FEDERAL COURT OF AUSTRALIA
Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 17
ORDERS
First Appellant CATERINA DATTILO Second Appellant | ||
AND: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave be granted to the appellants to amend their notice of appeal dated 5 March 2016 (notice of appeal) to add grounds 12, 13 and 14.
2. As to ground 11 in the notice of appeal, leave be granted to the appellants to amend the notice of appeal to add the following ground:
The primary judge erred in not having sufficient regard to expert evidence including, but not limited to, that of Simone Fogarty.
but otherwise leave to amend to add ground 11 be refused.
3. Leave be refused to the appellants to amend the notice of appeal to add grounds 15, 16 and 17.
4. The appeal be dismissed.
5. The appellants pay the respondent's costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 In 1980, Mr and Mrs Dattilo bought the premises at 2026 The Northern Road, Luddenham, NSW (the premises). In 1987 the Commonwealth acquired the land but Mr and Mrs Dattilo have lived there since as tenants of the Commonwealth. Given that Mr and Mrs Dattilo have been in continual possession of the premises for more than 20 years, their tenancy is regarded as a long-term tenancy for the purposes of the Residential Tenancies Act 2010 (NSW) (the 2010 RTA).
2 Mr and Mrs Dattilo and the Commonwealth most recently entered into a tenancy agreement in respect of the premises on 15 July 2004. The term of that agreement expired on 31 December 2005. The agreement thereafter became a "periodic agreement" for the purposes of the 2010 RTA.
3 The lease agreement dated 15 July 2004 entitled Mr and Mrs Dattilo to use the premises as a market garden and residence. Their annual rent of $20,800 (plus GST of $780) was calculated at a rate of $150 (plus GST of $15) per week for commercial rent and $250 per week for residential rent.
4 Mr Dattilo gave evidence below, which was accepted by the primary judge at [9], that the premises consist of 72 acres. There is a residence on one acre, which includes a granny flat. There is an electric fence around the residential premises to keep out their cows. Mr Dattilo also stated that the premises had been used as a market garden since he and his wife moved there in 1980 and that, thereafter, he had built storage and work sheds, a cold room, a cattle yard and two dams. He said that he had made money by having 35 Murray Grey cattle on the land and by breeding cattle for sale.
5 One of the issues which had to be determined below was whether the predominant use of the premises was for the purposes of agriculture and thus whether s 7(h) of the 2010 RTA applied.
6 Clause 29 of the residential tenancy agreement dated 15 July 2004 relevantly stated:
Termination for other reasons
29.2. The Lessee acknowledges that the premises forms part of the proposed site for Sydney West Airport.
29.3. In the event that the Commonwealth of Australia decides to develop the Sydney West Airport or to utilise or dispose of the Land for any purpose the Lessor may terminate this Agreement by serving on the Lessee written notice expiring six months from the date of the notice or on expiration of the term (whichever is the earlier).
29.4. The Lessee shall not be entitled to any payment or compensation from the Lessor arising from such termination, including but not limited to prospective profits and cash flows, or recouping any costs associated with any improvements.
29.5. A termination of this Lease under clause 29.3 shall not affect an existing right or obligation accrued or incurred by a party under this Lease or otherwise at law or in equity.
7 By letter dated 29 October 2014, Mr and Mrs Dattilo were notified by the Commonwealth that it was likely to require possession of the premises by June 2015.
8 In a subsequent letter dated 9 December 2014, they were notified by the Commonwealth (in the attachment to the letter) that it intended to apply for an order to terminate the periodic agreement with effect from 22 June 2015. The letter said that there was some uncertainty over whether their tenancy was an agricultural or residential tenancy but that the Commonwealth had decided to treat the tenancy as a residential tenancy. The letter said that Mr and Mrs Dattilo had written to the Commonwealth requesting an extension of time to vacate the premises. The letter said that the Department of Infrastructure and Regional Development had written to the Dattilos separately and had agreed to allow them access to the property for agricultural purposes only until 22 September 2015.
9 Mr and Mrs Dattilo had not indicated at any time that they were willing to vacate the premises by the termination date identified in the attachment of 22 June 2015.
10 On 12 March 2015, the Commonwealth applied to the Federal Circuit Court of Australia (FCCA) for orders terminating the agreement and for vacant possession of the property.
11 Mr and Mrs Dattilo opposed the orders sought by the Commonwealth.
12 In circumstances where Mr and Mrs Dattilo were in continual possession of the property for at least 20 years, and where the primary judge held that the predominant use of the premises was residential, whether or not a termination order and order for possession should be made fell to be determined under s 94 of the 2010 RTA.
13 On 11 December 2015, the primary judge made orders as follows:
(1) The residential tenancy agreement between the applicant and the respondents in relation to the property situated at 2026 The Northern Road, Luddenham, NSW 2745 comprising part of folio identifier Lot 1 DP 838361 ("Premises") be terminated forthwith.
(2) Vacant possession of the Premises be given to the applicant on or before 18 December 2015.
(3) The order for vacant possession be suspended until 24 February 2016.
14 On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellants prosecuted their appeal with expedition and complied with certain directions. That stay operates until further order: Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14.
Adjournment application
15 At the commencement of the hearing of the appeal counsel for the appellants applied for the hearing of the appeal to be adjourned to a date to be fixed. We refused that application and said that we would give our reasons later. These are those reasons.
16 The principal ground of the application was that through the failure of the respondent to comply with directions, the appellants had been put in a position where they were not able to present their case and a refusal to allow an adjournment would result in a serious injustice to them.
17 In our opinion, although there was some non-compliance with directions by the respondent that non-compliance was minor and was not of such a nature that the appellants were not able to present their case. Although it was submitted on behalf of the appellants that they were not in a position to assist the Court with reference to the material to be the subject of the Court's consideration, in our opinion, to the extent to which cross-references were not available, that did not have the consequence that the appellants were not able to present their case. The material that was missing, in a particular form, at the commencement of the three-day appeal was available early in the course of the hearing of the appeal and we do not accept that the appellants were denied the reasonable opportunity to prepare the case to present to the Court with respect to that material.
18 We take into account that the appellants had limited resources but we also take into account that it was on 22 January 2016 that directions were made with a view to the appeal being set down for hearing beginning on 13 April 2016, the hearing date was confirmed by letter sent on 1 February 2016, and the appellants' submissions were then directed to be filed and served by 16 March 2016. This period for the appellants' submissions was extended on 26 February 2016 to 23 March 2016. We also take into account that the appellants knew the reasons for judgment of the primary judge in their case; they knew their own material; they knew their own case; they knew the respondent's submissions; and they had replied to those submissions in writing.
19 We have taken into account the material in the affidavits sworn by Ms Caroline Keith on 7 April 2016 and 12 April 2016 but there is nothing in those affidavits that persuades us that the appellants were prejudiced in the presentation of the appeal.
20 The appellants relied on Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420. In our opinion, the principles are not in doubt but each exercise of discretion to grant or refuse an adjournment must depend on the particular circumstances of the case.
The primary judge's reasons for judgment summarised
21 The primary judge's reasons for judgment are recorded as Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Dattilo [2015] FCCA 3260 (Dattilo).
22 Putting to one side the jurisdictional and constitutional issues, the primary issues which the primary judge was required to determine in respect of Mr and Mrs Dattilo's case may be summarised as follows:
(1) whether there were valid notices of termination;
(2) whether Mr and Mrs Dattilo's property was predominantly used for agricultural purposes, in which event the 2010 RTA would not apply (see s 7(h));
(3) the nature of the Court's powers under s 94 of the 2010 RTA and whether the conditions to the exercise of that power were satisfied in relation to Mr and Mrs Dattilo; and
(4) whether the Court was satisfied that it was appropriate to make a termination order.
23 The primary judge's reasons in respect of each of these matters may be summarised as follows.
The notices of termination
24 As to whether there were lawful and effective notices of termination, the primary judge proceeded on the basis that by virtue of s 94(2) no formal notice of termination was required in respect of long-term tenancies under the 2010 RTA. Nevertheless, the primary judge considered at [50]–[53] whether the two notices received from the Commonwealth were misleading. The primary judge appears to have accepted that this was a relevant factor to be taken into account as part of their "circumstances" for the purposes of s 94(1)(c) of the 2010 RTA. As we have said, the two notices were the letters dated 29 October 2014 and 9 December 2014 respectively.
25 In the first of these letters, the Commonwealth's agent who was managing the premises informed Mr and Mrs Dattilo of the Government's decision that the site at Badgerys Creek would be the site for Western Sydney's airport. The letter contained the following statements:
To implement the Australian Government's decision, all properties on the site, including the property you occupy, will need to be vacated …
In the coming weeks, you will receive a formal notice of termination of your occupancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 – but it will not be earlier.
26 The primary judge also set out some extracts from the letter dated 9 December 2014, which included a statement that the government required that all tenants vacate the site by 22 June 2015.
27 His Honour observed, at [54], that some of these statements were also misleading to the extent that they suggested that Mr and Mrs Dattilo's right to be heard in relation to orders terminating the tenancy was "optional". His Honour stated that given the Commonwealth's acceptance of the importance of treating tenants equitably, the notices ought to have informed tenants accurately of their rights.
28 The primary judge referred at [55] to the evidence of Mr Peter Robertson about the assistance and information provided to tenants beyond the two letters, including the appointment of a Place Manager, Ms Wendy Salkeld, as a dedicated point of contact for tenants. Mr Robertson was a general manager at the Commonwealth Department of Infrastructure and Regional Development. Mr Robertson was described as one of three senior executive service staff members managing the proposed Badgerys Creek airport project. Mr Robertson had responsibility for management of policy development and project timeframes. His Honour referred to Mr Robertson's evidence that Ms Salkeld had had regular phone and email contact with tenants seeking assistance and that there was an optional information drop-in session held on 25 February 2015 which was attended by bodies such as NSW Housing Services, Centrelink and local real estate agents. His Honour concluded that it was not clear whether Mr and Mrs Dattilo were directly provided with this assistance, but he accepted it was at least available to them.
Predominant use of premises
29 On the issue of the predominant use of the premises, the primary judge rejected Mr and Mrs Dattilo's contention that the 2010 RTA did not apply because of s 7(h) of that Act (which provided that the Act did not apply in respect of "premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture"). The primary judge found that the premises were unquestionably used in the past by Mr and Mrs Dattilo for both residential and agricultural purposes, but his Honour doubted that they still used the land for agricultural purposes because Mr Dattilo was retired and in ill-health. The primary judge made reference to Mr Dattilo's affidavit evidence that their land was a "food basket" and "we feed many people in the Sydney region", however it was noted that, although Mr Dattilo was required for cross-examination, he neither appeared in person nor by telephone for this to occur. The primary judge stated at [11] that he did not need to come to a concluded view about whether Mr Dattilo was prevented from attending for cross-examination because of the state of his health. That was because his Honour concluded that he was not satisfied that the predominant use of the premises was for the purposes of agriculture. His Honour's reasoning on this matter is reflected in [13] of his reasons for judgment:
That exclusion applies to premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture. The question raised by that provision requires a qualitative analysis rather than a simple comparison of the size of the land used for the different purposes. In this case, there is very little to indicate that use of the land was predominantly for the purpose of agriculture. Although there has undoubtedly been agricultural activities on the land, apart from the reference to there being 35 cows and a bull, 2 dams, 2 sheds and a cold room, the scale of those activities is not in evidence. By contrast, the Agreement reveals that the amount of rent paid for the non-residential aspect of the occupation was far less than that paid for the residential aspect.
30 The primary judge concluded at [14] that, on the evidence, he was satisfied that Mr and Mrs Dattilo's premises were used for residential and agricultural purposes but he was not satisfied that the predominant use was for the purposes of agriculture.
The FCCA's power under s 94 of the 2010 RTA
31 The primary judge at [5] adopted his analysis of these issues in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No. 3) [2015] FCCA 3133 (Rigney). For convenience, that analysis may be summarised as follows.
32 In Rigney at [118], the primary judge described as, at first glance, "odd" that, under s 94, the power to terminate a lease was at the discretion of the Court. He described this power as "a large qualification to the ordinary right of a land owner, under common law, to the reversionary interest in the land as well as the contractual rights that ordinarily flow from leases of land". The primary judge explained the power as part of a relevantly recent legislative response to "the imbalance in power between landlords and tenants and the changing need for rental accommodation throughout Australia … ". His Honour confirmed in Rigney at [119], that the power to make a termination under s 94 is discretionary, but is subject to the following three conditions:
(a) that the tenant had been in continual possession of the same residential premises for a period of 20 years or more;
(b) that if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement had expired; and
(c) that the Court was satisfied that it was appropriate to do so in the circumstances of the case.
33 The primary judge referred in Rigney at [121], to the judgment in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) (Swain). That decision related to the Residential Tenancies Act 1987 (NSW) (1987 RTA) and the Tribunal's duty to terminate an agreement under s 64(2)(c) (which provided for such an order to be made where "having considered the circumstances of the case, it is appropriate to do so"). Justice Rolfe described the possible "circumstances" which may have to be taken into account under that provision as:
… the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment….
34 The primary judge noted in Rigney at [122], that Rolfe J's decision was upheld on appeal in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 (Swain on appeal) where Meagher JA (with whom Priestley and Cole JJA agreed) held that the "circumstances referred to in s 64 were the particular case before the Tribunal" and the 1987 RTA was intended to balance the rights of the landlords and tenants. The primary judge in Rigney at [123], also referred to another decision of the New South Wales Court of Appeal in Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 (Scicluna), where the Court found that the power conferred on the Tribunal under s 64(2) was not a discretionary power, but rather a matter of statutory obligation once an evaluative opinion had been formed. The primary judge described this conclusion as "clearly correct" in light of the terms of the chapeau to s 64 (i.e. that the Tribunal "is to make an order terminating the agreements if it is satisfied … "). The primary judge added at [124] of Rigney in respect of s 64 that:
The evaluative opinion referred to in the decision arises from the condition of the power that the Tribunal be satisfied, "having considered the circumstances of the case, it is appropriate to do so".
(Emphasis in original).
35 The primary judge then in Rigney at [126] identified the following differences between the 2010 RTA and the 1987 RTA:
(a) the power to terminate a periodic tenancy under s 85 (other than where the tenant has been in occupation for 20 years or more) was not discretionary;
(b) the evaluative opinion referred to in Scicluna was no longer a condition of the power to terminate under the 2010 RTA; and
(c) the power to terminate was different depending on whether the tenant has been in occupation of the premises for 20 years or less. Where that occupation was greater than 20 years, the only power to terminate was under s 94.
36 The primary judge also considered in Rigney at [127]-[132], the Court of Appeal's decision in Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 (Cain), where it was held that the power under s 91 to make a termination order was discretionary and, as part of the reasoning of Leeming JA, that the word "may" in s 94(1) conferred a discretion on the NSW Civil and Administrative Tribunal (the State Tribunal). The primary judge, in Rigney at [132], described this view as "clearly correct" and, in Rigney at [132]-[138], as consistent with legislative reforms which were intended to address "the basic inequality of bargaining power between landlord and tenant". The primary judge said, Rigney at [138], that the reforms introduced by the 1987 RTA and the 2010 RTA were "aimed at achieving a balance between the interests of the landlord and the tenant" and, in that context, it was not as surprising as it first appeared that there remained a discretion whether to make a termination order in respect of long term tenants.
37 The primary judge's approach in determining whether or not to make a termination order under s 94 was reflected in [139] and [140] of his reasons for judgment in Rigney:
The approach to this case must then be to first determine whether the power to make a termination order arises. That requires consideration of whether the three conditions set out in s.94 exist on the facts of the case. Those include whether "in the circumstances" the Court considers that a termination order is appropriate: sub-s.94(1)(c). Those circumstances are, as explained in Swain, all of the matters that arise on the material before the Court including the availability of suitable alternative accommodation. Once that is considered, the second step is to consider the exercise of the discretion. As Leeming JA said in Cain, this may be surplus and may be no more than an affirmation of the consideration under sub-s.94(1)(c). Although there is a real discretion, it is difficult to imagine the circumstances in which it would be appropriate to make a termination order and then exercise the discretion not to make such an order.
Once the Court decides to make a termination order it must also make an order for possession of the residential premises specifying the day on which the orders takes or took effect: s.83(1). As the minimum 90 day period specified in s.94(4) does not apply to these proceedings, there is no explicit guidance in the Tenancies Act as to the date on which possession should be ordered. In light of that, the contextual matters considered above must also be involved in the determination of the date of possession. Essentially, the determination involves a balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant's possession of the land.
38 Applying that approach to Mr and Mrs Dattilo's circumstances, the primary judge found at [22]-[23] that they had been in continual possession of the premises for more than 20 years and that the original terms of their residential tenancy agreement expired on 31 December 2005.
Whether the Court was satisfied that it was appropriate to make a termination order
39 His Honour then turned his attention, at [24] and following, to whether he was satisfied that it was appropriate to make a termination order in the circumstances of Mr and Mrs Dattilo's case, as required by s 94(1)(c). In [147] of Rigney the primary judge described this issue as requiring "consideration of the interests of each of the parties that appear from the material before the Court".
40 The primary judge first considered the circumstances of the Commonwealth. His Honour said that the evidence of those circumstances was the same as in Rigney. For convenience, these findings may be summarised as follows.
41 The primary judge outlined the history of various proposals to build Sydney's second airport at Badgerys Creek. This history was given by Mr Robertson. The primary judge described at [29] the following four aspects of Mr Robertson's evidence concerning the "substantial urgency" of vacating the site:
(a) obtaining vacant possession in accordance with the project timetable;
(b) the incompatibility of continued residential accommodation and the ongoing investigation and demolition works, both in terms of cost and delay, which impacted work at the site and residential amenity and safety;
(c) the balance to be struck between the interests of the tenants and the high costs of them remaining on the site; and
(d) the importance of treating tenants equitably.
42 The primary judge summarised at [30] Mr Robertson's evidence regarding planning for the airport and the need for substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. This work was expected to continue throughout 2015, although at the time of Mr Robertson's affidavit dated 11 March 2015, geotechnical drilling work was being undertaken on a limited scale due to the presence of occupants at the site, which gave rise to safety concerns.
43 The primary judge referred to Mr Robertson's evidence regarding the further work which was required at the site in general, which would be directed to obtaining further geotechnical and contamination information across the whole site. This information would provide inputs into the government's consideration of the land use arrangements for the site and associated costings. Mr Robertson described this information as being "urgently required". The primary judge noted at [32] that there was no explanation of the basis for that urgency other than Mr Robertson saying that a delay in obtaining the information "risks delaying the proposal overall".
44 The primary judge also summarised, at [33], Mr Robertson's evidence concerning the process for assessing individual residential tenant blocks, which Mr Robertson described as being "administratively onerous" and taking up considerable resources.
45 The primary judge also summarised Mr Robertson's further evidence in his subsequent affidavits dated 30 March 2015 and 21 May 2015 respectively. These affidavits contained further evidence regarding the timeframe for clearing the site and demolition activities which were being carried out.
46 The primary judge summarised counsel for Mr and Mrs Dattilo's cross-examination of Mr Robertson. He described the cross-examination as mainly being directed to establishing that there were other people in the Department with more knowledge of, and responsibility for, particular decisions with respect to the development of the site for an airport. The primary judge observed at [41] of his reasons for judgment that this line of questioning "did not assist the proceedings in any way". His Honour said that the fact that someone else was responsible for decision-making or any other matter was irrelevant to the facts in issue. The primary judge concluded that Mr Robertson had given his evidence truthfully and he accepted that evidence.
47 The primary judge outlined the details of the "Right of First Refusal" under the Sydney Airport Group sale agreement in 2002. Mr Robertson's evidence on this matter was described in [45]:
Mr Robertson explained that whilst consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. He said that essential to such proposal was the outcome of the Environmental Impact Assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations. In his opinion, restricted access to the site due to tenants being in possession of individual properties limits this process in many practical ways.
48 The primary judge then addressed, commencing at [46], the circumstances affecting Mr and Mrs Dattilo which, apart from security, safety and convenience issues in relation to the whole site, he identified as comprising the following four matters:
(1) the length of Mr and Mrs Dattilo's occupation of the property;
(2) the terms of the tenancy agreement between Mr and Mrs Dattilo and the Commonwealth;
(3) the process undertaken by the Commonwealth to obtain vacant possession of the property, including notice of the proposed development of the airport site, notice of the proposed termination of residential tenancy agreement and any assistance given by the Commonwealth to Mr and Mrs Dattilo in relation to moving from the premises; and
(4) the availability of suitable alternative accommodation.
49 On the first of those matters, the primary judge reaffirmed his earlier finding that Mr and Mrs Dattilo had been in continual possession of the property for over 20 years.
50 On the second of those matters, his Honour referred to cl 29 of the residential tenancy agreement, the terms of which are set out in [6] above. After reaffirming that these provisions were subject to the operation of the 2010 RTA, the primary judge relied on the provisions as indicating that, from at least July 2004 when Mr and Mrs Dattilo entered into the residential tenancy agreement, they were aware of the possibility that the site might be developed for the purpose of the airport. His Honour added that they knew that when the Commonwealth acquired the land in 1987, it acquired it for that very purpose.
51 The primary judge then summarised the terms of the correspondence which Mr and Mrs Dattilo received from the Commonwealth's property manager in the form of letters dated 29 October 2014 and 9 December 2014 respectively. The primary judge's analysis and observations in respect of that correspondence is outlined at [24]-[27] above. He also made findings about the availability of assistance and services by the Commonwealth to assist tenants with relocation. We have outlined this above at [28].
52 The primary judge then addressed the issue of the availability of suitable alternative accommodation.
53 He noted, at [55], that while the Commonwealth's expert real estate valuer, Mr Simon Azar, had not given evidence in Mr and Mrs Dattilo's matter a number of witnesses who did give evidence in their case referred to Mr Azar's evidence. The primary judge therefore referred to those witnesses' evidence in reply to Mr Azar's evidence as far as was relevant.
54 Those witnesses were Ms Simone Fogarty (the daughter of a tenant of another property, Mr Ken Shirvington), as well as the evidence of a registered real estate valuer, Mr Lopco Neskovski. Ms Leanne Uren also gave evidence. The primary judge briefly described the evidence of each of these witnesses.
55 He described Ms Uren's evidence as showing that the properties used by Mr Azar as being comparable to Mr and Mrs Dattilo's premises were, at the date of the hearing, no longer available for lease. His Honour described this evidence as showing that the market for rental properties in and around the Badgerys Creek area was not stagnant.
56 The primary judge then summarised Mr Neskovski's evidence relating to suitable alternative accommodation.
57 His Honour stated that Ms Fogarty was a senior property manager but that, for various stated reasons, he did not find her to be a convincing witness. Having said that, however, the primary judge acknowledged that Ms Fogarty had made some "reasonable" points (some of which were also made by Mr Neskovski), including that there must be some comparison made between the size of the land and not simply the size of the house for rent; the rental market had been impacted with a number of other tenants in the Badgerys Creek area who were relocating; and, that some consideration had to be given to animals owned by a tenant.
58 At [71] of his reasons for judgment, the primary judge said that the question to which this evidence was directed was not whether identical or comparable properties were available but, rather, whether there was some suitable alternative accommodation that was reasonably available. Expressed that way, his Honour said at [72] that the question captured more accurately the balance sought to be struck between the interests of the landlord and those of the tenant. This meant that the evidence concerning the availability of premises was of limited assistance to the Court because of the proper focus required by the 2010 RTA.
59 Having said that, the primary judge concluded that the evidence indicated that there were properties available for rent in the vicinity of Badgerys Creek and that the rent was higher than that which the Dattilos were currently paying. His Honour said at [72] that this was hardly surprising because the Dattilos' tenancy was always subject to the possibility of the airport being developed.
60 His Honour found that, despite the evidence of Ms Fogarty and Mr Neskovski about the impact on the rental market of the large number of people relocating from the airport site area, there was "no real evidence to support those assertions". Consequently, he gave little weight to their evidence on this matter (see [74]).
61 The primary judge observed at [75] that Mr and Mrs Dattilo did not give much evidence about alternative accommodation. His Honour noted that Mr Dattilo said that he was in poor health from a life time of hard work and that the proceedings had caused them both great anxiety and worry. As to Mr Dattilo's claim that if they were forced to move they would have to take their stock with them, the primary judge rejected that claim on the basis that, if Mr Dattilo was in poor health, "it is very unlikely that he will continue to engage in any agricultural activities".
62 Finally, the primary judge noted that while Ms Fogarty gave evidence that the properties listed by Mr Azar had all been rented, this did not suggest that other properties would not shortly become available for rent. The primary judge accepted Ms Fogarty's evidence that more time would improve the tenants' chances of obtaining alternative accommodation.
63 The primary judge concluded that, while he accepted that it may take time for Mr and Mrs Dattilo to find suitable alternative accommodation, he was not satisfied that none was available.
64 For these reasons, the primary judge concluded at [78] that he was satisfied that it was appropriate to make a termination order and that Mr and Mrs Dattilo should be required to give vacant possession 75 days after the date of judgment.
Grounds of appeal
65 The Dattilos sought leave to file and rely upon an amended notice of appeal, which was in the following terms:
1. The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as involving the imposition of administrative power of a State tribunal upon a Chapter III court.
2. The primary Judge erred in holding that the Respondent was empowered to make Federal Circuit Court [Commonwealth Tenancy Disputes] Instrument 2015 [Cth].
3. The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as a law for the acquisition of property of the Appellant (sic) other than on just terms.
4. The primary Judge erred in holding that it was 'appropriate' to order termination of the Appellant's (sic) tenancy.
5. The primary Judge erred in holding that the termination notice was valid and effective.
6. The primary Judge erred in not admitting evidence of the Appellant.
7. The primary Judge erred in ordering termination forthwith and vacation on or before 18 12 2015 of the premises the subject of the action.
8. The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].
9. The primary Judge erred in not recusing himself from the matter before him in circumstances where he heard other cases in which he had made findings of credit and similar findings of fact against other Commonwealth tenants at Badgerys Creek.
10. The primary judge erred in deferring costs or not making any orders as to costs.
11. The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
12. The primary Judge erred in accepting the Commonwealth's urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties.
13. The primary Judge erred in accepting Mr Robertson's statements regarding the construction and development of the airport, and not considering the long history of uncertainty and the changing position of the Commonwealth with regard to the building (or not building) of the airport. Extensive documents were submitted by the Respondents supporting these delays, which were not considered by the Primary Judge.
14. The primary Judge erred in stating the Respondents were aware of the possibility that the site may be developed for the purposes of the development of an airport and disregarding that since December 2000 the Respondents reasonably believed Badgerys Creek was not being considered as a site for the airport.
15. The primary Judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of Respondents.
16. The primary judge erred in not holding that the Respondent was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith.
17. The primary judge erred in not considering compensation to the Appellant as a condition of the making of any order for possession, or for suspending such order for a period of years.
18. The primary Judge erred in making tenancy orders having final effect and thereafter making directions at the request of the Respondent on costs which in the circumstances was an abuse of process.
66 The underlined paragraphs indicate Mr and Mrs Dattilo's proposed amendments to their original notice of appeal for which leave was required. The paragraphs struck through, grounds 5, 6, 10 and 18, reflect the grounds in the proposed amended notice of appeal which counsel for the appellants notified the Court were abandoned. It is also clear ground 9 concerning alleged bias was not pressed in that form in this appeal. Counsel for Mr and Mrs Dattilo made it clear that ground 9 was limited to the question whether the primary judge ought to have recused himself based upon what counsel described as "apprehended institutional bias founded upon a close connection between lessor/Commonwealth and the Court".
67 The proposed amendments, apart from paragraphs 13 and 14, were opposed by the Commonwealth on several grounds, including that some of the new grounds had not been argued below or were inconsistent with the way in which the case had been presented below.
68 Since the application to amend to add grounds 13 and 14 was not opposed, we would grant leave so to amend.
69 It is therefore necessary to rule on the application to amend to add grounds 11, 12, 15, 16 and 17. The Court indicated that it would rule on the proposed amendments in its final reasons for judgment.
70 The principles in relation to an application to amend a notice of appeal are well-established. As a Full Court said recently in Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153 at [99]:
Parties are bound by the way they conduct their case at trial: see Overton Investment Pty Ltd v Murphy [2001] NSWCA 183 per Mason P (at [86]–[87]) (Sheller JA and Beazley JA agreeing); University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 (at 483); Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [15]); Thompson v Palmer (1933) 49 CLR 507 per Starke J (at 528–529); Haig v Minister Administering National Parks and Wildlife Act1974 (1994) 85 LGERA 143 per Kirby P (at 155); Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ, Deane J contra) (at 7).
71 Although a question of law may be raised for the first time on appeal and it will be expedient in the interests of justice that that should permitted to be done, this exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 per Mason P (Gleeson CJ and Priestley JA agreeing).
72 Also, the discretion to permit an amendment should not be exercised favourably where the proposed ground of appeal is self-evidently bound to fail.
73 Applying these principles, as to ground 11, we would not allow the amendment to add the entirety of ground 11 since it is plain that the primary judge did have regard to expert evidence. We would allow the application to amend to add proposed ground 11 insofar as it raises the claim that the primary judge erred in not having sufficient regard to expert evidence including but not limited to that of Ms Simone Fogarty. The proposed ground turns on analysis of the primary judge's reasons for judgment and no apparent prejudice will be caused to the respondent.
74 In relation to proposed ground 12, that the primary judge erred in accepting the Commonwealth's urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties, we would allow the amendment as it turns on an analysis of the primary judge's reasons for judgment and no apparent prejudice will be caused to the respondent.
75 In relation to proposed ground 15, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld, the Place Manager, in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of tenants, in our opinion leave to amend should be refused. First, the proposed ground finds no basis in the reasons for judgment of the primary judge in relation to the present appellants. Secondly, the proposed ground does not correspond to a ground taken by the appellants at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.
76 In relation to proposed ground 16, that the primary judge erred in not holding that the respondent was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith, in our opinion leave to amend to add this ground should be refused as it was not a matter raised in this case before the primary judge and it is clearly a matter on which evidence could have been adduced. In addition, nothing was said about estoppel in the written and oral submissions in this Court on behalf of the appellants.
77 In relation to proposed ground 17, that the primary judge erred in not considering compensation to the appellants as a condition of the making of any order for possession, or for suspending such order for a period of years, we would refuse leave to amend to add this ground. Although the matter was pleaded in the FCCA, the primary judge, at [4.e], found that no particulars of this claim were provided and no evidence was adduced in support of the existence of any obligation on the Commonwealth to offer to compensate Mr and Mrs Dattilo.
Parties' submissions – common issues
78 The common issues were identified by the appellants as, first, a separation of powers issue; second, that there was no "matter before the FCCA"; third, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the FCCA Act; fourth, that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (the Instrument) was invalid; fifth, that there was an impairment of the constitutional guarantee in s 51(xxxi) of the Constitution dealing with acquisition of property other than on just terms; and sixth, that there was apprehended institutional bias.
79 The revised written submissions of the appellants on common issues also included a number of paragraphs, [33]-[44], referring to the evidence of Mr Robertson which was said to be common to the several matters.
80 Before addressing these matters it is convenient to set out the statutory provisions.
81 By the Federal Courts Legislation Amendment Act 2015 (Cth), which by s 2 commenced on 26 February 2015, the FCCA Act was amended as set out in the applicable items in Sch 2. By item 5(a) of Sch 2 the amendments were said to apply, relevantly, to "a lease, licence or other arrangement entered into before the day this item commences and a Commonwealth tenancy dispute between the parties to the lease, licence or other arrangement that arises before, on or after that day; … ".
82 The relevant operative provisions were as follows:
Commonwealth tenancy dispute means a matter:
(a) involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about:
(i) the recovery of rent or other payments payable under or in relation to the lease, licence or other arrangement; or
(ii) the termination of the lease, licence or other arrangement; or
(iii) the possession, occupation or use of the land; and
(b) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.
…
3 After subsection 10(1)
Insert:
(1A) The Federal Circuit Court of Australia also has such original jurisdiction as is vested in it by a legislative instrument made under section 10AA.
4 After section 10
Insert:
10AA Original jurisdiction—Commonwealth tenancy disputes
(1) The Federal Circuit Court of Australia has jurisdiction to hear and determine a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement in which:
(a) the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is:
(i) the lessor (other than as a sublessor); or
(ii) the licensor (other than as a sublicensor); or
(iii) the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and
(b) a person other than:
(i) the Commonwealth; or
(ii) a person suing or being sued on behalf of the Commonwealth; or
(iii) a Commonwealth officer or employee;
is:
(iv) the lessee (other than as a sublessee); or
(v) the licensee (other than as a sublicensee); or
(vi) the grantee of the right or permission.
(2) The Minister may, by legislative instrument, confer jurisdiction on the Federal Circuit Court of Australia in respect of any other specified Commonwealth tenancy dispute.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(3) The Minister may, by legislative instrument, make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:
(a) the rights of the parties to the Commonwealth tenancy dispute;
(b) the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law);
(c) any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute;
(d) the powers that the Federal Circuit Court of Australia may exercise under the applicable law;
(e) if the Federal Circuit Court of Australia makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.
83 Section 12 of the Legislation Act 2003 (Cth) was in the following terms, so far as relevant:
12 Commencement of legislative instruments and notifiable instruments
…
Retrospective application
(2) A provision of a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result:
(a) the person's rights as at that day would be affected so as to disadvantage the person; or
(b) liabilities would be imposed on the person in respect of anything done or omitted to be done before that day.
(3) However, subject to subsection (2), a legislative instrument or notifiable instrument may provide that a provision of the instrument commences before the day the instrument is registered.
(4) The effect of subsection (2) or (3) in relation to an instrument is subject to any contrary provision in an Act.
…
84 The Instrument, as originally made, was in the following terms:
4 Definitions
In this instrument:
Act means the Federal Circuit Court of Australia Act 1999.
applicable NSW law has the meaning given by subsection 7(2).
Part 2—Commonwealth tenancy disputes involving land in New South Wales
5 Operation of this Part
(1) This Part makes provision in relation to the following matters in respect of a Commonwealth tenancy dispute involving land in New South Wales:
(a) the rights of the parties to the dispute;
(b) the law to be applied in determining the dispute;
(c) the powers that the Federal Circuit Court of Australia may exercise under that law;
(d) the powers that may be exercised when executing an order made by the Court.
(2) This Part does not apply in relation to a Commonwealth tenancy dispute involving land in New South Wales unless the dispute involves a tenancy within the meaning of the Residential Tenancies Act 2010 (NSW).
(3) Nothing in this Part has effect so as to confer non-judicial power on the Federal Circuit Court of Australia, unless the non-judicial power is incidental to the exercise of judicial power by the Court.
6 Rights of the parties
(1) This section applies to a party to a Commonwealth tenancy dispute involving land in New South Wales if:
(a) the party is a tenant within the meaning of the Residential Tenancies Act 2010 (NSW); and
(b) the Federal Circuit Court of Australia has jurisdiction to hear and determine the dispute.
(2) The party must not make an application to the Civil and Administrative Tribunal under the Residential Tenancies Act 2010 (NSW) in relation to a lease, licence or other arrangement to possess, occupy or use land that is the subject of the dispute.
7 Law to be applied
(1) In determining a Commonwealth tenancy dispute involving land in New South Wales, the Residential Tenancies Act 2010 (NSW) and any regulations made under that Act are to be applied:
(a) to the extent necessary to determine the dispute; and
(b) subject to the modifications set out in section 8 of this instrument.
(2) The law mentioned in subsection (1) is the applicable NSW law.
8 Modifications of applicable NSW law
(1) The applicable NSW law is to be applied as if:
(a) a reference to the Tribunal were a reference to the Federal Circuit Court of Australia; and
(b) a reference to the principal registrar of the Tribunal were a reference to a Registrar of the Federal Circuit Court of Australia; and
(c) a reference to the Sheriff, or to a sheriff's officer, were a reference to the Sheriff of the Federal Circuit Court of Australia.
(2) The Residential Tenancies Act 2010 (NSW) is to be applied as if it included the following section:
Despite anything else in this Act, if the Federal Circuit Court of Australia makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.
9 Powers of the Court
In determining a Commonwealth tenancy dispute involving land in New South Wales, the Federal Circuit Court of Australia may exercise any powers that are:
(a) powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b) relevant to determining the dispute.
10 Powers when executing orders made by the Court
(1) If the Federal Circuit Court of Australia makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in New South Wales:
(a) the Federal Circuit Court of Australia may exercise any powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b) a Registrar of the Federal Circuit Court of Australia may exercise any powers of the principal registrar of the Civil and Administrative Tribunal under the applicable NSW law; and
(c) subject to subsection (2), the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia may exercise any powers of a sheriff's officer under section 7A of the Sheriff Act 2005 (NSW);
to the extent that those powers are relevant to the execution or enforcement of the order.
(2) In exercising a power of a sheriff's officer under section 7A of the Sheriff Act 2005 (NSW) to execute a warrant for possession of residential premises, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia:
(a) may obtain the assistance of a member or special member of the Australian Federal Police; and
(b) must not enter a dwelling house between 9 pm one day and 6 am the next day unless the Sheriff or Deputy Sheriff reasonably believes that it would not be practicable to execute the warrant at another time; and
(c) must not use more force, or subject any person on the premises to greater indignity, than is necessary and reasonable to execute the warrant; and
(d) must not do anything that is likely to cause the death of, or grievous bodily harm to, any person on the premises unless the Sheriff or Deputy Sheriff reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the Sheriff or Deputy Sheriff).
(3) To avoid doubt, nothing in this section limits any other power of:
(a) the Federal Circuit Court of Australia; or
(b) a Registrar of the Federal Circuit Court of Australia; or
(c) the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia.
85 The 2010 RTA, the applicable New South Wales law, contained the following relevant provisions.
86 In s 3, residential premises was defined to mean any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. The same section defined tenant to mean:
(a) the person who has the right to occupy residential premises under a residential tenancy agreement, or
(b) the person to whom such a right passes by transfer or operation of the law, or
(c) a sub-tenant of a tenant,
and includes a prospective tenant.
87 Section 3 defined termination notice and termination order by reference to s 80 of the 2010 RTA.
88 Section 7 provided that the 2010 RTA not apply, relevantly, to "(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture."
89 Section 18 provided that a fixed term agreement that continues after the day on which the fixed term ends continues to apply:
(a) as if the term of the agreement were replaced by a periodic agreement, and
(b) on the same terms as immediately before the end of the fixed term.
90 Section 80 provided that in Pt 5 termination date meant the day specified in a termination notice as the day on which the residential tenancy agreement is terminated and by which vacant possession of the residential premises is to be given; termination notice meant a notice terminating a residential tenancy agreement. And termination order meant an order terminating a residential tenancy agreement together with an order for possession of the residential premises.
91 Section 94, which applied to the present appeal, provided as follows:
94 Termination of long term tenancies
(1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement:
(a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and
(b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and
(c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.
(2) A landlord may make an application under this section without giving the tenant a termination notice.
(3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
(4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.
92 Part 6 of the 2010 RTA included the following provisions:
119 Prohibition on certain recovery proceedings in courts
A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.
120 Repossession of residential premises—offences
(1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless:
(a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or
(b) the tenant has abandoned the premises or given vacant possession of the premises.
Maximum penalty: 200 penalty units.
…
121 Enforcement of orders for possession
(1) The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.
(2) An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit.
(3) Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.
(4) A warrant for possession is to be in the approved form and must authorise a sheriff's officer to enter specified residential premises and to give possession to the person specified in the warrant.
Note. See section 7A of the Sheriff Act 2005 for provisions relating to the enforcement of warrants.
The submissions of the parties on common issues of law and consideration of those submissions
Separation of powers
93 The appellants submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the Federal Circuit Court of Australia Act (FCCA Act) involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellants submitted that the legislation being transported into the federal regime was a law which merely gave to the State Tribunal a discretion subject to conditions to terminate the long leases on a broad range of grounds ranging from the economic to the political, none with any legal content or involving the exercise of a mix of functions. The appellants, it was submitted, were entitled as of right by virtue of a fundamental incident of their subsisting leasehold tenure to remain in possession of the premises until a lawful termination order was made by an administrative not a legal tribunal. In that sense the leases were not terminable by law. The appellants submitted that no such administrative order was capable of being made by the FCCA.
94 The appellants also submitted that they had the right of quiet enjoyment conferred by Pt 3.3 of the 2010 RTA such that the tenancy could only be terminated by a discretionary order of the State Tribunal under Pt 5 of the 2010 RTA. The appellants submitted that because the tenancy was not terminable by any contractual or other action outside the State Tribunal, such as notice of the lessor or abandonment or frustration of the leasehold tenure, their tenure and cognate right of possession was a statutory lease subject to termination by the State Tribunal with "a strong affinity" with freehold tenure: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 421-422 [19].
95 The appellants submitted that at the time of the commencement of proceedings or any time prior to their commencement they had not been and were not in breach of any contractual term, nor of any statutory term applied by the 2010 RTA which would confer a right of re-entry to their land. Even if the legal standard did apply to the question of the termination of their tenure, no evidence had been adduced to support such a legally endorsed outcome in the FCCA or elsewhere. Rather the respondent's case was founded solely upon the administrative powers vested in the FCCA by the Instrument which, the appellants submitted, were legally insufficient to authorise the exercise of any power of termination, or dispossession, or execution of a termination order as described in s 81 of the 2010 RTA. The appellants submitted that no right of re-entry at common law had arisen in respect of their property; rather such right was contingent upon an order being made under Pt 6 of the 2010 RTA.
96 The appellants also submitted that the findings as to competing needs of the lessees' and lessors' interests and what was "appropriate" was a determination which was clearly not of a legal character, which was the very reason that the State Tribunal was established and given exclusive jurisdiction in New South Wales with respect to termination of residential tenancies.
97 The appellants submitted that the primary judge erred at [71] in Rigney in relying on the consideration that the orders he was to make were "immediately enforceable by the Court." However, the appellants submitted, a termination order as defined in Pt 5 of the 2010 RTA was not immediately enforceable because, until an order under Pt 6 of that Act was made, a "person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless … the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court … ": see s 120 of the 2010 RTA. In short, the appellants submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removing of chattels after a termination order was made was provided for by Pt 6 of the 2010 RTA. Accordingly none of the orders sought or made was "immediately enforceable" in the present form by the FCCA.
98 The appellants submitted that the carve-out of the State Tribunal's power in relation to the present matters and its conferral by way of an omnibus provision upon the FCCA was a carve-out of both the administrative and quasi-judicial power of New South Wales. Further, the Commonwealth must take New South Wales tenancy law as it found it. After referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson) the appellants submitted that "no different result should follow now" and the State Tribunal remained the appropriate venue for the claims made by the Commonwealth in the FCCA.
99 The appellants submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Pt 5 of the 2010 RTA. The appellants referred to ss 81(1) and 119 of the 2010 RTA, the former providing that a residential tenancy agreement terminated only in the circumstances set out in that Act and the latter providing that a landlord must not commence proceedings against a tenant in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. The appellants submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.
100 The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 (Brandy) that "there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not".
101 The respondent submitted that in determining a Commonwealth tenancy dispute, s 9 of the Instrument conferred on the FCCA any powers that were powers of the State Tribunal under the 2010 RTA as the applicable law, subject to those powers being relevant to determining the dispute and to the qualifications in s 5(3) of the Instrument. The Instrument did not apply any of the provisions of the Civil and Administrative Tribunal Act 2013 (NSW) which constituted the State Tribunal and prescribed its jurisdiction and procedures, to proceedings in the FCCA. The provisions of the FCCA Act governed the procedure to be applied.
102 The respondent submitted that the fact that the Commonwealth Parliament was picking up, for application in a Ch III court, legislation that would be administered at the state level by an administrative tribunal (which may exercise judicial power) was without constitutional difficulty provided that the conferral did not involve the Ch III court exercising non-judicial power. The respondent submitted that s 5(3) of the Instrument was significant in that context.
103 The respondent relied on the four features of s 10AA of the FCCA Act and the Instrument which had been relied on by the primary judge.
104 The first feature was that the exercise of the discretion conferred by s 8(2) of the Instrument, which modified the operation of s 94 of the 2010 RTA, guided by the scope, object and purpose of the 2010 RTA was a familiar, if not daily, part of any court's work. Given that the Instrument conferred on the FCCA powers by reference to the 2010 RTA, subject to s 8, the conclusion of the primary judge that the exercise of the discretion should be guided by the scope, object and purpose of the 2010 RTA was entirely orthodox and without error.
105 The second feature was that the power conferred was not "simply one that arises on the basis of some idiosyncratic notions of individual judges". The primary judge noted that "as with any broad power with which a court is invested … guiding principles will emerge". The respondent submitted that the development of principles was consistent with the judicial method, citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at 351. Reliance on what occurred in the State Tribunal was not determinative of the nature of the power being exercised, the proper characterisation of a power being contingent, inter alia, on the "nature of the body dealing with it": HA Bacharach Pty Ltd v Queensland [1998] HCA 54; 195 CLR 547 at 562.
106 The third feature was that the determination by the FCCA would set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. The respondent submitted that the application of a broad criterion by reference to the circumstances of a particular case, whether imposed by the general law or pursuant to statute, was not an unusual feature in the exercise of judicial power: Thomas v Mowbray at 345-347. Section 94 of the 2010 RTA required the FCCA to evaluate the nature of a tenant's occupation of premises and whether it amounted to possession; the period of time for which the tenant had been in continual possession of the premises; whether the term of the original fixed term agreement had expired; and whether it, the court, was satisfied that it was appropriate to make a termination order in the circumstances of the case.
107 The fourth feature was the enforceability of the FCCA's orders. The respondent submitted that if the FCCA made an order terminating a residential tenancy agreement under the 2010 RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1). As the appellants accepted, the court's orders had the immediate effect of terminating the contractual relationship, without which the tenant was no longer lawfully in possession and should vacate in accordance with the order for possession. In the event of non-compliance with that order, a warrant may be obtained on the authority of the order for possession: s 121(1). (We note that by s 8 of the Instrument a reference to the Principal Registrar of the State Tribunal is a reference to a Registrar of the FCCA.) The respondent submitted that the process of obtaining the warrant did not involve any traversing of the circumstances in which the FCCA's order was made, or whether it was valid: providing the Registrar was satisfied that the order had not been complied with the warrant would issue. By force of the FCCA's orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable. The enforceability of decisions was, as the primary judge properly saw, significant and "one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal": Brandy at 268.
108 In reply, the appellants submitted that the respondent's argument should be rejected as it failed to articulate any clear answer to the case that the exercise of power by the FCCA was non-judicial in character. Having regard to the character of the State Tribunal whose powers were picked up and conferred on the FCCA and the nature of the decision under the applicable law adopted under s 10AA(3)(b) and (c) which was administrative in character creating rights as from the date of the hearing rather than deciding rights as at the date of the commencement of proceedings, the exercise of power by the FCCA should have been characterised by the primary judge as non-judicial and both the Instrument and the amendments to the FCCA Act authorising its use should have been held to be invalid.
109 The appellants submitted that their tenancy under the State Tribunal and the 2010 RTA was subject to a discretionary regime that had regard to economic and political considerations with respect to the length and character of their tenure; that discretionary regime was then imposed on a Ch III court that struggled to divorce those considerations from the decision-making process, and which demonstrated by its reasons that the court found the exercise unfamiliar. The appellants submitted that these "considerations included the general economy as being interests that prevailed over the specific issues of the appellants. When considering the individual circumstances of the appellants (i.e. to weigh in the balance against political and economic considerations) the former being more familiar issues to courts, the [primary judge] disregarded those and held examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances".
110 The appellants submitted the mix of functions conferred on the FCCA led the court into error and also led to injustice to the appellants.
111 We turn to consider these submissions.
112 We first mention the reliance by the appellants in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had previously held, it was correct to say that "court" in s 77(iii) of the Constitution meant the judges and judicial officers who were members of the court but did not include the organisation and officers through which its powers and jurisdiction were exercised. The High Court held that this narrow interpretation was not to be preferred and that a master, although not a member of the court, was encompassed by the words "any court of a State" in s 77(iii) (whereby in respect of any of the matters in ss 75 and 76 the Parliament may make laws investing any court of a State with federal jurisdiction). The circumstances in that case were therefore very different to the issues in this appeal which concern the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach insufficiently took account of the States' legislative competence to alter the structure and organization of State courts. His Honour also said, being the passage relied on by the appellants:
Although the Commonwealth Parliament has no power to alter the structure or organization of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. Moreover, it may condition the investment of federal jurisdiction on the existence of a suitably structured State court — see, for example, s. 39(2) of the Judiciary Act 1903 (Cth), as amended.
We see nothing of present assistance in that statement although, of course, we accept that there are limitations on the nature of the power which may be conferred on a Ch III court.
113 In that respect, we note the terms of s 5(3) of the Instrument which stated that nothing in ss 5 to 10 of the Instrument had effect so as to confer non-judicial power on the FCCA, unless the non-judicial power was incidental to the exercise of judicial power by that court.
114 We reject the appellants' submission that merely because the State Tribunal formerly exercised powers in relation to Commonwealth tenancy disputes involving land in New South Wales this demonstrated or assisted in demonstrating that non-judicial power had been conferred on the FCCA.
115 As a matter of history, landlord and tenant disputes were heard and determined by the ordinary courts for many decades. Further, a state tribunal may exercise State judicial power, even if it is not a court.
116 In Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 (Precision Data) the High Court said, at 189:
… although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
(Footnotes omitted.)
117 In Brandy, at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, that there were functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.
118 Next, the appellants contended that the primary judge erred in Rigney at [71] in relying on the consideration that the orders he was to make were "immediately enforceable by the Court". To give the context for his Honour's statement, we reproduce the following paragraphs from that judgment at [69]-[71]:
The Court is required to apply the Tenancies Act to the facts and circumstances shown on the evidence before it. Thus, in this case, there will need to be a factual determination of, amongst other things, whether or not the respondents have been in continual possession of the premises for 20 years. This in turn will require an evaluation of the nature of the respondents' occupation and whether that amounts to possession within the meaning of the Tenancies Act. Also in issue will be whether there is a residential tenancy agreement in respect of those premises, whether that agreement was for a fixed term, and whether that fixed term (if any) has expired. In short, the Court is required to conduct an enquiry concerning the law as it is on the facts as they are: see Tasmanian Breweries at 374 per Kitto J.
Once that inquiry has been conducted, the Court must then determine whether to make a termination order. Such a termination order requires there to be an order for possession at the same time to take effect as the Court considers appropriate. While the respondents are correct to say that this second inquiry is a very broad and arguably a discretionary one, that is not, in light of the authorities discussed above, decisive of the issue of whether the power is non-judicial.
First, any discretion, or more accurately, determination of appropriateness, must be bound by the object, scope and purpose of the Tenancies Act. This is a familiar, if not daily, part of any Court's work. Secondly, it is to be expected, as with any broad power with which a Court is invested, that guiding principles will emerge so that the power is not simply one that arises on the basis of some idiosyncratic notions of individual judges. Thirdly, the determination by the Court will set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. Fourthly, and in my view, critically, those rights and obligations are immediately enforceable by the Court.
119 In our opinion, the primary judge was here referring to the distinction described in Brandy as to whether the body had the capacity to give a decision enforceable by execution or whether, as in that case, a determination by the Commission was not binding or conclusive between any of the parties to it but the Commission was required to lodge a determination in a registry of the Federal Court and upon registration the determination was to have effect as if it were an order made by the Court. As Mason CJ, Brennan and Toohey JJ said in Brandy at 257, the fact that the Commission could not enforce its own determinations was a strong factor weighing against the characterisation of its powers as judicial. In our opinion, it is not significant, in this context, that s 120 of the 2010 RTA provides that a person must not enter residential premises for the purposes of taking possession of those premises unless the person is acting in accordance with a warrant arising out of an order for possession of the State Tribunal or a writ or warrant arising out of a judgment or order of a court. On the assumption that a warrant referable to s 120 of the 2010 RTA is necessary where the order for possession is made by the FCCA, it remains the case that the FCCA can enforce its own determinations. We accept the respondent's submissions that the FCCA's orders had the immediate effect of terminating the contractual relationship and, in the event of non-compliance, a warrant may be obtained on the authority of the order for possession: s 121(1). By force of the FCCA's orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable.
120 In oral argument attention was given to the words in s 94(1)(c) of the 2010 RTA which provide that the State Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement "if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case". Attention was given particularly to the scope of the discretion indicated by the word "appropriate" when the discretion came to be exercised by a Ch III court.
121 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1, the High Court noted that the Federal Court had jurisdiction with respect to a matter which arose under the Workplace Relations Act 1996 (Cth) in relation to which an application for orders under s 298U may be made to it. The opening words of s 298U were as follows:
In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: …
122 The orders there referred to included, in paragraph (e) "injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects".
123 The High Court also referred to s 23 of the Federal Court of Australia Act 1976 (Cth) which provided that the Court has power to make "orders of such kinds, including interlocutory orders … as the Court thinks appropriate". In relation to interlocutory relief, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said at 32-33:
The powers of the Federal Court under s 23 of its Act are powers "to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'", as Deane J noted in Jackson v Sterling Industries Ltd [[1987] HCA 23; (1987) 162 CLR 612 at 622]. He added:
"Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction."
One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. … The moulding of an interlocutory injunction must depend upon the circumstances of each case.
(Footnote omitted.)
124 We would therefore read the word "appropriate", as did their Honours, as excluding purely subjective notions of what is appropriate and also as excluding the application of extralegal standards in order to determine the case.
125 We do not accept the appellants' submission that the findings as to the competing need of the lessee's and lessor's interests and what was "appropriate" was a determination which was clearly not of a legal character.
126 The appellants drew attention to the reference by the primary judge to principles emerging to guide the exercise of the discretion but in our opinion this was saying no more than was said in Thomas v Mowbray at 351, where their Honours said:
The following statement by Professor Zines, made after a review of a number of the decisions in this Court, is in point [Zines, The High Court and the Constitution, 4th ed (1997), p 195]:
"Any standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre – an area of choice and of discretion; an area where some aspect of policy will inevitably intrude. The degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents. Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard."
The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether "making the order would substantially assist in preventing a terrorist act" (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.
127 A similar point had been made earlier in R v Joske; Ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48; 135 CLR 194 at 216 where Mason and Murphy JJ wrote:
Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised—nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v. Cominos). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decisions; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under sub-s. (2)(a) and the impact which such an order will have on the interests of persons who may be affected.
(Footnote omitted.)
128 It follows, in our opinion, that the attack on the validity of the amendments to the FCCA Act and on the validity of the Instrument fails.
Whether no "matter" before the FCCA
129 The appellants submitted that at the date the application was filed in the FCCA no justiciable "matter" had arisen. This submission proceeded as follows. There was no controversy at all at the time of the filing of the application. The appellants were entitled as of right to remain in possession with full tenure up until the date of the FCCA's decision. Thereafter a new relationship between the parties was created. The lessor wanted possession but without any legal right to obtain it, independently of the exercise of discretion of the court, and there was no standard or right which conferred any such right. It was a case of the respondent applying to the court for a decision to terminate the leasehold tenure, by a termination order, which the court might or might not make, in its discretion as to what was appropriate. The respondent submitted that the conferral of jurisdiction in s 10AA(1) of the FCCA Act was formulated in entirely orthodox terms. The Commonwealth was the owner of residential premises the subject of the agreement it sought to terminate in the court. The Commonwealth sought to exercise its entitlement under the 2010 RTA to apply to the FCCA to terminate its contractual arrangements with the appellants in circumstances where they remained in possession with no prospect of them abandoning the premises or otherwise vacate it by consent. The appellants' response did not contend that there was no dispute between the parties. There was no evidentiary contest that the dispute arose from the fact that the Commonwealth wrote to the appellants stating that it wished to have vacant possession by June 2015, which they opposed. The proceedings before the Court involved the existence of a controversy as to whether the residential tenancy agreement should be terminated and on what terms (if any), and the corresponding liability of the appellants to vacate the premises upon termination. As the High Court stated in Precision Data at 191, "[t]he Parliament can, if it chooses, legislate with respect to the rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities".
130 In their written reply, the appellants did not make specific reference to this point.
131 We turn to consider these submissions.
132 In our opinion, in the case of the present appeal (20 years and over) the controversy or "matter" was sufficiently identified in the application to the FCCA filed on 12 March 2015. That is, as between the Commonwealth as applicant lessor and the appellants as tenants of the Commonwealth of the particular premises, the Commonwealth had notified the tenants that it required possession of the premises by a certain date and the tenants had not yet communicated to the Commonwealth their agreement to vacate the premises on or before that date. The Commonwealth, as lessor, sought an order under s 94 of the 2010 RTA that the residential tenancy agreement between it and the present appellants in relation to the premises was terminated and an order that the present appellants give vacant possession of the premises on or before 22 June 2015. In short, in our opinion, the application by the Commonwealth as landlord for a termination order for a residential tenancy agreement in circumstances where the tenants had not agreed to give possession of the premises to the Commonwealth sufficed to constitute a controversy or "matter" and this was confirmed by the present appellants filing a response in the FCCA in opposition to the Commonwealth's application. We reject the submission on behalf of the appellants that there was not a "matter" because s 94 made it a condition of the making of a termination order for the residential tenancy agreement that the court was satisfied that it was appropriate to do so in the circumstances of the case. In our opinion, the dispute was about rights regardless of the terms of the discretion to be exercised by the court.
Whether no legislative power
133 The appellants submitted that there was no head of legislative power in s 51 of the Constitution or elsewhere to make laws regarding land tenure matters with respect to Commonwealth tenancies. The appellants submitted the laws were not an incident of the power to define the jurisdiction of the FCCA under s 77(i) of the Constitution. Powers under s 51(xxxix) arose in the execution of legislative, executive or judicial powers, but not in substitution for such exercise, or as a means of conferring legislative power on the Parliament by the back door. Read properly, the appellants submitted, the "main purpose" of the law comprising Sch 2 to the Federal Courts Legislation Amendment Act, the Instrument and the 2010 RTA properly characterised did not "define the jurisdiction of a federal court but provided for and created a new federal substantive law with respect to residential tenancies to which the Commonwealth was a party by recognising and creating rights with respect to a statutory lease with a code of attendant mutual rights including as to termination and recovery and enforcement". The appellants again submitted it was an attempt to get round the decision of the High Court in Henderson.
134 The respondent submitted that the Commonwealth entered into the subject tenancy agreement with the appellants in respect of land which it had acquired in order to reserve it for an airport. That acquisition was supported by s 51(i) of the Constitution. So also was the Commonwealth's entry into the tenancy agreement with the appellants. The respondent submitted that the application of the 2010 RTA as a surrogate Commonwealth law, and in particular its modification pursuant to s 8(2) of the Instrument, was supported by at least s 51(i): the power to acquire the land and to enter into a lease in respect of that land extended to the regulation of the circumstances in which such arrangements may be brought to an end (so as to give effect to the purpose of the acquisition). Alternatively, s 8(2) might find support in s 52(i) of the Constitution as the appellants' premises were situated on land which was a Commonwealth place.
135 The respondent submitted that the substantive rights and liabilities of the parties were conferred pursuant to s 7 of the Instrument and modified in the case of the present appeal (continual possession of the premises of 20 years and over) by s 8. That provision picked up the New South Wales legislation, the 2010 RTA, in a manner similar to s 79 of the Judiciary Act 1903 (Cth). The respondent referred to Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at 587 and submitted that the primary judge was correct to apply the reasoning in that case by analogy to the legislation at issue in the appeal.
136 The respondent submitted that in the present appeal (20 years and over), s 8(2) of the Instrument was directed at the application of s 94(4) of the 2010 RTA and because s 94(4) was directly inconsistent with the law of the Commonwealth it was rendered inoperative to the extent that the Commonwealth provision applied. That section of the Instrument removed the requirement for notice that would otherwise oblige the Commonwealth to provide at least 90 days between obtaining a termination order and taking possession of the residential premises. This adjustment of the Commonwealth's obligations, the respondent submitted, was authorised by the "full power" of the Parliament "to make laws governing the liability of the Commonwealth": Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; 161 CLR 254 at 263.
137 The respondent submitted that that power derived at least in part from s 78 of the Constitution but more generally the Commonwealth may make laws such as s 8(2) based on the power or powers that supported the action taken by the Commonwealth that is the subject of the proceeding. The respondent referred, by analogy, to R v Hughes [2000] HCA 22; 202 CLR 535 at 555-556.
138 The respondent submitted that s 10AA of the FCCA Act constituted an exercise of the power in s 77(i) of the Constitution to make laws defining the jurisdiction of a federal court with respect to any of the matters in ss 75 and 76 which matters included, in s 75(iii), matters "in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party". On the definition of "Commonwealth tenancy dispute" in the FCCA Act the Commonwealth was a party to any such dispute.
139 In their written reply, the appellants submitted that the Commonwealth was required by constitutional principles to identify in its submissions the sources of two legislative exercises of power in March 2015: first, the conferral of power on the FCCA; and, second, the creation of a new legal regime with respect to the subject matter of Commonwealth tenancies. The appellants submitted the respondent's submissions failed in not separating those issues and in addressing neither. The appellants also submitted that s 78 of the Constitution did not avail the Commonwealth.
140 We turn to consider these submissions.
141 In our opinion, the source of legislative power to make laws regarding land tenure matters with respect to Commonwealth tenancies is plain. In the present case, it is s 51(i) of the Constitution, that is, the same power as enabled the Parliament to make a law for the acquisition of the real property, the subject of the tenancy, in order to reserve the land for an airport, as was reflected in the tenancy agreement. Before the making of the amendments to the FCCA Act and the Instrument it may be taken that the 2010 RTA applied to the tenancies. On the making of that Commonwealth legislation, including the Instrument, provision was made for the law to be applied in determining a Commonwealth tenancy dispute. Section 109 of the Constitution then applied so that the law of the Commonwealth prevailed and the law of the State was invalid to the extent of any inconsistency. At the same time the Commonwealth legislation, by s 10AA(1) of the FCCA Act, defined the jurisdiction of the FCCA (s 77(i) of the Constitution) with respect to matters in which the Commonwealth was a party (s 75(iii)) and arising under any laws made by the Parliament (s 76(ii)).
142 We reject the appellants' submission that the legislation "was an attempt to get round the decision of the High Court in Henderson." In that case it was held that the Commonwealth legislation, the Defence Housing Authority Act 1987 (Cth) did not create an inconsistency between that Act and the Residential Tenancies Act 1987 (NSW) to attract the operation of s 109 of the Constitution. In the present case the Commonwealth legislation, including the Instrument, expressly applies the law of New South Wales, subject to express modifications.
Whether the Instrument was invalid
143 The appellants submitted that the Instrument was invalid as it was ultra vires s 10AA(3) of the FCAA Act. This submission proceeded on three bases. First, the appellants submitted the power conferred by s 10AA(3) did not include the power to adopt by Instrument the 2010 RTA together with the associated powers of the State Tribunal as part of Commonwealth law. The appellants submitted that, read in context, s 10AA(3) was not the conferral of a general law-making power with respect to the rights of parties to a lease entered into by the Commonwealth but was a power only to define the court's jurisdiction with respect to a Commonwealth tenancy dispute, as defined in s 4. The appellants submitted there must be a dispute in which the Commonwealth is a party and a dispute must be about the termination of a lease, or the possession or use of land. It was submitted that s 10AA(3) authorised provision to be made for a matter involving a dispute in which the Commonwealth was a party. The appellants submitted that the law-making power "for and in relation to … a Commonwealth tenancy dispute" was not a broad law-making power. The appellants referred, amongst other authorities, to Shanahan v Scott [1957] HCA 4; 96 CLR 245 at 250.
144 The appellants submitted that the reference to "the applicable law" in s 10AA(3), in its natural and ordinary meaning referred "to an existing Commonwealth law not the power to make a whole new law by reference to that of another jurisdiction, in this case the whole of the law of NSW being a code on residential tenancies law, with the result that the Parliament's law making power was substituted for that of the Minister and the restrictions upon law making power with respect to that subject matter [were] circumvented". The appellants also submitted that the rule making power did not extend to a regulation which itself imported the whole of a statute that conferred executive power to decide when and on what terms the use of land may end. The decision-making power introduced and conferred on the FCCA by the Instrument was executive power. The power to focus on events and the decisive facts at the date of the decision of the FCCA and not the date of the commencement of the action was another factor indicating that the power being exercised by the FCCA was executive. Accordingly, the Instrument impermissibly widened the purposes of the FCCA Act past the definition of the court's powers to the adoption of a wide variety of new rights and obligations and was ultra vires.
145 Secondly, the appellants submitted s 10AA(3) did not authorise a retrospective law. The statutory scheme for over 20 year leases was a code and could not operate retrospectively except by express and necessary statutory fiat. The Legislation Act also restricted the operation of retrospective legislation. The appellants submitted there had been a failure to have regard to the disadvantage to tenants from the new importation of the new law as Commonwealth law, who under New South Wales law expected to be treated like all other residential tenants in New South Wales. The lease provided that the State Tribunal was to be the arbiter of disputes, suggesting that if the lessor sought to take advantage of its special status as a lawmaker it should have entered into fresh leases in different terms.
146 Thirdly, the appellants submitted that s 10AA(3) was invalid because the 2010 RTA had authorised the acquisition of property other than on just terms. This, the appellants submitted, was the logical conclusion of their argument based on s 51(xxxi) of the Constitution.
147 The respondent submitted that the appellants' submission misunderstood the terms of s 10AA(3) of the FCCA Act and the purpose and effect of the Instrument. As the primary judge observed at [90] of the reasons for judgment in Rigney, the Instrument applied in respect of Commonwealth tenancy disputes of a particular class, consistently with s 10AA(3), and it did no more than pick up existing law and apply it, with some modification, to the resolution of such disputes. The respondent submitted the primary judge correctly dismissed this argument at [86]-[88] of the reasons for judgment in Rigney.
148 As to the retrospectivity argument, the respondent submitted it rested on the fact that statutory notices were served on the 20 year and over tenants before the commencement of the Instrument. The respondent submitted that, as the primary judge held at [93] in Rigney, such an event could not be determinative of the character of the Instrument as retrospective. In order to fall within the terms of s 12 of the Legislation Act, the Instrument would have had to take effect before it was registered and it did not do so.
149 In reply, the appellants referred to McEldowney v Forde [1971] AC 632 at 658. The appellants submitted that the Instrument did not conform with the description of a law-making power provided for in s 10AA(3): the limitation to a "matter" did not authorise the extensive enactment of tenancy legislation purportedly effected by the power. The appellants also submitted the FCCA Act did not confer retrospective power to make the laws, nor did they comply with the requirements of s 12 of the Legislation Act. The appellants submitted the respondent's submissions did not address the concern that the Instrument paid no attention to justice in acquiring property of the appellants, which itself destroyed any statutory authority in the Minister to make the delegated legislation.
150 We turn to consider those submissions.
151 The starting point must be the terms on which the power to make a legislative instrument was conferred. Section 10AA of the FCCA Act had two relevant subsections although each operated by reference to the defined term "Commonwealth tenancy dispute". Relevantly, the tenancy must involve a lease and a dispute about the termination of the lease or the possession, occupation or use of the land. Further, the dispute must be one in which the Commonwealth is a party. Section 10AA(1) dealt with the jurisdiction of the FCCA to hear and determine a Commonwealth tenancy dispute between the parties to a lease in which the Commonwealth was the lessor and a person other than the Commonwealth was the lessee. It defined the jurisdiction of the FCCA, the power to do so being conferred by s 77(i) of the Constitution by reference to one of the matters mentioned in ss 75 and 76 (here being a matter in which the Commonwealth was a party within s 75(iii)). Section 10AA(3) which was the regulation-making power, thus, for present purposes it was the central provision.
152 Section 10AA(3) provided that the Minister may, by legislative instrument, make provision for and in relation to all or any of certain specified matters in respect of a Commonwealth tenancy dispute. We have set out this provision above at [82]. It is also significant that, by s 5, the amendments made by the Part, which included s 10AA, apply in relation to a lease entered into before the day item 4 of Sch 2 to the Federal Courts Legislation Amendment Act commenced on 26 February 2015 and a Commonwealth tenancy dispute between the parties to the lease that arose before, on or after that day.
153 The Instrument was registered on 5 March 2015. Turning to the terms of the Instrument, s 5 stated that the Part makes provision in relation to specified matters in respect of a Commonwealth tenancy dispute involving land in New South Wales: the rights of the parties to the dispute, those rights being the subject of s 6; the law to be applied in determining the dispute, that law being the subject of ss 7 and 8; the powers that the FCCA may exercise under that law, those powers being the subject of s 9; and the powers that may be exercised when executing an order made by the FCCA, those powers being the subject of s 10. We see no basis for a conclusion that the Instrument is ultra vires the power in s 10AA(3) of the FCCA Act.
154 We do not accept the appellants' submission that the power conferred by s 10AA(3) did not include the power to adopt by Instrument the 2010 RTA. Nor do we accept the appellants' submission that s 10AA(3) was a power only to define the court's jurisdiction with respect to a Commonwealth tenancy dispute. We also do not accept the appellants' submission that the law-making power "for and in relation to … a Commonwealth tenancy dispute" was not a law-making power since the legislation contemplated a legislative instrument-making provision for and in relation to, amongst other things, the law to be applied in determining the Commonwealth tenancy dispute. We do accept the appellants' submission that there must be a dispute to which the Commonwealth is a party and a dispute must be about the termination of a lease, or the possession or use of land but, in our view, there was such a dispute in the present case.
155 We reject the submission that the reference to "the applicable law" in s 10AA(3) refers to an existing Commonwealth law as that submission is directly contrary to the express words of s 10AA(3)(b): "whether a law of the Commonwealth or a law of a State … ". We have considered already and rejected the submission that the legislative scheme is invalid as conferring non-judicial power on a Ch III court.
156 We do not accept the submission that the Instrument was relevantly retrospective. As we have said, s 5 of Sch 2 to the Federal Courts Legislation Amendment Act dealt expressly with the application of those amendments to existing leases and to Commonwealth tenancy disputes between the parties to such leases, whenever those disputes arose. In our opinion, the Instrument made provision for the rights of the parties and the applicable law for the future, although operating on disputes in relation to leases entered into before the date Pt 1 of Sch 2 commenced and before the Instrument commenced. The relevant principle is explained in Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 at 309 per McHugh and Gummow JJ where their Honours distinguished between a statute which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions. The Instrument is of the latter character.
157 We also reject the submission that the statutory scheme for leases of 20 year and over, the 2010 RTA, was a code and such a law, by which we understood the appellants to mean the Instrument, could not operate retrospectively except by express and necessary statutory fiat. We refer again to s 5 of Sch 2. Further, s 12 of the Legislation Act has no relevant operation in respect of the Instrument since it did not take effect before it was registered.
158 In our opinion, there is no substance in the submission by the appellants that the Federal Courts Legislation Amendment Act, or the Instrument, failed to have regard to the disadvantage to tenants from the importation of the new law as a Commonwealth law, who under New South Wales law expected to be treated like all other residential tenants in New South Wales so as to affect the validity of the Instrument. Similarly, in our opinion there is no substance in the submission that because the lease provided that the State Tribunal was to be the arbiter of disputes, this suggested that if the lessor sought to take advantage of its special status as a law maker it should have entered into fresh leases in different terms.
159 The general power under consideration in Shanahan v Scott was a power which authorised the Governor in Council to make regulations providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the Marketing of Primary Products Acts 1935-1953 (Vic), or for carrying out the objects of the Act. The majority held, at 250, that:
… such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.
160 In our opinion, the High Court in Shanahan v Scott was not dealing with a regulation-making power in the form of s 10AA(3) of the FCCA Act. In any event, we see nothing in the form of the Instrument which is inconsistent with what their Honours there said.
161 As to the appellants' reliance on McEldowney v Forde, we see nothing in what Lord Diplock said there which suggests that the Instrument is ultra vires. We have of course carried out the three-fold task to which Lord Diplock referred at 658E-G: first, to determine the meaning of the words used in the Act itself to describe the subordinate legislation which that authority is authorised to make; secondly, to determine the meaning of the subordinate legislation itself; and, finally, to decide whether the subordinate legislation complies with that description.
Section 51(xxxi) of the Constitution - acquisition of property otherwise than on just terms
162 The appellants submitted the law resumed the three-month possession right by operation of s 8(2) of the Instrument which was itself an acquisition of an interest in land for the obvious benefit of the Commonwealth, hence satisfying the tests of such a law recently restated in JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1. The appellants also referred to James Stellios, Zines's High Court and the Constitution (6th ed, The Federation Press, 2015) p. 620ff. The appellants submitted that Pt 5 of the 2010 RTA, being a State law, made no provision for just terms if the law effects an acquisition of property. The Commonwealth law, in importing the State law, paid no attention to just terms. The consequence was, the appellants submitted, that the law was invalid for the absence of just terms. Alternatively, the FCCA should have framed its orders so as to give effect to the constitutional guarantee.
163 The respondent submitted that in the court below the present appellants adopted the arguments put by the applicant in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 (Hevers) and contended that the grant of jurisdiction to the FCCA created a federal tenancy law which meant that the 20 years and over tenants were a party to a different agreement to that created under State law and the Commonwealth had acquired benefits which the appellants had previously enjoyed. The differences that the appellants then relied on were, first, that the term of the agreement was originally "indefinite" because no termination of the agreement could occur except pursuant to s 94; second, the security of at least 90 days between the making of a termination order and any order for vacant possession provided under s 94(4); and, third, that under State law there would be no order as to costs made between the parties in the event of a dispute and the State Tribunal could exercise its powers to adjust the relationship between the parties during the termination period.
164 As to the appellants' submissions on the appeal, that if the tenancy was ultimately terminated the Commonwealth would acquire some proprietary benefit otherwise than on just terms, the respondent submitted the argument was misconceived. Any "benefit" that might accrue to the Commonwealth from the termination of the tenancy followed irrespective of the body that made the order. It was not a consequence of the impugned legislation which conferred jurisdiction on the FCCA to make the order. Furthermore, the respondent submitted, to the extent that the appellants' argument was that the tenancy was somehow protected from termination because of what the tenant had done to the land, it wrongly conflated the interest the tenant had in the land, being the tenancy, with the land itself.
165 In their written reply, the appellants submitted that the property loss to them in respect of their tenure had arisen under a law of the Commonwealth and so the constitutional protection was engaged. It was not suggested that such a protection was available to the appellants under State law "which conferred the protection taken by the Commonwealth". Immediately prior to the Commonwealth law being made the appellants had a right, in the nature of a right in property to possession, to three calendar months' occupation of the land before any order for vacant possession could have effect under s 94(4) of the 2010 RTA. After the Commonwealth law commenced, that right was lost, i.e. resumed by that law without compensation. Thus, at the time the appellants were served with the correspondence in December 2014, before the new law was made, regarding the proposed termination of the tenancy the appellants had reason to believe that they had such a property right by virtue of their long tenure on the land. When the matter was heard such right had been acquired by the Commonwealth. Thus, it was submitted that there was both a taking and the conferral of benefit upon the Commonwealth from the law, the benefit being the additional three months' tenure and occupation rights of the appellants which the Commonwealth acquired at no cost to itself.
166 In oral submissions, the appellants put that the just terms provision was engaged in two ways so as to make invalid the Instrument.
167 First, as applicable to all appellants including the present appellants, looking at the Instrument, particularly s 8(2), which was purportedly authorised by s 10AA(3)(c), being a modification of the applicable law, it denuded from the appellants the reasonable right of further residency under statutory tenancy pending re-entry, without any just terms being provided. There was a clear benefit to the Commonwealth as it got the benefit of a three months' curtailment of the property right of the appellants which would otherwise exist. As to it being a statutory right of property, the appellants submitted that the High Court had made it clear that the mere fact that a right of property was statutory was not a disentitling factor with respect to impairment of the constitutional guarantee. Further, the appellants submitted there was a taking. The taking occurred at that moment of time when the Commonwealth picked up the State law, removed the three months' statutory entitlement and then conferred a different right, a modified right without just terms.
168 In oral submissions the respondent submitted that the focus of the appellants' submissions on the appeal appeared to be that if their tenancy was ultimately terminated, the Commonwealth would acquire some proprietary benefit otherwise than on just terms. But, the respondent submitted, if that were the result, the Commonwealth obtained the benefit irrespective of whether it be the State Tribunal or the FCCA exercising the power. So that result did not flow from the legislation challenged in the present case. It would flow either way. So, the respondent submitted, there was no acquisition as a result of the legislation that was the subject of challenge.
169 We turn to consider these submissions.
170 The issue as argued involves a comparison between the terms of s 94(4) of the 2010 RTA, on the one hand and s 8(2) of the Instrument on the other hand. Before the Instrument was made, that is, before s 6 of the Instrument came into force, a party was entitled to make an application to the State Tribunal under the 2010 RTA in relation to the lease that was the subject of the Commonwealth tenancy dispute. Under the 2010 RTA a landlord could apply to the State Tribunal for a termination order and the State Tribunal had a discretion whether or not to make a termination order. By s 94(4), the State Tribunal, in determining the day on which vacant possession of the residential premises was to be given to the landlord, "must not order that vacant possession be given earlier than 90 days after the order is made". By s 8(2) of the Instrument, the 2010 RTA was to be applied as if it included the following section:
Despite anything else in this Act, if the Federal Circuit Court of Australia makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.
171 This issue was considered by the primary judge in Hevers at [74]-[78].
172 In our opinion, the combination of the following circumstances means that the Commonwealth legislation, including the Instrument, were not laws with respect to the acquisition of property other than on just terms. First, s 94(4) of the 2010 RTA did not come into force until 31 January 2011 and formed part of the statutory conditions and procedures to which the present lease, most recently entered into on 15 July 2004 and ended on 31 December 2005, then became subject. After the commencement of the 2010 RTA on 31 January 2011 the agreement applied as a periodic agreement under s 18(a) of the 2010 RTA. Thus, neither s 94(4) of the 2010 RTA nor s 8(2) of the Instrument affected the original tenancy agreement between the parties. This is not to say that the constitutional guarantee does not extend to property rights created by statute, but the terms of the statute and the nature of the claimed property rights which it creates require examination to determine whether and to what extent that property attracts the protection of s 51(xxxi). Secondly, the question of the State Tribunal or the FCCA determining the day on which vacant possession is to be given is a matter of the discretion of the relevant tribunal. The 90 day period in s 94(4) affects the exercise of that discretion. The non-applicability of the 90 day period affects the exercise of discretion of the FCCA. It may be that the FCCA in a particular case orders vacant possession on a day 90 days after the order is made or on a later day. Thirdly, insofar as there is a statutory "right" created by the terms of s 94(4) of the 2010 RTA, its continued and fixed content depended upon the will from time to time of the legislature which created that "right": see Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651 at 664. Fourthly, it is difficult to see that there is an acquisition of property involved in the modification of a right or interest that has not yet accrued: Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 at 559. It is more difficult to see that there is an acquisition of property involved in the modification of a discretion as to the earliest day on which a tribunal may order that vacant possession be given. We do not see JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1 as suggesting a different conclusion.
Recusal on the ground of (apprehended) institutional bias
173 The appellants submitted that the question of recusal was limited to one issue, namely apprehended institutional bias founded upon a close connection between the lessor/Commonwealth and the FCCA. This, the appellants submitted, was evidenced by consultation in the making of the Instrument under s 10AA prior to March 2015, which Instrument conferred jurisdiction on the FCCA under s 10AA, and the imposition by the Commonwealth of public pressure on the court to impose a new expense regime involving increased fees and loss of judges. Actual bias was not alleged, what was alleged was that an institutional appearance of bias had been allowed to appear by reason of the consultation by the lessor with the very court deciding the matters about the basis on which that should happen. The appellants referred to Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J and to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner). The appellants submitted that judges who knew of this governmental consultation with the FCCA must be presumed to support the new law or at least have a view about its utility and to not object to the conferral of jurisdiction on the court; those judges will presumably adopt the approach when the law is challenged as to its validity before him or her with the apparent bias of approbation not rejection. In this regard, the appellants submitted, the case could be distinguished from the allegation of apparent institutional bias in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J. Similarly, the appellants submitted, the public issue of filing fee increases and loss of judges in the manner raised by Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 was a further basis for a finding that the Commonwealth's public intervention in the court's affairs and governance directing its affairs gave the appearance of the possibility that the FCCA had been compromised.
174 The respondent rejected the contention that the primary judge ought to have recused himself on the ground of "institutional" bias arising from the claimed "close connection between the lessor/Commonwealth and the Court" based on the claimed:
(a) close consultation between the Commonwealth and the FCCA in the period leading up to the making of the Instrument in March 2015; and
(b) the alleged imposition by the Commonwealth of "public pressure on the Court to impose a new expense regime involving increased fees and loss of Judges".
175 The respondent drew attention to the limited evidence relating to these two matters. As to the first, the Commonwealth Attorney-General had issued a statement which mentioned that the Instrument had been developed in consultation with the FCCA and relevant Commonwealth Departments. As to the second matter, the only evidence was a newspaper article which stated that the FCCA risked losing registries and at least six judges if people did not continue to pay more money to divorce their partners.
176 The respondent contended that these matters did not satisfy the relevant test for apprehended bias as recently summarised by the Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]. The respondent adopted the analysis of the primary judge and also cited the observations in Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 at [19].
177 The respondent submitted that the judgments in Ebner emphasised the requirement for a "logical connection" between the matters complained of and the perceived risk to adjudication to be identified.
178 In their reply, the appellants said that the issue of institutional integrity was one of increasing importance in the authorities and in this case that integrity had been compromised by conduct in ways that had not been explained by the respondent, except by a blanket rejection.
179 We turn to consider these submissions.
180 As a preliminary matter, no formal application for recusal was made before the primary judge in the FCCA in the present proceeding. Next, there is no foundation whatever in the evidence for this claim on either of the bases on which it was put, or on those bases considered together. Consultation with the FCCA in relation to the making of the Instrument under s 10AA prior to March 2015 was entirely unexceptionable and the reasonable bystander would know this. Neither is there anything to suggest that the primary judge was consulted or that he knew of the consultation. As to the alleged imposition by the Commonwealth of public pressure on the court to impose a new expense regime involving increased fees and loss of judges, this also fails. There is no rational connection between any such alleged pressure and the application before the FCCA. There is nothing to suggest that the FCCA itself imposed increased fees. There is nothing relevant in Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J to which the appellants referred. Neither is there anything relevant in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J, to which the appellants also referred. We reject the claim that the Commonwealth's alleged public intervention in the court's affairs and governance directing its affairs gave the appearance of the possibility that the FCCA had been compromised.
The evidence of Mr Peter Robertson
181 As we have said, in the appellants' revised written submissions reference was made to the affidavits and other evidence of Mr Robertson, his evidence being common to the several appeals. The appellants submitted that the common issue was the issue of commercial need. The appellants submitted that they produced substantial material to demonstrate their competing needs for the future use of the land. It was also submitted that the further evidence to be read on the appeal was relevant to this issue. The appellants referred to the affidavit of Mr Anthony Green. The appellants submitted that in not having regard to such issues and material, the primary judge erred. It was submitted that apart from the issue of the Commonwealth's need there was also the more important question of the needs of the appellants and the adverse local social and environmental effects with respect to the loss of their land. The appellants submitted that the evidence led by them "was relevant but its content and subject matter was [not] the subject of any or sufficient regard by the Judge".
182 The appellants also provided by way of submission many references to documents which were before the primary judge.
183 The respondent relied on the primary judge's acceptance of Mr Robertson's evidence and emphasised that the appellants' criticisms were largely undeveloped. The respondent submitted that it was open to the primary judge to conclude, as he did, that Mr Robertson had given his evidence truthfully, notwithstanding the cross-examination which, for the most part, was directed to the issue whether there were other persons in the Department with more knowledge of and responsibility for decision-making concerning the development of the site for an airport. The respondent noted the observation of the primary judge that the cross-examination did not assist the proceedings in any way.
184 In oral submissions, the respondent referred to that part of Mr Robertson's affidavit evidence as to the announcement on 15 April 2014 that land owned by the Commonwealth at Badgerys Creek would be the site for Western Sydney's airport and the Commonwealth had taken steps to progress the development of the proposed airport site. The respondent said that, according to Mr Robertson's affidavit, this had included a process of obtaining vacant possession of the site from the existing residential tenants of land owned by the Commonwealth. There followed Mr Robertson's description of the reasons why vacant possession was required; and, the respondent submitted, what Mr Robertson clearly identified was that there had been no decision as to any specific proposal for this airport, but a decision had been made that Badgerys Creek was to be the site of a second airport, subject to any specific decision about a particular proposal being made. The respondent submitted that the Commonwealth had commenced the necessary environmental impact studies and even that process was invasive since various engineering studies needed to be undertaken, involving drilling rigs and other machinery. The respondent submitted that Mr Robertson's evidence described in detail the process by which most of the dwellings on the site had been demolished, in order to vacate the site for its use as an airport site, and why, in particular, the process was inconsistent with continued occupancy by tenants. In order to make the site ready for use as part of the national infrastructure, the site needed to be vacant and available for that use, as the respondent and the particular Department, vested with the management of national infrastructure, were doing. The respondent submitted that the primary judge considered these matters in his judgment. The respondent said that there were also commercial arrangements which would affect any final decision to proceed with any particular proposal for the site. The respondent submitted, in answer to the appellant's submission that the primary judge erred in accepting Mr Robertson's statements regarding the construction and development of the airport and not considering the long history of uncertainty and the changing position of the Commonwealth with regard to the building of the airport, that extensive documents were submitted by the respondent supporting these delays, which were considered by the primary judge, and that issue was dealt with by Mr Robertson in his affidavit evidence.
185 We turn to consider these submissions.
186 In our opinion, the appellants' submissions proceed upon a misconception, not shared by the primary judge, of the basis on which the Commonwealth sought the termination order. The termination order was sought in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act 1996 (Cth). It was the preparation of that site which was the subject of Mr Robertson's evidence as to commercial need and as to why vacant possession was urgently required. In our opinion, the point is not whether the construction of the airport itself may be delayed or abandoned by a change in policy or by other considerations but whether, as things stand, the premises were urgently required for the preparation of the airport site.
187 In Mr Robertson's oral evidence the contractual relations with the Sydney Airport Group were described briefly. Mr Robertson said that the Commonwealth may make an offer to the market against which the owners of Sydney Airport Group had a right of first refusal. This, he said, was a term of the initial share sale agreement for Sydney Airport. Mr Robertson said that while consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the Australian Government itself. He said that essential to any such proposal was the outcome of the environmental impact assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations.
188 In our opinion, whether and on what environmental terms the second airport may be built remains in the future. Thus what may be the outcome of an environmental assessment was not a matter which the primary judge was required to evaluate further than he did. As we have indicated, the primary judge considered this material at [25] and following of the reasons for judgment in the present appeal under the heading "The first steps towards construction of an airport". The primary judge then summarised at [42] the position in relation to the Sydney Airport Group under the heading "Preparation for development by a private sector operator". The primary judge then considered the circumstances affecting Mr and Mrs Dattilo. The primary judge addressed the statutory question, that is, whether he should make a termination order on the basis that he was satisfied that it was appropriate to do so in the circumstances of the case.
189 As to the many documents referred to in the appellants' written submissions, a reading of those documents so far as they are in evidence does not cast doubt on the treatment by the primary judge of the evidence of Mr Robertson as to the commercial need for and the urgency of the timing of possession of the premises. As we have said that evidence went to the preparation of the site intended to form part of an airport site to be declared for the purposes of the Airports Act.
The needs of the appellants
190 The appellants also submitted many references to documents as to the needs of the appellants and "the adverse local social and environmental effects with respect to the loss of their land".
191 Reference was made by the appellants to the evidence of Mr Azar, described by the primary judge as a registered real estate valuer. He gave evidence for the Commonwealth in other related matters. The appellants submitted that the evidence of Mr Azar was seriously undermined by the evidence that the appellants brought, both as to availability and suitability of other accommodation, and that was not reflected in the reasons of the primary judge. In our opinion, the primary judge accepted, at [65], the evidence of Ms Leanne Uren that the properties used by Mr Azar as comparable to some of the other tenants' properties were, as at the date of the hearing, no longer available for lease. We also note that Ms Leanne Uren accepted that her table did not suggest that the agents she contacted did not have other properties available at the date of her inquiries. In Mr and Mrs Dattilos' proceedings the evidence of Mr Azar was not relied on by the respondent, as noted above, and it was regarded as relevant by the primary judge only insofar as other witnesses who had given evidence in the Dattilos' proceedings responded to the evidence of Mr Azar. We do not accept that the primary judge failed to evaluate the competing evidence. In relation to the evidence of Mr Azar being seriously undermined, it appears that the point was that the properties to which he had referred in his original report were available in May 2015, at the time he did his research, but the position had changed by the date of his report in July 2015.
192 Reference was also made by the appellants to the affidavits of Ms Leanne Uren and of Ms Simone Fogarty and their cross-examination. It was submitted that this evidence was relevant "but its content and subject matter was [not] the subject of any or sufficient regard by the Judge." However, this material was referred to by the primary judge at [58]-[77]. The primary judge accepted at [77] Ms Fogarty's evidence that more time would improve the tenants' chances of obtaining alternative accommodation.
193 In oral submissions, the appellants submitted the way in which the primary judge approached the question was to reason that he was not concerned with comparable properties but only with the more general question of whether some suitable alternative accommodation was reasonably available. The appellants submitted that that meant that the primary judge did not look at the particular circumstances relating to the premises, but asked a more general question which, the submission continued, did not look at all the circumstances of the case. The appellants also submitted that that approach did not accord with what Rolfe J had said in Swain where his Honour referred to, as a possible "circumstance" which may have to be taken into account, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation, in which his Honour included accommodation in an area suitable for matters such as proximity to family, facilities or employment. So, it was submitted, the appropriateness was never really balanced from the point of view of the appellants on the evidence which they adduced before the court.
194 Rather than any specific attack on the fact-finding of the primary judge the thrust of the submission went to the exercise by the primary judge of his discretion under s 94 of the 2010 RTA in respect of which counsel for the appellants accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 applied. There, Dixon, Evatt and McTiernan JJ said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
195 In our opinion, the appellants have not made good this challenge to the exercise of the primary judge's discretion.
196 We reject the submission that the only matter, or the only real matter, which the primary judge had regard to in relation to the appellants' interest outweighing the general economic, political and social requirements of the Commonwealth, was the availability of suitable alternative accommodation. First, we do not accept that the Commonwealth's requirements are properly described as "general economic, political and social requirements". The Commonwealth wanted to recover possession of the premises to use the land for its own purposes for the development of an airport site. Secondly, in the exercise of the discretion under s 94 of the 2010 RTA the primary judge considered each of the matters on which the appellants relied. A major matter was the availability of suitable alternative accommodation.
197 We reject the submission that the primary judge did not look at the particular circumstances relating to the premises, but asked a more general question which did not look at all the circumstances of the case.
198 In our opinion, in respect of the submissions made in relation to Mr Robertson's evidence and in relation to the needs of the appellants, no appellable error has been shown in the primary judge's consideration of the evidence or in his consideration of the interests of the appellants and the interests of the respondent.
Appellants' submissions specific to this appeal summarised
199 The outline of written submissions dated 23 March 2016 and filed on behalf of Mr and Mrs Dattilo may be summarised as follows.
200 Mr and Mrs Dattilo adopted the submissions in Uren regarding what counsel described as "the general criticisms of the reasoning on the discretion issue". This presumably was a reference to the submissions made in Uren that the primary judge adopted a test under s 94 of the 2010 RTA which was in error because:
(1) the test involved an approach to the exercise of the primary judge's discretion under that provision which was the most unfavourable to the position of the appellants;
(2) it was a test which did not sufficiently identify "all the circumstances" as required by the provision;
(3) the primary judge did not conduct a fair and reasonable balancing exercise;
(4) with respect to both the termination order and the possession order, the primary judged failed to ask himself whether the result as expressed in the court's orders was appropriate;
(5) there was no exercise of discretion with respect to the making of the orders; and
(6) the orders did not reflect Pts 5 and 6 of the 2010 RTA.
201 In oral submissions, the appellants expanded upon the following matters in relation to this appeal. First, they submitted that in looking at what order was appropriate, the primary judge made reference to their 20-year plus residence but gave no or no sufficient emphasis, beyond a passing reference, to the fact that that possession had remained undisturbed over such a long period of time in which they had worked up the land and looked after it. Secondly, the appellants emphasised that the error of adopting a "balancing test" in applying s 94, rather than determining what was appropriate in all the circumstances of the case, was highlighted in a case such as this, which involved competing public and private interests, where there was likely to be an inclination to give more weight to public interests than to private interests. In doing so, the primary judge failed to direct himself to the correct statutory test. Thirdly, there was required to be separate consideration of the possession order, and in particular the date of the making of the possession order, which did not occur. Fourthly, the primary judge did not sufficiently identify or look at all the circumstances. The circumstances were submitted to be the length of tenure; keeping land productive and not wasting; maintaining the land; reduced fire risk; and protecting the land. Fifthly, in balancing, even on the test that he adopted, the primary judge did not conduct an appropriate balancing exercise. Sixthly, he did not ask himself, with respect to the termination order or the possession order, whether that result, as expressed in the orders, was appropriate: only one week was allowed for the termination of the agreement, and then possession one week later.
202 The outline of submissions addressed what was claimed to be matters relating to the lease which "differ substantially from the other over 20 years leases". Attention was drawn to the fact that the lease stated that it was a commercial and residential lease. Mr and Mrs Dattilo first entered into exclusive occupation of the land the subject of their lease in 1986 after their land was resumed by the Commonwealth. Counsel submitted that, in these circumstances, the common law of leaseholds, and the contemporary law of contract to which it related, had no part to play in the present dispute, citing Aboriginal Housing Company Ltd v Kaye-Engel (No 3) [2014] NSWSC 718 at [19] per Davies J. He further submitted that the 2010 RTA had transformed the leasehold tenure of Mr and Mrs Dattilo into an interest different from the normal tenant, and having "an affinity with freehold", citing Wilson v Anderson at [21] per Gleeson CJ. Their interest in the land was said to be relevant to the constitutional issue.
203 It was submitted that after the Commonwealth filed the application under the 2010 RTA in which it sought an order of termination, the claim became a contest, by operation of the law of New South Wales, between competing owners of land to the use of the land. It was contended that the court's power was "unprecedented" and conferred the legal benefit only once the termination order had been made, with the consequence that the court does not decide any existing dispute about the law under the 2010 RTA, but rather creates a new legal regime.
204 It was submitted that, at the time the Commonwealth filed its application in the FCCA on 12 March 2015, no relevant jurisdiction had been conferred upon the FCCA. This did not occur until the amending Act which inserted s 10AA of the FCCA Act came into effect on 24 February 2015. Furthermore, the Instrument made under those amendments was made in March 2015. Despite this chronology, the Commonwealth's application dated 12 March 2015 sought, among other things, an order under s 94(1) of the 2010 RTA for vacant possession before 15 June 2015 [in fact 22 June 2015], with costs reserved. Counsel for the appellants submitted that this "rather reinforces the impression that the pleader was aware that no contest was raised before the proceeding commenced which the Court had to resolve" and that it was only in this "limited sense" that the dispute between the respondent and Mr and Mrs Dattilo was a "Commonwealth tenancy dispute".
205 Mr and Mrs Dattilo further submitted that no airport plan, draft major development plan or airport lease had been made in respect of their land as described in s 28 of the Airports Amendment Act 2015 (Cth) (which inserted s 94AA in the Airports Act 1996 (Cth)). Nor at the date of the Commonwealth's application in the FCCA had there been any development approval sought or granted by the relevant local authority under the Environmental Planning and Assessment Act 1979 (NSW) to build an airport on the land. Furthermore, as at the date of the Commonwealth's application, no action had been taken to declare the land an airport site under reg 1.03 of the Airports Regulation 1997 (Cth).
206 Counsel for Mr and Mrs Dattilo emphasised that there was no allegation that they had breached their tenancy agreement with the Commonwealth, and they were not in breach as at the date of the respondent's application in the FCCA.
207 Counsel for Mr and Mrs Dattilo described as an "important consideration" that they remain in possession of the whole of the land and have a present need and use of the land. Another relevant circumstance was that, because of their age and health, any termination order would necessarily operate harshly upon them. Counsel emphasised that Mr Dattilo is 80 years old and Mrs Dattilo is 70 years old. It was submitted that Mr and Mrs Dattilo had a "proven need" for the continuation of the tenancy of both the land and the premises. Another relevant consideration was said to be the lack of suitable available alternative premises for Mr and Mrs Dattilo and reliance was placed upon the evidence of Mr Azar and Ms Uren in support of that contention. Counsel submitted that the eviction and dispossession of so many tenants in the Badgerys Creek area had increased the cost of renting and accommodation and that Mr and Mrs Dattilo should be given a notice period of two years with compensation for the loss of their lease, their premises and the difficulties of obtaining an alternative equivalent tenancy. An amount of $250,000 was identified in counsel's submissions as appropriate compensation.
208 Mr and Mrs Dattilo's outline of written submissions raised several other additional points, however, their connection with the amended notice of appeal was somewhat obscure. They included the contention that their land was not a residential tenancy to which the 2010 RTA applied, citing Vu v Lien [2011] NSWCTTT. A copy of this case was not provided to the Court and we have not been able to find it. Another was that the proceedings were improperly constituted as Mrs Dattilo had not been joined as a party and no order was sought against her, in which case s 10 of the 2010 RTA "excluded liability". A separate submission was made to the effect that Mr Dattilo considered that the land would never be used as an airport and that, because of its value, it would be sold to developers.
209 Counsel submitted that the primary judge had failed to have regard to "these general considerations".
210 As to the primary judge's finding that the predominant use of the land was not agricultural, it was submitted that his Honour had erred in taking into account the quantum of the rent because this was an issue which had not been put to Mr Dattilo and was not indicative of the use of the land.
211 Finally, it was submitted that the primary judge "failed to balance the interests in a fair and reasonable manner, and to have regard to their real interests". The primary judge's criticism of the Dattilos' failing to come to court in the face of "uncontested medical evidence was perverse". It was submitted that this failed "to allow for the farming use by employees and staff and family". It was submitted that the primary judge had paid "insufficient regard" to Mr Dattilo's affidavits dated 18 April 2015 and 16 July 2015. This general submission could be taken to refer to Mr Dattilo's lay evidence about his state of health in his 18 April 2015 affidavit or his evidence in the 16 July 2015 affidavit about the use of the land for agriculture and his and his wife's need for the land or the availability of alternative premises.
212 Mr and Mrs Dattilo's contention that the primary judge had applied a wrong test under s 94 was expressed in different ways.
213 Counsel challenged the primary judge's construction and application of s 94 of the 2010 RTA. He submitted that the primary judge applied the wrong test by purportedly adopting the test established by Rolfe J in Swain and on appeal and then applying that test to the Commonwealth law.
214 Counsel criticised the primary judge's approach on two grounds. First, he submitted that the primary judge erred in stating that the question of the determination of the date on which possession should be ordered or take effect attracted no explicit guidance in the 2010 RTA. He submitted that, while the combined effect of s 10AA(3)(c) of the FCCA Act and s 8(2) of the Instrument provided for a power in the FCCA to revoke or reduce the 90 day period which would otherwise apply, s 8(2) adopted a test by reference to the concept of "such orders as [the FCCA] considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord". Despite the tension which existed between the concepts of "possession" and "vacant possession", counsel submitted that was "explicit guidance" for the exercise of the discretion under s 94(1)(c) of the 2010 RTA.
215 Counsel submitted that the primary judge's second error in construing and applying s 94 was to be found in his Honour's reference to "balancing the interests" of the parties, which he submitted was unsupported by any approach and caused the primary judge to emphasise the more weighty interests of the Commonwealth over those of the tenants. Counsel submitted that, rather than balancing interest, the correct test was to first find "all the circumstances" and then ask what was the appropriate order in those circumstances. Moreover, he submitted, there remained a residual discretion whether or not to make an order. The Court could refuse to make a termination order or, if it decided to make such an order, it could do so with a relevant order for possession.
216 Counsel was critical of the primary judge's acceptance of Mr Robertson's evidence regarding the "first right of refusal" of the present owners of Sydney (Kingsford Smith) Airport and his failure to address the pleading that that company had no intention of exercising its right to proceed with the Badgerys Creek site as an airport as it was not in their commercial interest to do so.
217 Furthermore, counsel was critical of the primary judge having "full regard" to the Commonwealth's correspondence with Mr and Mrs Dattilo notwithstanding that he described the correspondence as "surprising and misleading".
218 On the issue of suitable alternative accommodation, counsel was critical of the primary judge's acceptance of Mr Azar's evidence in preference to that of Ms Fogarty, Ms Uren and Mr Neskovski (who each gave expert evidence on behalf of the appellants). With specific reference to Mr Azar's evidence, counsel submitted that:
(1) the properties relied upon him in reaching his conclusions were neither available nor comparable;
(2) the primary judge disregarded other flaws in Mr Azar's evidence including matters which included that the properties he used in his comparative analysis were not available when he wrote his report; and
(3) the affidavits relied on demonstrated that there was a lack of suitable alternative available premises and this was not contradicted by Mr Azar.
219 Counsel was critical of what was submitted to be the primary judge's disregard of expert and other evidence regarding the effect on the rental market caused by the Commonwealth's actions in attempting to eject all its tenants at the Badgerys Creek site at the same time.
220 Counsel criticised the primary judge's approach in accepting Ms Fogarty's evidence that more time to vacate and give possession would assist tenants in obtaining alternative accommodation, yet only two additional weeks were provided notwithstanding that many of the tenants had been in possession for over 20 years. Counsel was also critical of the primary judge's reliance upon the terms of the initial leases as indicating that the tenants were on notice that an airport would be built in circumstances where the Commonwealth never pleaded reliance upon an express term to that effect in either the initial or later leases, which made the provision legally irrelevant, so it was submitted.
221 Counsel further contended that the primary judge's balancing exercise involved no or insufficient regard being paid by his Honour to the following general circumstances:
(1) the fact that 20 years or more of continual possession meant that under New South Wales law, the appellants were more than lessees, and had a leasehold tenure in the nature of freehold;
(2) the continued use of premises by various tenants for more than 20 years in contrast with forcibly evicting them and thereby creating a wasteland akin to the "zombie" mortgage belt in the United States;
(3) the safety of the premises having regard to the care and attention paid by the tenants to their land;
(4) reducing fire risk; and
(5) promoting environmental care by retaining tenants in possession, who would care for the land.
222 In his oral submissions, counsel for Mr and Mrs Dattilo contended that, while the primary judge turned his mind to the issue of alternative accommodation, he did so at too a high a level and without regard to Mr and Mrs Dattilo's personal circumstances.
223 On the question of the proper construction of s 94 of the 2010 RTA, counsel contended that the provision contained two discretions, one in the chapeau as was reflected in the use of the term "may", and another within s 94(1)(c).
224 As noted above, Mr and Mrs Dattilo contended that there was no power in the FCCA to make an order for vacant possession, as opposed to an order for possession, under either ss 83 or 94 of the 2010 RTA.
Respondent's submissions specific to this appeal summarised
225 As noted above, the respondent did not object to Mr and Mrs Dattilo relying upon the revised written submissions dated 6 April 2016.
226 On 8 April 2016, the respondent filed an outline of its written submissions on general common issues and issues specific to individual appeals.
227 The respondent acknowledged that the statutory environmental assessment process concerning the development of an airport at Badgerys Creek was still underway, however, substantial progress had been made in clearing the area (which had been declared as an "airport site" under the Airports Act by the Airports Legislation Amendment (2015) Measures No 1 Regulation 2015 (Cth)). As at 22 October 2015, 117 out of an estimated 163 tenants across the site had been vacated and 116 structures demolished. To further secure the site, roads were being progressively closed and municipal services reduced as the land was vacated. It was contended that the site was being cleared not only to permit swift development once the environmental assessment process was completed, but also to remove impediments to the environmental and engineering investigative work which was relevant to the design and assessment of the environmental impact of the airport proposal. Reference was made to the affidavit of Peter Robertson affirmed 30 March 2015, at [13].
228 The respondent emphasised that the tenants had entered into a written tenancy agreement as defined by s 13 of the 2010 RTA. The tenancy agreement contained an acknowledgement on the part of the tenants that the land in question was intended to be used for the proposed airport. In circumstances where the term of the original tenancy agreement had expired, it continued under s 18 of the 2010 RTA as a periodic agreement on the same terms as applied immediately before the end of the fixed term.
229 The respondent submitted in relation to "long term tenancies", no notice was required before applying to the appropriate tribunal for an order: s 94(2) of the 2010 RTA. Upon application, a termination order was to be made "if the Tribunal is satisfied that it was appropriate to do so in the circumstances of the case". The primary judge expressly acknowledged "the requirement for that discretionary factor" in his judgments, for example, Rigney at [118]-[119] and [139].
230 It is convenient to summarise the Commonwealth's submissions on common issues other than those dealt we have already dealt with above.
Jurisdiction to make orders concerning licensed land
231 The appellants apparently contended that the FCCA had no power separately to address an ordinary lease/licence other than under the jurisdiction conferred on the FCCA concerning the 2010 RTA. The respondent contended that this proposition was plainly wrong having regard to the terms of s 10AA of the FCCA Act, which made express reference to the FCCA having jurisdiction to hear and determine any Commonwealth tenancy dispute between the parties to "a lease (or) licence".
Predominant use of the leased premises
232 The respondent contended that this complaint remained largely undeveloped in the appellants' submissions. It contended that the primary judge had made appropriate findings about predominant use after an examination and assessment of the available evidence. That examination and assessment was to be found in [8]-[15] of the primary judge's reasons for judgment. The respondent defended the primary judge's approach, which viewed the issue arising under s 7(h) as a qualitative one, rather than as a mathematical exercise. The respondent also contended that the primary judge's conclusion was consistent with the fact that there was a signed residential tenancy agreement which referred to there being a house on the relevant land which was occupied by the appellants or their subtenants.
Weighing of competing considerations
233 The respondent contended that, to succeed in challenging the primary judge's exercise of discretion, the appellants needed to establish a reviewable error in the sense of House v The King [1936] HCA 40; 55 CLR 499. It was insufficient that the appeal court might reach a different conclusion and if the matter boiled down to one of different views regarding the weight to be given to relevant items no reviewable error was established (referring to Gronow v Gronow [1979] HCA 63; 144 CLR 513 at 519 per Stephen J, at 525 per Mason and Wilson JJ and at 534 per Aickin J).
234 With specific reference to Mr and Mrs Dattilo, and their submission that the primary judge failed to address whether either the termination or possession order was "appropriate", the respondent contended that, in fact, the primary judge did consider this and was reasonably satisfied that it was appropriate to make a termination order and also to order that the Dattilos were to give vacant possession 75 days from the date of judgment.
Date of termination order
235 As to Mr and Mrs Dattilo's contention in ground 7 of the amended notice of appeal that the primary judge erred in ordering termination forthwith and vacant possession on or before 18 December 2015, the respondent contended that this incorrectly recorded the orders made by the primary judge. Those orders were that vacant possession be given on or before 18 December 2015, but that the order be suspended until 24 February 2016. The respondent contended that the orders were lawfully made, having regard to the definition of "termination order" in s 80 of the 2010 RTA, where it was defined to mean "an order terminating a residential tenancy agreement together with an order for possession of the residential premises".
Did the tenancy agreement apply to the residential part of the property only?
236 The respondent contended that there was no substance in the contention that the primary judge erred by failing to determine whether or not the lease of the premises to the Dattilos was a residential tenancy agreement within the meaning of s 19 of the 2010 RTA in circumstances where part of their land was not used for residential purposes. This was said to be inconsistent with the definition of "residential premises" in s 3 of the 2010 RTA where it was defined to include "any premises or part of premises (including any land occupied with the premises)" (emphasis added).
237 The respondent responded to the remaining submissions made by Mr and Mrs Dattilo as follows. First, it contended that there was no legal basis for the Dattilos to receive a notice period of two years and no legal basis had been established for them to receive compensation in any amount, including the $250,000 referred to by them.
238 Secondly, there was no evidence before the primary judge concerning Mr Dattilo's opinion that the site would never be used as an airport and, even if there were, it would be irrelevant having regarding to the acknowledgment clause in Mr and Mrs Dattilo's lease.
239 Thirdly, as to Mr and Mrs Dattilo's complaint concerning the primary judge's finding regarding the predominant use of their premises, the respondent submitted that there was a paucity of evidence to support this claim that the land was predominantly used for agricultural purposes. The respondent also drew attention to the fact that the relevant tenancy agreement applicable to Mr and Mrs Dattilo expressly apportioned the rent payable for their different uses of the land, with the residential component being far greater than the non-residential component. This, it was submitted, supported the primary judge's finding that agricultural was not the predominant use of the land. This was further supported by Mr Dattilo's own evidence that he was retired, so submitted the respondent.
240 Fourthly, the respondent challenged the submission that the primary judge criticised the Dattilos for not coming to Court. The respondent emphasised that Mrs Dattilo did not provide an affidavit and that Mr Dattilo was required for cross-examination in respect of his two affidavits. He did not attend the hearing but provided some medical evidence. Importantly, however, the Commonwealth stressed that the primary judge stated that he did not need to come to a concluded view about whether or not Mr Dattilo should have been available for cross-examination (referring to [11] of the reasons for judgment).
Consideration
241 We have set out at [53]-[63] above the consideration by the primary judge of the expert evidence, including the evidence of Mr Azar. We do not repeat what we have there written.
242 We turn to consider the remaining issues.
243 It may be recalled that the primary judge said, in his reasons for judgment in this matter at [78]-[82], that in the circumstances to which he referred, he considered that it was appropriate that the residential tenancy agreement be terminated and that there be an order for vacant possession which was to take effect 75 days from the date of judgment. He therefore ordered, by orders made on 11 December 2015, that the residential tenancy agreement be terminated forthwith; vacant possession of the premises be given to the applicant Commonwealth on or before 18 December 2015; and that the order for vacant possession be suspended until 24 February 2016.
244 We do not accept the appellants' submission that the primary judge was required to give "separate" consideration to the determination of the day on which vacant possession was to be given. The primary judge recognised that there was a discretion to make the termination order and a discretion to determine the day on which vacant possession was to be given. The form of the orders demonstrates this recognition. So also does what the primary judge said at [20], repeating what he had said in Rigney at [140] which we have set out at [37] above.
245 We also do not accept the appellants' submission that this part of the reasons of the primary judge disclosed a further error in stating that there was "no explicit guidance in the Tenancies Act as to the date on which possession should be ordered" in light of, as we would read it, the operation of s 8(2) of the Instrument. If s 94(4) of the 2010 RTA had applied, the explicit guidance would have been (in the present case of continual possession for a period of 20 years or more) that vacant possession must not be ordered to be given earlier than 90 days after the order is made.
246 In oral submissions attention was given to the form of the order made by the primary judge that vacant possession be given on or before 18 December 2015 but that the order for vacant possession be suspended until 24 February 2016. The appellants submitted that this form of order disclosed error. In our opinion, the primary judge was applying s 83 of the 2010 RTA, that is, making an order for possession of the residential premises and specifying the day on which the order was to take effect. So much was clear from Rigney at [140]. In our opinion, it is clear that the words in s 83(1) "specifying the day on which the order takes or took effect" refer to the order for possession. Also, the definition of "termination order" in s 80 of the 2010 RTA stated that it meant an order terminating a residential tenancy agreement together with an order for possession of the residential premises. The primary judge was making clear that the order for possession was not take effect on the same day as the order terminating the residential tenancy agreement. We also note that under s 85 of the FCCA Act it was provided that the Rules of Court may make provision for or in relation to the stay of proceedings under judgments of the FCCA. By r 29.04 of the Federal Circuit Court Rules 2001 (Cth) a party bound by a judgment or order may apply to the court for an order that the judgment or order be stayed and by r 29.12 a party may apply to the court for a stay of execution of the judgment or order. It is also relevant that s 8(2) of the Instrument provided that, when making a termination order, the court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord. In our opinion, there was ample power available to the primary judge to make the order for vacant possession in the terms he did.
247 The appellants submitted first that no reasons were given as to why a different suspension period was made with respect to different appellants and, secondly, that the consideration about desirability, as distinct from appropriateness, as to the making of the order at all gave rise to a confusion which led to an injustice to the appellants because the considerations that led to a suspension for the three different periods that the primary judge used, being 60 days or 75 days or 90 days, should have been taken into account at the level as to whether or not it was appropriate to make an order at all. So in other words, it was submitted, the primary judge pushed back the issue of what was appropriate to particular cases and dealt with it under the issue of suspension and desirability of making such an order, rather than looking at it from the point of view of the appellants at the level of appropriateness, so that it was an error in the application of the two different tests. (We took this to be a reference to s 94 on the one hand and s 114 on the other. However the reasons for judgment of the primary judge did not refer to s 114 at all).
248 We reject these submissions. The primary judge was in each case exercising his discretion and doing so by reference to the statutory language. In our opinion, it is not a ground of criticism that the exercise of the discretion led to three categories of periods of suspension of the orders. No separate reasons explaining the three categories needed to be given as in each case the orders flowed from the prior fact-finding and reasoning. The primary judge was posing the question whether it was appropriate that the tenancy agreement in each case be terminated; whether it was appropriate that there be an order for vacant possession; and the appropriate date at which that order should take effect. In our opinion, there was no failure on the part of the primary judge to consider the appropriateness of making an order at all.
249 It is also convenient to note here that we reject the submission put by the appellants that the primary judge ordered termination forthwith and vacation by 18 December 2015. In fact, the effect of the orders of the primary judge was to give 75 days from the date the order was made for the appellants to give up possession.
250 As to the reference to the purported balancing test applied, the primary judge said at [71], with reference to the availability of suitable premises in the market for relocation:
The question to which this evidence is directed is not whether identical or comparable properties are available but rather, whether there is some suitable alternative accommodation that is reasonably available. I do not mean to state the question in a concrete way so as to substitute what is a broad discretion for some narrower, potentially stricter, test. However, framed in that way, the question captures, in my view, more accurately the balance that is sought to be struck between the interests of the landlord and those of the tenant. That aim has not gone so far as to require the eradication of any difficulty or hardship that might be suffered by a tenant who must leave a property after a long occupation. Nor does it require an order that ensures that the tenant is able to live in near identical circumstances as those to which he or she has become accustomed.
251 In our opinion, read in context, no error is disclosed by this use of language. The primary judge specifically referred to the broad discretion under s 94 of the 2010 RTA. Also in Swain on appeal Meagher JA, with whom Priestley and Cole JJA agreed, after referring to what the words "circumstances of the case" meant in the then s 64, said at 456, "I think it can be fairly stated that the Act is intended to balance the rights of landlords and tenants". In our opinion, the appellants' submissions sought to take the word "balance" out of context when it is clear that that was not the test that was applied by the primary judge and, speaking generally, it is correct to say that the legislation does seek to strike a balance between the interests of the landlord and those of the tenant.
252 We see no error in the manner in which the primary judge took into account the correspondence between the Commonwealth, or its agents, and the appellants. His Honour set out the correspondence at some length in his consideration of the circumstances affecting the appellants from [46] and following of the reasons for judgment. The correspondence was taken into account by the primary judge in the exercise of his discretion.
253 We see no error in the manner in which the primary judge considered the first right of refusal in relation to the construction of the airport. The primary judge accepted the evidence of Mr Robertson and found a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. We refer to, but do not repeat, what we have already said about this above.
254 We reject as untenable the submission that the effect of s 94 of the 2010 RTA meant that in the eyes of the law in New South Wales, the appellants were more than lessees, and had a leasehold tenure in the nature of freehold. The statute does not have that effect. We see no force in the appellants' reference to Wilson v Anderson which concerned a "lease in perpetuity" granted by the Crown under s 23 of the Western Lands Act 1901 (NSW).
255 We get no assistance for present purposes from the appellants' reference to Aboriginal Housing Company Ltd v Kaye-Engel (No 3) at [19]. Justice Davies there pointed out that s 81 of the 2010 RTA sets out the only circumstances in which a residential tenancy agreement terminates. None of those circumstances allow for order of any court but only an order by the State Tribunal. However the effect of the amendments to the FCCA Act and of the Instrument is that the FCCA may make that order.
256 We reject the submission that at the time the respondent filed its application in the FCCA on 14 February 2015, no relevant jurisdiction had been conferred upon the FCCA on the basis that this did not occur until the amending Act which inserted s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) came into effect on 24 February 2015. The appellants' further submitted that the Instrument under those amendments was not made until March 2015 and that the Commonwealth's application sought vacant possession before 15 June 2015. We reject the submission because the correct chronology is that the application by the respondent to the FCCA for orders terminating the agreement and for vacant possession of the property was made on 12 March 2015, after the amendments made to the FCCA Act and after the commencement of the Instrument. We further note that the correct chronology is that respondent's application sought vacant possession before 22 June 2015.
257 We reject the submission that the primary judge did not take into account the continued use of the premises by the appellants for more than 20 years. The primary judge was well aware of the use of the premises having considered it at some length at [8]-[14] and because use of the land went hand-in-hand with possession. Since the Commonwealth proposed to use the land it would not make the land waste.
258 We see no error in the conclusion of the primary judge that Mr and Mrs Dattilo had not established on the evidence that the predominant use of the premises was for the purposes of agriculture. We accept the submissions on behalf of the respondent in this respect and add the consideration that the primary judge also referred, at [80], to Mr Dattilo's ill-health as supporting the conclusion that it was unlikely that he would be able to continue his agricultural activities. As to the submission that the primary judge paid "insufficient regard" to Mr Dattilo's affidavits dated 18 April 2015 and 16 July 2015, this was put generally to this Court and we see no error in the primary judge's consideration of this material. His Honour accepted that Mr Dattilo was in some ill-health and gave clear reasons for his conclusions as to the present use of the land. What Mr Dattilo had said in his evidence about alternative premises stood or fell with what he had said was the continuing predominant use of the land, which the primary judge rejected.
259 The other submissions put by the appellants about the safety of the premises, reducing fire risk and enhancing environmental care of the land show no error on the part of the primary judge in light of the proposal by the Commonwealth to prepare the land for use as an airport site. As we read them, at [29] and following of his reasons for judgment, the primary judge accepted the evidence of Mr Robertson as to the incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site and the residential amenity and safety. It was open to him to do so.
260 Further to our reasoning above on the correctness of the primary judge's approach to s 94, we reject the submissions that the primary judge adopted a test embodying an approach to the exercise of his discretion under s 94 which was the most unfavourable to the appellants' position and that the primary judge did not sufficiently identify "all the circumstances" as required by s 94. We also reject the submissions that the primary judge did not conduct a fair and reasonable balancing exercise and did not ask himself with respect to either the termination or possession orders whether the result as expressed in his orders was appropriate. We also reject the submissions that the primary judge did not exercise a discretion with respect to the making of the orders; and made orders which did not reflect Pts 5 and 6 of the 2010 RTA. Each of these submissions is inconsistent with the terms of the primary judge's reasons for judgment.
Other grounds in the amended notice of appeal
261 As to ground 9 in the amended notice of appeal, that the primary judge erred in not recusing himself where he had heard other cases, this ground was not pressed. We have considered above and rejected the claim of so-called institutional bias.
262 As to ground 11 in the amended notice of appeal, in relation to expert evidence, to the extent that we have granted leave to amend to add this ground, it centres on the claim concerning the availability of suitable alternative accommodation. The primary judge considered the evidence of Ms Fogarty throughout paragraphs [60]-[77] of the reasons for judgment and in our opinion evaluated that evidence, giving reasons for concluding that she was not a convincing witness but did make a number of reasonable points which the primary judge then considered. Insofar as the ground claims that the primary judge did not have sufficient regard to that expert evidence, in our opinion it fails in light of the detailed consideration the primary judge gave to it. We see no appellable error in that consideration.
263 As to ground 12, concerning the Commonwealth's urgent need for vacant possession, we have considered at [186]-[189] above the evidence of Mr Robertson. There was no error in the primary judge accepting that evidence. We reject the submission that there was no real evidence to support the Commonwealth's claim in that respect. It follows that there was evidence to take into account as against the evidence of the appellants in this respect. This ground therefore fails. We add that we have also concluded above that there was no error in the primary judge evaluating the competing evidence as he did.
264 The remaining grounds, grounds 13 and 14, centre on the claimed long history of uncertainty and the changing position of the Commonwealth with regard to the building or not building of the airport; the claimed reasonable belief on the part of the appellants that since December 2000 they really believed that Badgerys Creek was not being considered as a site for the airport.
265 As to the first of these matters, ground 13, in our opinion it was open to the primary judge to accept Mr Robertson's statements as to the airport site without rehearsing the history of decision-making about whether or not the second airport at Badgerys Creek would proceed. As we have said at [186] above, the basis on which the Commonwealth sought the termination order was in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act. It was the preparation of that site which was the subject of Mr Robertson's evidence as to commercial need and as to why vacant possession was urgently required. Further, in our opinion, it was not necessary for the primary judge, in the exercise of his discretion under s 94 of the 2010 RTA to take into account the documents submitted by the appellants in relation to the history of decision-making. In any event, we note that at [25] of the reasons for judgment the primary judge referred to the Commonwealth undertaking in the late 1980s and 1990s a land acquisition program in the Badgerys Creek area to acquire and reserve the land needed for an airport in Western Sydney and that the acquisition program resulted in the acquisition by the Commonwealth of a large number of individual titles in the suburbs of Badgerys Creek, Luddenham and Greendale.
266 As to the second of these matters, ground 14, that the appellants believed that Badgerys Creek was not being considered as a site for the airport, we do not see this as having a foundation in the evidence. Objectively, the residential tenancy agreement in respect of the premises was most recently entered into on 15 July 2004, expiring on 31 December 2005, and containing cl 29 which we have set out at [6] above. We reject any submission that because the lessor did not plead that express provision for termination that it was legally irrelevant to rely upon it in evidence. As the primary judge pointed out at [4], the application to that Court was not a pleading.
The application to adduce further evidence on appeal
267 On this appeal the appellants sought to adduce the following further evidence:
(a) Affidavit of Mr Guiseppe Dattilo dated 11 January 2016;
(b) Affidavit of Dr Francesco Romeo dated 15 March 2016;
(c) Affidavit of Ms Sandra Uren dated 6 March 2016;
(d) Further affidavit of Ms Sandra Uren dated 6 March 2016;
(e) Affidavit of Dr Anthony Green dated 9 March 2016;
(f) Affidavit of Mr Kingsley Liu dated 1 February 2016;
(g) Affidavit of Mr Kingsley Liu dated 9 March 2016.
268 Section 27 of the Federal Court of Australia Act provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power in its discretion, to receive further evidence.
269 The principles to be applied were considered in August v Commissioner of Taxation [2013] FCAFC 85 at [116] and [119] as follows:
[116] The Court's power to receive further evidence is contained in s 27 of the Federal Court of Australia Act 1976 (Cth). The authorities make it clear that in exercising the discretion the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.…
[119] In addition to the above matters, it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result: CDJ v VAJ; Sharp v Rangott [2008] FCAFC 45;(2008) 167 FCR 225 at 228–229 [8] per Gray and North JJ; at 248 [92] per Besanko J.
270 In CDJ v VAJ [1998] HCA 67; 197 CLR 72, McHugh, Gummow and Callinan JJ said, at 202:
… it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
271 In light of these principles, we turn to consider the seven affidavits listed above.
Affidavit of Mr Guiseppe Dattilo dated 11 January 2016
272 We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellants relied dated 12 April 2016 which the Court directed the appellants to file.
273 In our opinion, the affidavit is relevant only to the interlocutory application for a stay and referred to nothing relevant to this appeal and, on the assumption we have made, we reject it.
Affidavit of Dr Francesco Romeo dated 15 March 2016
274 The respondent objected to the whole of this affidavit on the basis that it was evidence that could have been adduced below. The respondent also objected to paragraph 4. That paragraph states: "It is of my professional opinion that Mr Dattilo's health will deteriorate further and may hasten his death if he is forced to leave his home." The objection was that this paragraph did not meet the formal requirements for expert evidence, was not relevant and the basis for the conclusions was not stated.
275 The appellants submitted that the affidavit should be admitted on the basis that Mr Dattilo's health had deteriorated since the proceedings before the primary judge.
276 In our opinion, the affidavit should be admitted but we would give the opinions expressed in it little weight by reason of the absence of a factual basis for the opinions and the generality of those opinions.
Affidavit of Ms Sandra Uren dated 6 March 2016
277 The appellants sought leave to rely upon this affidavit in their appeal. The respondent notified objections to it dated 18 March 2016.
278 This affidavit is of nine paragraphs. In this affidavit Ms Sandra Uren sought to annex a document entitled "Western Sydney Infrastructure Plan – Consultation Report" which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose to various telephone conversations she had had with New South Wales departmental officers with responsibility for the upgrade and the interrelationship between the stage 4 roadworks and the possible construction of an airport at Badgerys Creek. Ms Uren sought to depose that whenever either the NSW Roads and Maritime Services or the Department of Infrastructure and Regional Development sought access to her premises, she always gave access and cooperated.
279 We accept that, with the exception of paragraph 9, this material would not have been available at the time of the hearing before the primary judge.
280 However, we reject paragraphs 4 and 5 as having an insufficient relevance to the matters at issue in the appeal. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial. We reject paragraphs 6, 7 and 8 as hearsay. We reject paragraph 9 since evidence of Ms Uren's cooperation would have been available at the time of the hearing; could have been put to Mr Robertson in cross-examination; and we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. It is also not relevant to the present appeal of Mr and Mrs Dattilo. In the result we reject the entirety of the affidavit including the formal paragraphs 1 and 2.
Further affidavit of Ms Sandra Uren dated 6 March 2016
281 Ms Uren swore a further affidavit dated 6 March 2016 and the appellants sought leave to rely upon it in their appeal. The respondent notified objections to it dated 18 March 2016. This affidavit is of 10 paragraphs.
282 In paragraph 5, Ms Uren sought to give evidence about what she said were deficiencies of the Western Sydney Airport Draft Environmental Impact Statement released October 2015, and sought to attach a transcript of the speech in Parliament by a Senator to establish this proposition. The first sentence of this paragraph we reject as hearsay. The second sentence we also reject as hearsay and because its tender, or reception into evidence, is contrary to s 16 of the Parliamentary Privileges Act 1987 (Cth). Further, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
283 In paragraph 6, Ms Uren sought to annex part of a copy of a Peer Review dated 25 November 2015 of the Western Sydney Airport Draft Environmental Impact Statement conducted, it appears, by an entity engaged by Western Sydney Regional Organisation of Councils and MacArthur Regional Organisation of Councils. We accept that the document was not available at the time of the hearing before the primary judge. Nevertheless we reject this paragraph. There is nothing to suggest that the Peer Review, or its contents, go to any issue in the appeal. It is not explained how it is said to be relevant to the evidence given by Mr Robertson as to the need for urgency. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
284 In paragraph 7, Ms Uren sought to annex a copy of part of the Sydney Airport, Half Year Results 2015 and extracts from the Sydney Airport Financial Report dated December 2015 and a Sydney Airport Financial Report which Ms Uren sought to say showed "the delay in issuing Sydney Airport the Notice of Intention". We reject this material. We do not consider that the material sought to be annexed bears the meaning sought to be attributed to it. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
285 In paragraph 8, Ms Uren sought to state that, as a low-income earner, she had great difficulty finding alternate affordable accommodation and sought to annex a report by the NSW Parliamentary Research Service dated September 2015 and entitled "Affordable rental housing: the problem and its causes". We would reject this paragraph. It is very difficult to see how it is relevant to the present appeal. Further, in the first sentence, Ms Uren gives very general evidence in conclusory form when the primary judge had before him, and considered, detailed evidence by the Urens on this subject. As to the paper sought to be annexed, it too is in a general form. It does not go to the specific position of Ms Uren nor of the Dattilos. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
286 In paragraph 9, Ms Uren sought to give evidence as to a factor taken into account by UNESCO, in 1999, in considering the World Heritage Listing for the Greater Blue Mountains Area. We reject this paragraph. This material, if relevant, could have been tendered before the primary judge. Secondly, Ms Uren sought to give hearsay evidence. Thirdly, the annexures do not appear to contain the material which Ms Uren sought to give evidence about. Fourthly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
287 In paragraph 10, Ms Uren sought to annex a media release by a Senator. We reject that paragraph as hearsay. Further, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
288 In summary we reject the entirety of the affidavit, including the formal parts in paragraphs 1 to 4.
Affidavit of Dr Anthony Green dated 9 March 2016
289 The respondent notified objections to this affidavit on 18 March 2016. Those objections were that the expert evidence was inappropriate for an appeal; the material was either not relevant or, if it was, it could have been adduced before the primary judge; and queried the expertise of the deponent. The appellants submitted that the draft EIS was not released until 18 October 2015 and that the material was relevant to the Commonwealth's asserted need for urgency and, it was submitted, the local council's diminished support for the airport project. The appellants submitted that Dr Green's curriculum vitae should be sufficient to establish his expertise.
290 Although, at paragraph 5, Dr Green stated that he has limited his observations to facts and matters arising after or affected by events occurring after August 2015, we do not accept that this is so. For example, many paragraphs were directed to what were described as deficiencies in establishing the need to build an airport at Badgerys Creek. Dr Green purported to say: "The decisions arrived at are therefore invalid and flawed" in paragraph 9. To that extent, this material would have been available to the appellants at the hearing before the primary judge and there was no evidence explaining why it was not.
291 More importantly, it is not shown that Dr Green's opinions as expressed in his affidavit, which involved a statement of opinion in paragraph 39 as to what was or was not "in the economic or societal interest of Australians" were founded in his expertise. Thus, a criterion for the admissibility of an expert report is not met.
292 Indeed it is not at all clear that the matters that he was asked to consider, whether the EIS was severely flawed and whether these deficiencies affected the timescale for future planning in the area, fall within his expertise at all. Dr Green's curriculum vitae stated that his research covered a broad spectrum of problems that are relevant to the assessment and control of catastrophic risks, particularly fire and explosion phenomenon, and terrorism in industry and major infrastructure. Nevertheless the material set out in his affidavit was focused on matters of economics; the choosing of an airport location; the assessment of combining an existing airport with high-speed rail as an alternative; and then turns to what is said to be ten "critical infrastructures" where the airport introduces risks. Dr Green's affidavit then concludes that "the airport should be built if it is to be built at all outside the Sydney Basin and connected by High Speed rail to Western Sydney and Central Sydney. This can include extension of Canberra Airport rather than new airport infrastructure at Badgerys Creek." Dr Green then states that the need for a new airport before 2040 in any event "has not been established if high-speed rail transport is included as part of Eastern Australia infrastructure development". Thus it is not plain that, although there are references to what Dr Green described as the "draft airport plan and EIS", his conclusions were founded in the questions he was asked to address. To that extent, as we have said, the material would have been available to the appellants at the hearing before the primary judge and there was no evidence explaining why it was not then sought to be adduced.
293 Lastly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
294 We reject this affidavit.
Affidavit of Mr Kingsley Liu dated 1 February 2016
295 We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellants relied dated 12 April 2016 which the Court directed the appellants to file.
296 In our opinion, the affidavit referred to nothing relevant to this appeal and, on the assumption we have made, we reject it. It appears to go only to interlocutory questions.
Affidavit of Mr Kingsley Liu dated 9 March 2016
297 The respondent notified objections to this affidavit dated 18 March 2016.
298 The affidavit was in terms formal and, so far as relevant, did no more than identify the affidavits sought to be read, stating: "The evidence to be adduced was not submitted in the Court appealed from as it was not then available, or not then relevant." We admit only those parts of this affidavit. We give that general statement little weight.
Conclusion
299 The appeal should be dismissed. Counsel for the appellants accepted that in those circumstances costs should follow the event. We will therefore order that the appellants pay the respondent's costs, as agreed or taxed.
I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny, Robertson and Griffiths. |
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