Contempt

It is generally understood by most people who have been involved in proceedings before the NSW Civil and Administrative Tribunal (NCAT) that orders made by the Tribunal are legally binding. That is, if the Tribunal makes an order that a person must do or must not do something, that person must comply with that order.

It is also general knowledge that sometimes Tribunal orders are not complied with. When that happens the party in whose favour the orders were made may need to take further action if they want the other party to fully comply with the orders. Further action may involve speaking with or writing to the other party to remind them about the orders, or renewing proceedings at the Tribunal. But what if you take these steps and the other party still doesn’t comply with a Tribunal order? In this article we look at two cases where that happened and learn what action the home owners took against the operator.

Case 1: Wilful disobedience of provisions of Tribunal order

On 28 June 2019 the Tribunal ordered the operator of Homestead Holiday Park to provide a signed standard form site agreement to Jacques Fontainas, a home owner at the community. The site agreement was to be provided within 14 days from the date of the decision and had to comply with Schedule 1 of the Residential (Land Lease) Communities Regulation 2015. The fees, charges, and site fee increases stipulated in the site agreement were required to be consistent with equivalent sites within the community that were the subject of current site agreements.

The operator did not agree with the decision of the Tribunal and applied to the Supreme Court of NSW for a judicial review of the decision. Those proceedings were dismissed on 11 October 2019. The operator then filed an appeal against the Tribunal decision on 19 November 2019 and the Appeal Panel placed a stay on the order until the appeal was determined. On 3 February 2020 the appeal was withdrawn and dismissed and the stay was lifted. That meant the operator had 14 days in which to comply with the original Order and provide a site agreement to Mr Fontainas.

Again, the operator did not provide a site agreement as required by the Tribunal Order. Instead, it sent a long letter to Mr Fontainas with a disclosure statement, site condition report, NSW Fair Trading ‘Moving into a land lease community’ brochure, sample site agreement and community rules. The letter referred to the requirement imposed on the operator to ensure that structures on residential sites complied with local government regulations. It then went on to assert a number of structures on the site breached the regulations and set out extensive requirements Mr Fontainas must meet as pre-conditions to the operator entering into a site agreement with him.

Mr Fontainas sought assistance from Legal Aid who attempted to resolve the issues with the operator. When that course of action proved fruitless, Legal Aid lodged an application to the Tribunal on behalf of Mr Fontainas asking the Tribunal to refer proceedings to the Supreme Court under section 73 (5) of the Civil and Administrative Tribunal Act (CAT Act) on the question of contempt.

Contempt of the Tribunal

Contempt of the Tribunal is similar to contempt of the court. A person can be in contempt if they are disrespectful to legal authorities in the courtroom or Tribunal, or if they wilfully fail to obey an order of the court or Tribunal. The application to the Tribunal in this case alleged the operator had wilfully failed to obey the Order of the Tribunal to provide Mr Fontainas with a site agreement in the standard form.

The case was heard on 4 December 2020 by The Hon F Marks Principal Member. One of the considerations was whether the operator was able to refuse to issue Mr Fontainas with a site agreement if the pre-conditions set out in the letter they had sent to him were not complied with. The Hon F Marks concluded that the Tribunal Order did not permit the operator to refuse to provide a site agreement in those circumstances. The operator made further assertions about the Tribunal Order lacking specificity and that the Order precluded it from complying with its lawful requirements. Those submissions were rejected.

The Tribunal found the operator had “failed to comply with the plain terms of the Order, it has consistently persisted in seeking to compel the applicant to provide evidence of compliance with matters which have already been addressed, it has persisted in raising arguments about matters where there are findings contrary to its position, it has failed to produce any evidentiary material in support of its position and has demonstrated a general unwillingness to provide the applicant with a long-term residency.” The Tribunal concluded that the operator had not established that it had a reasonable excuse for failing to comply with the Order.

The Tribunal further determined that there was no “casual, accidental or unintentional excuse for its (the operator’s) wilful disobedience of the provisions of the Order.”

The Tribunal found the operator’s conduct was capable of amounting to contempt and then considered whether to refer the matter to the Supreme Court. In conclusion the Tribunal said, “Enforcement of orders made by this Tribunal is limited by the provisions of the CAT Act. In the circumstances which have prevailed to date in these proceedings referral of the respondent to the Supreme Court for determination as to whether it should be held guilty of contempt of this Tribunal and if so the fixing of an appropriate penalty appears to be the only course of action now available to the applicant to enforce rights which have been afforded to him by an order of this Tribunal. I propose to make an order for referral accordingly.”

Case 2: Same operator, different home owner

On 23 December 2019 the same operator was again involved in enforcement proceedings on the same issue. David Dodge is a home owner at Hacienda Caravan Park and he was assisted by Paul Smyth, Residential Parks Legal Officer at the Tenants’ Union.

On 17 January 2018 the Tribunal ordered the operator to prepare and enter into a written site agreement in the standard form with Mr Dodge within 7 days of the Order. The operator appealed to the Appeal Panel and Supreme Court of NSW. Both appeals were dismissed.

Again, the operator alleged that structures on the home owners’ site were non-compliant with local government regulations, and set a number of pre-conditions that must be met before the operator could issue a site agreement. At the enforcement hearing the operator argued that it could not comply with the Tribunal Order because of statutory obligations imposed on it and the home owner.

The Tribunal constituted by The Hon F Marks found that, “the respondent has demonstrated a contumacious disregard for the clear terms of the Orders and has consistently declined to comply with them.”

The Tribunal concluded that, “there is, on the evidence, and having regard to the relevant statutory context no impediment to the respondent having complied with the Orders at least by 29 October 2019 being 14 days after the respondent’s appeal to the Supreme Court was dismissed, and no reasonable excuse for it having failed to do so. It follows that the respondent has not established that it has a reasonable excuse under section 73 (2) of the CAT Act for having failed to comply with the Order.”

Referring the matter to the Supreme Court

Next, the Tribunal considered whether to refer the matter to the Supreme Court of NSW and reached the same conclusion as in the Fontainas case – that referral to the Supreme Court for determination as to whether the operator should be held guilty of contempt of the Tribunal appeared to be the only course of action available to the home owner to enforce rights which had been afforded him by orders of the Tribunal.

At the time of going to print neither Mr Fontainas nor Mr Dodge have a signed site agreement with the operator and there has not yet been an outcome from the Supreme Court.

This article was published in Outasite magazine issue 7. Outasite is published annually. Outasite Lite email newsletter, is sent several times a year – subscribe here. All past issues are available in the archive.