given.[18]

..

Both parties submit that the termination is the appropriate order and did so at the hearing today[19].

The orders will be: (1) the site agreement is terminated pursuant to sections 38(1)(a) and (d) of the Act.[20]

Consideration of the member’s application of s 38(1)(d) of the MH Act

  1. [41]
    Ms Fitzmaurice argues that s 38(1)(d) of the MH Act is intended to refer to using the site as a place of business and that she has not done so. She relies on the example set out in that subsection to submit that the MH Act specifically acknowledges that using the site as rental accommodation is using the site as a place or residence.[21] This later submission is accepted by the caravan park owners.
  2. [42]
    The MH Act defines “home owner” in s 8 as a person who owns a manufactured home positioned on a site in a residential park under a site agreement, whether they occupy the home as their principal place of residence or their tenant occupies the home. Ms Fitzmaurice was a homeowner at all relevant times, so she had responsibilities pursuant to s 16 of the MH Act which included to (a) use the site only as a place of residence and to (h) otherwise comply with the agreement and the park rules.
  3. [43]
    On 5 November 2010, s 38(1)(d) as originally enacted was amended. It previously read:
  1. the homeowner is not occupying the manufactured home on the site as the home owner’s principal place of residence.
  1. [44]
    Given the significant change in the terms of s 38(1)(d), I consider the intention of the legislature was that from the date of the amendment so long as the home on the site was be used as a residence (as opposed say as a commercial enterprise) either by the homeowner or some other person the ground to terminate the site agreement under s 38(1)(d) is not established. This is also consistent with the terms of the definition of “home owner”, s 38(1)(d) (including the example provided in that section) and s 16(a) of the MH Act.
  2. [45]
    I find that the learned member has erred in concluding that s 38(1)(d) forms the basis for the exercise of the discretion to make a termination order. That was an error of law.

Consideration of the member’s application of s 38(1)(a) of the MH Act

  1. [46]
    Turning then to a consideration of the application of 38(1)(a) as a ground for enlivening the discretion in s 38, I accept that it was a term of Ms Fitzmaurice’s agreement that she was permitted to let the home for temporary periods but that the Manager must approve the tenant. The parties say that s 97 is relevant to a consideration of s 38(1)(a) of the MH Act.
  2. [47]
    Ms Fitzmaurice submits in relation to s 97:[22]

The phrase “on a temporary basis” is not defined under the Act. The Explanatory Memorandum to the Bill provided the following explanation in relation to s 97 of the Act:

“The intention of the Bill is to provide security of tenure to home owners. The provision allows the home owner, if it is permitted in the site agreement, to rent the home on a temporary basis where the home owner is absent for a period of time due to illness or undertaking extended travel. It is not intended that this will be a permanent arrangement and despite the temporary absence, the home will remain the permanent place of residence for the homeowner.”

The site agreement permitted me to rent my home, with consent. I have been absent from my home on and off since 2013. I only sought consent to rent the property from February 2015 to July 2015. Since 2013, I have travelled in my caravan around Australia. The concept of extended travel is specifically referred to in the Explanatory Memorandum as an example of “temporary basis”.

I submit that the period of 12 months does fall within the concept of “on a temporary basis” as I have always considered my home to be my permanent residence, the tenant (who was my friend) as only living in there on a temporary basis and I left the property to undertake travels, and would often return home during the course of my travels.

It was not intended that the rental of my house was a permanent arrangement. It was always my intention that the home would remain as my permanent place of residence. I would often return to my home during my travels – staying for various periods of time.

I have never had another permanent residence since I moved in to Cooloola Cabins and Caravan Park (Cooloola Cabins).

I am aware of other properties within the park within the park that have been rented out for a longer period of time than what my property was rented at, and there was no issue with that rental.

My registration on the electoral roll is my address at Cooloola Cabins.

  1. [48]
    In response, the caravan park owner says[23]:

Pursuant to section 12 of [Ms Fitzmaurice’s] site agreement the home owner was permitted to let the home for temporary periods on the condition that the Manager must approve the tenant. It is submitted that (a) the home was not let for a temporary period; and/or (b) the home owner did not have approval of the Manager to the tenancy and/or (c) the site is no longer the home owner’s permanent place of residence.

  1. (a)
    The Applicant entered into a tenancy agreement with a tenant for two (2) periods of 12 months, the first commencing 21 February 2014 and the second commencing 21 February 2015. It is submitted this time frame cannot be considered ‘temporary’.
  2. (b)
    If it is found the tenancy is ‘temporary’ then it is submitted the home owner did not have the approval of the Manager to the tenancy on the following basis:

On 18 February 2014, [Ms Fitzmaurice] notified the Park Owner/Manager of the tenancy. … The Park Owner denied consent by way of a letter …dated 19 February 2016…

[Ms Fitzmaurice] has previously acknowledged that she has tenanted her property without the approval of the Park Owner/Manager (refer to submissions dated 29 October 2015)

  1. (c)
    [Ms Fitzmaurice] has previously stated that she does not intend to live in the property again (refer to page 27 of the transcript) and has not resided at the site on a permanent basis since 2013. By way of her statements and actions, [Ms Fitzmaurice] has abandoned the property as her permanent residence.

In accordance with Manufactured Homes (Residential Parks) Bill 2003 Explanatory Notes – Division 2 Home Owners’ obligations, even if a letting takes place, the home is to remain the permanent place of residence for the homeowner.

Further, [Ms Fitzmaurice] has another residential address …

  1. [49]
    The learned member made no reference in his reasons to s 97 of the MH Act. The amendments to the MH Act made in 2010 did not affect s 97. Section 12 of the site agreement is directed to the letting of the “home”. I am satisfied that the site agreement allowed Ms Fitzmaurice to rent the site to a person a temporary basis so that s 97(2) of the MH Act is satisfied. Section 12 of the site agreement made it a condition of her temporarily letting her home that the Manager approve her tenant. It was common ground that the approval had not been given.
  2. [50]
    The Notices to remedy breach referred to in the learned member’s reasons rely on the lack of approval by the managers as the contravention of the site agreement. There are no formal findings of fact made by the learned member as to the notices issued or the non-approval of the tenant. The background regarding those matters as allegations by the respective parties are set out at the beginning of the oral reasons and then a conclusion is reached that s 38(1)(a) applies. However, as the matters are not in dispute, and there is at least some mention of relevant matters, I do not consider that the failure to make those formal findings of fact is of itself an error of law which has led to a substantial injustice. I am prepared to find that the learned member’s reasons were sufficient to accept that he found that the site agreement had been contravened as alleged by the caravan park owners.
  3. [51]
    Ms Fitzmaurice argues that the learned member should have considered and made findings about whether the caravan park owners’ non-approval of her tenant was reasonable. That was not considered by the learned member and no findings were made in that regard. It is in relation to that argument that the caravan park owner seeks to adduce additional evidence in the appeal.
  4. [52]
    In O'Brien v SEQ Properties Pty Ltd,[24] the Tribunal recognised an implied term in a site agreement, citing general authority on implying terms into contracts, in particular the following passage from Spargo v Katz:[25]

Terms can be implied by law (as a legal incident to a particular class of contract, regardless of the intentions of the parties) or by necessity to give business efficacy to a particular contract. Those implied by law are deemed necessary by implication; otherwise the whole of the transaction would be futile.

  1. [53]
    I do not consider that in Queensland it is settled law that there must be in all contracts an implied term of reasonableness. I do not consider that the agreement between Ms Fitzmaurice and the caravan park owners is rendered futile unless an implied term to the effect that the caravan park owners cannot unreasonably withhold their consent to a tenant proposed by Ms Fitzmaurice is read into s 12 of the site agreement.
  2. [54]
    However, it does not follow that the ground in s 38(1)(a) having been established, a termination order must follow. I consider that the reasonableness of the conduct of Ms Fitzmaurice and the caravan park owners in their dealings with one another are part of the circumstances of the case that can be considered when deciding whether or not to exercise the discretion in s 38 to make a termination order. My consideration of the learned member’s approach to the exercise of the discretion follows.

The exercise of the discretion

  1. [55]
    I have carefully considered the respondent’s argument that the learned member had regard to Ms Fitzmaurice’s submission that her site agreement be terminated under s 38(1)(f) in exercising the discretion to make the order so that essentially, the learned member did not have to reason any further once he found a ground in s 38(1) established.
  2. [56]
    Had the learned member found that the ground in s 38(1)(f) was established, he would then have had to consider whether to make a compensation order under s 40. Once the learned member considered that s 38(1)(f) was not established, it was an important part of his decision making task to properly consider whether the discretion to make the termination order should be exercised.
  3. [57]
    Further, and in any event, given the seriousness of such an order with its implications for Ms Fitzmaurice, I consider that Ms Fitzmaurice’s willingness to agree to a termination order does not negate the learned member’s responsibility to determine the matter according to law once the Tribunal is seized of jurisdiction. Had there been agreement between the parties as to the termination of the site agreement, there would have been no need for the Tribunal’s involvement. The parties could have agreed in the approved form to terminate the site agreement and s 36 of the MH Act would have applied.
  4. [58]
    I consider that the learned member failed to properly exercise the discretion to make the termination order. The learned member has erred in law in that he has failed to give adequate (or indeed any) reasons in relation to how he exercised the discretion in s 38 to make a termination order.

Allegation of a failure to accord procedural fairness

  1. [59]
    Ms Fitzmaurice alleges that she was denied procedural fairness and the learned member failed to apply ss 28 and 29 of the QCAT Act, which state:

28 Conducting proceedings generally

  1. The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
  2. In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
  3. In conducting a proceeding, the tribunal—
  1. must observe the rules of natural justice; and
  2. is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
  3. may inform itself in any way it considers appropriate; and
  4. must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
  5. must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
  1. Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.

29 Ensuring proper understanding and regard

  1. The tribunal must take all reasonable steps to—
  1. ensure each party to a proceeding understands—
  1. the practices and procedures of the tribunal; and
  2. the nature of assertions made in the proceeding and the legal implications of the assertions; and
  3. any decision of the tribunal relating to the proceeding; and
  1. understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party's or witness's age, any disability, and cultural, religious and socioeconomic background; and
  2. ensure proceedings are conducted in a way that recognises and is responsive to—
  1. cultural diversity, Aboriginal tradition and Island custom, including the needs of a party to or witness in the proceeding who is from another culture or linguistic background or is an Aboriginal person or Torres Strait Islander; and
  2. the needs of a party to, or witness in, the proceeding who is a child or a person with impaired capacity or a physical disability.
  1. The steps that can be taken for ensuring a person understands something mentioned in subsection (1)(a) include, for example—
  1. explaining the matters to the person; or
  2. having an interpreter or other person able to communicate effectively with the person give the explanation; or
  3. supplying an explanatory note in English or another language.
  1. [60]
    The learned member gave Ms Fitzmaurice the opportunity to make submissions in relation to matters such as the termination day and indicated he had read her material. Ms Fitzmaurice sought a termination order under s 38(1)(f) of the MH Act. In arguing she had not breached the MH Act, she essentially disputed the caravan park owners reliance on ss 38(1)(a) and (d) of the MH Act as a basis for enlivening the discretion to make a termination order.
  2. [61]
    Section 38(1)(f) seems to have been adequately explained at the hearing.[26] However, as Ms Fitzmaurice was essentially disputing that s 38(1)(a) was satisfied, I consider that before making the termination order Ms Fitzmaurice should have been asked whether her position regarding the appropriateness of a termination order would change in any way if the ground in s 38(1)(f) was not established. The learned member did not do so and exercised the discretion to terminate Ms Fitzmaurice’s site agreement, finding ss 38(1)(a) and 38(1)(d) satisfied. It is likely that her indication that a termination order was appropriate gave the learned member some comfort in making the order with little reasoning. However, the learned member should have properly discussed with the parties the orders that were open and ensured that Ms Fitzmaurice, who was not legally represented and who would be significantly affected by a termination order, understood the implications of any orders for her. The learned member’s failure to do so was a denial of procedural fairness.
  3. [62]
    Further, if the learned member considered that he could not set a later termination date because “there was no evidence in the material from [Ms Fitzmaurice] as to the appropriateness or otherwise of the period of time” and considered that evidence to be necessary, he should have given her the opportunity to provide it. His failure to do was arguably a denial of procedural fairness.

The Tribunal’s determination as to the termination day

  1. [63]
    In relation to the order made by the learned member as to the termination date, Ms Fitzmaurice submits that “QCAT failed to give me the opportunity at the hearing to have a say on the time limit to terminate my site agreement. The Member and the lawyer spoke between themselves and made a decision”.[27]
  2. [64]
    Ms Fitzmaurice was asked by the learned member what she would consider an appropriate period of time for her to vacate the site in the event that the Tribunal made the termination order. The caravan park owners had suggested 15 September 2015. Ms Fitzmaurice responded:[28]

Until my tenant finds somewhere to live and until I sell my home. My tenant has been advised that my house is on the marked. I have given her form 9 and 10 of the RTA Act

…

And she’s desperately looking for other accommodation but is finding it extremely hard, and that’s not an excuse, that is just a fact.

…

But she’s – actually, if you go into her house, she has everything packed in boxes, because she’s going to move as soon as she gets something.

…

And my house is on the market, so….

…

I’d like at least 12 months, because the homes in that park are not selling

  1. [65]
    The caravan park owners submitted that 12 months was beyond what would be acceptable given that the tenancy had not been approved by the caravan park owners and so any breach of a tenancy agreement as between Ms Fitzmaurice and her tenant was nothing for which the caravan park owners could be responsible.[29]
  2. [66]
    The learned member determined that the termination day under s 39 of the MH Act would be 15 September 2015 for the reasons that:[30]

It is relevant that section 39, subsection (2) states that subsection (3) applies if a termination order is made on a ground mentioned in section 38(1)(f)… - that subsection 38(1)(f) is not applicable on the evidence because there is no document certified by a local government for the local government area and that is a mandatory requirement. Having regard to subsection (1), there is no requirement that the period of time be just and equitable under that subsection and it just states that the termination order must state the day the termination is effective and require the home owner under the agreement to give the park owner vacant possession of the site on or before the termination date.

There was no evidence in the material from the respondent as to a – as to the appropriateness or otherwise of the period of time. And that was acknowledged in the hearing. In saying that, there was no particular evidence from the applicant. But the period of time identified by the applicant was 15 September 2015. The orders will be: (1) the site agreement is terminated pursuant to sections 38(1)(a) and (d) of the Act; (2) The termination day is 15 September 2015, with vacant possession of the site on or before that day in accordance with section 39(1) of the Act. …

  1. [67]
    While there may have been no “evidence” in the filed material as to what the appropriate termination day might be, both parties made submissions. Further, I consider it arguable that Ms Fitzmaurice gave some evidence about what steps she would be required to take to provide vacant possession.[31] She submitted that a 12-month period was appropriate to allow her tenant time to move and for her to sell her home. She spoke of the lengthy periods of time taken for homes to sell. The learned member essentially provided no reasons as to why 15 September 2015 was considered more appropriate than any later date. Given Ms Fitzmaurice’s contrary submission, it is my view that the learned member’s reasons were inadequate.
  2. [68]
    I note that Ms Fitzmaurice exercised her rights under s 39(4) of the MH Act to seek an extension of the time for giving the park owner vacant possession of the site. Her application was refused by a differently constituted Appeal Tribunal, and she did not appeal that decision. Had the termination day been the only issue before us, the matter would have ended with the refusal of the application to extend the time for giving vacant possession. However, as the Appeal Tribunal will order that the Tribunal below rehear the original proceeding, the termination day may have to be determined again.[32]

Costs order

  1. [69]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that, other than as provided under the QCAT Act or the enabling Act (which in this case is the MH Act), each party to a proceeding must bear the party’s own costs for the proceeding. There is no provision of the MH Act relating to the making of costs orders in the Tribunal.
  2. [70]
    Section 102 of the QCAT Act relevantly provides:

102 Costs against party in interests of justice

  1. The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

…

  1. In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
  2. the nature and complexity of the dispute the subject of the proceeding;
  3. the relative strengths of the claims made by each of the parties to the proceeding;
  4. for a proceeding for the review of a reviewable decision—
  1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
  2. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. the financial circumstances of the parties to the proceeding;
  2. anything else the tribunal considers relevant.
  1. [71]
    The making of a costs order is discretionary, bearing in mind that the starting point is that the party’s bear their own costs.
  2. [72]
    The caravan park owner’s legal representative made an application for costs on the day of the hearing. The transcript reflects that the following submission in support of the application was made:[33]

The fact that I was joined as a respondent or whatever I was joined as – there was absolutely no evidence proffered of why I should have been joined. And really my attendance here today would probably have been avoided if I wasn’t the named – it basically compelled me to be here.

…

I know we had leave to have legal representation but …that’s not the same as having written submissions, given them to my client and said, “Here you do this”. My primary purpose in being here today was because I had to be.

  1. [73]
    The learned member clarified with the legal representative and he confirmed that the costs application was being made on the basis that he was a party. In Ms Fitzmaurice’s “response and/or counter-application” filed in the Tribunal on 22 May 2015, she placed the lawyer’s name and firm name in that part of the form used to identify the “Party against whom counter-application is made”. That document predated the Tribunal’s order granting leave for the caravan park owners to be legally represented in the proceedings. Ms Fitzmaurice’s response and/or counter application was accompanied by attachments. The content of the attachments, to the extent that they refer to the legal representative, state:

I want the Tribunal to make the following orders:

  1. (1)
    The applicants have not applied to QCAT for leave to be represented.
  2. (2)
    Both applicants appear before the QCAT hearing and mediation representing themselves
  3. (3)
    That this application be dismissed
  4. (4)
    Any other order QCAT consider relevant

…

The reasons I consider the orders should be made are:

…

  1. (1)
    …
  2. (2)
    Upon obtaining legal advice and requesting legal representation, I have been informed by Legal Aid that they cannot represent me at a QCAT hearing or mediation QCAT prefers self-representation and I agree. It would be fair and just that applicants and respondent self-represent with a support person present.
  3. (3)
    A solicitor is only as good as the information he has been given.
  4. (4)
    It is my belief and has shown that there are underlying reasons for this attempt to terminate my site agreement.
  1. [74]
    Ms Fitzmaurice says that the costs order in favour of the caravan park owner should not have been made. She says that it was not her intention to name the lawyer as an applicant. She says that in her amended response and/or counter application his name was removed but that was not taken into consideration by the learned member. She says further:

By omitting [the lawyer’s] name from the amendment it answered [the lawyer’s] question of him being an applicant, therefore the need for his attendance to answer had been removed. [The lawyer] attended the hearing only as the representative for the applicants. The costs therefore are not required to be paid as [the lawyer] was not an applicant.[34]

  1. [75]
    In a further, later submission she says[35]:

… I submit that the circumstances of this case do not warrant a departure from the general proposition in section 100 of the QCAT Act. The question to be asked in a case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award in section 100 (Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2013] QCAT 510). There is no evidence in this case that are so compelling that a costs order should have been awarded. None of the situations in section 102(3) of the QCAT Act are applicable in this instance so as to justify an award of costs.

  1. [76]
    In response the caravan park owners argue:[36]

The Member awarded costs to the Respondent due to the inclusion of the Respondent’s solicitor, … as a co-respondent. Further, the Respondent made serious allegations against [the lawyer] which required the appearance of [the lawyer] at the hearing of the original matter. Had these allegations not been made, the Respondent may have elected to represent himself at the hearing of the original matter. As noted by the Member at the time of the hearing, the order for costs was made in accordance with s 102 of the Act.

  1. [77]
    No application to join the lawyer personally or the firm was ever made. No order was ever made by the Tribunal joining either him or his firm to the proceeding. Not being a party to the dispute, the only way he could have been joined was by order of the Tribunal pursuant to s 42 of the QCAT Act. The lawyer should have known that. Ms Fitzmaurice’s “response and/or counter–application” did not raise any allegations against the legal representative that could be the subject of any orders by the Tribunal against him personally or against the firm. Clearly, her response and counter-application as far as it related to the legal representative was directed to the caravan park owners not being granted leave to be legally represented in the proceedings.
  2. [78]
    In a later response and/or counter application document filed, on 3 July 2015, after leave to be represented was granted, Ms Fitzmaurice makes no reference to the lawyer or his firm being named as parties. That document was attached to Ms Fitzmaurice’s affidavit dated 1 July 2015, which was before the learned member.
  3. [79]
    At the hearing, the learned member asked Ms Fitzmaurice whether she was pursuing a counterclaim against the firm and the named lawyer. Ms Fitzmaurice replied that she was “questioning” the lawyer.[37] The learned member spent some time going through the directions made in relation to the conduct of the hybrid hearing, which included a direction that no party would be allowed to present any evidence at the hearing not contained in any written and filed statements without justifying the need for such additional evidence to the Tribunal.[38] He then ran though the statements filed to be relied upon in the hearing. The legal representative did not file a statement of evidence in the proceeding.
  4. [80]
    According to the transcript, the legal representative asked the Tribunal on what basis he could be called as a witness.[39] The learned member responded that at that point he could not see any basis but would hear further from Ms Fitzmaurice.[40] The learned member then goes on to explain that the focus of the hearing would be the particular provisions of the MH Act as they related to the application and the cross-application.[41] The legal representative did not give evidence. The lawyer remained throughout the hearing and advocated for his client.
  5. [81]
    At the end of the hearing, when asked by the learned member whether she had any submissions to make in relation to the application for costs, Ms Fitzmaurice said:[42]

I didn’t respond to [the lawyer]. He has assumed that he was co-applicant or co-respondent or something. So he’s - he’s made that decision himself.

…I submit he’s as only as I said in the beginning, that he’s what did I say? See I’ve forgotten that word. His knowledge of the law that’s all I’ve questioned.

  1. [82]
    The learned member then gave the following reasons for making the costs order:[43]

Section 100 normally says that the costs – each party to the proceeding would bear their own costs of the proceeding. Section 102 says “costs against the party in the interests of justice”, and that the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interest of justice require it to make the order.

Subsection (3) of 102 states that in deciding whether to award costs under subsection (1), the Tribunal may have regard to the following: whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. In that regard, the applicant took me to the response which was filed …on 22 May 2015, which specifically named on page 1 of the form 36 version 2, a party against whom a counter application is made [the firm and the lawyers name].

In those circumstances and where an order was made striking out paragraph 1 of the affidavit filed by the respondent or received by QCAT on 3 July 2015 – in all of the circumstances, I make an order that the costs be – of the proceeding or the – or - sorry. I make an order fixing the costs of this hearing today and incidental to it and of the proceeding as a whole, fixed in the amount of $1415, which is the amount identified in the Magistrates Court scale at the item relevant to a solicitor appearing on the first day of a hearing without counsel on the scale.

  1. [83]
    I do not accept that there was any necessity for the legal representative’s attendance other than to represent his client. It was not necessary for the lawyer to be present to seek that the first paragraph of Ms Fitzmaurice’s affidavit be struck out. The learned member struck it out on the basis that it was a legal conclusion, recognised it for what it was and could simply have placed no weight on it in the absence of the lawyer.
  2. [84]
    In any event, I do not accept that Ms Fitzmaurice could be ordered to pay to costs incurred not by the caravan park owners but by their lawyer in attending the hearing to defend his position. Surely, the legal representative would not have charged his client for his attendance to defend himself. Further, as he was not in fact a party to the proceeding, no order for costs could be made in his favour.
  3. [85]
    In exercising the discretion in s 102 of the QCAT Act, the learned member placed significant weight on s 102(3)(a). As to what might constitute “acting in a way that unnecessarily disadvantages another party to the proceeding”, s 102(3)(a) helpfully refers to s 48(1)(a) to (g). Section 48 provides a discretion to the Tribunal to strike out or decide an application if a party is acting in a way that unnecessarily disadvantages another party to the proceeding. Section 48(1)(a) to (g) lists ways in which a party might act to cause such disadvantage to another party:

(a) not complying with a tribunal order or direction without reasonable excuse; or

(b) not complying with this Act, an enabling Act or the rules; or

(c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or

(d) causing an adjournment; or

(e) attempting to deceive another party or the tribunal; or

(f) vexatiously conducting the proceeding; or

(g) failing to attend mediation or the hearing of the proceeding .[44]

  1. [86]
    No finding was made that she had acted in any such way (nor any such argument). As I have already stated, the lawyer was not joined as a party. Ms Fitzmaurice could not do so by her response and counter-application. While Ms Fitzmaurice had raised concerns about the lawyer being essentially complicit in filing material which she regarded to be false and misleading, the lawyer should have been well aware that only evidence relevant to the issues in dispute could be relied upon at the hearing and any such evidence could be tested by cross-examination. It was a matter for the learned member to assess the evidence relied on by the parties and make relevant findings of fact based on his assessment of the evidence.
  2. [87]
    The legal representative could play no role in giving evidence in relation to the establishment of the relevant facts. His only participation could have been to represent his client, the applicant, in the proceedings. It is clear from the transcript that that is in fact what occurred. I have already found that the application to strike out the first paragraph of Ms Fitzmaurice’s affidavit was not a matter which required the presence of the lawyer. I cannot see how the applicant in the proceedings was unnecessarily disadvantaged by the content of Ms Fitzmaurice’s affidavit in that regard. The applicant had the advantage of their lawyer’s assistance at the hearing. The lawyer could have left if his client did not wish to pay for his attendance. He did not do so.
  3. [88]
    The learned member does not appear to have considered any of the other matters listed in s 102(3). While it is not essential that he do so, it is difficult for me to understand how he could have arrived at the conclusion that the interests of justice required Ms Fitzmaurice to pay the costs he awarded to the caravan park owner, without the benefit of some reasoning about what matters the learned member weighed and how he weighed the matters. The use of the words “in all the circumstances” in his reasons do not in my view make his reasons adequate. The caravan park owners were assisted at the hearing by a lawyer. Ms Fitzmaurice was not. The issues in dispute involved the interpretation and application of provisions of the MH Act and terms of the site agreement. If they were complex matters for the caravan park owners, they were no less complex for Ms Fitzmaurice and she was not represented. The order sought by the caravan park owners was a serious one for Ms Fitzmaurice. There was no consideration by the learned member of that or the financial circumstances of the parties to the proceeding.
  4. [89]
    I consider that the learned member has erred in finding that Ms Fitzmaurice acted in a way that unnecessarily disadvantaged the caravan park owners. I also consider that the learned member has erred in failing to give adequate reasons for exercising the discretion in s 102 of the QCAT Act to make the costs order.

Conclusion

  1. [90]
    We have concluded that the learned member has made a number of legal errors. Pursuant to s 146 of the QCAT Act, the appeal is allowed. We do not consider that it is appropriate for us to substitute our own decision as to do so involves an exercise of a discretion. A rehearing will be required. We consider that it is more appropriate that the Tribunal below consider the application to adduce new evidence as that will be relevant to the rehearing. It may be that the current owner of the caravan park should be joined to the original proceeding for the rehearing. That too should be a matter for the Tribunal below.
  2. [91]
    We turned our minds to whether or not the same member should conduct the rehearing. We have not found bias. While we have found issues in relation to procedural fairness, we consider that the learned member can bring an open mind to the rehearing.
  3. [92]
    We set aside the decision of the Tribunal dated 15 July 2015 including the order as to costs, and return the matter to the same member for reconsideration with the following directions pursuant to s 146(2)(c) of the QCAT Act:
  1. The original proceeding be listed for a directions on a date to be fixed before the learned member who will rehear the matter.
  2. The Tribunal below determine the application of the respondent to adduce new evidence which was filed in the appeal;
  3. The Tribunal below consider the status of the proper parties to the proceeding and whether any party ought to be joined to it.
  4. The rehearing of the original proceeding is not to be conducted as a hybrid hearing.
  5. The Tribunal below make any other directions it considers appropriate.

Footnotes

[1] Annexure marked “A” to affidavit of Barbara Fitzmaurice dated 1 July 2015.

[2] Annexure marked “E” to Ms Fitzmaurice’s affidavit dated 1 July 2015.

[3] See QCAT Practice Direction No 1 of 2012 ‘Hybrid Hearings’ Effective: 3 September 2012.

[4] Application for miscellaneous matters filed 4 July 2016.

[5] Appellant’s submissions dated 23 September 2015 p. 2 [3].

[6] Hills v Chalk & Ors (as executors of the estate of Chalk (deceased) [2008] QCA 159; citing Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.

[7] Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700.

[8] S & M Motors Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 374 per Kirby P.

[9] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 as cited and applied in Thorneton Avenue Pty Ltd v Body Corporate for the Avenues CTS 19609 [2013] QCAT 173 at [17] and [18].

[10] Application for leave to appeal or appeal filed 11 August 2015 [1].

[11] Submission of Ms Fitzmaurice dated 23 September 2015.

[12] Affidavit of Barbara Fitzmaurice dated 1 July 2015 annexure ‘A’.

[13] Transcript of the hearing at p.27 lines 38-40.

[14] Transcript of the hearing at p.27 line 42.

[15] Appellant’s submission dated 13 July 2016 [3].

[16] Submissions of the respondent dated 28 July 2016.

[17] Transcript p. 39.

[18] Transcript p. 40.

[19] Transcript p.41.

[20] Transcript p.42.

[21] Appellant’s submission dated 13 July 2016 [2].

[22] Appellant’s written submission dated 13 July 2016.

[23] Response to submissions of applicant dated 13 July 2016

[24] [2014] QCAT 270.

[25] [2010] QCATA 94 at [13], per Wilson J applying Castlemaine Tooheys Ltd v Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 345-346 (Mason J), Liverpool City Council v Irwin & Anor [1979] 2 All ER 39 and Miller v Hancock [1893] 2 QB 177 at 180, 181 (Bowen LJ).

[26] Transcript pp. 21 to 25 (inclusive).

[27] Appellant’s submissions dated 23 September 2015 p. 2 [3].

[28] Transcript of hearing p.28.

[29] Transcript of hearing p.32.

[30] Transcript of hearing pp.41-42.

[31] Transcript p.41.

[32] It is only necessary for the tribunal to determine a termination day if a termination order is made.

[33] Transcript p. 42.

[34] Application for leave to appeal or appeal filed 11 August 2015, Attachment ‘A” [4]

[35] Appellant’s written submission dated 13 July 2016 [4]

[36] Response to Submissions of Applicant dated 13 July 2016 dated 28 July 2016, [4]

[37] Transcript p.3.

[38] Directions made 8 May 2015.

[39] Transcript at p.9.

[40] Transcript at p.9.

[41] Transcript at p.12.

[42] Transcript at p.48.

[43] Transcript at p.48-49

[44] QCAT Act s 42.

Close

Editorial Notes

  • Published Case Name:

    Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park

  • Shortened Case Name:

    Fitzmaurice v GM & JM Holland t/a Cooloola Cabins & Caravan Park

  • MNC:

    [2016] QCATA 178

  • Court:

    QCATA

  • Judge(s):

    Carmody J, Member Guthrie

  • Date:

    15 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
2 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
2 citations
Jump To
Cite 1 - (2006) 229 CLR 577
Cite 2 - (2006) 229 CLR 577
Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2013] QCAT 510
1 citation
Jump To
Cite 1 - [2013] QCAT 510
Hills v Chalk[2009] 1 Qd R 409; [2008] QCA 159
2 citations
Jump To
Cite 1 - [2008] QCA 159
Cite 2 - [2008] QCA 159
Liverpool City Council v Irwin & Anor [1979] 2 All ER 39
2 citations
Jump To
Cite 1 - [1979] 2 All ER 39
Cite 2 - [1979] 2 All ER 39
Medicaments and Related Classes of Goods ( No 2 ) [2001] 1 WLR 700
2 citations
Jump To
Cite 1 - [2001] 1 WLR 700
Cite 2 - [2001] 1 WLR 700
Michael Wilson & Partners Pty Ltd v Nicholls (2011) 244 CLR 427
2 citations
Jump To
Cite 1 - (2011) 244 CLR 427
Cite 2 - (2011) 244 CLR 427
Miller v Hancock [1893] 2 QB 177
2 citations
Jump To
Cite 1 - [1893] 2 QB 177
Cite 2 - [1893] 2 QB 177
O'Brien v SEQ Properties Pty Ltd [2014] QCAT 270
2 citations
Jump To
Cite 1 - [2014] QCAT 270
Cite 2 - [2014] QCAT 270
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 N.S.W. L.R. 358
2 citations
Jump To
Cite 1 - (1988) 12 N.S.W. L.R. 358
Cite 2 - (1988) 12 N.S.W. L.R. 358
Spargo v Katz [2010] QCATA 94
2 citations
Jump To
Cite 1 - [2010] QCATA 94
Cite 2 - [2010] QCATA 94
Thorneton Avenue Pty Ltd v Body Corporate for the Avenues CTS 19609 [2013] QCAT 173
2 citations
Jump To
Cite 1 - [2013] QCAT 173
Cite 2 - [2013] QCAT 173

Cases Citing

Case NameFull CitationFrequency
Bell v Metelerkamp [2017] QCATA 622 citations
1

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