DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal on 20 January 2005 to order that the appellants “at their cost prepare and provide to [the respondents] written site agreements in accordance with s 25 of the Manufactured Homes (Residential Parks) Act 2003 using Manufactured Homes Form 2 produced by the Office of Fair Trading by 4.00pm on 31 January 2005.”  In accordance with the usual practice, the arguments on the appeal were heard on the hearing of the application for leave.

2. [2]
   The appellants are the owners of a caravan park. The respondents occupy sites within that caravan park on which are located structures they own^[1]and in which they live. The respondents say that those structures are manufactured homes for the purposes of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”). The appellants say that they are not, because they are caravans as defined in the Residential Tenancies Act 1994 s 3A, and therefore excluded from the definition of manufactured home in s 10 of the Act. This dispute is significant because the appellants wish to close down the caravan park and, if the respondents are right, they may have a statutory entitlement to compensation for disturbance as a result of the closure of the park under s 40 of the Act.

Leave to appeal

3. [3]
   There is a right of appeal to this court from decisions of the tribunal, by leave of this court, only on the grounds of error of law or excess or want of jurisdiction: Commercial and Consumer Tribunal Act 2003 s 100. The appellant submitted that the tribunal had erred in law in concluding that the various things occupied by the respondents fell within the definition of “manufactured home” under the Act. If there is an issue simply of whether the particular facts fall within the terms of a statute, that is just a question of fact, so the relevant question of law is whether a finding of fact to that effect was one which was open on the evidence before the tribunal.^[2]Commonly however questions of that nature also raise issues as to the true construction of the statute, which is a question of law, and where that is so a question of law is raised. It is apparent from the argument in the present case that there is a substantial question as to the true interpretation of the provisions of the Act, and accordingly the matter raised by the appellants if correct involves an error of law.

4. [4]
   The question of whether or not these things were “manufactured homes” for the purpose of the Act was a matter which went to the jurisdiction of the tribunal to entertain the application which had been brought before it. If they were not manufactured homes, the tribunal had no jurisdiction under s 140 of the Act. The appeal sought to be brought by the appellants is therefore one which raises an issue as to the jurisdiction of the tribunal. Although the tribunal undoubtedly has jurisdiction to decide whether it has jurisdiction in a particular case,^[3]it does not have jurisdiction to determine that question conclusively. It is always a matter for a court to determine for itself whether the jurisdiction of a statutory tribunal has been properly invoked, although in an appropriate case the court may give some weight, or even considerable weight, to the views of the tribunal in relation to questions of fact which have to be decided for the purpose of making a determination of the existence of jurisdiction. In relation to jurisdiction the court can decide for itself relevant issues of fact.

5. [5]
   In my opinion the question of whether or not the tribunal had jurisdiction is a matter of some general importance. There is also the consideration that so far as I am aware there is no other authority from a court on the interpretation of the definition of “manufactured home” in the Act, or the definition of “caravan” in the Residential Tenancies Act. In those circumstances in my opinion it is appropriate to give leave to appeal.

The legislation

6. [6]
   The Act which commenced on 1 March 2004 is concerned to declare rights and obligations of people who occupy a “manufactured home” which is positioned on a “site” located within a “residential part”, each of which is defined in Part 2 of the Act. The Act replaces the Mobile Homes Act 1989, which was repealed by s 147.

7. [7]
   Section 25 of the Act requires the owner of a residential park to ensure that there is a site agreement in writing which contains the various matters as set out in that section.^[4]By s 14 a site agreement is an agreement between a park owner and a home owner that provides for the rental by the home owner of particular land in a residential park, the positioning on the land of a manufactured home and the home owner’s non-exclusive use of the park’s common areas and communal facilities, and includes provision about anything else required or permitted by the Act to be in the agreement. Section 25(4)(a) requires that the agreement^[5]“be written in a clear precise way.” 

8. [8]
   A home owner is defined in s 8 as a person who owns a manufactured home that is positioned on a site in a residential part under a site agreement, a person who intends to position a manufactured home on a site in a residential park under a site agreement for use by the person as the person’s principal place of residence, or a successor in title to such a person. The respondents claim to be owners of “manufactured homes” which are positioned on sites in a residential park owned by the appellants. They allege that they have no written site agreements. They have sought such agreements from the appellants, and the appellants have refused to provide them. The tribunal concluded that in those circumstances there was a “site agreement dispute” for the purposes of s 140 of the Act, so that the respondents were entitled to apply to the tribunal for an order (presumably an order to resolve the dispute). In those circumstances by that section “the tribunal may make any order it considers appropriate, to resolve the dispute.”

The proceedings in the tribunal

9. [9]
   The issues that were debated in relation to the question of jurisdiction in the tribunal were whether the structures in which the respondents reside were manufactured homes for the purposes of the Act, whether the respondents have site agreements under the Act and whether there was in existence a site agreement dispute. The tribunal resolved all three of these questions in favour of the respondents. The tribunal has no jurisdiction unless all these issues are properly resolved in favour of the respondents. It was only the first of these which was challenged by the appellants in this appeal.

10. [10]
    The tribunal’s reasons for concluding that the structures were “manufactured homes” for the purposes of s 10 appear in paragraph 50 of its decision which is in the following terms:  “Based on the photographs of the structures in the report, evidence from a Queensland Transport assessor that the structures are not eligible for registration for use on a public road and the accompanying inspection sheets which contain measurements and the evidence given by Ms Ahern as to the nature of the structures, we find that the structures in which the applicants reside have the character of a dwelling house, designed to be able to be moved from one position to another and are not permanently attached to land.”

11. [11]
    Although this touches on the significance of the width of the vehicles and the issue of the eligibility for registration, it does not otherwise address the essential submission of the appellants, that the structures were excluded from the definition of manufactured homes because they were caravans. It was submitted on behalf of the appellants that this made the reasons of the tribunal inadequate, and I think there is some force in that submission. If the report of Mr Maynard to which reference was made had itself contained a clear explanation as to why these were not caravans, an adoption of that report would have been sufficient by way of reasons, but the report did not contain such a clear statement, and in any event was not in terms directly adopted.

12. [12]
    It was submitted that if I was not satisfied with the approach of the tribunal I should send the matter back to the tribunal for further hearing, perhaps after further evidence. I was initially attracted to this approach, but on further consideration it seems to me that it would be inconsistent with the approach adopted by the Court of Appeal to the receipt of fresh evidence on appeals from tribunals such as this.^[6]That approach was based on the proposition that the legislative intent is that the proceedings in the tribunal should be final, subject only to a limited appeal, and the parties should not be encouraged to think that they can on appeal correct any deficiencies in the presentation of the case or the presentation of evidence in the original hearing before the tribunal. In my opinion the same would apply in relation to any rehearing after a successful appeal. In those circumstances, in my opinion it would not be appropriate to order a new hearing simply to give the appellants a further opportunity to lead evidence by which they might seek to contradict the proposition that the tribunal has jurisdiction.

13. [13]
    In all these circumstances, and bearing in mind that the issue is one of the jurisdiction of the tribunal, I think it is appropriate for me to consider the question myself. In my opinion on the evidence before the tribunal the actual decision of the tribunal in relation to the question of jurisdiction, and in particular in relation to whether the structures were manufactured homes for the purposes of s 10, was correct.

What is in issue

14. [14]
    The matter particularly in issue between the parties before the tribunal was whether the particular things which are owned by the respondents and which occupy the sites within the appellant’s park are “manufactured homes” for the purposes of the Act. The only matter sought to be raised by the appellants was in relation to the application of the definition of “manufactured home.” It was therefore common ground before me that, if they were manufactured homes, all of the other requirements of the Act were satisfied, so that there was a site agreement dispute between the appellants and the respondents, and the tribunal had jurisdiction. That seems to have included the assumption that the various other definitions in the Act were satisfied. In those circumstances it is unnecessary and probably inappropriate to consider whether there are any other problems with the exercise of jurisdiction, or the application of the various definitions in the Act.

15. [15]
    Section 10 is in the following terms:

“A ‘manufactured home’ is a structure, other than a caravan or tent, that –

1. (a)
   has the character of a dwelling house;  and

2. (b)
   is designed to be able to be moved from one position to another;  and

3. (c)
   is not permanently attached to land.”

16. [16]
    The appellants submitted that it was not appropriate on the evidence to conclude that the things in question were not excluded from the definition of “manufactured home” because they were caravans for the purposes of s 10. This is strictly speaking a matter on which the respondents carry the onus, as I am deciding the question afresh. It was not suggested that they were tents, or that the positive requirements of the definition of “manufactured home” in s 10 were not satisfied. The issue before me was whether they were excluded on the basis that they were caravans, as defined in the Residential Tenancies Act.

17. [17]
    The term “caravan” is itself defined by reference to the definition in the Residential Tenancies Act 1994, s 3A:  Schedule 2. Section 3A of that Act is in the following terms:

“(1) A “caravan” is a trailer –

1. (a)
   designed principally for residential purposes;  and

2. (b)
   designed to be attached to and towed by a self-propelled vehicle;  and

3. (c)
   that, as originally designed, was capable of being registered under a law of the state about the use of vehicles on public roads.

3. (2)
   Also, a “caravan” is something –

1. (a)
   not fitted with wheels;  and

2. (b)
   not designed for permanent attachment to land but designed for attachment to a motor vehicle and for use for residential purposes.

3. (3)
   In addition, a “caravan” is a self-propelled vehicle –

1. (a)
   that –

1. (i)
   is designed to be used both as a vehicle and for residential purposes;  or

2. (ii)
   was designed to be used solely as a vehicle but has been modified to be suitable for use both as a vehicle and for residential purposes;  and

2. (b)
   that, as originally designed, was capable of being registered under a law of the state about the use of vehicles on public roads.”

18. [18]
    It is not difficult to conclude that in formulating this threefold definition the legislature had in mind three particular categories of “caravan”. The first was the caravan in the conventional sense, something which is itself a registered vehicle but which is towed behind a car or other vehicle when it is moved from place to place. It would have wheels so that it could move from place to place but no means of propulsion. The second was something which was like a caravan but instead of being designed to function as a trailer was designed to sit on the back of a truck or utility or other vehicle, and move from place to place in that way. The third was the self-propelled caravan which has become popular in America and is used to some extent also in Australia. It can be a purpose-built vehicle, but the definition is wide enough to include vehicles that one sees from time to time which are converted for this purpose, for example from a bus or a panel van.

19. [19]
    It was not suggested that any of the things in issue in the present case were self-propelled. There was some debate about subsection (2) of this definition, but it seems to me clear that paragraph (b) contemplates that the “caravan” in question would be one designed for use for residential purposes when attached to a motor vehicle, rather than something which was designed for use for residential purposes, and which was also capable of attachment to a motor vehicle, in the sense that it could be loaded on a truck or trailer for the purpose of moving it from place to place. Almost everything could be attached to a motor vehicle in that sense, so that would not be a meaningful interpretation of the provision. None of the things in issue here is designed for attachment to a motor vehicle in the sense of being designed for use in that way. They are and have been for some time used for residential purposes without being attached to a motor vehicle. If the appellants are to succeed therefore it is because the tribunal ought to have decided that the structures in question come within subsection (1) of this definition.

20. [20]
    Again there is no difficulty in satisfying the first of these requirements, that it be designed principally for residential purposes. There was some argument about what was involved in the concept of a “trailer” for the purposes of this definition. The term “trailer” is not defined in the Residential Tenancies Act. In the absence of any definition, in my opinion the term has its ordinary meaning, namely something which has its own wheels by which it can be towed by a vehicle along a road, but is not self-propelled. It is something which, when being towed along a road, trails behind the self-propelled vehicle. That is indeed consistent with the context provided here, particularly paragraph (b) of subsection (1). Paragraph (c), when speaking about the use of vehicles on public roads, also supports this concept. Most of the structures had or were capable of being fitted with towbars of some kind. The rest clearly were not within this part of the definition either.

The requirement of registerability

21. [21]
    As to the requirement that the vehicle being capable of being registered, under the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999, s 14(1)(k) the chief executive may^[7]refuse an application for registration of a vehicle if the chief executive reasonably believes that the vehicle does not conform with the requirements applying to the vehicle under a vehicle law. The term “vehicle law” is a reference to the Transport Operations (Road Use Management) Regulation 1995. By s 11F of that regulation a person must not drive a vehicle wider than 2.5 metres. It is apparent from the definition of “vehicle”, and that of “trailer”, in the Transport Operations (Road Use Management) Act 1995 that this provision applies to a trailer as well.

22. [22]
    In my opinion this aspect of the definition looks to the question of what might be described as permanent registration, rather than the use of the vehicle on the road, either being towed or being conveyed as the load of another vehicle, under some special permit. There is a scheme in place under the legislation where permission can be given to tow on a road something, which is not registered as a vehicle and which could not be registered as a vehicle in the usual way, for a specific and limited purpose. That in my opinion is not what is contemplated by paragraph (c) in subsection (1) of the definition of caravan.

23. [23]
    The tribunal acted on a report from an inspector of the Office of Fair Trading, Mr Maynard, presented 10 December 2004, a copy of which is part of exhibit A to the affidavit of Mr Castrisos filed 16 February 2005. There was evidence before the tribunal, in a report from Mr Sharpe of Sharpe Welding and Fabrication to Mr Maynard, that the width of the relevant structures exceeded 2.5 metres.^[8]They would therefore not be capable of registration as vehicles at the moment.

24. [24]
    It was pointed out however by the appellants that the definition in the Residential Tenancies Act was not concerned with the current registerability of the caravan, but with whether, as originally designed, it was then capable of being registered. I agree that that is what is required by the terms of subsection (1)(c) of the definition. That appears to involve a consideration of the original state of the vehicle,^[9]and relevantly its width at that state, and the terms of the applicable requirements for registration of a motor vehicle as at that date. The legislation does not provide any guidance as to how one deals with this question if there is no evidence as to the age of the vehicle.

25. [25]
    I suppose in the absence of some legislative requirement to the contrary, the tribunal will use its common sense. Technically speaking, the tribunal exercises its power in s 47(4) of the Commercial and Consumer Tribunal Act 2003, which provides that it is not bound by the rules of evidence but may inform itself in any way it considers appropriate. It may well not be difficult to conclude, by looking at a photograph of the thing in question, that it is likely that its current width is the width of the thing when it was originally designed. It may be possible for something to be rebuilt to such an extent that its original width is no longer apparent, but that is unusual and unlikely to happen in a particular case. Having looked at the photographs in Exhibit 18 to Mr Maynard’s report, I think it unlikely that they were originally any narrower than they are now, and I find that they were this wide when originally designed.

26. [26]
    As to the restrictions on width that have applied from time to time, counsel for the appellants was not able to direct me to any provision in force at any particular time pursuant to which something wider than 2.5 metres could have then been lawfully registered as a trailer under the law of the state then in force about the use of vehicles on public roads. Indeed, Mr Byrnes of counsel who appeared for the Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development, as amicus curiae, submitted (p. 44) that the relevant regulations (of which, being a matter of law, the tribunal and I can take judicial notice) had from at least 1969^[10]provided a width limit of 2.5 metres except prior to the conversion to the metric system, when they had provided for a width limit of eight foot two and a half inches, which is virtually the same.^[11]

27. [27]
    Accordingly although the tribunal erred in looking at the question of whether these things could now be registered as trailers under the current regime, rather than whether they could at some point in the past have been registered under the regime then applicable, it is an error of no significance, because on the material before them, and approaching the matter in the way in which the tribunal was entitled to, the tribunal ought to have been satisfied that these things were always too wide, so that at whatever point they were originally designed they were incapable of being registered under the law then applicable.

28. [28]
    In my opinion the relevant issue for present purposes is whether the width of these things is greater than the width limit for ordinary registration of a vehicle. There are of course a host of other requirements before a vehicle can be registered. I have referred only to the width requirement because it is sufficient by reference to that requirement to show that the definition of “caravan” is not satisfied. It may be in a particular case that if the vehicle were narrow enough to be registered, registration would still be excluded on some other basis, but it is not necessary for me to consider that. Accordingly, the tribunal ought to have concluded and I find that these structures were not within the definition of caravan in s 3A(1) in the Residential Tenancies Act. Accordingly they were not caravans for the purpose of the definition of manufactured homes in the Act.

29. [29]
    The reasons for the decision of the tribunal refer to a list of the respondents and the sites occupied being attached to the decision. Unfortunately that list is not included in the material, but it was not submitted that the sites which are relevant for the purposes of the proceeding before the tribunal were not those covered by the list of 16 sites referred to in the report to Mr Maynard.^[12]Mr Maynard’s report identifies four of these as being structures of applicants, but his report only identifies five applicants and by the time the matter came to be determined the tribunal had 13 applicants, including the four identified in paragraph 5(ii) on p. 8 of Mr Maynard’s report. In those circumstances, it appears that all of the relevant things were too wide to be registered as vehicles, or excluded from registration on the ground that they are in truth demountable homes, and thus not trailers.

30. [30]
    There was evidence before the tribunal that the parties had previously entered into written agreements pursuant to s 39 of the Residential Tenancy Act. Such agreements were appropriate if the structures in question were caravans for the purposes of that Act. However, there can be no estoppel against the operation of a statute. If the structures in question were not within the definition of caravan for the purposes of that Act, the parties by entering into an agreement could not bring them within that Act, nor could they take them out of the operation of the Act. In my opinion this factor was irrelevant to the determination of the matter before the tribunal.

Conclusion

31. [31]
    On the material before me, which was the material before the tribunal^[13]for the reasons I have given I find that these structures are manufactured homes. The appellants did not challenge the actual exercise by the tribunal of the jurisdiction which I find it had. The appeal is therefore dismissed with costs.

Squarelines

32. [32]
    That is all that has to be decided, in the circumstances and in the light of the scope of the argument, to deal with the matter. I should say something however about a question which was agitated before me to some extent, and was also evidently the subject of some debate before the tribunal. Indeed, it was raised in the report of Mr Maynard. He said at p. 10 of his report: “The central issue is the definition of square-line, is it a caravan or a manufactured home? … From my investigation and findings, whilst it is arguable that the applicants’ structures are caravans, they appear to be more suitably defined as square-lines and on that basis would appear to fall within the definition of a manufactured home under the … Act.”

33. [33]
    Such an analysis was supported by a publication of the Office of Fair Trading, Department of Equity and Fair Trading, a copy of which was exhibit 7 to the report of Mr Maynard. That however spoke about caravans and mobile homes, the latter for the purposes of the Mobile Homes Act, which was repealed by the Act as mentioned earlier. On p. 4 of the document there is said to be some uncertainty and debate about whether a square-line is a caravan or a mobile home. Whether or not that was appropriate under the Mobile Homes Act, because of the way in which the term “manufactured home” is defined in the Act, there are only two categories, caravan or manufactured home. If a square-line in a particular case falls within one of the definitions of “caravan”, it will be a caravan and therefore necessarily not a manufactured home. But if not, it will necessarily be a manufactured home.

34. [34]
    The brochure referred to a square-line as something fitted with wheels which has a draw-bar which can be attached to a vehicle to allow it to be moved. That sounds like something which would be a trailer for the purposes of paragraph (1) of the definition of caravan, and something which was designed to be attached to and towed by a self-propelled vehicle. The issue therefore would be whether it was something capable of being registered as a trailer under the relevant legislation.