FEDERAL COURT OF AUSTRALIA
Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 22
ORDERS
Appellant | ||
AND: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave be granted to the appellant to amend his notice of appeal to add grounds 18, 19 and 20 and to amend ground 11 (in accordance with these reasons).
2. Leave be refused to the appellant to amend his notice of appeal to add grounds 5, 9, 12, 17, 21, 22 and 23.
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.
THE COURT:
Introduction
1 This is an appeal by Mr Ken Shirvington 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 Patrick & Anor [2015] FCCA 3413 (Patrick). The appeal concerns the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham, New South Wales (the premises). 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. The Commonwealth initially instituted the proceedings in the FCCA against Ms Annette Patrick. Mr Shirvington was subsequently joined, by consent, as the second respondent.
2 On 25 May 2007, Ms Annette Patrick and her husband, Mr Kevin Dickinson (now deceased), entered into a residential tenancy agreement with the Commonwealth in respect of the premises (the residential tenancy agreement). The term of the residential tenancy agreement was 52 weeks beginning on 25 May 2007 and ending on 22 May 2008. As explained below, after the expiry of the term, the residential tenancy agreement continued as a periodic agreement on the same terms as immediately before the end of the fixed term.
3 Clause 40 of the residential tenancy agreement provided as follows:
PROPOSED AIRPORT SITE
40.1 The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport;
40.2 In the event that the Commonwealth of Australia requires vacant possession of the premises:
c) to develop the Sydney West Airport; or
d) for any other purpose [sic: numbering]
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 fixed term (whichever is the earlier);
40.3 The tenant shall not be entitled to any payment or compensation from the landlord arising from such termination;
40.4 A termination of the Agreement under clause 40.2 shall not affect an existing right or obligation accrued or incurred by the landlord or by the tenant under this Agreement or otherwise at law or in equity.
4 The primary judge found (Patrick at [10(f)]) that Ms Patrick had 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). Ms Patrick's evidence was, however, that she never lived on the premises and that her husband died in 2013. The primary judge accepted this evidence (Patrick at [35]). The primary judge also accepted that Mr Shirvington had occupied the premises since about 2011 (Patrick at [10(c)]).
5 In the FCCA proceeding, the Commonwealth did not dispute that Mr Shirvington was living on the premises and that Ms Patrick was not. In consequence, as noted above, Mr Shirvington was joined as a second respondent by consent. Ms Patrick gave evidence in the FCCA proceeding and also submitted to the orders of the Court, save as to costs (Patrick at [2]). In the appeal instituted in this Court by Mr Shirvington, Ms Patrick filed a submitting notice dated 31 March 2016, stating that she submitted to any order that the Court might make in the proceeding and that she did not want to be heard on the question of costs. In submissions specific to this appeal, Mr Shirvington made a submission concerning Ms Patrick's status as an appellant. This is discussed below.
6 By letter dated 29 October 2014, an agent of the Commonwealth notified Ms Patrick that the Australian Government had announced that land owned by it at Badgerys Creek, including that occupied by Ms Patrick, would be the site for Western Sydney's airport. The letter also stated that Ms Patrick would be given a formal notice of termination of her tenancy and would likely be required to vacate the premises by June 2015.
7 On 29 November 2014, so the primary judge found (at [10(i)]), an agent for the Commonwealth served Ms Patrick with a "Notice of Termination of Residential Tenancy Agreement" dated 24 November 2014. The notice was addressed to Ms Patrick and Mr Dickinson (who had died in the previous year). 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 1962-1970 The Northern Road, Luddenham, NSW 2745 (the Premises)
Background
A. Pursuant to a residential tenancy agreement dated 25 May 2007 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 40 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.
8 The primary judge found that Ms Patrick did not agree to vacate the premises by 15 June 2015 and remained in possession of the premises. The primary judge also found that Mr Shirvington did not vacate the premises and claimed a right to remain in occupation of the premises.
9 On 29 June 2015, the Commonwealth applied to the FCCA for orders terminating the residential tenancy agreement and for vacant possession. Mr Shirvington opposed the orders sought by the Commonwealth on various grounds, including that no notice of termination was given; the 2010 RTA did not apply to the premises because it was predominantly used for non-residential purposes; and that the Court should decline to exercise its asserted discretion to terminate the residential tenancy agreement. Mr Shirvington also contested the jurisdiction of the FCCA, submitting that the law purporting to confer jurisdiction and to be applied was invalid.
10 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 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 comprising part of folio identifier Lot 1 DP 838361 ("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.
11 On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted the 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
12 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.
13 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.
14 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.
15 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.
16 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.
17 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
18 The primary judge (at [7]) 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
19 Mr Shirvington 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 [18] in Patrick, rejected those arguments for the reasons his Honour gave in Odzic at [40]-[44], where his Honour adopted what he had said in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133 (Rigney).
20 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 is in this case). This was because the Odzics (and Ms Patrick) 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]).
21 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]).
22 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
23 The primary judge (Patrick at [12]-[17]) also rejected the appellant'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 non-residential purposes. The primary judge (at [12]) referred to his consideration in Rigney at [8]-[23] about the meaning of s 7(h) of the 2010 RTA.
24 The primary judge accepted that Ms Patrick ran a transport company and referred to her evidence that "she put a driver in the Premises" (at [16]). The primary judge accepted, "for present purposes that [Ms Patrick] has stored some forklifts there as part of the arrangement by which Mr Shirvington now lives on the Premises", although his Honour did not "take this part of her evidence to establish that he was living on the Premises at the time the driver was living there" (at [17]). Whilst his Honour accepted that the storage of the forklifts was for the purposes of Ms Patrick's business, he was not satisfied that the predominant use of the premises was for the purposes of a business or another non-residential reason, because of "the vagueness of the evidence, and the fact that the Premises are clearly used for residential purposes" (at [17]).
Application of s 85 of the 2010 RTA
25 The primary judge found that when the fixed term of the residential tenancy agreement expired, it continued as a periodic agreement and that, since Ms Patrick 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 (at [21]-[25]).
26 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 Patrick at [19]:
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
27 The primary judge rejected Mr Shirvington's claim that he was the tenant. His Honour stated (at [24]):
He relies on the evidence of Ms Patrick that he lives on the Premises and ... they went to the real estate agent to change the lease into his name. No details of that visit to the agents [sic] were given, and the fact remained that Mr Shirvington was never a party to a written agreement in relation to the Premises. There was no evidence of anything said by or on behalf of the Commonwealth to suggest that a tenancy had arisen or would arise. There was no transfer of the tenancy to him by Ms Patrick and her husband and there has been no recognition of him as a tenant or sub-tenant within the meaning of the [2010 RTA] (see ss.3, 10, 74, 77), and no estoppel has arisen.
28 The primary judge (at [21]) noted that the term of the agreement was for 52 weeks, commencing 25 May 2007 and expiring on 22 May 2008. The primary judge also noted (at [22]) 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 [23]), referring to ss 3 and 18 of the 2010 RTA, that the agreement was a periodic tenancy within the meaning of the 2010 RTA. In this circumstance, as noted above, the primary judge held (at [25]) that s 85 of the 2010 RTA applied to the Commonwealth's termination of the residential tenancy agreement, as Ms Patrick 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 [27]) that the notice of termination on which the Commonwealth relied met the requirements of the 2010 RTA.
29 The primary judge also rejected the appellant's argument that the service of the notice of termination had not been proved, on the basis of the evidence before him. His Honour referred first to the evidence of a licensed process server, Mr Stephen Goodwin, and to the evidence of Ms Sarah Alderson and Ms Vivienne Li (at [28]). In particular, his Honour noted Mr Goodwin's evidence that he served "Ms Patrick and Mr Dickinson with an envelope that he was informed contained the notice of termination and a document entitled 'Tenant's responsibilities and vacating checklist'" and that this evidence was not the subject of any objection. This evidence, so his Honour held, established that the envelope to which Mr Goodwin referred "did in fact contain those documents", a fact supported by the evidence of Ms Alderson and Ms Li. His Honour noted that there was no objection to their evidence and that Ms Alderson was not cross-examined about the preparation of the notice of termination for service (at [28]).
30 The primary judge said (at [29]):
Mr Goodwin explained that he served the documents "by delivering the same to Kevin Dickinson personally at 1962-1970 The Northern Road, Luddenham in the State of New South Wales". If Ms Patrick's evidence that her husband died in 2013 is accepted, which it is, then it would have been difficult to serve him personally in November 2014. However, Mr Goodwin says further:
At the time of service I said to the person served:
Are you Mr Kevin Dickinson?" He replied: "Yes." I said: "I have an envelope for you and Annette Patrick." I then handed him the envelope.
His Honour concluded (at [30]) that this showed "that Mr Goodwin believed that he had served Mr Dickinson because a male person told him that he was Mr Dickinson".
31 The primary judge acknowledged that there was no direct evidence of the identity of the person at the premises to whom Mr Goodwin gave the envelope containing the notice of termination and spoke and added "but there is only one likely candidate: Mr Shirvington" (at [30]). In this latter regard, his Honour stated (at [31]):
First, Ms Patrick gave evidence that she was very close to Mr Shirvington and sees him regularly. From that I infer that Mr Shirvington knew at least that Mr Dickinson was dead and most certainly that he was not living on the Premises. That inference is strengthened by the fact that Mr Shirvington was living on the Premises and, according to Ms Patrick, went with her to put his name on the lease. This supports the inference that he knew that Ms Patrick and her husband were in fact on the lease. Secondly, the evidence suggests that Mr Shirvington and his wife Debbie Shirvington were living on the Premises. Although Ms Patrick had put a driver in there at some point, there was no indication that that was an ongoing situation. Thirdly, it was a lie to tell Mr Goodwin that the speaker was Mr Dickinson, particularly in light of the fact that there was no evidence of any other Mr Dickinson. Fourthly, the only person with any interest in continuing to live at the Premises was Mr Shirvington and his wife. Thus, he was not only the only male on the Premises but the only male with any motive to lie. For those reasons, I find that the person to whom Mr Goodwin gave the Notice of Termination was Mr Shirvington.
32 Although the primary judge doubted some of Ms Patrick's evidence he also accepted some of it, including that Ms Patrick and Mr Shirvington were close and saw one another on a regular basis. It was, so his Honour said (at [35]), "for that reason that I find that she was at least aware of, and most likely received, the Notice of Termination". The primary judge held, however, that ultimately it did not matter whether Ms Patrick received the notice of termination, because he was "satisfied that Mr Shirvington was personally handed the document and, being married, was over the age of 16 at the time" (at [36]). His Honour held that, in consequence, the requirements of s 223(1) of the 2010 RTA were satisfied and that the notice was "given" within the meaning of that Act.
33 The primary judge added (at [37]-[38]):
[E]ven if I were wrong about Mr Shirvington, I would find that that provision had been met. Mr Goodwin knew that he was serving a notice of termination of a residential tenancy agreement. Although he does not mention in his affidavit the age of the person he handed the documents to, I infer that that person was over the age of 16 simply because Mr Goodwin was led to believe that he was talking to one of the tenants and the likelihood of such a tenant being under 16 is extremely low.
In those circumstances I am satisfied that a notice of termination was given in accordance with the requirements of the [2010 RTA].
34 The primary judge held (at [39]) that, as Mr Shirvington remained on the premises with Ms Patrick's consent, Ms Patrick had not vacated the premises, although she herself was not living there. His Honour was further satisfied that the "matters in sub-s.85(3) ... have been established and the residential tenancies agreement between the parties must be terminated" (at [40]).
35 The primary judge rejected (at [44]) Mr Shirvington'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]-[85]. 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
36 The primary judge then considered the appropriate date for vacant possession to be given to the Commonwealth. As noted already, his Honour acknowledged (at [19]) 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.
37 The primary judge began his inquiry by examining the circumstances relied on by the Commonwealth, referring in this regard to his consideration of this issue in Odzic at [59]-[81], and stating his findings (Patrick at [42]) 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) Ms Patrick 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.
38 In view of the challenge made by Mr Shirvington 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.
39 The primary judge in Odzic 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.
40 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.
41 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.
42 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.
43 The primary judge then went on to consider the other matters on which Mr Shirvington 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 did so on the basis that, "as a matter of practical reality", the termination order would affect him and his wife and notwithstanding that he had found that Mr Shirvington was not a "tenant" within the meaning of the 2010 RTA; his interests were contingent on the residential tenancy agreement and Ms Patrick's ongoing consent to him living on the premises; and his interests had "no true relevance to the issues to be decided" as Ms Patrick had "consent[ed] to the orders of the Court" (Patrick at [43]-[44]).
44 In this context, the primary judge identified nine matters on which Mr Shirvington 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
45 The primary judge rejected Mr Shirvington's claim that the "proposed termination and/or eviction will cause hardship to the Second Respondent", on the basis that there was "no evidence of any hardship beyond the ordinary inconvenience of moving house" (at [44(a)]).
(2) Age, infirmity and adverse effect on Mr Shirvington's health and livelihood
46 The primary judge also held that there was no evidence to support Mr Shirvington's contention that he "is aged or infirm and/or the Orders sought will adversely affect [his] health and livelihood" (at [44(b)]).
(3) Retaliatory or partly retaliatory orders
47 Again, the primary judge held that there was no evidence to support Mr Shirvington's claim that the "termination and/or eviction orders sought are retaliatory or partly retaliatory" (at [44(c)]).
(4) Unduly brief period for vacating the land
48 After noting that there was "little evidence as to when Mr Shirvington first moved into the Premises", his Honour explained his finding that Mr Shirvington had been living there since 2011 by reference to Ms Patrick's evidence to that effect. The primary judge found that Mr Shirvington had been on notice of the need to vacate for over a year and that there was "nothing beyond mere assertion to suggest that that [was] inadequate time to prepare to vacate" (at [44(d)]).
(5) Lack of urgency and pending commercial requirement
49 For the same reasons as he had rejected this submission in Odzic at [95]-[101], the primary judge rejected (at [44(e)]) Mr Shirvington'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"; 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 "there was no pending commercial requirement for the orders for termination for over 12 years". Briefly, his Honour found (at [44(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
50 The primary judge found that neither Mr Shirvington nor his wife gave evidence of any attempts to locate alternative suitable accommodation (at [44(f)]).
51 The primary judge noted that Mr Shirvington tendered a folder of material that "included some documents relevant to the availability of accommodation in the Greater Western Sydney region" (at [44(f)]). His Honour said (at [44(f)]):
The first of those documents related to community housing. There was no clear evidence about Mr Shirvington's financial circumstances. For that reason, it would seem that 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
52 Mr Shirvington complained that the Commonwealth had not offered him any compensation for "the loss of the Respondent's property affixed to the land or otherwise and for the cost of complying with the eviction notices" (at [44(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 Shirvington's financial means.
(8) Express termination provision in tenancy agreement
53 Mr Shirvington 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 [44(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.
54 In Odzic it was submitted by the appellants that cl 42.2 of their residential tenancy agreement (which was relevantly the same as cl 40.2 of Ms Patrick'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" (Odzic at [108]).
(9) Service of notice before the introduction of s 10AA of the FCCA Act
55 The primary judge rejected (at [44(i)]) Mr Shirvington'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]).
56 The primary judge concluded (Patrick at [45]) that Mr Shirvington had shown "no real basis for his opposition to the orders sought by the Commonwealth". At [46], his Honour stated that:
In light of the circumstances relied on by the Commonwealth as summarised above and the fact that Mr Shirvington has put forward nothing of any substance in opposition to the orders sought and that Ms Patrick has consented to the orders of the Court save as to costs, I am satisfied that the appropriate date on which the respondents are 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.
57 Accordingly, his Honour made the orders set out at [10] above.
Grounds of appeal
58 The grounds of appeal in the proposed amended notice of appeal were as follows:
(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 finding that the termination notice had been served and in finding that it was served on Mr Shirvington and in finding that he acted as agent for Ms Patrick Dickinson or one of them [sic].
(5) The primary Judge erred in assuming Mr Shirvington was the only male person living on the Premises; his son also lives on the premises.
(6) The primary Judge erred in holding that the termination notice had been given.
(7) The primary Judge erred in not finding that Mr Shirvington was, at the time the Application was brought, the lessor of the premises.
(8) The primary Judge erred in holding that the termination notice was valid and effective.
(9) The primary Judge erred in his finding [sic] the property was correctly identified in the termination notice.
(10) The primary Judge erred in not admitting evidence or the further evidence of the Appellants.
(11) The primary Judge erred in failing to accept the evidence of Ms Patrick; Ms Patrick was upset nervous [sic] and apprehensive before attending court but gave her evidence honestly and to the best of her ability such that an adverse finding of credit was perverse or in error.
(12) The primary Judge erred in finding Ms Patrick has submitted to the orders of the Court save as to costs.
(13) The primary Judge erred in ordering termination forthwith and vacation on or before 28 12 2015 of the premises the subject of the action.
(14) The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].
(15) 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.
(16) The primary judge erred in deferring costs or not making any orders as to costs before pronouncing final judgment.
(17) The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
(18) 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.
(19) 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.
(20) 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.
(21) 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.
(22) 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.
(23) 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.
(24) 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.
59 The underlined paragraphs identify proposed new grounds of appeal raised by Mr Shirvington for which leave is required. The paragraphs struck through, grounds 10, 16 and 24, reflect the grounds in the proposed amended notice of appeal which the appellant notified the Court were abandoned. It is also clear that ground 15 concerning alleged bias was not pressed in that form in this appeal.
60 The proposed amendments, apart from paragraphs 19 and 20, 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 Shirvington's case had been presented below.
61 Since the application to amend to add grounds 19 and 20 was not opposed, we would grant leave so to amend.
62 It is therefore necessary to rule on the application to amend to add grounds 5, 9, 12, 17, 18, 21, 22 and 23, as well as leave to amend ground 11. The Court indicated that it would rule on the proposed amendments in its final reasons for judgment.
63 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).
64 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).
65 Also, the discretion to permit an amendment should not be exercised favourably where the proposed ground of appeal is self-evidently bound to fail.
66 Applying these principles, we would refuse leave to amend to add proposed ground 5, that the primary judge erred in assuming Mr Shirvington was the only male person living on the premises; his son also lives on the premises. Whether or not the notice of termination had been 'given' in conformity with the 2010 RTA was, as the primary judge noted one of two important contested matters at the trial (Patrick at [11]). The appellant did not seek to adduce the evidence relevant to this proposed ground in the first instance proceeding, although the evidence was in existence then and could have been adduced before the primary judge. Further, had this ground been raised at the trial, the Commonwealth might have conducted its case differently or met the ground by adducing further evidence.
67 We would refuse leave to amend to add proposed ground 9, that the primary judge erred in finding the property was correctly identified in the termination notice. The basis for contesting his Honour finding (at [27]) that the notice of termination correctly identified the property was not identified in the appellant's submissions. The notice of termination identified the premises as 1962-1970 The Northern Road, Luddenham, NSW 2745. The residential tenancy agreement identified the premises as 1962-1970 The Northern Road Luddenham, NSW 2745; and the primary judge made order in respect of that premises. This ground is hopeless.
68 As to ground 11, we would grant leave to amend only in part. Most of the proposed amendment ("Ms Patrick was upset nervous [sic] and apprehensive before attending court but gave her evidence honestly and to the best of her ability") is an assertion and could not disclose an appellable error. We would, however, grant leave in so far as it is sought to challenge a failure to accept the evidence of Ms Patrick "such that an adverse finding of credit was perverse or in error", as this depends on an analysis of the primary judge's reasons for judgment and no apparent prejudice will be caused to the respondent.
69 We would refuse leave to amend to add proposed ground 12, that the primary Judge erred in finding Ms Patrick has submitted to the orders of the Court save as to costs. Counsel for the appellant conceded at the hearing of the appeal that Ms Patrick filed a submitting appearance, save as to costs. This ground is hopeless.
70 We would refuse leave to amend to add proposed ground 17, that the primary judge erred in not having or having sufficient regard to expert evidence including but not limited to that of 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.
71 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.
72 Before doing so, we observe that the appellant submitted, in the note to which we have just referred, that proposed ground 12 in Odzic (the equivalent ground in this appeal is ground 17), be read with ground 6 (the equivalent ground in this appeal is ground 10) that the primary judge erred in not admitting evidence of the appellant. We observe, however, that the appellant specifically abandoned ground 10 in this appeal: 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.
73 Proposed ground 17 finds no basis in the proceeding before the primary judge concerning Ms Patrick and Mr Shirvington, or in his Honour's reasons for judgment. The primary judge did not consider any expert evidence in this case because none was admitted into evidence in this case in the FCCA. Since no evidence of the kind referred to in proposed ground 17 was before him, the primary judge cannot have erred in the way suggested in that proposed ground. We also note that the Commonwealth did not seek to rely on the evidence of Mr Azar in this case, presumably because the Commonwealth considered that his evidence was not relevant to the issues in dispute.
74 We also note that, in his reasons for judgment in Odzic at [97] (to which the primary judge in Patrick referred to at [44(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. Even if this material were characterised as expert evidence (though it is not), it is clear from his Honour's reasons that he considered this material carefully before making relevant findings. Also, his Honour in Patrick at [44(f)] referred to material tendered in Mr Shirvington's case in relation to the availability of accommodation in the Greater Western Sydney region. Once again, even if this material were characterised as expert evidence (though it is not), it is clear from his Honour's reasons that, although he found that the evidence did not relate to their circumstances, he examined it carefully, and found that it did not establish that there was no suitable alternative accommodation available for rent within a reasonable period in the relevant region. The present appellant made no submissions that his Honour erred in this latter regard.
75 In relation to proposed ground 18, 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.
76 In relation to proposed ground 21, 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 Shirvington (or Ms Patrick). In this 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 Shirvington (or Ms Patrick) at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.
77 In relation to proposed ground 22, 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.
78 In relation to proposed ground 23, 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 [44(g)]) found that Mr Shirvington 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 Shirvington on appeal did not address this claim or proposed ground of appeal, which has no prospects of success.
Respondent's notice of contention
79 The respondent relied on a notice of contention dated 9 February 2016. The ground on which the respondent relied was as follows:
1. If there was a defect in the relevant termination notice or manner of service of the notice as contended by the Appellant, the Court was nonetheless correct to make the termination order because it was appropriate to do so in the circumstances of the case, and the Court was (or ought to have been) satisfied that the person to whom the notice was given did not suffer any disadvantage because of a defect in the notice or manner of service (s 113 of the [2010 RTA]).
Parties' submissions – common issues
80 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.
81 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.
82 Before addressing these matters it is convenient to set out the statutory provisions.
83 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; …".
84 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.
85 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.
…
86 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.
87 The 2010 RTA, the applicable New South Wales law, contained the following relevant provisions.
88 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.
89 Section 3 defined termination notice and termination order by reference to s 80 of the 2010 RTA.
90 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".
91 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.
92 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.
93 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.
94 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.
95 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
96 Notwithstanding reference to a separation of powers issue in the revised written submissions on common issues, Mr Shirvington 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.
97 Section 94(1), which was a focus of the separation of powers argument, was inapplicable in the present case, where Ms Patrick had been in possession of the premises for less than 20 years. In this 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.
98 In this 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.
99 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 (Patrick at [18], 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.
100 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.
101 We would reject the submission, if made in Mr Shirvington'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.
102 Further, if the point arises in Mr Shirvington'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.
103 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.
104 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.
105 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".
106 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.)
107 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.
108 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.
109 It follows, in our opinion, that the submission, if made in Mr Shirvington'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
110 Mr Shirvington 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 and Ms Patrick were entitled as of right to remain in possession with full tenure up until the date of the FCCA's decision. Thereafter a new relationship between the parties was created.
111 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 and in respect of an occupant of the premises, like Mr Shirvington who was there with the consent of such a tenant, 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 Shirvington's case, to the extent applicable.
112 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 Ms Patrick in circumstances where she remained in possession (Mr Shirvington remaining on the premises with her consent) with no prospect of her abandoning the premises or otherwise vacating it by consent. Mr Shirvington'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 Ms Patrick and her deceased husband 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 Ms Patrick and Mr Shirvington 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".
113 In his written reply, the appellant did not make specific reference to this point.
114 We turn to consider these submissions.
115 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 Ms Patrick 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 her 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 Ms Patrick, in relation to the premises, was terminated and an order that Ms Patrick 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". Mr Shirvington's successful application to be joined as a party on the basis that he lived on the premises and wanted to contest, and on joinder did contest, the Commonwealth's application in his own right fortifies this conclusion.
116 There is also an additional factor in this case as Ms Patrick 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 Ms Patrick'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
117 Mr Shirvington 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. He 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, Mr Shirvington 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". He submitted it was an attempt to get round the decision of the High Court in Henderson.
118 The respondent submitted that the Commonwealth entered into the residential tenancy agreement with Ms Patrick 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 Ms Patrick. 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 premises was situated on land which was a Commonwealth place.
119 The respondent submitted the substantive rights and liabilities of the Commonwealth and its tenant, Ms Patrick, 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].
120 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.
121 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.
122 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.
123 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)).
124 We reject Mr Shirvington'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
125 Mr Shirvington 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, he 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. He 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. Mr Shirvington 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. He submitted that the Parliament's law-making power "for and in relation to … a Commonwealth tenancy dispute" was not a broad law-making power. Mr Shirvington referred, amongst other authorities, to Shanahan v Scott [1957] HCA 4; 96 CLR 245 at 250.
126 Mr Shirvington 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". Mr Shirvington 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.
127 Secondly, Mr Shirvington submitted s 10AA(3) did not authorise a retrospective law. In this case the primary judge found that the termination notice was served on Ms Patrick 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. Mr Shirvington 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.
128 Thirdly, Mr Shirvington submitted that s 10AA(3) was invalid because the 2010 RTA had authorised the acquisition of property other than on just terms. This, he submitted, was the logical conclusion of his argument based on s 51(xxxi) of the Constitution.
129 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.
130 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.
131 In reply, Mr Shirvington referred to McEldowney v Forde [1971] AC 632 at 658. Mr Shirvington 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. Mr Shirvington 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. Mr Shirvington submitted the respondent's submissions did not address the concern that the Instrument paid no attention to justice in acquiring property (whether of Ms Patrick, of his own, or of them both was unclear), which itself destroyed any statutory authority in the Minister to make the delegated legislation.
132 We turn to consider those submissions.
133 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.
134 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 includes 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.
135 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.
136 We do not accept Mr Shirvington'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 his 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 Mr Shirvington'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 Mr Shirvington'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.
137 We reject Mr Shirvington'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.
138 We do not accept Mr Shirvington'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.
139 In our opinion, there is no substance in Mr Shirvington'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.
140 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.
141 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.
142 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
143 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 Mr Shirvington (or Ms Patrick) 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 present appellant's case and it must fail.
Recusal on the ground of (apprehended) institutional bias
144 Mr Shirvington 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, he 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. Mr Shirvington 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). Mr Shirvington 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 he 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, Mr Shirvington 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, Mr Shirvington 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.
145 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".
146 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.
147 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].
148 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.
149 In his reply, Mr Shirvington 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.
150 We turn to consider these submissions.
151 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 Mr Shirvington 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 Mr Shirvington 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
152 As we have noted, the revised written submissions on common issues (which were adopted by Mr Shirvington) also included a number of paragraphs referring to the evidence of Mr Peter Robertson, his evidence being common to the several appeals. In Mr Shirvington'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 the 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.
153 It was submitted that the common issue was the issue of commercial need. It was also submitted that Mr Shirvington 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. Mr Shirvington 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". He provided by way of a submission many references to documents.
154 The respondent relied on the primary judge's acceptance of Mr Robertson's evidence and emphasised that Mr Shirvington'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.
155 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.
156 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.
157 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 Mr Shirvington'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.
158 We turn to consider these submissions in so far as they are relevant to the present appeal.
159 In our opinion, Mr Shirvington'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.
160 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 [44(e)] of the reasons for judgment in the present appeal (adopting Odzic at [95]-[101]) in discussing Mr Shirvington's argument that there was no urgency and no pending commercial requirement for the orders sought by the Commonwealth.
161 After considering the other arguments advanced by Mr Shirvington in opposition to the Commonwealth, the primary judge concluded (at [45]) 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 (Ms Patrick) had not vacated the premises as required by the notice, and being satisfied that such a notice had been given and the tenant (Ms Patrick) had not vacated as required, the primary judge correctly held (at [40]) 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 [41]) 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 Mr Shirvington'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 [42]); (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 vacant possession of the premises was to be given was 28 December 2015, but that the order for vacant possession should be suspended until 25 January 2016.
162 As to the many documents referred to in Mr Shirvington'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. Mr Shirvington 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 his submissions contesting Mr Robertson's evidence.
The needs of the appellant
163 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 [the] 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.
164 For the reasons set out 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 Ms Patrick's and Mr Shirvington'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.
165 As Mr Azar's evidence was not adduced in this 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.
166 The primary judge's reasons for judgment show (at [44(f)]) that his Honour rejected an argument made by Mr Shirvington at first instance that there was no suitable or available alternative similar leaseholds in the Badgerys Creek region, on the basis that neither Mr Shirvington nor his wife gave evidence of any attempts to locate alternative suitable accommodation. We can discern no error in his Honour's reasons on this point. In this context, the primary judge also referred (at [44(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.
167 In oral submissions, Mr Shirvington 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 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, the 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.
168 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.
169 If in fact made in this appeal, this challenge to the exercise of the primary judge's discretion, in our opinion, must fail.
170 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.
171 Having regard to the reasons for judgment of the primary judge at [43] and following, we reject the submission that the primary judge did not look at the particular circumstances relied on by the appellant, but asked a more general question which did not look at all the circumstances of the case.
172 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
173 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.
174 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.
175 The appellant's submissions of 28 March 2016 specifically stated that he adopted "the submission that the Judge erred as put in Odzic and Paul Kenney on common issues, including that his Honour 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".
176 The appellant's submissions of 28 March 2016 also stated that "[t]he draft Amended Notice of Appeal is revised to include Ms Patrick to ensure the matter is duly constituted as to parties". This statement may have been included in recognition of r 36.31(1) of the Federal Court Rules 2011 (Cth) (the Rules), which provides that "[e]ach party to the proceeding in the court appealed from who may be affected by the relief sought in a notice of appeal, must be joined as an appellant or respondent to the appeal". Rule 36.31(2) further provided that "[a] person must not be named as an appellant without the person's consent".
177 Mr Shirvington made no written or oral application to join Ms Patrick as a party to the appeal instituted by him, notwithstanding the statement in his submissions of 28 March 2016 and the inclusion of Ms Annette Patrick (as the first appellant) in the heading to the proposed amended notice of appeal. Further, there was nothing to show that Ms Patrick consented to be being named as an appellant. Only Mr Shirvington signed the notice of appeal and no provision was made in the proposed amended notice of appeal for anyone other than him to sign any amended notice of appeal. In the circumstances, we would not treat the submitting notice, which Ms Patrick filed under r 12.01 of the Rules, as evidence of consent to be named as an appellant. The submitting notice was filed subsequent to Mr Shirvington's submissions of 28 March 2015 and indicated only that Ms Patrick did not wish to contest the relief sought in the notice of appeal. The submitting notice did not indicate that she consented to be named as an appellant; and nor did it show that she had been served with the proposed amended notice of appeal.
178 In any event, despite r 36.31(1) of the Rules, no-one submitted before us that the appeal, as instituted by Mr Shirvington, was incompetent in any sense, on account of a failure to join Ms Patrick. We have considered the parties' submissions on the appeal on this basis.
Predominant use of the leased premises
179 In written submissions dated 28 March 2016, Mr Shirvington submitted that the primary judge erred (Patrick at [10(g)] and [12] and following) 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. This submission was repeated in the submissions of Mr Paul Kenney, which were also adopted by the present appellant.
180 Furthermore, Mr Shirvington submitted that there was "substantial evidence about the use of the premises including findings made in the related matter based on evidence familiar to the Judge and the parties".
181 In relation to the predominant use of the leased premises, the Commonwealth 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 Commonwealth 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 Commonwealth also contended that the primary judge's rejection of the contrary argument below was consistent with the fact that there was a signed residential tenancy agreement.
Did the tenancy agreement apply to the residential part of the property only?
182 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.
183 The same argument was made in Mr Shirvington's submissions specific to this appeal, in which Mr Shirvington submitted that "the Judge should have but did not determine whether or not the right of occupation, contemplated by section 13, related to 'part of the premises' leased, namely residential premises, as provided for in the definition of 'residential premises' in section 3" (emphasis in original).
184 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.
Who was the tenant?
185 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 [10(d) and (i)], and [17] in his Honour's reasons for judgment in the appellant's case.
186 In Mr Shirvington's submissions specific to his appeal, it was submitted that the primary judge erred at [10(f)] in finding that Ms Patrick had been in continual possession of the premises for less than 20 years. Mr Shirvington also submitted that, "[a]s to the identity of the tenant and the correct parties the Judge erred at 10(d)(f) (h) to (j) [sic]" because his Honour "never asked the questions required of him by the definition section, section 3 [2010 RTA] in the light of the evidence".
187 Mr Shirvington submitted that, in relation to "the identity of lessee and lessor the Court should have treated the evidence in one as evidence in the other, or alternatively it is now submitted that the evidence in the over 20 years case should be considered along with this matter, so that a proper understanding can be had of the relationship between the parties". Mr Shirvington submitted that it was not in dispute that he and his wife, with his son Trent, resided on the premises and "have been in exclusive possession of all the several premises in issue between the parties; Mr Shirvington also manage[d] all the other premises comprising 125 acres in his name as lessee at Luddenham Badgerys Creek which are used for business purposes namely storage of vehicles for the hire and other businesses of Mr Shirvington". Mr Shirvington further submitted that "[t]he Shirvingtons gave evidence that they first resided in the house in the early 1990s, although they did vacate for a few years in the 1990s".
188 The respondent's submissions were that the primary judge applied the 2010 RTA and addressed the questions to which that Act gave rise.
Termination notices for tenancies less than 20 years in duration
189 In Mr Paul Kenney's submissions, adopted by the appellant, it was also 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 [5]. 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. These submissions were substantially repeated in Mr Shirvington's' written submissions specific to this appeal.
190 Also in written submissions specific to the appeal, Mr Shirvington contested the findings made by the primary judge in Patrick at [21]-[38], where his Honour found that "Mr Shirvington was personally handed" the notice of termination and was "given" the notice in conformity with s 223(1) of the 2010 RTA (Patrick at [26]). Further, Mr Shirvington contested his Honour's alternative finding that the notice of termination had been given in accordance with s 223(1), even if it was someone other than Mr Shirvington to whom the process server, Mr Stephen Goodwin, gave the notice of termination when he attended the premises (Patrick at [37]).
191 In this connection, Mr Shirvington submitted, in submissions specific to his appeal, that his Honour made "erroneous rulings regarding the evidence of Ms Patrick and Mr Shirvington" and that "the Commonwealth failed to lead the necessary evidence on the question of service of a notice of termination". Mr Shirvington continued:
There was contrary to the Judge's finding more than one male person, apart from Debbie, in possession of the premises: it included their adult son Trent. The evidence of the Commonwealth as to service of the termination notice was defective and should have been rejected.
192 The respondent submitted that there was no error in the form of the notice of termination and 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".
193 The respondent further submitted that the primary judge "rightly rejected" Ms Patrick's evidence, in Patrick at [33], as "inconsistent and evasive" and that there was no error in his Honour's analysis regarding service of the notice of termination. In oral submissions at the hearing of the appeal, the respondent further submitted that Mr Shirvington had been required for cross-examination in the FCCA proceeding, but did not attend because he was overseas. Further as to Mr Shirvington's evidence, the respondent submitted that the primary judge did not in fact rely on Mr Shirvington's absence or unavailability for cross-examination in relation to any of his findings; his Honour made an analysis "of some of the things said and – that aren't explained"; the process server was not cross-examined and the process server said that a person apparently over the age of 16 was given the relevant document, or it was delivered to the premises to an adult male over the age of 16; and that, even in the additional evidence Mr Shirvington sought to adduce before us, there was no real explanation as to who else was on the premises and might have received the document delivered by the process server.
194 Notwithstanding this, the respondent added that it also relied "prophylactically" on s 113 of the 2010 RTA, "which allows the Court a discretion to issue a termination order, and any other order, despite a defect in service". The respondent submitted that the "discretion is available where appropriate, and where the Court is satisfied that the defect generates no disadvantage that cannot be overcome by the order". The respondent further submitted that:
If service without defect is not otherwise accepted, s. 113 would yet allow the Court to make the order for the following reasons:
(a) The tenant, Ms Patrick, nominated the premises as the address for service of the notices.
(b) The uncontradicted, unchallenged evidence of Mr Goodwin the process server is that he handed the envelope containing the notice to a man at the premises on 24 November 2014.
(c) Section 223(1)(a)(4) of the [2010 RTA] deems service by post sent to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document. For service on Ms Patrick that address is the premises.
(d) If delivery by hand to a person, rather than postage, is a defect in the manner of service, it is excused by s. 113.
Savings provision for periodic tenancies predating the 2010 RTA
195 In Mr Paul Kenney's submissions, adopted by the present appellant, 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.
196 These submissions were substantially repeated in Mr Shirvington's submissions specific to this appeal.
197 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
198 In Mr Shirvington's written submissions specific to his appeal, 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 Shirvingtons, "especially in light of the evidence as to the representations made to them by Ms Bellero and subsequent agents of the Respondent". Mr Shirvington's submissions concluded that "[t]he exercise of discretion ... miscarried in the House v The King sense".
199 Mr Paul Kenney's submissions, adopted by the present appellant, made submissions on this issue that were in similar terms to those made in Mr Shirvington's written submissions.
200 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 Ms Patrick and her deceased husband 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 their part that the land in question was intended to be used for the proposed airport.
201 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.
202 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 13 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 individual's circumstances and determined an appropriate date for vacation of the premises, so discharging his statutory function.
203 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.
Consideration
Predominant use of the leased premises
204 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 it had not been established on the evidence that the predominant use of the premises was for non-residential purposes.
205 We reject Mr Shirvington's submission that there was "substantial evidence about the use of the premises". This submission is contradicted by the discussion of this issue in the reasons for judgment of the primary judge and finds no support in the evidence to which we have been referred on the appeal. As noted above, the appellant referred in this context to "findings made in the related matter", which was presumably a reference to the findings (and evidence) in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No 3) [2015] FCCA 3234 (Shirvington (No 3)). It was not, however, open to the primary judge to consider the evidence adduced in this other proceeding in the matter with which we are presently concerned. It must be borne in mind that, despite the fact that the Commonwealth and Mr Shirvington were parties to both proceedings, the proceedings concerned different residential tenancy agreements and different premises, and therefore sought different relief from one another. Had there been a successful application for the evidence (or part of the evidence) in the one proceeding to be the evidence in the other proceeding or (as his Honour posits) for the consolidation of the proceedings (see ss 14 and 24 of the FCCA Act), then it may have been open to the primary judge to have regard to the evidence in the other case. It has not, however, been suggested by either party to this appeal that there was any successful application of this kind resulting in orders that would have permitted this to be done.
206 The primary judge considered what he referred to as the "very little evidence" (at [14]) before him concerning the use of the premises, which was apparently largely limited to Ms Patrick's oral evidence. His Honour noted her statement that she and her husband had not lived on the premises, and that shortly after she had signed the residential tenancy agreement, "a woman called her and said: 'I'm living in that house, not you'". Specifically in relation to this evidence, his Honour said (at [15]) that:
Although it is not clear what this meant, it is most likely that the woman who called was saying that she proposed to live in the house with Ms Patrick's husband, rather than that she was already living there. Ms Patrick explained that she discovered that her husband 'loved women'.
207 Noting that Ms Patrick ran a transport company, his Honour referred (at [16]) to Ms Patrick's evidence that she "put a driver in the premises". His Honour also referred (at [16]) to her evidence regarding her statement in her affidavit that she believed the lease was in Mr Shirvington's name. He set out her reply, as follows:
Well, I leased it. I know that I leased it. Things didn't work out with my partner and myself. I put one of the drivers in it. He paid rent to Mr Shirvington – Ken, and we went one – he picked me up one day and we went to the real estate to change it over into his name because I didn't want it anymore and we had an agreement for him to store my machinery. I used to have forklifts. I believed that it wasn't in my name anymore.
208 Whilst his Honour recorded "significant doubts" about Ms Patrick's evidence, in this context, he accepted (at [17]) that she had stored some forklifts on the premises "as part of the arrangement by which Mr Shirvington now lives on the Premises" and "for the purposes of Ms Patrick's business". The primary judge added that he did not "take this part of her evidence to establish that [Mr Shirvington] was living on the Premises at the time the driver was living there".
209 We can see no error in the primary judge's conclusion that, having regard to this limited evidence, it had not been established, on the balance of probabilities, that the predominant use of the premises was for the purposes of business or any other non-residential purpose (such as agriculture, as proposed in Mr Shirvington's submissions to us). Given the nature of the evidence before him, it was clearly open to his Honour to reach this conclusion. So far as we can see, there was little, or no, evidence as to the scale of any non-residential activities on the premises. On the other hand, as his Honour found (at [14]), the residential tenancy agreement gave Ms Patrick and her husband "the right ... to occupy the premises" and "stipulated that no more than two persons could ordinarily live in [the premises] at any one time". Furthermore, it was not disputed that Mr Shirvington lived on the premises and his Honour accepted (at [10(c)]) that Mr Shirvington had occupied the premises since 2011. The appellant has not shown any appellable error in this regard.
Did the tenancy agreement apply to the residential part of the property only?
210 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).
Who was the tenant?
211 For the reasons already stated, it was not open to the primary judge to have regard to the evidence adduced in Shirvington (No 3) to decide the issues before him at first instance in this matter. Indeed, given the differences in the subject matter of the two proceedings, it is probable that the evidence relevant in the one would not, for the most part, be relevant in the other.
212 In relation to the premises, Mr Shirvington was neither a tenant nor co-tenant of the Commonwealth for the purposes of the 2010 RTA. A "tenant" is defined in s 3 of the 2010 RTA 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.
213 In this case, only Ms Patrick and Mr Dickinson were named in a residential tenancy agreement that gave them a right to occupy the premises; and on the death of Mr Dickinson, only Ms Patrick remained as a tenant for the purposes of the 2010 RTA (s 78).
214 Section 74(1) of the 2010 RTA provides that a tenant might transfer a tenancy under a residential tenancy agreement to another person or sub-let the premises "if the landlord gives written consent to the transfer or sub-letting"; and s 74(3) made this a term of every residential tenancy agreement. Clause 21 of the residential tenancy agreement (made prior to the 2010 RTA) permitted a tenant to assign the whole or part of the tenant's interest under the agreement or to sub-let the premises, "with the landlord's prior permission": see also s 33(1)(a) of the Residential Tenancies Act 1987 (NSW). There was, however, no evidence that the Commonwealth had given any such permission or consent to Ms Patrick. Ms Patrick said, in a passage to which his Honour referred at [16] and set out above, that she and Mr Shirvington had gone together to the "real estate to change [the lease] over into his name", but her evidence did not go beyond this. In particular, there was no evidence that the Commonwealth had given permission or consent (in writing or otherwise) to the transfer of Ms Patrick's interest (or tenancy) to Mr Shirvington or to a sub-letting to Mr Shirvington or anyone else. This is reflected in the primary judge's statement (at [43]) that Mr Shirvington's "interests [were] contingent on the [residential tenancy agreement] and Ms Patrick's ongoing consent to him living there".
215 There was, therefore, no evidence that Mr Shirvington (or anyone else) was a person to whom the right to occupy the premises had passed by transfer or operation of law; or that he (or anyone else) had become a sub-tenant of Ms Patrick. Rather, Mr Shirvington's residence on the premises depended on an arrangement with Ms Patrick but she could not confer on him a right to occupy the property without the Commonwealth's permission or consent; and there was no evidence of such permission or consent. Accordingly, Mr Shirvington was not a sub-tenant. Nor was he a co-tenant because, by virtue of the definition of "co-tenant" in s 3 of the 2010 RTA, a person must be a tenant before he or she may also be a co-tenant.
216 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, even if there was one (which there was not). 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.
217 Ms Patrick, with her late husband, entered into the residential tenancy agreement in May 2007. There was no evidence that she had been in continual possession of the premises for more than 20 years. Accordingly, we reject Mr Shirvington's contention that the primary judge erred at [10(f)] in so finding. We would also reject Mr Shirvington's submission that the primary judge erred at [10(d) and (h)-(j)] by failing to address the correct statutory questions; and Mr Shirvington's contention that at the time of the application in the FCCA Mr Shirvington was the "lessor of the premises".
Termination notices for tenancies less than 20 years in duration
218 The primary judge considered, on the evidence before him, 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.
219 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 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 this might be in the case of a tenancy of less than 20 years.
220 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. As we have seen, the appellant contested the primary judge's finding that a notice of termination had been given in accordance with the requirements of the 2010 RTA.
221 As noted earlier, the primary judge relied on the evidence of a process server, Mr Stephen Goodwin. In his affidavit of 20 August 2015, Mr Goodwin said in effect that, on or about 24 or 25 November 2014, Ms Vivienne Li and Mr Joe Khayo of Wise McGrath handed him a number of envelopes, including an envelope addressed to Ms Annette Patrick, and that he served the envelopes at the addresses marked on the envelopes "as described in [his] previous affidavits of service". In a previous affidavit of 2 December 2014, Mr Goodwin deposed that, on 29 November 2014, he served Mr Kevin Dickinson and Ms Annette Patrick with an envelope "by delivering the same to Kevin Dickinson personally at 1962-1970 The Northern Road, LUDDENHAM, New South Wales". Mr Goodwin further deposed that at the time of service he said to the person served:
"Are you Mr Kevin Dickinson?" He replied: "Yes." I said "I have an envelope for you and Annette Patrick." I then handed him the envelope.
222 Also in his 2 December 2014 affidavit, Mr Goodwin said that he was informed by Mr James Michael Sullivan of the Australian Government Solicitor that the envelope contained a notice of termination and a tenant's responsibilities and vacating checklist, both of which were annexed to his affidavit.
223 The fact that the envelope served by him contained those documents was, so the primary judge said, supported by the evidence of two further witnesses, Ms Sarah Alderson and Ms Vivienne Li. This statement was not challenged by the appellant.
224 In Patrick at [28], the primary judge noted that no objection was taken to Mr Goodwin's affidavit of 2 December 2014. The primary judge also noted that no objection was taken to the evidence of Ms Alderson or Ms Li. Of these deponents only Ms Alderson was cross-examined before the primary judge and not on the preparation of the notice of termination for service. Mr Goodwin, in particular, was not cross-examined.
225 The primary judge did not refer to Mr Shirvington's evidence. Save for two affidavits concerning the service of s 78B notices, he appears to have made only one affidavit in the proceeding in the FCCA. This was his affidavit of 2 October 2015, which did not have anything relevant to say about the issue of service. Nor did the primary judge refer in this context to the affidavits sworn in the FCCA proceeding by Mr Shirvington's wife. They too did not appear to be relevant to the issue of service.
226 The primary judge held (at [28]) that the evidence outlined above established that the envelope, which, on Mr Goodwin's evidence, was served on 29 November 2014, contained the documents to which Mr Goodwin referred, including the notice of termination. The appellant did not challenge his Honour's analysis up to this point.
227 As the primary judge noted (Patrick at [29]), however, Mr Goodwin could not have personally served Mr Dickinson as he believed, because Mr Dickinson had died in the previous year. In relation to Mr Goodwin's evidence as to his exchange between him and the person to whom Mr Goodwin handed the envelope, his Honour found (at [30]) that this showed that Mr Goodwin believed (albeit mistakenly) that he had served Mr Dickinson "because a male person told him that he was Mr Dickinson". The appellant did not contest this finding. Nor did the appellant contest his Honour's finding that there was no direct evidence as to the identity of the person to whom Mr Goodwin gave the envelope.
228 The appellant contested his Honour's further observation (at [30]) that "there is only one likely candidate: Mr Shirvington". The primary judge set out (at [31]) the facts and circumstances by reference to which he inferred that Mr Goodwin handed the envelope to Mr Shirvington. They included (1) the evidence of Ms Patrick that she was very close to Mr Shirvington and saw him regularly, from which his Honour inferred that Mr Shirvington knew that Mr Dickinson was dead; (2) on Ms Patrick's evidence, Mr Shirvington accompanied her to "put his name on the lease", from which his Honour inferred that Mr Shirvington knew that Ms Patrick and her late husband were on the lease; (3) there was evidence that Mr and Mrs Shirvington were living on the premises; (4) only Mr and Mrs Shirvington had an interest in continuing to live on the premises; and (5) that he was the only male on the premises "with any motive to lie".
229 Bearing in mind the state of the evidence before his Honour, it was in our opinion open to his Honour to take the view that it was likely (or more probable than not) that Mr Goodwin had, at the premises, handed the envelope, with the notice of termination in it, to Mr Shirvington. This finding did not, however, exclude another possibility or possibilities, as his Honour's alternative finding (Patrick at [37]) implicitly recognised.
230 The primary judge found (at [35]) that Ms Patrick most likely received the notice of termination from Mr Shirvington, since she and Mr Shirvington were close and saw one another on a regular basis. His Honour rejected Ms Patrick's evidence in her affidavit of 28 August 2015 that she did not know of the FCCA proceeding until her barrister informed her of it on 11 July 2015. His Honour described (at [33]) her evidence in cross-examination as "inconsistent and evasive". We return to this below.
231 On the basis of these findings, the primary judge was satisfied, on the balance of probabilities, that Mr Goodwin personally handed the envelope containing the termination notice to Mr Shirvington. Since Mr Shirvington was over 16 years of age and served at the premises, his Honour held that s 223(1) of the 2010 RTA was satisfied and the notice relevantly given to Ms Patrick; alternatively, he was satisfied that the notice was given to Ms Patrick, even if the person to whom Mr Goodwin handed the envelope with it in it was not Mr Shirvington. As already noted, the appellant's focus in the appeal was on these findings.
232 While there may be some lack of clarity in his Honour's analysis at this point, there was in our opinion no error in the making of the termination order. As we have seen, before a termination order could be made under s 85(3), the FCCA had to be satisfied that the termination notice had been "given" to Ms Patrick. We therefore turn to s 223 of the 2010 RTA, which, as his Honour recognised, governs the giving or service of a notice (such as a termination notice) required by the 2010 RTA to be given or served. Section 223 provides:
(1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or
(iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or
(iv) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(v) sending it by facsimile transmission to the facsimile number of the person, ...
(2) Nothing in this section affects the operation of any provision of a law or of the rules of court authorising a document to be served on a person in any other manner....
(3) If there is more than one landlord or tenant under a residential tenancy agreement, a notice required to be served on a tenant or landlord under the agreement is taken to be served on all the tenants or landlords under the agreement if it is served on one of the tenants or landlords.
233 The primary judge did not identify in his reasons in Patrick which sub-paragraph of s 223(1)(a) he considered was satisfied on the evidence before him. Section 223(1)(a)(i) was evidently not satisfied, there being no evidence that the notice of termination was delivered to Ms Patrick personally.
234 At the hearing of the appeal, the respondent accepted that Ms Patrick was not at the time of service resident at the premises and that the premises was not, therefore, her residential address for the purposes of s 223(1)(a)(ii) and (iii). Instead, the respondent relied on s 223(1)(a)(iv). The Commonwealth submitted that the premises, with the address 1962-1970 The Northern Road, Luddenham, was the residential address of Ms Patrick last known to the respondent. In this latter respect, the respondent relied on the residential tenancy agreement, in which Ms Patrick was named as a tenant (with her late husband), with a right to occupy the premises, for residential purposes. The respondent noted that there was no address for Ms Patrick and Mr Dickinson set out in the residential tenancy agreement other than that of the premises, at 1962-1970 The Northern Road, Luddenham.
235 We accept that, notwithstanding that Ms Patrick did not live at the premises at the time Mr Goodwin handed the notice of termination to a recipient at the premises, the address of the premises was the residential address of Ms Patrick last known to the respondent Commonwealth. It was not suggested that, at that time, the Commonwealth knew of any other such address for Ms Patrick.
236 On the undisputed evidence of Mr Goodwin, fortified by the undisputed evidence of Ms Li and the relevantly undisputed evidence of Ms Alderson, the termination notice was delivered personally by Mr Goodwin by handing an envelope containing the notice to a male person at the residential address of Ms Patrick (to whom the notice was required to be given) last known to the Commonwealth (being the person giving or serving the document). The primary judge inferred from the evidence of Mr Goodwin that the recipient of the envelope was a person apparently over the age of 16. We do not see any relevant error in his Honour's finding in this regard (Patrick at [37]). On our analysis, however, the identity of the person to whom Mr Goodwin gave the envelope is not material (as we have noted the primary judge implicitly recognised this in his alternative finding).
237 The notice of termination was not, however, sent by post as s 223(1)(a)(iv) contemplates, and the conditions of that sub-paragraph were therefore not met. It is, moreover, irrelevant to s 223(1)(a)(iv) that the notice of termination was handed to a person at the premises apparently over 16 years of age. In these circumstances, s 113 of the 2010 RTA has relevant application.
238 It may be recalled that the Commonwealth sought, in its notice of contention, to support the termination order made by the primary judge by reference to s 113, on the basis that "it was appropriate to do so in the circumstances of the case, and the Court was (or ought to have been) satisfied that the person to whom the notice was given did not suffer any disadvantage because of a defect in the notice or manner of service".
239 Section 113 enables a termination order to be made in some circumstances, notwithstanding a defect in the service of the notice. Section 113 provides:
The Tribunal may make a termination order for a residential tenancy agreement or any other order even though there is a defect in the relevant termination notice or the manner of service of the notice if:
(a) it thinks it appropriate to do so in the circumstances of the case, and
(b) it is satisfied that the person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order.
Section 113 was made applicable in the proceeding in the FCCA by s 10AA of the FCCA Act and s 7 of the Instrument.
240 We consider that the findings made by the primary judge in Patrick established that his Honour thought it was appropriate to make the termination order in the circumstances of the case and was satisfied that Ms Patrick has not suffered any disadvantage because of the defect in service. We note that the primary judge found that Ms Patrick was at least aware of, and most likely received the notice of termination (Patrick at [35]). In those circumstances, the application of s 113 of the 2010 RTA fully supported the termination order made by the primary judge. We observe that s 223(1)(a)(iv) contemplates that a notice required by the 2010 RTA will be duly given if sent by post to the residential or business address of the person last known to the person giving the document. In this case, the mode of delivery to the relevant address was not by post, but by personal delivery to a person on the premises apparently over 16 years of age (Patrick at [37]). This appears to be more reliable than sending it by post. We also note that the residential tenancy agreement itself provided that a notice of termination may be given to a tenant by being "given to a person aged over 16 at the premises to pass on to the tenant" (see the Notes to the residential tenancy agreement at item 4).
Savings provision for periodic tenancies predating the 2010 RTA
241 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 on 22 May 2008, permitting the tenants (Ms Patrick and Mr Dickinson) to stay in the premises under the same terms. Accordingly, when the fixed term expired, the agreement continued. 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.
242 On commencement of the 2010 RTA that Act applied to the residential tenancy agreement with Ms Patrick, 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 with Ms Patrick.
Weighing of competing considerations and date of termination order
243 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. In so far as the appellant submitted that an exercise of discretion miscarried in the making of the termination order under s 85 of the 2010 RTA, this submission 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.
244 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.
245 Before addressing each of the matters relied on by the present appellant as relevant to the exercise of discretion, the primary judge acknowledged (at [43]) that Mr Shirvington was not in fact a tenant of the Commonwealth within the meaning of the 2010 RTA and observed that his interests were contingent on the residential tenancy agreement and Ms Patrick's ongoing consent. His Honour opined that Mr Shirvington's interests had "no true relevance to the issues to be decided" because Ms Patrick had consented to the orders of the Court. The reference to Ms Patrick's consent was presumably a reference to the fact that she had filed a submitting notice, as discussed earlier. Nonetheless, his Honour took account of Mr Shirvington's interests, since, "as a matter of practical reality" the termination order would affect him and his wife.
246 We observe that the parties to the appeal did not challenge, or direct argument to, this aspect of his Honour's analysis. Whether or not it was open to him to consider Mr Shirvington's interests in considering his exercise of discretion "in relation to the day vacant possession of the premises is to be given to the landlord" is a question that should not be determined without the benefit of argument. In view of the conclusions we reach below, it is unnecessary to say anything further about his Honour's approach here.
247 For present purposes, we shall assume that it was open to his Honour to consider Mr Shirvington's interests in exercise of discretion in relation to the day vacant possession of the premises is to be given to the landlord, particularly bearing in mind that no party suggested that it was not open to his Honour to do so.
248 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 his particular needs. 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
249 The foregoing consideration leads to the conclusion that grounds 1 to 3 (discussed at [96]-[143] above) must fail. So too must ground 8, so far as it relied on the arguments considered in those paragraphs. Grounds 4 and 6 fail for the reasons set out at [218]-[240]. Ground 8 also fails for the same reasons. Ground 7 fails for the reasons set out at [211]-[217]. Ground 13 fails as discussed in [243]-[248] above. Ground 14 fails as discussed at [241]-[242] above. Ground 15 fails for the reasons given at [151]. Ground 18 fails for the reasons set out at [159]-[172].
250 We do not consider that ground 11 was made out, in so far as it is sought to challenge a failure to accept the evidence of Ms Patrick on the basis that the primary judge's "adverse finding of credit was perverse or in error". We observe first that his Honour did not in fact reject all Ms Patrick's evidence, although he set out in some detail the factors that "cast[] a good deal of doubt" over it (Patrick at [35].
251 As we have already noted, his Honour rejected Ms Patrick's evidence in her affidavit of 28 August 2015 that she was not did know of the FCCA proceeding until her barrister informed her of it on 11 July 2015. His Honour recorded (Patrick at [33]) that, under cross-examination, Ms Patrick "ultimately accepted" that she had received court documents earlier and that her counsel had submitted that she appeared "somewhat uncertain of her answers" with regard to the receipt of court documents. The primary judge considered that "[t]hat [was] an understatement" and that her evidence in cross-examination was "inconsistent and evasive" (Patrick at [33]). His Honour explained that, although initially Ms Patrick appeared "certain of her recollection", her "confidence was undermined" when her attention was directed to a particular email exchange. Further, after noting that Ms Patrick first responded by saying that she did not know the exact dates, his Honour observed that this may have been true, but this meant that "what she said in her affidavit was plainly false". In consequence, whilst noting the gravity of the finding, his Honour found that Ms Patrick made her affidavit "without concern for the truth of what it contained" (Patrick at [33]). In this context too, the primary judge referred (at [34]) to the facsimile makings on the affidavit that indicated that a draft of the affidavit was sent to her from a company, which, according to Ms Patrick, was owned by Mr Shirvington.
252 In our opinion, the appellant has not established that any of his Honour's findings as to Ms Patrick's evidence were perverse or in error. His Honour had the benefit of seeing and hearing all the evidence in the case, including that given by Ms Patrick. He rejected part of her evidence on the bases explained above. As Mansfield and Bennett JJ (with whom Black CJ generally agreed) said in Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454 at [38], "[i]t would only be in a clear case that the Court might disturb a finding of credit where the primary judge has taken into account a number of apparent inconsistencies in the versions of events given by a witness from time to time and has had the benefit of seeing and hearing the evidence", citing Paterson v Paterson [1953] HCA 74; 89 CLR 212 at 219-225; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 at [63]; Fox v Percy [2003] HCA 22; 214 CLR 118; Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [67], and [90]-[100]; and Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-497.
253 Grounds 19 and 20 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; and 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 19, 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.
254 As to the second of these matters, ground 20, 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. 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.
255 We note that, for the reasons already stated, we would not grant leave to amend the notice of appeal to add grounds 5, 9, 12, 17, 21, 22 and 23.
The application to adduce further evidence on appeal
256 On this appeal the appellant sought to adduce the following further evidence:
1. Affidavit of Mr Ken Shirvington dated 17 February 2016;
2. Affidavit of Mr Ken Shirvington dated 13 January 2016;
3. Affidavit of Ms Sandra Uren dated 6 March 2016;
4. Further affidavit of Ms Sandra Uren dated 6 March 2016;
5. Affidavit of Dr Anthony Green dated 9 March 2016;
6. Affidavit of Mr Kingsley Liu dated 1 February 2016;
7. Affidavit of Mr Kingsley Liu dated 9 March 2016.
257 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.
258 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.
259 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.
260 In light of these principles, we turn to consider the seven affidavits listed above.
Affidavit of Ken Shirvington dated 17 February 2016
261 This affidavit consisted of 19 paragraphs, with seven annexures. At the hearing of the appeal, however, counsel for Mr Shirvington sought to rely on paragraphs 1 to 7 only.
262 Paragraph 1 stated that he was the appellant. Paragraph 2 stated that the primary judge "appeared to have bias in my Judgement 21 December 2015 questioning the integrity of both myself and Ms Patrick". Paragraph 3 referred to and set out paragraphs three and four of the affidavit of Mr Stephen Goodwin dated 20 August 2015, discussed above. Paragraph 4 noted that only Ms Patrick's name appeared in the table marked "KS2" attached to Mr Goodwin's affidavit.
263 None of these paragraphs was relevant to any issue on the appeal. Paragraph 2 was objectionable as to form.
264 In paragraph 5, Mr Shirvington deposed that he was admitted to hospital on 23 November 2014 and was discharged from hospital late in the afternoon of 25 November 2014. He said that he was "confined to the house, mainly bedrest, between discharge and ... 2 December 2014", on which date he spent the day in hospital undergoing a diagnostic procedure. In paragraph 6, Mr Shirvington further deposed that the gate "at our property" was always locked because the Shirvingtons were concerned to ensure that the miniature horses in the house yard were not inadvertently let out onto the nearby road. In paragraph 7, Mr Shirvington deposed that he was "not sure when or where Mr Goodwin allegedly served the documents but it raises serious questions"; that the documents were not served on him and he had never received a notice of termination; and that he was not cross-examined in the FCCA "to suggest" that he received them or "why they were served on" him.
265 As to paragraphs 5 and 6, we reject this evidence since it would have been available at the time of the hearing; it could have been put in answer to the affidavits of Mr Stephen Goodwin as to service, which were read before the primary judge, to which there was no objection and in respect of which Mr Goodwin was not cross-examined. Further, for the reasons already stated, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
266 We also reject paragraph 7, since apart from the observation that he was not cross-examined at the hearing in the FCCA, the evidence would have been available at the time of the hearing; could have been put to Mr Goodwin in cross-examination; and, for the reasons already stated, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. That Mr Shirvington was not cross-examined was known prior to the conclusion of the trial and was due to a circumstance known him – that he was overseas.
267 In submissions made on behalf of Mr Shirvington, his counsel argued that the evidence in Mr Shirvington's 17 February 2016 affidavit was relevant to his Honour's finding that it was likely that Mr Goodwin handed the notice of termination to Mr Shirvington when he attended the premises on 29 November 2014; that we should receive it "as a matter of fairness", bearing in mind that it was not put to him in cross-examination that he was the recipient of the notice of termination and that it would show that "his Honour's finding of credit against Mr Shirvington was perverse". Assuming the evidence was relevant, this cannot alter the fact that, as stated, it was available to be led at the trial and, as his counsel acknowledged Mr Shirvington was not available for cross-examination on the day set for his cross-examination because he was overseas. We reject the suggestion, if made, that the Commonwealth's case was unclear. Recognising no termination order could be made unless there was evidence that permitted the primary judge to be satisfied that a termination notice was given in accordance with s 85 of the 2010 RTA (and that the tenant, Ms Patrick, had not vacated the premises as required by the notice), the Commonwealth adduced the evidence to which we have earlier referred, including the affidavits of Mr Stephen Goodwin dated 2 December 2014 and 20 August 2015. As we have already stated, on the evidence before him, it was open to his Honour to take the view that it was likely (or more probable than not) that Mr Goodwin had, at the premises, handed the envelope, with the notice of termination, to Mr Shirvington.
268 In the result, we reject the entirety of that part of the affidavit of Mr Shirvington of 17 February 2016 that was sought to be tendered on his behalf.
269 The respondent's primary position was that the Court should not admit Mr Shirvington's affidavit of 17 February 2016, which it submitted, to the extent relevant and otherwise admissible, could have been adduced before the primary judge. We have accepted that submission. In the event, however, that the affidavit was received into evidence on the appeal, the respondent sought to cross-examine Mr Shirvington on his statements concerning the service of the notice of termination. We did not rule at the hearing of the appeal on the respondent's primary submission that the Court should not receive Mr Shirvington's affidavit of 17 February 2016, but indicated that we would permit the cross-examination of Mr Shirvington to proceed on the basis that we would rule on the admissibility of his affidavit and, in consequence, the receipt of his evidence in cross-examination subsequently.
270 In cross-examination, Mr Shirvington agreed that he had a son who lived at Badgerys Creek with him. His son was approximately 25 years old and had lived in Sydney during the past 12 months. When counsel for the respondent put to him that "on 29 November ... a gentleman attended your premises and said 'I have a delivery for a Mr Dickinson'", Mr Shirvington relied "[t]hat is not correct" and that he did not receive "that envelope". His evidence was that only he and his wife were "in the building at that time" and that he was "bedridden, so there's no way possible [he] would have answered anyone". He also said that he was "[i]n bed, up walk around, go back". When counsel for the respondent suggested that if he did not receive the envelope, then his son did, Mr Shirvington replied, "[t]hat's no[t] possible".
271 Since we reject Mr Shirvington's affidavit of 17 February 2016, we do not receive the evidence in cross-examination.
Affidavit of Ken Shirvington dated 13 January 2016
272 We note there was a further affidavit of Mr Shirvington dated 13 January 2016, consisting of eight paragraphs, which was contained in a list of affidavits on which the appellant relied dated 12 April 2016 and the Court had directed the appellant (in this and the related appeals) to file. Although it was not listed as relevant to this appeal but listed in connection with a related appeal involving Mr Shirvington, we assume that the affidavit of Mr Shirvington filed in this appeal dated 13 January 2016 is sought to be read in this appeal. The respondent appears to have notified objections to it dated 18 March 2016.
273 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 which Mr Shirvington had not previously covered in his affidavit before the primary judge or that could not have been adduced before his Honour. We note that the assertion about "my tenancy" in paragraph three is misconceived: the primary judge found that Mr Shirvington was not a tenant and we have found not appellable error in this regard.
274 On the assumption we have made, we reject this affidavit.
Affidavit of Ms Sandra Uren dated 6 March 2016
275 We shall assume that this affidavit was sought to be read in the appeal. The respondent notified objections to it dated 18 March 2016.
276 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.
277 We note that this material, if relevant, could have been tendered at the hearing before the primary judge.
278 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
279 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.
280 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.
281 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.
282 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.
283 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.
284 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.
285 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.
286 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
287 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.
288 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.
289 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.
290 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.
291 Lastly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
292 We reject this affidavit.
Affidavit of Mr Kingsley Liu dated 1 February 2016
293 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.
294 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
295 The respondent notified objections to this affidavit on 18 March 2016.
296 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
297 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.
I certify that the preceding two hundred and ninety-seven (297) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Robertson and Griffiths. |
Associate:
