FEDERAL COURT OF AUSTRALIA

Patrick Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 16

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to amend his notice of appeal to add grounds 13, 14 and 15.

2.    Leave be refused to the appellant to amend his notice of appeal to add grounds 10, 12, 16, 17 and 18.

3.    The appeal be dismissed.

4.    The appellant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment of the primary judge has the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Kenney & Anor [2015] FCCA 3400 (Kenney).

2    Mr Patrick Kenney, who was one of the respondents in the FCCA, has lived at 30 (formerly Lot 11) Longleys Road, Badgerys Creek New South Wales (the premises) since February 1999. The Commonwealth is the registered proprietor of the land comprised in folio identifier 1/838361 (the airport site), of which the premises is a part. Mr Kenney has been in continual possession of the premises for less than 20 years. As will be seen, this is relevant to the application of the Residential Tenancies Act 2010 (NSW) (2010 RTA). At the time of the hearing in the FCCA, Mr Kenney resided at the premises with Ms Catherine Brabin (Kenney at [2]).

3    Mr Kenney first lived on the premises with Ms Leona Page, who was the second respondent in the FCCA proceeding. The Commonwealth and Mr Kenney (and Ms Page) most recently entered into a residential tenancy agreement in respect of the premises on 1 March 2004 (the residential tenancy agreement). The term of the residential tenancy agreement was 52 weeks beginning on 1 March 2004 and ending on 21 February 2005. Ms Page moved out of the premises in 2007 and took no part in the proceedings at first instance or on appeal (Kenney at [2]). Mr Kenney has lived on the premises with Ms Brabin since 2010. Mr Kenney continued to live at the premises after the expiry of the term. In this circumstance, the residential tenancy agreement continued as a periodic agreement on the same terms as immediately before the end of the fixed term.

4    Clause 53 of the residential tenancy agreement provided as follows:

53    Proposed Airport Site

53.1    The tenant acknowledges that the premises forms part of the proposed site for Sydney West Airport.

53.2    In the event that the Commonwealth of Australia decides to develop the Sydney West Airport the landlord may terminate this Agreement by serving on the tenant written notice expiring six months from the date of the notice or on expiration of the term (whichever is the earlier).

53.3    The tenant shall not be entitled to any payment or compensation from the landlord arising from such termination.

53.4    A termination of the Agreement under clause 53.2 shall not affect an existing right or obligation accrued or incurred by a party under this Agreement or otherwise at law or in equity.

5    By letter dated 29 October 2014, an agent of the Commonwealth notified Mr Patrick Kenney that the Australian Government had announced that land owned by it at Badgerys Creek, including that occupied by Mr Kenney, would be the site for Western Sydney’s airport. The letter also stated that Mr Kenney would be given a formal notice of termination of his tenancy and would likely be required to vacate the premises by June 2015.

6    On 29 November 2014, so the primary judge found (at [11(j)]), an agent for the Commonwealth served Mr Kenney with a “Notice of Termination of Residential Tenancy Agreement” dated 24 November 2014. The notice was addressed to Mr Patrick Kenney and Ms Leona Page. It read as follows:

Notice of Termination of Residential Tenancy Agreement under Section 85 of the Residential Tenancies Act 2010 (NSW) (the Act) in respect of Premises identified in the Tenancy Agreement referred to below as Lot 11 Longleys Road, Badgerys Creek NSW 2555, being part Lot 1 in Folio Ident Pt1/838361 (formerly Lot 11 in DP 1451) City of Liverpool, Parish of Bringelly, County of Cumberland (the Premises)

Background

A.    Pursuant to a residential tenancy agreement dated 1 March 2004 entered into by the Commonwealth ... and You in respect of the Premises, the Commonwealth has granted You a right to occupy the Premises on the terms contained in the residential tenancy agreement and the Act.

B.    The original fixed term of the residential tenancy agreement has expired prior to the date of this notice and as a result You occupy the Premises as a tenant under a periodic agreement (the Tenancy Agreement) for the purposes of the Act.

Notice

The Commonwealth hereby gives you notice under section 85 of the Act:

1)    terminating the Tenancy Agreement in respect of the Premises on 15 June 2015 (the Termination Date); and

2)    that You are required to give vacant possession of the Premises to the Commonwealth by the Termination Date.

This notice is also served for the purposes of clause 53 of the Tenancy Agreement and it is served without prejudice to any other rights the Commonwealth may have under the Tenancy Agreement, at law or in equity.

7    Mr Kenney did not agree to vacate the premises. As noted above, by 29 November 2014, Ms Page no longer lived on the premises.

8    On 29 June 2015, the Commonwealth applied to the FCCA for orders terminating the residential tenancy agreement and for vacant possession. Mr Kenney opposed the orders sought by the Commonwealth on various grounds, including that no notice of termination had been served on Ms Brabin and the 2010 RTA did not apply to the premises because they were predominantly used for non-residential purposes. Mr Kenney contested the jurisdiction of the FCCA, submitting that the law purporting to confer jurisdiction and to be applied was invalid. Mr Kenney also argued that the Court should decline to exercise its asserted discretion to terminate the residential tenancy agreement.

9    The primary judge made orders and delivered reasons on 21 December 2015, the orders being that:

1.    The residential tenancy agreement in relation to the premises at 30 (formerly Lot 11) Longleys Road, Badgerys Creek NSW 2555 (“Premises”) be terminated with immediate effect.

2.    Vacant possession of the premises be given to the Applicant on or before 28 December 2015.

3.    The order for vacant possession be suspended until 25 January 2016.

This is an appeal against those orders. For the reasons stated below, we would dismiss the appeal.

10    On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted his appeal with expedition and complied with certain directions: Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14.

Adjournment application

11    At the commencement of the hearing of the appeal, counsel for the appellant 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.

12    The principal ground of the application was that, through the failure of the respondent to comply with directions, the appellant had been put in a position where he was not able to present his case and that a refusal to allow an adjournment would result in a serious injustice to him.

13    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 appellant was not able to present his case. Although it was submitted on behalf of the appellant that he was 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 appellant was not able to present his 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 appellant was denied a reasonable opportunity to prepare the case to present to the Court with respect to that material.

14    We take into account that the appellant 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, that hearing date was confirmed by letter sent on 1 February 2016, and the appellant’s submissions were then directed to be filed and served by 16 March 2016. This period for the appellant’s submissions was extended on 26 February 2016 to 23 March 2016. We also take into account that the appellant knew the reasons for judgment of the primary judge in each case; he knew his own material; he knew his own case; he knew the respondent’s submissions; and he had replied to those submissions in writing.

15    We have taken into account the material in the affidavits sworn by Ms Keith on 7 April 2016 and 12 April 2016 but there is nothing in those affidavits that persuades us that the appellant was prejudiced in the presentation of the appeal.

16    The appellant 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

17    The primary judge referred to, and did not repeat, his discussion in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363 (Odzic) of the relevant statutory framework, including the jurisdiction conferred by s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), ss 81, 83, and 84-95 of the 2010 RTA and ss 7 and 8 of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument).

Constitutional and jurisdictional issues

18    Mr Patrick Kenney raised much the same constitutional and jurisdictional issues as the tenants in the other matters contesting the termination of their tenancies on Commonwealth land within, or proximate to, the airport site. The primary judge, at [16] in Kenney, rejected those arguments for the reasons his Honour gave in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133 (Rigney) and Odzic at [40]-[44].

19    The primary judge held, in Rigney at [61], that there was, at the date of the application, a matter within the meaning of Ch III of the Constitution and s 5 of the FCCA Act that the FCCA was required to resolve. His Honour, in Odzic at [44], noted that s 85 of the 2010 RTA, not s 94 (as in Rigney), was applicable in the Odzics’ case (as it also is in Mr Patrick Kenney’s case). This was because the Odzics had not been in continual possession of the premises for 20 years or more. His Honour found that, as the Odzics had “put in issue whether, as a matter of fact, a termination notice was given to them”, there was “an existing controversy which, when decided by the Court, will determine the respective rights of the Commonwealth and the Odzics” (Odzic at [44]).

20    In Rigney, the primary judge rejected the submission that s 10AA of the FCCA Act attempted to grant the FCCA executive, as opposed to judicial, power (Rigney at [77]). His Honour held that s 10AA of the FCCA Act was an exercise of the legislative power conferred by the Constitution on the Parliament (Rigney at [83] and [94]). His Honour held that s 51 of the Constitution conferred legislative power to make the applicable laws and that the Instrument was not “unauthorised and ultra vires” that Commonwealth law. His Honour also held that the applicable Commonwealth law did not effect an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution (Rigney at [114]).

21    In Odzic at [41]-[42], his Honour specifically rejected the Odzics’ submission, referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson), that “for no sensible explanation the lessor has decided to sue the Respondents in its own courts”. His Honour stated that “the issues in the proceedings were the polar opposite to those in this case”, where “the Commonwealth is not seeking to restrain proceedings brought by a landowner in a state Tribunal, but is bringing proceedings as a landlord in a Federal Court constituted under Ch III of the Constitution” (Odzic at [42]).

Predominant use of the premises

22    The primary judge (Kenney at [12]-[15]) also rejected Mr Patrick Kenney’s contention that, by virtue of s 7(h) of the 2010 RTA, the 2010 RTA did not apply because the land was predominantly used for agricultural purposes. The primary judge referred to his consideration in Rigney at [8]-[23] about the meaning of s 7(h) of the 2010 RTA. The primary judge apparently accepted Ms Brabin’s evidence that she and Mr Kenney “run horses in the four paddocks”, which they sold and traded, and her evidence that they make an income from those activities. The primary judge (at [15]) accepted that the rearing of horses for sale or trade might constitute an agricultural or business activity, but his Honour stated that, without any details in regards to the size or scale of the activity, he could not be satisfied that the use of the premises was predominantly for that purpose. His Honour added that the residential tenancy agreement made it clear that the premises were used by Mr Kenney as his home, and, on Ms Brabin’s evidence, her home as well. On that basis, his Honour concluded that the premises were not predominantly used for agricultural or business purposes.

Application of s 85 of the 2010 RTA

23    The primary judge found that, when the fixed term of the residential agreement expired, the residential tenancy agreement continued as a periodic agreement and that, since Mr Kenney had not been in continual possession of the property for 20 years or more, s 85 of the 2010 RTA applied to the termination of the residential tenancy agreement by the Commonwealth (Kenney at [21]-[22]).

24    The primary judge’s approach to determining whether or not to make a termination order under s 85 of the 2010 RTA is set out in Kenney at [17]:

In light of the statutory scheme outlined in Odzic, the first step in the resolution of these proceedings is to determine whether the duty to make a termination order arises. In essence, that requires consideration of whether a notice of termination has been given in terms required by the [2010 RTA] and whether the respondents have vacated the property as required by the notice. The second step is to determine what the appropriate date is for vacant possession to be given. This involves some balancing of the parties’ interests. Part of this consideration could also involve the application of s.114 of the [2010 RTA] to suspend the date of the order for vacant possession.

Service of notice of termination

25    The primary judge rejected (at [5]) Mr Kenney’s contention that a notice of termination was not served on Ms Brabin and that therefore the Commonwealth’s application failed. His Honour found that, even if she had resided with Mr Kenney on the premises since 2010, her residence did not make her a tenant or co-tenant within the meaning of those terms in s 3 of the 2010 RTA, because she was not party to and had no right to occupy the premises under a residential tenancy agreement. Accordingly, his Honour also found that there was no requirement to give her any notice of termination. His Honour added that, in any event, she had been “given” a notice of termination in conformity with s 223(1)(a)(ii) of the 2010 RTA (pursuant to which a notice authorised or required by the 2010 RTA might be given by delivering it personally to a person apparently of or above the age of 16 years at the person’s residential address). His Honour found that this had been done in Mr Kenney’s case and that Ms Brabin had given evidence that she was aware of the notice of termination.

26    The primary judge (at [19]) noted that the term of the agreement was for 52 weeks, commencing 1 March 2004 and expiring on 21 February 2005. The primary judge noted that while the period from 1 March 2004 to 21 February 2005 is less than 52 weeks, on any view, the term had expired. The primary judge also noted (at [20]) that it was a term of the residential tenancy agreement that the tenants could stay in the premises at the same or increased rent, but otherwise under the same terms unless or until the agreement was ended in accordance with the Residential Tenancies Act 1987 (NSW). The primary judge stated that this meant that, at the end of the term, the agreement continued as it had before, but without a fixed term. Accordingly, the primary judge concluded (at [21]), referring to ss 3 and 18 of the 2010 RTA, that the agreement was a periodic tenancy within the meaning of the 2010 RTA.

27    In this circumstance, as noted above, the primary judge held (at [22]) that s 85 of the 2010 RTA applied to the Commonwealth’s termination of the residential tenancy agreement with the present appellant, as he had not been in continual possession of the premises for 20 years or more. Having regard to the requirements of the 2010 RTA, his Honour was satisfied (at [25]) that a notice of termination had been given in Mr Kenney’s case in accordance with that Act. His Honour was further satisfied that the “matters in sub-s.85(3) ... had been established and the residential tenancies agreement between the parties must be terminated” (at [27]).

28    The primary judge rejected (at [31]) Mr Kenney’s argument that the power to make a “termination order” under s 85 of the 2010 RTA was discretionary, for the reasons his Honour gave in Odzic at [82]-[84]. His Honour there rejected that argument because his Honour considered that the word “must” in s 85(3) unambiguously meant that if the FCCA is satisfied of these matters “there is only one decision that can be made, namely, the making of a termination order”(Odzic at [82]-[84]). A “termination order” is defined in s 80 of the 2010 RTA to mean “an order terminating a residential tenancy agreement together with an order for possession of the residential premises”.

Appropriate date on which vacant possession was to be given

29    The primary judge then considered the appropriate date for vacant possession to be given to the Commonwealth. His Honour acknowledged (at [17]) that this would involve “some balancing of the parties’ interests” and “could also involve the application of s 114” of the 2010 RTA, which provides for the operation of an order for possession to be suspended.

30    The primary judge began his inquiry by examining the history of the Commonwealth’s land acquisition program in the Badgerys Creek area, referring in this regard to his consideration of this issue in in Odzic at [59]-[81], and stating his findings (at [29]) that:

a)    the development of a further airport in Sydney is of the general importance for both the economic and social wellbeing of Western Sydney, if not this country;

b)    significant time, effort and money has already been put into preparation of the site for the future development of the airport and the continued presence of tenants on the airport site is to increase the amount of costs likely to be incurred by the Commonwealth in that development;

c)    the safety of individual tenants will decrease as more and more tenants vacate the site; and

d)    Mr Kenney has been on notice since at least the beginning of the current residential tenancy agreement of the possibility of the use of the land in Badgerys Creek as an airport and the consequent need for them to give vacant possession to the Commonwealth for that purpose. That awareness was heightened by correspondence in October 2014 from the agents for the Commonwealth and put beyond doubt by the notice of termination served in November 2014.

31    In view of the challenge made by Mr Kenney to his Honour’s findings, it is perhaps helpful to summarise briefly his Honour’s account as it appears in Odzic at [59]-[81]. As his Honour there noted, Mr Peter Robertson, a General Manager at the Department of Infrastructure and Regional Development, gave evidence about the history of the Commonwealth’s land acquisition program in the Badgerys Creek area. 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 for the project and project timeframes.

32    The primary judge described the reasons Mr Robertson gave in evidence as to why the Commonwealth urgently required vacant possession. The reasons given by Mr Robertson were:

(a)    to enable the Commonwealth to comply with its project timetable;

(b)    the growing incompatibility of continued residential accommodation with the ongoing investigation and demolition works, in terms of cost and delay impacts on the work at the site; and

(c)    concerns as to the safety and security of the remaining tenants and the site.

33    The primary judge summarised Mr Robertson’s evidence in which he explained that planning for an airport requires substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. Mr Robertson’s evidence was that, since some tenants remained in occupation, the work had either been tailored to parts of the site in the possession of the Commonwealth or the Commonwealth had liaised with tenants to ensure that testing could be conducted safely without unnecessary disturbance. The primary judge noted that Mr Robertson’s evidence was that the planning, assessment, site management and preparation activities for the airport site were being undertaken on a “whole of site” basis for all of the land to be included in the airport site.

34    Also in Odzic, the primary judge summarised Mr Robertson’s evidence concerning the process for accessing individual residential tenant blocks, which Mr Robertson described as being “extensive and time consuming”. His Honour also summarised Mr Robertson’s evidence regarding the timeframe for clearing the site and demolition activities. His Honour noted Mr Robertson’s evidence that, as at 22 October 2015, 117 of an estimated 163 tenants had vacated the airport site and that, once the airport site was vacated and the demolition program completed, it would be significantly easier and less costly to secure the whole site.

35    The primary judge referred to Mr Robertson’s cross-examination, noting that Mr Robertson had “accepted that his statement that the airport site was becoming increasingly derelict was a bit strong”, but that his evidence was otherwise unaffected. The primary judge found Mr Robertson to be a truthful witness and accepted his evidence.

36    The primary judge then went on in Kenney to consider the other matters on which Mr Kenney relied on the basis that they might inform the question of the appropriate date by which vacant possession of the premises ought to be given to the Commonwealth. His Honour identified nine matters on which Mr Kenney relied. These matters, and the primary judge’s conclusions in relation to each, are set out below.

(1)    Hardship caused by the proposed termination and/or eviction

37    The primary judge rejected Mr Kenney’s claim that the “proposed termination and/or eviction will cause hardship to the Respondents”, on the basis that there was “no evidence of any hardship beyond the ordinary inconvenience of moving house” (at [31(a)]).

(2)    Substantial cost of removing buildings and equipment

38    The primary judge held that there was no evidence to support Mr Kenney’s claim that he would incur substantial cost in removing buildings and equipment from the premises (at [31(b)]).

(3)    Cost of moving from Badgerys Creek

39    The primary judge also held that there was no evidence to support Mr Kenney’s claim that the cost of moving from Badgerys Creek would give rise to further costs and expenses per annum (at [31(c)]).

(4)    Unduly brief period for vacating the land

40    The primary judge noted Mr Kenney’s claim that “[h]aving regard to the length of occupation of the lands in question and the property of the Respondents, the period for vacating the lands is insufficient and unduly short”. His Honour rejected this claim on the basis that Mr Kenney had been on notice of the need to vacate for over a year, that there was “nothing beyond mere assertion to suggest that that is inadequate time to prepare to vacate” (at [31(d)]).

(5)    Lack of urgency and pending commercial requirement

41    For the same reasons as he had rejected this submission in Odzic at [95]-[101], the primary judge rejected Mr Kenney’s submission that there was no urgency for the Commonwealth to assume vacant possession because the Commonwealth had given “a 99 year right of refusal to open or use Badgerys Creek as a commercial airport… to Macquarie Airports” (Kenney at [31(e)]); that Macquarie Airports has no commercial use or plan to operate or use Badgerys Creek as an airport at any time in the foreseeable future including the next 30 years; and that that there was no pending commercial requirement for the termination orders for over 12 years. Briefly, his Honour found (Kenney at [31(e)]) that the submission was not supported by the evidence before the Court. In Odzic, his Honour held that none of the documents on which the Odzics relied in this regard was specifically addressed in their submissions (Odzic at [97]) and that none of the matters to which the Odzics referred undermined Mr Robertson’s evidence.

(6)    Lack of suitable or available alternative leaseholds

42    Mr Kenney claimed that there were no suitable or available alternative similar leaseholds in the region of Badgerys Creek or Luddenham for him to rent or occupy on the same or similar terms.

43    The primary judge found that neither Mr Kenney nor Ms Brabin gave evidence of any attempts to locate alternative suitable accommodation. His Honour added (at [31(f)]:

Mr Kenney tendered a folder of material (exhibit E) that included some documents relevant to the availability of accommodation in the Greater Western Sydney region. The first of those documents related to community housing. There was no evidence about Mr Kenney’s financial circumstances other than that he sold and traded horses as well as driving a paper truck. For that reason, the availability of community housing is not relevant to their circumstances. The second group of documents consists of advertisements for rental accommodation that seem to have been downloaded from an online real estate website. However, they do not establish anything relevant other than that, at certain dates the properties shown in the advertisements were available for rent for particular amounts. There is no evidence that these were the only properties available, or what properties were available at other times or in other locations. None of this material carries any weight.

(7)    Failure to offer compensation

44    Mr Kenney complained that the Commonwealth had not offered him any compensation for “the loss of the Respondents [sic] property affixed to the land or otherwise and for the cost of complying with the eviction notices” (at [31(g)]). The primary judge held that there was no basis in evidence or submissions for any right to compensation. His Honour also stated that it was not clear how such a right might bear upon the determination of an appropriate date for vacant possession of the premises, especially as there was no evidence about Mr Kenney’s financial means.

(8)    Express termination provision in tenancy agreement

45    Mr Kenney submitted that because there was an express termination provision in the residential tenancy agreement, the rights of the parties were governed by that clause. The primary judge (at [31(h)]) stated that his Honour had dealt with and rejected that argument, and a similar argument, in Odzic at [106]-[109], noting that the express provisions were sufficiently similar in both matters.

46    In Odzic it was submitted by the appellants that cl 42.2 of their tenancy agreement (which was relevantly the same as cl 53.2 of Mr Kenney’s residential tenancy agreement) was an express provision regarding termination, and that their rights were governed by that clause. It was further submitted that, under that clause, in order for the Commonwealth to have the right to terminate the agreement, the Commonwealth had to require vacant possession, and that could not occur without a decision of the relevant Minister. The primary judge rejected this submission, on the basis, first, that the agreement was subject to the 2010 RTA and, in consequence, any termination must take effect under Pt 5 of that Act; and, secondly, that Mr Robertson gave evidence that the Commonwealth required vacant possession of the premises, thus meeting “the condition precedent ... to the right of the Commonwealth to terminate the [a]greement by six months’ written notice”.

(9)    Service of notice before the introduction of s 10AA of the FCCA Act

47    The primary judge rejected (at [31(i)]) Mr Kenny’s submission that “[b]ecause the termination notice was served before the introduction of s 10AA into the FCCA [Act], it was not effective for the purposes of the Commonwealth law”, for the same reasons he had rejected this submission in Odzic at [110]-[111]. In that case, the primary judge held that “[a]n Act does not have retrospective application simply because it requires consideration of past events. Further, just because notice was given ‘under’ the [2010 RTA] before this Court ha[d] jurisdiction in relation to Commonwealth tenancy disputes does not mean that it was not given ‘under’ the Act once the Court did have that jurisdiction” (Odzic at [111]).

48    The primary judge in Kenney relevantly concluded (at [33]):

In light of the circumstances relied on by the Commonwealth as summarised above and the fact that Mr Kenney has put forward nothing of any substance in opposition to the orders sought, I am satisfied that the appropriate date on which Mr Kenney is to give vacant possession of the Premises is 28 December 2015 but that the order for vacant possession should be suspended until 25 January 2016. In fixing that date, I have taken into account the time of year even though that was not addressed by either of the parties.

49    Accordingly, his Honour made the orders set out at [9] above.

Grounds of appeal

50    Although Mr Kenney and Ms Page were named as respondents in the FCCA proceeding, as noted above, Ms Page did not take any part. By the notice of appeal filed on 14 January 2016, only Mr Kenney sought to appeal from the judgment of that Court.

51    We note, however, that Ms Leona Page was named as ‘Second Appellant’ in the proposed amended notice of appeal, although this document bore only Mr Kenney’s signature. We assume that Ms Page was named in error, given that she did not participate in the first instance proceeding; no application was made for her to be added as an appellant and the issue was not mentioned at the hearing. Further, there was no evidence that Ms Page consented to being named as an appellant, as required by r 36.31(2) of the Federal Court Rules 2011 (Cth). If we are wrong in our assumption, we would not grant leave to join her as appellant, bearing in mind the matters to which we have just referred.

52    Mr Kenney’s proposed amended notice of appeal contains the following grounds of appeal:

(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 other than on just terms.

(4)    The primary Judge erred in holding that the termination notice had been given.

(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 28 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 making tenancy orders having final effect which in the circumstances was an abuse of process and/or has prejudiced the appeal of the Appellant.

(11)    The primary judge erred in deferring costs or not making any orders as to costs before pronouncing final judgment.

(12)    The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.

(13)    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.

(14)    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.

(15)    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.

(16)    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.

(17)    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.

(18)    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.

(19)    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.

53    The underlined paragraphs identify proposed new grounds of appeal raised by Mr Kenney for which leave was required. The paragraphs struck through, grounds 6, 11 and 19, reflect the grounds in the proposed amended notice of appeal which the appellant notified the Court were abandoned. It is also clear that ground 9 concerning alleged bias was not pressed in that form in this appeal.

54    The proposed amendments, apart from paragraphs 14 and 15, 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 Mr Kenny’s case had been presented below.

55    Since the application to amend to add grounds 14 and 15 was not opposed, we would grant leave so to amend.

56    It is therefore necessary to rule on the application to amend to add grounds 10, 12, 13, 16, 17 and 18. The Court indicated that it would rule on the proposed amendments in its final reasons for judgment.

57    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 Act 1974 (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).

58    Although a question of law may be raised for the first time on appeal where it is expedient and in the interests of justice that that should be 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).

59    Also, the discretion to permit an amendment should not be exercised favourably where the proposed ground of appeal is self-evidently bound to fail.

60    Applying these principles, we would refuse leave to amend to add proposed ground 10, that the primary judge erred in making tenancy orders having final effect which in the circumstances was an abuse of process and/or has prejudiced the appeal of the appellant. First, once the trial concluded and, after due consideration, the primary judge had reached a decision on the matters in dispute between the parties, his Honour was obliged to make final orders that gave effect to that decision (as explained in his reasons for judgment). There may be unusual or particular circumstances in which the obligation to make final orders on reaching a decision after trial does not arise, but this case is not one of them. As the primary judge’s reasons show, his Honour decided, after trial and due consideration, that the Commonwealth should succeed in its application, Mr Kenney having failed to make out his grounds in opposition. Further, the appellant did not acquire a right of appeal to this Court from his Honour’s decision until his Honour made the orders that gave effect to his decision on the matters in dispute between him and the Commonwealth. Proposed ground 10 does not, so far as we can see, correspond to any submission made by Mr Kenney at first instance, to the effect the primary judge should not make orders in the terms sought by the Commonwealth in the event that the Commonwealth was the successful party. The result is that the appellant has not indicated, and we cannot discern, any tenable basis for the proposed ground of appeal.

61    We would also refuse leave to amend to add ground 12, that the primary judge erred in not having or having insufficient regard to expert evidence including but not limited to that of Ms Simone Fogarty. After judgment was reserved and in response to the Court’s request to the parties, the Commonwealth provided a note to the effect that:

(a)    No evidence was admitted in any of the Federal Circuit Court proceedings from which the Under 20 Appeals are brought (the Under 20s Proceedings Below) from any of:

•    Mr Azar;

•    Ms Simone Fogarty; or

•    Mr Lopco Neskovski.

(b)    No party sought to adduce evidence from Mr Azar in the Under 20s Proceedings Below.

(c)    The appellants sought to rely in the Under 20s Proceedings Below on evidence from Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski which was purported by the respondents in those proceedings to be expert evidence, but all such evidence was specifically rejected by the trial judge.

(d)    The attempt to rely on the purported expert evidence of Ms Fogarty, Ms Uren, and Mr Neskovski, together with the rejection of that evidence by the trial judge is recorded at pages 127 and 167-168 of the transcript of the hearing of the Under 20 Proceedings Below, but the relevant portion of the transcript was not included in the appeal book and was not therefore evidence in the appeals.

(e)    The Respondent did not propose inclusion of the relevant portion of the transcript in the appeal book because the rejection of the evidence by the trial judge was not challenged in the Notices of Appeal.

62    In his note, also provided in response to the Court’s request, the appellant confirmed that the primary judge declined to admit the evidence of Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski. The appellant did not dispute that no party had sought to adduce evidence from Mr Azar in his proceeding. We proceed to consider the proposed ground on this basis.

63    Before doing so, we observe that the appellant submitted, in the note to which we have just referred, that proposed ground 12 should be read with ground 6, that the primary judge erred in not admitting evidence of the appellant. We observe, however, that the appellant specifically abandoned that ground: see document headed “Corrected – appellant’s abandoned grounds of appeal” provided to the Court on 27 April 2016; see also appeal transcript p 180. So far as the appellant’s note complained about a ruling or rulings by the primary judge concerning the evidence of Ms Simone Fogarty, Ms Leanne Uren or Mr Lopco Neskovski, this was not raised in any ground or proposed ground of appeal.

64    Proposed ground 12 finds no basis in the proceeding before the primary judge concerning Mr Kenney or in his Honour’s reasons for judgment in relation to him. The primary judge did not consider any expert evidence in Mr Kenney’s case because there was no expert evidence adduced in his case in the FCCA. The primary judge cannot therefore have erred in the way suggested in the proposed ground. We note that the Commonwealth did not seek to rely on the evidence of Mr Azar in Mr Kenney’s case, presumably because the Commonwealth considered that his evidence was not relevant to the issues in dispute.

65    We also note that, in his reasons for judgment in Odzic at [97] (which the primary judge in Kenney referred to at [31(e)]), his Honour stated that he had regard to a folder of material that included some documents that his Honour considered relevant to arguments regarding a pending commercial requirement for termination. His Honour (Kenney at [31(f)]) also referred to material tendered by Mr Kenney in relation to the availability of accommodation. Even if this material were characterised as expert evidence (though it is not), it is clear from his Honour’s reasons that he examined this material carefully, although he attributed no, or little, weight to it. The present appellant made no submissions that his Honour erred in this latter regard.

66    In relation to proposed ground 13, 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.

67    In relation to proposed ground 16, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Wendy 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, 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 Mr Kenney. In his case, the primary judge did not make any finding about relocation assistance provided by the Commonwealth by Ms Salkeld or anyone else. Secondly, the proposed ground does not correspond to a ground taken by Mr Kenney at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.

68    In relation to proposed ground 17, 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. 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.

69    In relation to proposed ground 18, that 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, leave to amend to add this ground should also be refused. Although the appellant raised the issue of compensation at first instance, the primary judge (at [31(g)]) found that Mr Kenney had provided no basis in evidence or submissions to support the existence of any obligation on the Commonwealth’s part to offer to compensate him. The submissions on behalf of Mr Kenney on appeal did not address this claim or proposed ground of appeal, which has no prospects of success.

Parties’ submissions – common issues

70    The common issues were identified by the appellant as, first, a separation of powers issue; secondly, that there was no “matter before the FCCA”; thirdly, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the FCCA Act; fourthly, that the Instrument was invalid; fifthly, 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 sixthly, that there was apprehended institutional bias.

71    The revised written submissions of the appellant 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.

72    Before addressing these matters it is convenient to set out the statutory provisions.

73    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; …”.

74    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.

75    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.

…

76    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.

77    The 2010 RTA, the applicable New South Wales law, contained the following relevant provisions.

78    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.

79    Section 3 defined termination notice and termination order by reference to s 80 of the 2010 RTA.

80    Section 7 provided that the 2010 RTA does 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”.

81    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.

82    Part 5 of the 2010 RTA dealt with the termination of residential tenancy agreements. 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.

83    Part 5 included s 82 dealing with the requirements of termination notices:

(1)    A termination notice must set out the following matters:

(a)    the residential premises concerned,

(b)    the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,

(c)    if the notice is not given under section 84, 85, 96 or 97, the ground for the notice,

(d)    any other matters prescribed by the regulations.

(2)    A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.

(3)    A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.

84    Part 5 also included ss 84 and 85, which provided as follows:

84    End of residential tenancy agreement at end of fixed term tenancy

(1)    A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.

(2)    The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.

(3)    The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4)    This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended.

85    Termination of periodic agreement

(1)    A landlord may, at any time, give a termination notice for a periodic agreement.

(2)    The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(3)    The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4)    This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

85    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

Whether infringing separation of powers principle

86    Notwithstanding reference to a separation of powers issue in the revised written submissions on common issues, Mr Patrick Kenney did not apparently rely on the separation of powers argument and it does not therefore appear necessary to consider the argument in his appeal. The particular argument, that the orders sought by the Commonwealth in its application in the FCCA were beyond power as involving an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution, was apparently made only in the appeals in which the tenants of land within the airport site had been in continual possession of the same residential premises for 20 years or more (the 20 years and over appeals). In that circumstance the orders sought by the Commonwealth required an exercise of power under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act, which it was submitted by the tenants in those cases involved an exercise of non-judicial power by a federal court.

87    Section 94(1), which was a focus of the separation of powers argument, was inapplicable in Mr Kenney’s case, where he had been in possession of the premises for less than 20 years. In his case, the orders made by the primary judge and sought by the Commonwealth were in exercise of s 85 of the 2010 RTA and s 10AA of the FCCA Act. Section 85 provided for the termination of a periodic agreement, which is what the agreement had become (as discussed hereafter). After receiving an application under the 2010 RTA in a proceeding commenced after the minimum notice period, the State Tribunal or the FCCA must, by virtue of s 85(3) of the 2010 RTA, make a termination order if it is satisfied that the termination notice was given in accordance with s 85 and that the tenant has not vacated the premises as required by the notice. This involved no exercise of discretion such as that impugned in the related appeals involving s 94(1) of the 2010 RTA and s 10AA of the FCCA Act.

88    In Mr Kenney’s case, as in the case of other tenants who had been in possession of the leased premises for less than 20 years, a question of the appropriate exercise of discretion arose at a different point. In a case in which the FCCA exercises power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, s 8 of the Instrument modifies the 2010 RTA, with respect to the conferral of discretion “in relation to the day vacant possession of the premises is to be given to the landlord”. Such is the effect of s 8(2) of the Instrument which provides that the 2010 RTA must be read as including a provision that, if the FCCA 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. The exercise of discretion in relation to the day vacant possession is to be given does not, on any view, involve a conferral of non-judicial power.

89    In case we have misunderstood the appellant’s submissions, however, we can discern no error in the conclusion reached by the primary judge that any contention that the relevant laws of the Commonwealth impaired the separation of powers principle was to be rejected (Kenney at [16], adopting Odzic at [43]). We also note the terms of s 5(3) of the Instrument which state that nothing in ss 5 to 10 of the Instrument has effect so as to confer non-judicial power on the FCCA, unless the non-judicial power is incidental to the exercise of judicial power by that court.

90    Further, we observe that we cannot derive any particular assistance from what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61, notwithstanding the reference to that case made by counsel for the appellant in oral submissions. 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 concerns the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach took insufficient account of the States’ legislative competence to alter the structure and organisation of State courts. His Honour also said, being the passage relied on by the appellant:

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 can derive no present assistance from 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.

91    We would reject the submission, if made in Mr Kenney’s case, 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 has been conferred on the FCCA. 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. 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.)

In Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 (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.

92    Further, if the point arises in Mr Kenney’s appeal, we would also reject the contention more clearly advanced in the 20 years and over appeals 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.

93    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 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.

94    As we have already stated, when exercising power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, the FCCA has no discretion with respect to the making of a termination order comparable to that arising under s 94(4). A question of the appropriate exercise of discretion will arise, however, if the FCCA makes a termination order in respect of residential premises, since the FCCA 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. As we have said, the exercise of this discretion does not involve any conferral of non-judicial power.

95    Further reference may be made in this regard to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1, where 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: …

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”.

96    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.)

97    We would therefore read the word “appropriate”, in relation to the day vacant possession is to be given, as did their Honours, as excluding purely subjective notions of what is appropriate and also as excluding the application of extra-legal standards in order to determine the case.

98    We would reject any submission that the findings made by the primary judge 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.

99    It follows, in our opinion, that the submission, if made in Mr Kenney’s case, that an exercise of power under s 85 of the 2010 RTA and s 10AA of the FCCA Act involves an exercise of non-judicial power by a federal court should be rejected.

Whether no “matter” before the FCCA

100    Mr Kenney apparently 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. He was 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.

101    As perhaps foreshadowed by the references to discretion in this aspect of the written submissions, it was not clear in oral submissions whether this submission was maintained in respect of the tenants who had been in continual possession of the premises for less than 20 years, like Mr Kenney, as well as those tenants who had been in possession for a period of 20 years or more. We consider this issue on the assumption that it was raised in Mr Kenney’s case, to the extent applicable.

102    The respondent submitted that the conferral of jurisdiction in s 10AA(1) of the FCCA Act was formulated in entirely orthodox terms. That is, the Commonwealth was the owner of residential premises the subject of the residential tenancy agreement it sought to terminate in the FCCA. The Commonwealth sought to exercise its entitlement under the 2010 RTA to apply to the FCCA to terminate its contractual arrangements with the appellant in circumstances where he remained in possession with no prospect of him abandoning the premises or otherwise vacating it by consent. Mr Kenney’s 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 appellant stating that it wished to have vacant possession by June 2015. The proceedings before the Court involved the existence of a controversy as to whether the residential tenancy agreement had to be terminated and the corresponding liability of the appellant 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”.

103    In his written reply, the appellant did not make specific reference to this point.

104    We turn to consider these submissions.

105    In our opinion, the controversy or “matter” is sufficiently identified in the application to the FCCA filed on 30 June 2015. That is, as between the Commonwealth as applicant lessor and the appellant as a tenant of the Commonwealth of the premises, the Commonwealth had notified the tenant that it required possession of the premises by a certain date and the tenant had not yet communicated to the Commonwealth his agreement to vacate the premises on or before that date. The Commonwealth, as lessor, sought an order under s 85(3) of the 2010 RTA that the residential tenancy agreement between it and the appellant, in relation to the premises, was terminated and an order that the appellant give vacant possession of the premises forthwith. 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 tenant had not agreed to give possession of the premises to the Commonwealth suffices to constitute a controversy or “matter” and this was confirmed by the appellant filing a response in the FCCA in opposition to the Commonwealth’s application.

106    There is also an additional factor in this case as the appellant has not been in continual possession of the premises for a period of 20 years or more. Where a tenant has been in continual possession of the premises for a period of 20 years or more, the landlord may make an application under s 94 without giving the tenant a termination notice (s 94(2)). Where, as in the appellant’s case, a tenant has not been in continual possession of the premises for so long, a termination notice is required by ss 81 and 83. A termination order will be made under s 85(3) only where the FCCA is satisfied that a termination notice was given in accordance with s 85 and the tenant has not vacated the premises as required by the notice. In those circumstances, unless the tenant gives vacant possession and so terminates the residential tenancy agreement (s 81(2)), an application to the FCCA by a landlord for a termination order must be made after the termination date specified in the relevant termination notice (s 83(2)). In our opinion, that procedure makes untenable the argument that there is no “matter” where the tenant has not been in continual possession for a period of 20 years or more and has not vacated the premises as required by the notice.

Whether no legislative power

107    The appellant 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 appellant 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 appellant 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 appellant submitted it was an attempt to get round the decision of the High Court in Henderson.

108    The respondent submitted that the Commonwealth entered into the residential tenancy agreement with the appellant 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 residential tenancy agreement with the appellant. The respondent submitted that the application of the 2010 RTA as 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 appellant’s premises were situated on land which was a Commonwealth place.

109    The respondent submitted the substantive rights and liabilities of the parties were conferred pursuant to s 7 of the Instrument and also modified, to an extent, 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. 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) of the Instrument 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 [40].

110    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 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.

111    We turn to consider these submissions as far as they are relevant to an exercise of power under s 85 of the 2010 RTA and s 10AA of the FCCA Act.

112    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 residential 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.

113    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)).

114    We reject the appellant’s 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 specified modifications.

Whether the Instrument was invalid

115    The appellant 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 appellant 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 appellant 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 appellant submitted there must be a dispute in which the Commonwealth was 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 appellant submitted that the Parliament’s law-making power “for and in relation to … a Commonwealth tenancy dispute” was not a broad law-making power. The appellant referred, amongst other authorities, to Shanahan v Scott [1957] HCA 4; 96 CLR 245 at 250.

116    The appellant 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 New South Wales being a code on residential tenancies law, with the result that 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 appellant 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.

117    Secondly, the appellant submitted s 10AA(3) did not authorise a retrospective law. In this case the primary judge found that the termination notice was served on 29 November 2014, which was prior to the commencement of the Instrument in March 2015. The statutory scheme was a code and such a law could not operate retrospectively except by express and necessary statutory fiat. The Legislation Act also restricted the operation of retrospective legislation. The appellant submitted there had been a failure to have regard to the disadvantage to tenants from the importation of the new law as Commonwealth law. 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.

118    Thirdly, the appellant submitted that s 10AA(3) was invalid because the 2010 RTA had authorised the acquisition of property other than on just terms. This, the appellant submitted, was the logical conclusion of his argument based on s 51(xxxi) of the Constitution.

119    The respondent submitted that the appellant’s 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.

120    As to the retrospectivity argument, the respondent submitted it rested on the fact that statutory notices were served on the 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.

121    In reply, the appellant referred to McEldowney v Forde [1971] AC 632 at 658. The appellant submitted that the Instrument did not conform with the description of 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 appellant 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 appellant also submitted the respondent’s submissions did not address the concern that the Instrument paid no attention to justice in acquiring property of the appellant, which itself destroyed any statutory authority in the Minister to make the delegated legislation.

122    We turn to consider those submissions.

123    The starting point must be the terms on which the power to make a legislative instrument is conferred. Section 10AA of the FCCA Act has two relevant subsections, although each operates 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) deals with the jurisdiction of the FCCA to hear and determine a Commonwealth tenancy dispute between the parties to a lease in which the Commonwealth is the lessor and a person other than the Commonwealth is the lessee. It defines 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 is a party within s 75(iii)). Section 10AA(3) is the regulation-making power, thus, for present purposes it is the central provision.

124    Section 10AA(3) provides 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. It is also significant that, by s 5, the amendments made by the Part, which include 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 (namely, on 26 February 2015) and a Commonwealth tenancy dispute between the parties to the lease that arose before, on or after that day.

125    The Instrument was registered on 5 March 2015. Turning to the terms of the Instrument, s 5 states that the Part makes provision in relation to specified matters in respect of a Commonwealth tenancy dispute involving land in New South Wales: (a) the rights of the parties to the dispute, those rights being the subject of s 6; (b) the law to be applied in determining the dispute, that law being the subject of ss 7 and 8; (c) the powers that the FCCA may exercise under that law, those powers being the subject of s 9; and (d) 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.

126    We do not accept the appellant’s submission that the power conferred by s 10AA(3) does not include the power to adopt by instrument the 2010 RTA. Nor do we accept the appellant’s submission that s 10AA(3) is a power only to define the Court’s jurisdiction with respect to a Commonwealth tenancy dispute. We also do not accept the appellant’s submission that the law-making power “for and in relation to … a Commonwealth tenancy dispute” is 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 appellant’s submission that not only must there be a dispute in which the Commonwealth is a party but the dispute must be about the termination of a lease, or the possession or use of land; and, in our view, there was such a dispute in the present case.

127    We reject the appellant’s submission that the reference to “the applicable law” in s 10AA(3) is 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 already considered and rejected the submission that the legislative scheme is invalid as conferring non-judicial power on a Ch III court.

128    We do not accept the appellant’s 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. This covered the circumstance where, as here, the termination notice was served on the tenants before the commencement of the Instrument. In our opinion, the Instrument makes 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 [57] per McHugh and Gummow JJ where their Honours made a distinction between a statute providing 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. Further, s 12 of the Legislation Act had no relevant operation in respect of the Instrument since it did not take effect before it was registered.

129    In our opinion, there is no substance in the appellant’s submission that the Federal Courts Legislation Amendment Act or the Instrument failed to have regard to any disadvantage to tenants from the importation of the new law as a Commonwealth law. Similarly, in our opinion there is no substance in the submission that because the agreement 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 lease agreements in different terms.

130    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 that 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.

131    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.

132    As to the appellant’s reliance on McEldowney v Forde, we see nothing in what Lord Diplock said there that 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

133    The s 51(xxxi) argument was principally that 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 recently restated in JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1. This argument could not, however, aid the present appellant because s 94(4) of the 2010 RTA, which under State law gave the security of at least 90 days between the making of a termination order and any order for vacant possession, did not apply where a tenant under a residential tenancy agreement had been in possession of the premises for less than 20 years. The s 51(xxxi) argument was incapable of applying in the appellant’s case and it must fail.

Recusal on the ground of (apprehended) institutional bias

134    The appellant 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 appellant 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 appellant 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 appellant 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, so the appellant submitted, would presumably adopt the approach when the law was challenged as to its validity before him or her with the apparent bias of approbation not rejection. In this regard, the appellant 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 appellant 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.

135    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”.

136    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.

137    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].

138    The respondent submitted that the judgment in Ebner emphasised the requirement for a “logical connection” between the matters complained of and the perceived risk to adjudication to be identified.

139    In his reply, the appellant 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.

140    We turn to consider these submissions.

141    As a preliminary matter, no formal application for recusal was made to the primary judge in the first instance 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 appellant 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 appellant 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 Robertson

142    As we have noted, the revised written submissions on common issues (which were adopted by the appellant) also included a number of paragraphs referring to the evidence of Mr Peter Robertson, his evidence being common to the several appeals. In the appellant’s case, the primary judge treated Mr Robertson’s evidence as relevant to his consideration of the orders in relation to the day vacant possession was to be given. This aspect of his Honour’s decision was not contested. Mr Robertson’s evidence was not relevant to any other issue in Mr Kenney’s case. As we have already observed, when exercising power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, the FCCA had no discretion with respect to the making of a termination order, but it had some discretion with respect to orders in relation to the day vacant possession of the premises was to be given to the Commonwealth.

143    It was submitted that the common issue was the issue of commercial need. It was also submitted that the appellant produced substantial material to demonstrate his competing needs for the future use of the land and that the further evidence to be read on the appeal was relevant to this issue. Reference was made to the affidavit of Dr Anthony Green. It was 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 appellant and the adverse local social and environmental effects with respect to the loss of the land. The appellant submitted that the evidence led by him “was relevant but its content and subject matter was [not] the subject of any or sufficient regard by the Judge”. The appellant provided by way of a submission many references to documents.

144    The respondent relied on the primary judge’s acceptance of Mr Robertson’s evidence and emphasised that the appellant’s 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.

145    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.

146    There followed Mr Robertson’s description of the reasons why vacant possession was required; and, so 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.

147    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.

148    We turn to consider these submissions in so far as they are relevant to the present appeal.

149    In our opinion, the appellant’s submissions proceed upon a misconception, not shared by the primary judge, of the basis on which the Commonwealth sought relief, including orders in relation to vacant possession. The orders were sought by the Commonwealth in respect of premises which at that time 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.

150    In our opinion, whether and on what terms the second airport may be built remains in the future. As we have indicated, the primary judge considered this matter at [29] and following of the reasons for judgment in the present appeal in discussing the appellant’s argument that there was no urgency and no pending commercial requirement for the orders sought by the Commonwealth.

151    After considering the other arguments advanced by the appellant in opposition to the Commonwealth, the primary judge concluded (at [32]) that he had “presented no real basis for his opposition to the orders sought by the Commonwealth”. Having earlier addressed the correct statutory question, whether a termination notice had been given in accordance with s 85 of the 2010 RTA and the tenant had not vacated the premises as required by the notice, and being satisfied that such a notice had been given and the tenant had not vacated as required, the primary judge correctly held (at [27]) that he was obliged to make a termination order. This was the effect of s 85(3) of the 2010 RTA (stipulating that a termination order must be made if the Tribunal was “satisfied that a termination notice was given in accordance with [s 85] and the tenant has not vacated the premises as required by the notice”), s 10AA of the FCCA Act and s 8(1) of the Instrument (which required that the 2010 RTA was to be applied as if a reference to the Tribunal was a reference to the FCCA). The primary judge then addressed (from [28]) the question of what orders were appropriate in relation to the day vacant possession was to be given, as s 8(2) of the Instrument required. Having rejected the appellant’s argument as to lack of urgency and commercial requirement (as well as other arguments that the primary judge treated as bearing upon this question), for reasons that included (1) the importance of the development of a further airport in Sydney for the economic and social wellbeing of New South Wales “if not, this country” (at [29]); (2) the time, effort and money already spent on the site for the future development of the airport; and (3) that the continued presence of tenants on the airport site increased the costs likely to be incurred by the Commonwealth in this development, his Honour was satisfied that the appropriate date on which Mr Kenney was to give vacant possession of the premises was 28 December 2015, but that the order for vacant possession should be suspended until 25 January 2016.

152    As to the many documents referred to in the appellant’s written submissions, a reading of those documents (assuming they were in evidence below and in so far as they are in evidence in this Court) 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. The appellant has not advanced any argument or other matter that would indicate any relevant error in the primary judge’s consideration of the documents that could possibly have been the subject of Mr Kenney’s submissions contesting Mr Robertson’s evidence.

The needs of the appellant

153    In the revised submissions on common issues, there were many references to documents as to the needs of the appellant and “the adverse local social and environmental effects with respect to the loss of their land”. In this context, reference was made in the revised submissions on common issues to the evidence of Mr Simon Azar. It was submitted that the evidence of Mr Azar was seriously undermined in the evidence that the appellant brought and that was not reflected in the reasons of the primary judge.

154    As discussed above, the primary judge did not refer to the evidence of Mr Azar (or Ms Leanne Uren, Ms Simone Fogarty or Mr Lopco Neskovski) in his reasons for judgment in Mr Kenney’s case. Nor did he refer to their evidence in any other case involving a tenancy of less than 20 years. His Honour considered Mr Azar’s evidence (and that of Ms Leanne Uren, Ms Fogarty and Mr Neskovski) only in cases involving tenancies of 20 years and over.

155    As Mr Azar’s evidence was not adduced in the appellant’s case at first instance, the submissions concerning this evidence can be put aside as having no application in the appellant’s case. The submissions in the revised submissions on common issues concerning what was said to be expert evidence of Ms Leanne Uren, Ms Fogarty and Mr Neskovski can be put aside for the same reason.

156    The primary judge’s reasons for judgment show (at [31(f)]) that his Honour rejected an argument made by Mr Kenney at first instance that there was no suitable or available alternative similar leaseholds in the Badgerys Creek region, on the basis that there was no evidence to support the argument. We can discern no error in his Honour’s reasons on this point. In this context, the primary judge also referred (at [31(f)]) to a folder of material that included some documents relevant to the availability of accommodation in the Greater Western Sydney region. We can discern no error in his Honour’s findings concerning those documents.

157    In oral submissions, the appellant possibly submitted that 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. It is not clear that the oral submissions made by the appellant’s counsel at this point were intended by him to be made in the appellant’s appeal or only in the 20 years and over appeals. Assuming that this submission was made in the appellant’s appeal, his argument was that this meant that the primary judge did not look at the particular circumstances relating to the property, but asked a more general question which did not look at all the circumstances of the case. It was submitted that this approach did not accord with what Rolfe J had said in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) 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, including accommodation in an area suitable for matters such as proximity to family, facilities or employment. According to this argument, the issue of appropriateness was never really balanced from the point of view of the appellant on the evidence which he adduced before the court.

158    Rather than involving any specific attack on the fact-finding of the primary judge, this submission (if in fact it was relevant in this appeal) appears to concern the exercise by the primary judge of his discretion under s 85(3) of the 2010 RTA (as modified by s 8(2) of the Instrument), which the parties apparently accepted attracted the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. 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.

159    If in fact made in this appeal, this challenge to the exercise of the primary judge’s discretion, in our opinion, must fail.

160    We reject the submission that the only matter, or the only real matter, which the primary judge had regard to in relation to the appellant’s 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 preparation of the site for an airport. Secondly, in the exercise of the power under s 85(3) of the 2010 RTA (as modified by s 8(2) of the Instrument), the primary judge considered each of the matters on which the appellant relied, including the appellant’s submission as to the availability of suitable or available similar accommodation in the Badgerys Creek region.

161    Having regard to the reasons for judgment of the primary judge at [31] and following, we reject the submission that the primary judge did not look at the particular circumstances relating to the property relied on by the appellant, but asked a more general question which did not look at all the circumstances of the case.

162    In our opinion, in respect of the submissions made in relation to Mr Robertson’s evidence and in relation to the needs of the appellant, no appellable error has been shown in the primary judge’s consideration of the evidence or in his consideration of the interests of the appellant and the interests of the respondent.

Parties’ submissions specific to this appeal summarised

163    In the written submissions specific to this appeal dated 28 March 2016, the appellant adopted what was described as “the general argument set out in the common Submissions in each matter”, which we have assumed was a reference to the written submissions on common issues initially dated 23 March 2016, and revised on 6 April 2016. As will be apparent by now, the respondent did not object to the appellant relying upon the revised written submissions dated 6 April 2016. The respondent filed an outline of its written submissions on general and common issues (excluding constitutional issues) and issues specific to individual appeals dated 8 April 2016.

164    We have already discussed the submissions that were, broadly speaking, common to all, or at least to one of the two categories of the appeals (ie, the 20 years and over appeals and the under 20 years appeals). What follows concerns the submissions that are more appropriately considered by reference to the specific facts and circumstances of this appeal.

165    The appellant’s submissions of 28 March 2016 specifically stated that he adopted “the submissions in Odzic and Paul Kenney and the submission that the Judge erred in holding that the premises were within the purview of the State law, and that rather he should have held that they are not residential premises”.

Predominant use of the leased premises

166    In his own written submissions dated 28 March 2016, Mr Patrick Kenney submitted that the primary judge erred at [14] in rejecting the evidence that the land is predominantly used as agricultural premises. He submitted that “[t]he mere fact that ‘details’ are missing to explain the evidence Ms Brabin gave is not a reason for rejecting her evidence without any evidence form the Commonwealth or cross-examination, to put the contrary case”.

167    In submissions adopted by the present appellant, Mr Paul Kenney also submitted that the primary judge had erred in his case in finding that the premises were residential premises, and that the primary judge should have found, having regard to the area and use of the premises, that they were predominantly agricultural premises.

168    Although the parties’ submissions challenging the primary judge’s findings in relation to the predominant use of the premises in the appellant’s case were not clear, the respondent can be taken to have made the same argument in response as it made in like appeals on this ground.

169    In relation to the predominant use of the leased premises, the respondent submitted that there was no relevant error in the primary judge’s conclusion that, having regard to the area of relevant land and the evidence of its use, s 7(h) of the 2010 RTA did not apply. The section provides that the 2010 RTA does not apply, relevantly, 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 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 rejection of this aspect of the tenant’s case 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 tenant.

Did the tenancy agreement apply to the residential part of the property only?

170    In Mr Paul Kenney’s submissions, adopted by the appellant, it was further submitted that the primary judge erred in not considering the possible interpretation of the lease as a residential tenancy agreement in relation to only the house, but not in relation to the land on which other uses were adopted.

171    The respondent argued 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 was a residential tenancy agreement within the meaning of s 13 of the 2010 RTA in circumstances where part of the land was not used for residential purposes. This was said by the respondent to be inconsistent with the definition of “residential premises” in s 3 of the 2010 RTA.

Co-occupants as necessary parties

172    In Mr Paul Kenney’s submissions, adopted by the appellant, it was also argued that there was error in the primary judge’s findings as to the identity of the tenants and the correct parties, because his Honour did not ask the questions that he was required to by s 3 of the 2010 RTA and in light of the evidence, referring to [5], [13(d) and (i)] and [17] in the primary judge’s reasons for judgment in Mr Paul Kenney’s case, which broadly corresponded to [5] and [11(d) and (j)] in his Honour’s reasons for judgment in the appellant’s case.

173    In Mr Patrick Kenney’s submissions specific to his appeal, he submitted that the primary judge erred at [5] in finding that Ms Brabin did not have a right to occupy the premises because she was not a tenant or co-tenant. In oral submissions on this issue, the appellant said that Ms Brabin contributed to the rent and that her lease was renewed on the basis that she was a co-tenant to the knowledge of the agents of the Commonwealth (see transcript p 111). In written submissions, he emphasised that the primary judge (at [15]) found that the premises were “her home” and that it was “impossible to explain her right to occupy the premises, to be paying rent, to be in possession of the land with the knowledge and consent of the Commonwealth except as a co-tenant”. The appellant further submitted that “[w]hat has occurred is that the annual renewal has been on terms that the lease has been amended to the extent that she has become a party”.

174    The respondent submitted that the appellant’s submissions, in substance, contended that a co-occupant of a residential premise is a “tenant” and is properly required to be joined as a party to proceedings that a landlord brings under ss 85 or 94 of the 2010 RTA. The respondent submitted that the term “co-tenant” is defined in s 3 of the 2010 RTA as “one of two or more tenants under a residential tenancy agreement”. Referring to s 10 of the 2010 RTA, the respondent submitted that there was no relevant evidence of any written sub-tenancy agreement. Furthermore, the respondent submitted that the 2010 RTA is concerned only with the termination of residential tenancy agreements. In the present case, the agreement was between the named parties. The respondent submitted that it was not incumbent upon the respondent as a landlord to bring an end to any sub-tenancy arrangement.

175    Further, the respondent submitted that, even accepting Ms Brabin’s evidence that the Commonwealth was aware of her occupation of the premises (referring to Kenney at [5]), “her occupancy would not alter the parties to the relevant residential tenancy agreement with the respondent unless the requirements of s 10 were met”.

Termination notices for tenancies less than 20 years in duration

176    In Mr Paul Kenney’s submissions, adopted by the appellant, it was said that the notice of termination was invalid on the constitutional grounds (see consideration above), and also because it was “not a notice under section 85, and failed to mention the relevant ground of taking the land back, when it was served”. These submissions also claimed that the primary judge erred at [7] in the reasons for judgment in Mr Paul Kenney’s case, and the points ought to have been examined on their merits with respect to the proved facts, citing Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512. In adopting these submissions in his appeal, the appellant can be taken to refer to the equivalent paragraph in the reasons for judgment in his case, which is [6]. It was also submitted that the application and the evidence before the primary judge failed to demonstrate that a notice in the proper form under s 85 of the 2010 RTA was ever served.

177    The respondent submitted that, since s 82 of the 2010 RTA provided that a termination notice is required to set out the day on which vacant possession is to be given, the Commonwealth’s inclusion of that information, where the issuing of a notice was required for tenancies of less than 20 years, could not be criticised. The respondent submitted that “the primary judge did not make any criticism of the notice in relation to the under 20 year tenancies”. The respondent further submitted that the appellant made no supporting submissions in support of ground 4 of his amended notice of appeal that he was not given the notice of termination (transcript 145).

Savings provision for periodic tenancies predating the 2010 RTA

178    The appellant submitted that, for the reasons given in Mr Paul Kenney’s case, the primary judged erred at [22] in holding that s 85 of the 2010 RTA applied to the appellant’s case.

179    In Mr Paul Kenney’s submissions, it was submitted that the case was one involving the grant of a new tenancy, and was not a case of a periodic agreement in which there was no fixed term, citing s 3 of the 2010 RTA. It was alleged that the primary judge erred in failing to find that “the holding over provisions applied” on the basis of the terms of the lease, and for holding that “the lease may be terminated lawfully by an order his Honour had power to make”. It was said that, in the tenancy agreement, “the term was a fixed term by agreement”. On this basis it was also said that ss 3 and 85 of the 2010 RTA did not apply; and also that s 18 of the 2010 RTA did not apply because it came into existence after the earlier lease term expired. It was said that the primary judge erred in his conclusion that the matters in s 85(3) of the 2010 RTA had been established and the agreement had to be terminated.

180    The respondent submitted that, 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. In respect of the submission that the primary judge erred in applying s 18 of the 2010 RTA because the tenancy agreement was entered into before the 2010 RTA commenced in 2010, the respondent submitted that s 14 of the Residential Tenancies Act 1987 (NSW) was relevantly identical to s 18 of the 2010 RTA. The respondent further submitted that “[t]he savings provision at Clause 3 of Schedule 2 of the [2010 RTA] (adopted by s 226) provides that provisions in residential tenancy agreements and rights accruing to landlords and tenants predating the Act continue in force”.

Weighing of competing considerations and date of termination order

181    The appellant submitted, in his written submissions, that the primary judge’s statement at [31(f)] regarding alternative premises was in error as it was not necessary to show that the appellant had looked for another place to live, and that “[t]here was a great deal of expert evidence from other witnesses led in his case to the effect that suitable alternative premises were not available”.

182    In response to the appellant’s argument in respect of the availability of alternative premises, the respondent submitted that the primary judge weighed up the available evidence as to the state of the housing market in exercising his discretion in relation to the time to be allowed for the appellant to vacate the premises, referring to Kenney at [28]-[32]. The respondent noted that the primary judge “found that advertisements for rental accommodation tendered by Mr Kenney directed to showing the cost of alternate properties did not assist because the Court did not have any evidence about Mr Kenney’s capacity to pay rent, or that the advertisements tendered were the only properties available in the area”, referring to Kenney at [31(f)].

183    In Mr Paul Kenney’s submissions, it was further argued that Mr Robertson’s evidence should have been rejected, and that the primary judge gave no adequate consideration to the particular needs of the tenant. It followed, so the submission ran, that there was error in the primary judge’s consideration and determination of the orders that were appropriate in relation to the day vacant possession was to be given. Mr Paul Kenney’s submissions concluded that “[t]he exercise of discretion ... miscarried in the House v The King sense”, although at this point of these submissions reference was made to the primary judge’s making of the termination order under s 85, rather than the orders in relation to the day vacant possession was to be given.

184    We have already set out the respondent’s response to this submission, which was also made as a common submission in the appeals. We note that the respondent emphasised that the appellant had entered into a written residential tenancy agreement, as defined by s 13 of the 2010 RTA, and that this agreement contained an acknowledgement on the part of the tenants that the land in question was intended to be used for the proposed airport.

185    The Odzics’ written submissions, also adopted by the present appellant, challenged the primary judge’s orders on the basis that they gave them only 14 days to move, suspended for a total of 75 days (sic), when his Honour had given another tenant (Mr Nikola Lukic) 90 days in circumstances where that tenant had not been cross-examined. The orders made by the primary judge in the present case were in relevantly identical terms to those made in the Odzics’ case.

186    The respondent contended that, to succeed in challenging the primary judge’s exercise of discretion, the appellant needed to establish a reviewable error in the sense of House v The King. It was insufficient that the appeal court might reach a different conclusion and that, 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. As to the appellant’s contention that the primary judge erred in ordering termination forthwith and vacant possession on or before 28 December 2015 (see ground 7 of the amended notice of appeal), the respondent contended that this incorrectly recorded the orders made by the primary judge. These orders included that vacant possession be given on or before 28 December 2015, but that the order for vacant possession be suspended until 25 January 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”. The respondent noted that, although the primary judge made an order fixing the date for vacation of the premises, in each case he suspended the order until a later date. The respondent submitted that, in relation to these orders, it was clear that his Honour balanced the circumstances of the tenant and determined an appropriate date for vacation of the premises, so discharging his statutory function.

Consideration

Predominant use of the leased premises

187    As we have seen, s 7 provided that the 2010 RTA does 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”. We discern no error in the conclusion of the primary judge that the appellant had not established on the evidence that the predominant use of the premises was for the purposes of agriculture or a business. His Honour considered the evidence before him. In particular, he had regard to the evidence of Ms Brabin in relation to the horses run on the premises, which she said that she and Mr Kenney sold and traded. We can discern no error in his Honour’s conclusion, however, that the appellant had not established on the evidence that the predominant use of the premises was for the purposes of agriculture or a business, having regard to the lack of evidence as to the size or scale of this horse-rearing for sale activity. It was clearly open to his Honour in this case to find that, in the absence of evidence as to these matters, the relevant evidence could not support a finding that, on the balance of probabilities, Mr Kenney ran horses as part of an agricultural or business activity and that the premises were used predominantly for such a purpose. On the other hand, as his Honour found, the residential tenancy agreement made it clear that the premises were used by Mr Kenney as his home and, on Ms Brabin’s evidence, the premises were used as her home as well, thereby satisfying the definition of “residential premises” in s 3 of the 2010 RTA (see below). The appellant has shown no appellable error in this regard.

Did the tenancy agreement apply to the residential part of the property only?

188    Further, we reject the appellant’s contention that his Honour erred by failing to determine whether or not the lease of the premises was a residential tenancy agreement within the meaning of s 13 of the 2010 RTA in circumstances where part of the land was not used for residential purposes. We accept that, as the respondent submitted, this is inconsistent with the definition of “residential premises” in s 3 of the 2010 RTA where that term is 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” (emphasis added).

Co-occupants as necessary parties

189    We accept that, as the respondent submitted, the appellant’s contention in relation to co-occupants was, in effect, that each co-occupant of a residential premise was a “tenant” and required to be joined as a party to proceedings brought under s 85 of the 2010 RTA. We reject that contention. A “co-tenant” is defined in s 3 of the 2010 RTA as “a tenant who is one of 2 or more tenants under a residential tenancy agreement”. By virtue of the definition of “co-tenant”, a person must be a tenant before he or she may also be a co-tenant. A “tenant” is defined in s 3 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.

190    In this case, only Mr Kenney and Ms Page were named in the residential tenancy agreement as having a right to occupy the premises. There was no evidence that Ms Brabin satisfied any part of the definition of tenant in s 3. Notwithstanding that Ms Brabin may have paid rent and occupied the premises with the knowledge of the Commonwealth, in order for Ms Brabin to be a tenant for the purposes of the 2010 RTA, she would have to satisfy the requirements of s 10 of the 2010 RTA. That section provided as follows:

A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if:

(a)    a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or

(b)    the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant.

Note. Boarders and lodgers are not covered by this Act (see section 8 (1) (c)).

An occupier may be recognised as a tenant (see sections 77 and 79).

191    We were not directed to any application made to the primary judge under s 77, and it does not appear that any such application was made. There was no suggestion that s 79 was relevant. There was no relevant evidence of any written residential sub-tenancy agreement with the named tenants on the residential tenancy agreement; and there was no relevant evidence that might indicate that there had been a transfer for the purposes of s 10(a). Furthermore, we would be inclined to accept that, as the respondent submitted, it was not incumbent upon it as a landlord to bring an end to any sub-tenancy arrangement. We accept that, as the respondent submitted, there was no requirement for a co-occupant of a residential premise to be joined as a party to proceedings.

Termination notices for tenancies less than 20 years in duration

192    The primary judge considered, on the merits, whether the termination notice given to the appellant amounted to a notice of termination for the purpose of the 2010 RTA; and whether the service of the notice was duly proved. Any contrary submission made by the appellant must therefore be rejected.

193    The primary judge found a notice of termination had been given in accordance with the requirements of the 2010 RTA. We can detect no relevant error in his Honour’s consideration of this issue. In any event, so far as we can discern, the appellant made no submission on appeal that challenged the primary judge’s finding that a termination notice had been served on or “given” to the appellant in accordance with the 2010 RTA.

194    Further, we can see no error in the primary judge’s conclusion that the termination notice in this case met the formal requirements of the 2010 RTA. It is evident that the notice of termination satisfied the requirements of s 82 of the 2010 RTA, including a statement about the day on which the residential tenancy agreement was to be terminated and by which vacant possession was to be given. The notice of termination also satisfied s 85(2) by specifying a termination date that was no earlier than 90 days after the day on which the notice was given. In the case of a tenancy of less than 20 years, the specification of the day on which the vacant possession was to be given was required by s 82(1)(b) and, in contrast to the reasons for judgment relating to the termination of a tenancy of 20 years or more, the primary judge in the present case did not intimate that this might be misleading. We would reject any contention that it might be in the case of a tenancy of less than 20 years.

Savings provision for periodic tenancies predating the 2010 RTA

195    We accept that the fixed term of the residential tenancy agreement having expired, the agreement continued as a periodic agreement on the same terms as applied immediately before the end of the fixed term. The agreement made some provision for continuation on the expiry of the fixed term, permitting the tenants to stay in the premises under the same terms. Accordingly, when the fixed term expired, the agreement continued. As the appellant submitted, at the time the agreement was made and, indeed, when the fixed term ended, the Residential Tenancies Act 1987 (NSW) applied. On the repeal of that Act, however, and the commencement of the 2010 RTA, cl 3 of Sch 2 of the 2010 RTA applied (by virtue of s 226 of the 2010 RTA). This clause made specific provision for transition and savings with respect to existing residential tenancy agreements. Clause 3 was in the following terms:

Application of Act to existing residential tenancy agreements

(1)    The terms included in a residential tenancy agreement by this Act are included in any existing residential tenancy agreement on the repeal of the former Act.

(2)    This Act applies to any such agreement despite the terms of the agreement.

(3)    This clause is subject to this Schedule and the regulations.

196    On commencement of the 2010 RTA that Act applied to Mr Kenney’s agreement, it being an “existing residential tenancy agreement”: see cl 2 of Sch 2 of the 2010 RTA. The agreement was a periodic agreement: see s 3 of the 2010 RTA; and Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016) at [14.60]. See also McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019 at [17]; Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 at [5]-[8]; and Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623 at [13]-[14]. The effect of s 18 of the 2010 RTA is that, as the primary judge said, a fixed term agreement that continues after a day on which the fixed term ends continues to apply as if the term of the agreement were replaced by a periodic agreement. In these circumstances, s 85 of the 2010 RTA governed the termination of the residential tenancy agreement in Mr Kenney’s case.

Weighing of competing considerations and date of termination order

197    As we have already stated, s 85(3), which was applicable to the termination of a periodic agreement, required the making of a termination order where the FCCA was satisfied that the termination notice was given in accordance with that provision and the tenant had not vacated the premises as required by the notice. If the conditions stipulated by s 85 were satisfied, the FCCA was obliged to make a termination order. Section 85 did not confer a discretion. The appellant’s submission that an exercise of discretion miscarried in the making of the termination order under s 85 of the 2010 RTA was misconceived. As we have already noted, where the FCCA exercised power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, s 8 of the Instrument operated to confer a discretion on the FCCA “in relation to the day vacant possession of the premises is to be given to the landlord” since, by virtue of s 8(2) of the Instrument, the 2010 RTA was to be read as including a provision that, if the FCCA 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.

198    We can discern no basis for the appellant’s submission that “[t]here was a great deal of expert evidence from other witnesses led in his case to the effect that suitable alternative premises were not available”. As his Honour’s reasons demonstrate, the primary judge considered all the evidence that was before him concerning the housing market in the relevant area in exercising his discretion in making orders in relation to the day vacant possession was to be given. He set aside documents relating to community housing on the basis that there was no evidence as to Mr Kenney’s financial circumstances that might have indicated that this kind of housing was relevant to his situation. His Honour gave no weight to the other group of documents because they showed no more than that certain advertised properties were available at certain dates, for particular amounts; and there was no evidence that they were the only properties available, or what properties were available at other times or in other locations. We can see no error in his Honour’s findings in this regard. Evidence about Mr Kenney’s or Ms Brabin’s attempts to find alternative accommodation might have been relevant, but, as none was given, his Honour indicated that he put this possibility to one side. His Honour did not hold, however, that this kind of evidence was necessary, as the appellant’s submissions might appear to suggest. This is to mischaracterise his Honour’s reasons.

199    As we have seen, the primary judge treated the appellant’s challenge to the evidence of Mr Robertson, particularly as to urgency and commercial necessity, as relevant to his exercise of discretion in making orders in relation to the day vacant possession was to be given. His Honour also considered the interests of the appellant at this stage too. No party suggested that it was not open to his Honour to do so.

200    We have already considered and rejected the appellant’s submissions that Mr Robertson’s evidence should have been rejected, and that the primary judge gave no adequate consideration to the particular needs of the appellant. His Honour’s reasons for judgment demonstrate that he considered the evidence before him, as well as the parties’ submissions, and in so doing considered the parties’ competing needs and interests. As indicated, we discern no appellable error of the kind referred to in House v The King. We accept that, as the respondent submitted, his Honour’s orders included that vacant possession be given on or before 28 December 2015, but that the order for vacant possession be suspended until 25 January 2016; and that these orders were lawfully made, particularly having regard to the definition of “termination order” in s 80 of the 2010 RTA. We do not accept the argument put to the Court by counsel for the appellant at the hearing that the terms of the orders of the primary judge were inconsistent with Pt 6 of the 2010 RTA.

Disposition of grounds in the amended notice of appeal

201    The foregoing consideration leads to the conclusions that grounds 1 to 3 (discussed at [86]-[133] above) must fail. So too must ground 5, so far as it relied on the arguments considered in those paragraphs. Ground 4 fails for the reasons set out at [192]-[194]. Ground 5 also fails for the same reasons. Ground 7 fails as discussed in [197]-[200] above. Ground 8 fails as discussed at [195]-[196] above. Ground 9 fails for the reasons given at [141]. Ground 13 fails for the reasons set out at [149]-[162] and [200].

202    Grounds 14 and 15 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 appellant that since December 2000 he really believed that Badgerys Creek was not being considered as a site for the airport. As to the first of these matters, ground 14, 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, the basis on which the Commonwealth sought the termination order was in respect of the premises which were to form part of an airport. 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 8(2) of the Instrument, to take into account the documents submitted by the appellant in relation to the history of decision-making. In any event, we note that, at [59] in Odzic, which the primary judge adopted in the present matter, 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. His Honour noted 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.

203    As to the second of these matters, ground 15, that the appellant 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 made on 1 March 2004 with a term of one year and contained cl 53 which we have set out at [4] above. To the extent the appellant in this case advanced the submission that because the lessor did not plead that express provision for termination, it was legally irrelevant to rely upon it in evidence, we would reject that submission. As the primary judge pointed out, the application to that court was not a pleading. In the absence of probative evidence as to the appellant’s thinking, this ground must fail, especially in light of cl 53 of the agreement entered into in March 2004.

204    We note that, for the reasons already stated, we would not grant leave to amend the notice of appeal to add grounds 10, 12, 16, 17 and 18.

The application to adduce further evidence on appeal

205    On this appeal the appellant sought to adduce the following further evidence:

1.    Affidavit of Mr Patrick Kenney dated 13 January 2016;

2.    Affidavit of Ms Sandra Uren dated 6 March 2016;

3.    Further affidavit of Ms Sandra Uren dated 6 March 2016;

4.    Affidavit of Dr Anthony Green dated 9 March 2016;

5.    Affidavit of Mr Kingsley Liu dated 1 February 2016;

6.    Affidavit of Mr Kingsley Liu dated 9 March 2016.

206    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 from which the appeal arose, and has power in its discretion, to receive further evidence.

207    The principles to be applied were considered in August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376 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.[117]    The Full Court referred to Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389 at 403–404 [68]–[72], which cited what the High Court had said in CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 (in the context of the similarly worded s 93A(2) of the Family Law Act 1975 (Cth)) and which, in Sobey, referred to decisions of the Full Court of this Court including Cottrell v Wilcox [2002] FCAFC 53 at [20]–[24]; Gao v Official Trustee in Bankruptcy [2003] FCAFC 84 at [23]; Freeman v National Australia Bank Ltd (2003) 2 ABC (NS) 32 at 48–50; [2003] FCAFC 200 at [68]–[74] and Ye v Crown Ltd [2004] FCAFC 8 at [157]–[161].

…

[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.

208    In CDJ v VAJ [1998] HCA 67; 197 CLR 172, 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.

209    In light of these principles, we turn to consider the six affidavits listed above.

Affidavit of Mr Patrick Kenney dated 13 January 2016

210    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 appellant relied dated 12 April 2016 which the Court directed the appellant to file.

211    In our opinion, the affidavit was relevant to the interlocutory application for a stay. So far as this appeal is concerned, it referred to nothing relevant to this appeal that Mr Kenney had not previously covered in his affidavit before the primary judge or that could not have been adduced before the primary judge.

212    We are not satisfied, moreover, that any of this further evidence would have produced a different result if it had been available at the trial.

213    On the assumption we have made, we reject this affidavit.

Affidavit of Ms Sandra Uren dated 6 March 2016

214    We shall assume that this affidavit was sought to be read in the appeal. The respondent notified objections to it dated 18 March 2016.

215    This affidavit is of nine paragraphs. In it Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” from September 2015, which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose at paragraph 9 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.

216    We note that this material, if relevant, could have been tendered at the hearing before the primary judge.

217    Further, 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; would not appear to be relevant to the present appeal; and we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. In the result, on the assumption we have made, we reject the entirety of the affidavit including the formal paragraphs 1 and 2.

Further affidavit of Ms Sandra Uren dated 6 March 2016

218    Ms Uren swore a further affidavit dated 6 March 2016, of 10 paragraphs, which the appellant sought to rely on in his appeal. The respondent notified objections to it dated 18 March 2016.

219    In paragraph 5, Ms Uren sought to give evidence about what she said were the deficiencies in the Western Sydney Airport Draft Environmental Impact Statement released in 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.

220    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 the 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.

221    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 shows “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.

222    In paragraph 8, Ms Uren sought to state that, as a low-income earner, she has 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. The first sentence was not relevant to this appeal. As to the paper sought to be annexed, it too was in a general form. It did not go to the specific position of the appellant. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

223    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.

224    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.

225    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

226    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 appellant submitted that the draft Environmental Impact Statement –Western Sydney Airport (EIS) discussed by Mr Green 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 appellant submitted that Dr Green’s curriculum vitae should be sufficient to establish his expertise.

227    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 appellant at the hearing before the primary judge and there was no evidence explaining why it was not.

228    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.

229    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 were 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 at paragraph 37 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 stated 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 appellant at the hearing before the primary judge and there was no evidence explaining why it was not then sought to be adduced.

230    Lastly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

231    We reject this affidavit.

Affidavit of Mr Kingsley Liu dated 1 February 2016

232    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 appellant relied dated 12 April 2016, which the Court directed the appellant to file.

233    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

234    The respondent notified objections to this affidavit on 18 March 2016.

235    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

236    The appeal should be dismissed. Counsel for the appellant accepted that in those circumstances costs should follow the event. We will therefore order that the appellant pay the respondent’s costs, as agreed or taxed.

Associate:

Dated:    2 March 2017