Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186

CITATION: Emmetlow Pty Ltd (trading as Colonial Village) v Pomroy & Ors [2013] QCATA 186 PARTIES: Emmetlow Pty Ltd (trading as Colonial Village) (Applicant/Appellant) v Gregory Malcolm Pomroy Malcolm Thomas Stigwood Arnold Reginald Taylor Ilma Anne Taylor Colleen Pelling Aileen Rita Bennett John Greaves Ella Clegg Robbins Raye Shirley Mawhinney Marlene June Lawrence Peter Roy Langdon Norma Isabella Brown Thomas William Gant Doreen Vance Wayne William Adcock Grace Appleton Christine Ann Capper Patrick Mitchell Patrice Biasse Eveline Biasse Margaret Tebb Trevor Archibald Valentine Aurora Joliffe Gary Walter Lucadou-Wells Delfine Valentine (Respondents) APPLICATION NUMBER: APL374-12 MATTER TYPE: Appeals HEARING DATE: 25 June 2013 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 25 June 2013 DELIVERED AT: Brisbane -- 1 of 7 -- 2 ORDERS MADE: 1. Leave to appeal (if necessary) is granted. 2. The appeal is allowed. 3. The decision numbered (2) and ancillary directions made herein on 9 October 2012 are set aside. 4. The applications filed on 29 July 2011 and 21 February 2012 respectively are dismissed. CATCHWORDS: APPEAL - Manufactured Homes (Residential Parks) Act 2003 – meaning and effect of section 99A thereof – park owner’s charges for utilities – whether section 99A extends to charges other than for use and consumption – whether “dispute” exists – whether Tribunal may grant declaration only – whether questions raised by parties abstract or hypothetical – whether relief should be refused on that ground – absence of substantive decision to support machinery provisions – whether leave to appeal (if necessary) should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 60 Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A, s 99A, s 140, Schedule Manufactured Homes (Residential Parks) Amendment Act 2010 (Qld), s 29 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (NSW) r 30 Residential Parks Act 2007 (SA), s 43 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 Marine Coatings of Alabama Inc v United States of America (1986) 792 F 2d 1565 Nunn v Baker (1987) 518 So 2d 711 McNab Constructions Australia Pty Ltd v Building Services Authority [2013] QSC 57 Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10 Draper v British Optical Association [1938] 1 All ER 115 Mellstrom v Garner [1970] 2 All ER 9 Luna Park Ltd v The Commonwealth (1923) 32 CLR 596 -- 2 of 7 -- 3 Ainsworth v Criminal Justice Commission (1995) 175 CLR 564 Bass v Permanent Trustee Co Ltd (1998) 198 CLR 334 University of New South Wales v Moorhouse (1975) 133 CLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The principal question in this case is the extent of the protection afforded by section 99A of the Manufactured Homes (Residential Parks) Act 2003 (“the MHA”) to home owners vis-à-vis the owners of residential parks. Section 99A was inserted in the MHA in 2010, with effect from March 2011.1 That section reads as follows: Separate charge by park owner not to be more than cost of supply for use of utility (1) This section applies if – (a) under a site agreement, the home owner is required to pay the park owner for the use by the home owner of a utility at the site; and (b) the use is separately measured or metered. (2) The park owner must not charge the home owner an amount for the use of a utility that is more than the amount charged by the relevant supply authority for the quantity of the service supplied to, or used at, the site.2 [2] The MHA declares that: utility means any of the following services – 1. electricity; 2. gas; 3. sewerage; 4. water; 1 Manufactured Homes (Residential Parks) Amendment Act 2010 s 29. 2 Comparable provisions in other States are the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (NSW) r 30 and the Residential Parks Act 2007 (SA) s 43. -- 3 of 7 -- 4 5. another service prescribed under a regulation. 3 [3] These proceedings were commenced by the first-named applicant, Gregory Malcolm Pomroy, on 29 July 2011. He then sought “a ruling on the utility charges imposed by the respondent (“Colonial”) ... for electricity, water, gas and telephone” and “a charge imposed on senior citizens ... for [Colonial] to accept site fees”. Subsequently Mr Pomroy filed a second and more adventurous request4 for a “direction that `telephone’ be included as a utility under the definition of `utility’” in the Dictionary to the MHA (“the telephone claim”). The two applications have been treated as a consolidated proceeding. [4] By order dated 7 February 2012 twenty-four other persons were joined as applicants. It is convenient to refer to them collectively as “the Owners”. No locus standi issue is raised, but in the light of section 99 of the MHA, only those owners whose site agreements require them to pay Colonial for their use of a utility at the site, and whose use of the utility is separately measured are interested in these proceedings. [5] Essentially the Owners want the Tribunal to rule that the ban imposed by section 99A is not confined to the amount charged for the use of a utility, but extends to other charges relating to the provision of a utility. Colonial rejects that proposition, and several associated propositions advanced by the Owners. It may be noted, at this point, that section 99A focuses clearly upon the “use of a utility” and “the quantity ... used”. If the legislature intended the section to have a wider operation5, it could easily have said “the amount charged for the provision of the service”, but it did not do so. [6] On 9 October 2012 the Tribunal recorded these “decisions”: 1. The application to amend the definition of “utility in the [MHA] Act to include “telephone” is dismissed. 2. At the same time as the park owner gives home owners their utility bills, it must make copies of its supplier’s utility invoices available for inspection at the park office, provide a copy to the home owners’ association, and post a copy on the park notice board free of charge. Individual owners are entitled to obtain their own copy either from the home owners’ association or from the park owner, without a fee, but on payment of a photocopying charge calculated at commercial rates. [and] DIRECT[ED] 1. The park owner will provide the home owners with the following information to enable them to determine whether they are entitled to a refund: 3 MHA Schedule - Dictionary. 4 Application filed 21 February 2012. 5 For example, to the cost of providing and/or maintaining an electricity or water connection. -- 4 of 7 -- 5 a. A table/schedule identifying the applicant home owner’s site agreement and the provision specifying the types of utility charges payable under the agreement, or if there is no written agreement, the effect of an oral agreement, and b. A table/schedule of the utility payments made by the applicant home owner since the commencement of [section] 99A on 1 March 2011, identifying the component of each payment which represents the utility consumption charge, and how that utility consumption charge has been calculated, by 4 pm on 23 October 2012. 2. Any home owner who requires the Tribunal to determine their application for a refund must notify the Tribunal in writing by 4 pm on 5 November 2012. 3. This matter will be listed for a directions hearing at a date to be advised by the Tribunal. [7] From Decision 2 and Directions 1 to 3 Colonial now seeks leave to appeal, submitting that they should be set aside, and that the relevant applications be dismissed. [8] The Owners have not alleged or particularised any unlawful charges; nor have they attempted to quantify a money claim. [9] Several threshold questions arise. First, is there any “site agreement dispute” before the Tribunal, as envisaged by the enabling legislation, namely sections 14A and 140 of the MHA? While Colonial does not take this point, every court or tribunal is required to ask, on its own initiative if need be, whether it has lawful authority to decide questions submitted to it.6 The expression “dispute” does not enliven a general advisory jurisdiction whenever parties have different views on what an Act requires. There must be a concrete dispute, such as a money claim. In this respect, and in others noted below, I consider that the Tribunal has fallen into legal error. In effect, the Owners have come to the Tribunal simply asking: “What does this section mean?” [10] Assuming (without deciding) that a “dispute” exists, the primary decision is more in the nature of an advisory opinion than a decision on the proper construction of section 99A. Conspicuously, there is no order on the crucial point – namely, whether or not that section applies to non- consumption elements of utility charges that Colonial may see fit to impose. [11] With respect, the learned Member’s view of the “telephone claim” is clearly correct. The Tribunal is not a legislature, and the definition of “utility” is exhaustive, not indicative. Effectively that application has been struck out for want of jurisdiction, and need not be further considered. 6 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 at [6]; Marine Coatings of Alabama Inc v United States of America (1986) 792 F 2d 1565; Nunn v Baker (1987) 518 So 2d 711 at 712. -- 5 of 7 -- 6 [12] So far as the other order and directions are concerned, two fundamental difficulties remain. Presumably “Decision” number (2) should be seen as a declaration.7 First, it is doubtful, to say the least, whether the Tribunal has power to grant a declaration in isolation from other, substantive relief.8 “Decision” number (2) and the following Directions are machinery provisions which predicate a (non-existent) order as to the true meaning of section 99A. [13] Second, in the absence of a concrete dispute, the questions raised by the Owners (and by Colonial) about the meaning and proper application of section 99A are hypothetical. There is considerable authority that a declaratory power, flexible as it is, does not usually warrant the expression of advisory opinions on hypothetical questions.9 “Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”.10 There must be evidence and factual findings, and a “conclusive or final decision based on a concrete and established or agreed situation” before discretionary relief is granted.11 Those requirements are not satisfied in this case. The pressure upon the Tribunal’s already-stretched resources would be intolerable if were to become a bureau for legal advice and advisory decrees. [14] It is unfortunate, and one sympathises with the parties’ position that, after a deal of sound and fury, no conclusive and final decision about section 99A has been made, or (as the evidence stands) can properly be made. Regrettably, for the Owners and for the jurisprudence of section 99A, they have come to the Tribunal without crystallising issues that it can properly decide. [15] I respectfully agree that that it is implicit in the MHA that site owners to whom section 99A applies, should be given fair and reasonable access to the raw data upon which Colonial’s utility charges are based.12 It is then the responsibility of the Owners, if they can, to point to specific breaches of the section, and to formulate a claim for monetary relief. Abstract questions or unsubstantiated suspicions are not enough. I express no opinion on the extent to which the Owners might be allowed to conduct a fishing expedition when the raw data is supplied, or to require their opponent to aid the preparation of their case. 7 QCAT Act s 60. 8 McNab Constructions Australia Pty Ltd v Building Services Authority [2013] QSC 57 at [19]; Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10 at [32]. 9 Draper v British Optical Association [1938] 1 All ER 115; Mellstrom v Garner [1970] 2 All ER 9 (retired partner sought construction of a no-competition agreement, without any real intention of testing the restriction); Luna Park Ltd v The Commonwealth (1923) 32 CLR 596 at 600 per Knox CJ. 10 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ. 11 Bass v Permanent Trustee Co Ltd (1998) 198 CLR 334 at 355 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; University of New South Wales v Moorhouse (1975) 133 CLR 1 at 9-10 per Gibbs J (as he then was). 12 There is explicit recognition of this in the Residential Parks Act 2007 (SA) s 43(3). -- 6 of 7 -- 7 [16] How should the appeal Tribunal deal with this unusual state of affairs? In my opinion, for the reasons set out above, the Tribunal should not have accepted jurisdiction in this controversy, as presently framed. However, if that view be mistaken, the fact remains that no declaration or order on the meaning and effect of section 99A has been made. Absent a substantive order, the machinery provisions of Decision (2) and the Directions cannot stand alone. There is no substantive decision about section 99A to support them. Yet they are all that exists to be appealed, and Colonial seeks only an order setting them aside.13 [17] For the several reasons given, the primary decision is affected by legal error. Leave to appeal (if necessary) should be given, the appeal allowed, and Decision (2) and the ancillary directions set aside. There will be orders accordingly. ORDERS 1. Leave to appeal (if necessary) is granted. 2. The appeal is allowed. 3. The decision numbered (2) and ancillary directions made herein on 9 October 2012 are set aside. 4. The applications filed on 29 July 2011 and 21 February 2012 respectively are dismissed. 13 Notice of Appeal Annexure B page 3. -- 7 of 7 --