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Lawrence v. Cooperative bulk handling ltd - (25 Jan 2018)

Court’s discretion to determine that by whom and to what extent the costs of proceedings are to be paid must be exercised judicially


In facts of present case, the Respondent is the operator of a caravan park. The Appellants and the Respondent entered into a tenancy agreement in respect of a site in the caravan park (the Tenancy Agreement). The Tenancy Agreement commenced on 1 February 2014 and was for a fixed term of two years. The Respondent successfully applied to the State Administrative Tribunal (Tribunal) under Section 67(2) of the Residential Parks (Long-stay Tenants) Act, 2006 (WA) (Residential Parks Act) for an order terminating the Tenancy Agreement. The Appellants appealed from that order. Leave to appeal was granted but appeal dismissed. The Respondent subsequently applied for an order that, the Appellants pay the costs of the appeal. The Respondent's primary submission in its application for the costs of the appeal was that the ordinary principle that, costs follow the event should be applied. It added that it participated in the appeal in a manner that was consistent with the principles that apply to a model litigant.

Section 104 of the State Administrative Tribunal Act, 2004 (SAT Act) provides that, a matter in which the Tribunal has jurisdiction comes within either its original or its review jurisdiction. Section 15(1) further provides that 'if the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction'. Accordingly, the Respondent's application under Section 67(2) of the Residential Parks Act was an application in the Tribunal's original jurisdiction.

Section 87(1) provides that, unless otherwise specified in the SAT Act, the enabling Act or an order of the Tribunal made under Section 87, parties bear their own costs in a proceeding of the Tribunal. That is consistent with the 'no cost' jurisdiction that is generally exercised by administrative tribunals. However, Section 87(2) confers power on the Tribunal to make an order for costs and Section 87(3) extends that power to enabling the Tribunal to make an order for the payment of an amount to 'compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceed was brought'.

The Court has a wide discretion to determine by whom, and to what extent, the costs of proceedings are to be paid under Section 37 of the Supreme Court Act and Section 105(9) of the SAT Act. However, the discretion is not unfettered; the discretion must be exercised judicially according to established legal principle.

The object of the Residential Parks Act is to regulate the relationship between park operators and park tenants. The Act may be broadly viewed as consumer protection legislation. It confers a dispute resolution and oversight function on the Tribunal in that broad context. However, the Act deals with 'private' commercial relationships and the Tribunal is not concerned with decisions made by public entities.

The issues that the Tribunal was required to determine under Section 67 of the Residential Parks Act were straight-forward – whether the fixed term had ended and whether the appellants had not given vacant possession were not in issue. The question of whether the parties had made an agreement for a periodic tenancy was also not difficult. As the Tribunal observed, the question was effectively conceded by the Appellants and the tenancy agreement expressly required the written consent of the respondent for a monthly tenancy to be created on expiry of the fixed term of the tenancy.

The Appellants were unrepresented in the appeal. Regrettably, their grounds of appeal reflected various misconceptions. The appeal did not raise difficult questions of law or matters of general importance in the interpretation of the Residential Parks Act. While it may be readily understood that, litigants acting in person may misapprehend the law that applies to their dispute, that does not provide a basis for withholding costs to another party who has succeeded in the determination of the dispute. Finally, there was no reasonable basis for the allegations made by the Appellants about the procedures adopted by the Tribunal in hearing and deciding the Respondent's application. The Appellants' financial position is to be regretted but it does not provide a basis for denying the Respondent an order for costs to which it would otherwise be entitled.


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