FEDERAL COURT OF AUSTRALIA

Minici v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 24

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellants to amend their notice of appeal dated 5 March 2016 (notice of appeal) to add grounds 12, 13 and 14.

2.    As to ground 11 in the notice of appeal, leave be granted to the appellants to amend the notice of appeal to add the following ground:

The primary judge erred in not having sufficient regard to expert evidence including, but not limited to, that of Simone Fogarty.    

but otherwise leave to amend to add ground 11 be refused.

3.    Leave be refused to the appellants to amend the notice of appeal to add grounds 15, 16 and 17.

4.    The appeal be dismissed.

5.    The appellants pay the respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Mr and Mrs Minici have lived at 1825 The Northern Road, Luddenham, New South Wales (the premises) since the late 1970s. They originally owned the premises, but they sold them to the Commonwealth in around 1992 and have lived there since as tenants of the Commonwealth. Most recently, on 27 November 2007, they entered into a residential tenancy agreement with the Commonwealth in respect of the premises.

2    The term of the agreement was 52 weeks commencing on 29 July 2008 and expiring on 28 July 2009. It is common ground that the agreement continued thereafter as a periodic agreement.

3    The additional terms in the agreement contained cl 42 referring to the proposed airport site and which provided as follows:

Proposed Airport Site

42.1    The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport;

42.2    In the event that the Commonwealth of Australia requires vacant possession of the premises:

b) to develop the Sydney West Airport; or

c) for any other purpose

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);

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

42.4    A termination of the Agreement under clause 42.2 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.

(Emphasis in original.)

4    By letter dated 29 October 2014, the Commonwealth notified Mr and Mrs Minici that it was likely to require possession of the premises by June 2015.

5    By a further letter dated 24 November 2014, the Commonwealth notified Mr and Mrs Minici that it required possession of the properties by 15 June 2015.

6    Mr and Mrs Minici had not indicated at any time that they were willing to vacate the premises by that date.

7    On 12 March 2015, the Commonwealth applied to the Federal Circuit Court of Australia (FCCA) for orders terminating the agreement and for vacant possession of the property.

8    Mr and Mrs Minici opposed the orders sought by the Commonwealth.

9    In circumstances where Mr and Mrs Minici were in continual possession of the properties for at least 20 years, whether or not a termination order and order for possession should be made fell to be determined under s 94 of the Residential Tenancies Act 2010 (NSW) (the 2010 RTA).

10    On 11 December 2015, the primary judge made orders subject to appeal as follows:

1.    The residential tenancy agreement between the applicant and the respondents in relation to the property situated at 1825 The Northern Road, Luddenham, NSW 2745 comprising part of folio identifier Lot 1 DP 838361 (Premises”) be terminated forthwith.

2.    Vacant possession of the Premises be given to the applicant on or before 18 December 2015.

3.    The order for vacant possession be suspended until 24 February 2016.

11    On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellants prosecuted their appeal with expedition and complied with certain directions.

Adjournment application

12    At the commencement of the hearing of the appeal counsel for the appellants applied for the hearing of the appeal to be adjourned to a date to be fixed. We refused that application and said that we would give our reasons later. These are those reasons.

13    The principal ground of the application was that through the failure of the respondent to comply with directions, the appellants had been put in a position where they were not able to present their case and that a refusal to allow an adjournment would result in a serious injustice to them.

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 appellants were not able to present their case. Although it was submitted on behalf of the appellants that they were not in a position to assist the Court with reference to the material to be the subject of the Court’s consideration, in our opinion, to the extent to which cross-references were not available, that did not have the consequence that the appellants were not able to present their case. The material that was missing, in a particular form, at the commencement of the three-day appeal was available early in the course of the hearing of the appeal and we do not accept that the appellants were denied a reasonable opportunity to prepare the case to present to the Court with respect to that material.

15    We take into account that the appellants had limited resources but we also take into account that it was on 22 January 2016 that directions were made with a view to the appeal being set down for hearing beginning on 13 April 2016, that hearing date was confirmed by letter sent on 1 February 2016, and the appellants’ submissions were then directed to be filed and served by 16 March 2016. This period for the appellants’ submissions was extended on 26 February 2016 to 23 March 2016. We also take into account that the appellants knew the reasons for judgment of the primary judge; they knew their own material; they knew their own case; they knew the respondent Commonwealth’s submissions; and they 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 appellants were prejudiced in the presentation of the appeal.

17    The appellants relied on Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420. In our opinion, the principles are not in doubt but each exercise of discretion to grant or refuse an adjournment must depend on the particular circumstances of the case.

The primary judge’s reasons for judgment summarised

18    The primary judge’s reasons for judgment are recorded as Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Minici [2015] FCCA 3271 (Minici).

19    Mr and Mrs Minici argued below that the FCCA lacked jurisdiction to make the orders sought by the Commonwealth because the legislation which purported to grant the FCCA jurisdiction was unconstitutional. They also contended that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (the Instrument) was unauthorised and was ultra vires. In particular, the following jurisdictional and constitutional issues were raised by them:

(a)    at the date of Commonwealth’s application to the FCCA, there was no “matter” within the meaning of Ch III of the Constitution and s 5 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) which the FCCA was required to resolve;

(b)    there was no power in the Parliament under the Constitution to make either the Federal Courts Legislation Amendment Act 2015 (Cth) or the Instrument to confer upon the FCCA the power to resolve the alleged dispute which was the subject of the Commonwealth’s application because to do so impaired the separation of powers principle in the Constitution;

(c)    there was no power under s 51 of the Constitution for the Parliament to make a law with respect Mr and Mrs Minici’s property;

(d)    assuming that the Federal Courts Legislation Amendment Act 2015 (Cth) was valid, the Instrument was unauthorised and ultra vires; and

(e)    the Federal Courts Legislation Amendment Act 2015 (Cth) was invalid as being contrary to s 51(xxxi) of the Constitution because it was a law for the acquisition of property other than on just terms.

20    It is convenient now to summarise the primary judge’s reasons for judgment relating to matters which specifically concerned Mr and Mrs Minici.

21    In broad terms, those matters were:

(a)    whether the Minicis’ property was predominantly used for agricultural purposes, in which event the 2010 RTA would not apply (see s 7(h) of that Act);

(b)    the nature of the Court’s powers under s 94 of the 2010 RTA and whether the pre-conditions to the exercise of that power were satisfied in relation to Mr and Mrs Minici; and

(c)    whether the FCCA was satisfied that it was appropriate to make a termination order and the test to be applied in determining that matter.

Predominant use of premises

22    The primary judge found, at [8], that the predominant use of the premises was not for the purpose of agriculture. His Honour did so while referring to affidavits filed by Mr and Mrs Minici. Mr Minici gave evidence that he was retired and that his health was not good. Mrs Minici’s affidavit was in English notwithstanding that she deposed that she did not speak and cannot read or write English. The primary judge noted the balance of her affidavit was almost exactly the same as that of Mr Dattilo, who was a party in other proceedings. His Honour found, at [10], that Mr Dattilo is Mrs Minici’s brother. Mrs Minici gave evidence that their property had been used as a market garden, comprising 52 acres with a house which was surrounded by an electric fence to keep the cows out. She stated that she and her husband had built garages, sheds and a dam on the land and that her husband had made money by keeping “about 10 Murray Gray (sic) cattle on the land, including a bull” and “breeding and fattening calves for sale”.

23    The primary judge also noted that, unlike Mr Minici’s affidavit, Mrs Minici’s affidavit had not been certified by an interpreter. He also stated that Mrs Minici did not attend for cross-examination, either in person or by telephone, but a medical certificate had been produced which explained that Mrs Minici could not travel because of pressure ulcers on both her feet. The primary judge noted that the medical certificate was silent on the issue of Mrs Minici’s ability to speak by telephone. In the light of those matters, as well as the similarities between the affidavits of Mrs Minici and Mr Dattilo, the primary judge was not confident that Mrs Minici had in fact understood what was in her affidavit and he gave her evidence no weight.

24    The primary judge then stated that, even if he had accepted that Mr and Mrs Minici’s property had been used as a market garden and that Mr Minici had, in the past, kept cattle for sale, there was insufficient evidence to be satisfied that the use of the premises was predominantly for the purposes of agriculture.

25    For these reasons the primary judge concluded that s 7(h) of the 2010 RTA did not apply and, therefore, the tenancy dispute fell to be determined by reference to the 2010 RTA.

The FCCA’s power under s 94 of the 2010 RTA

26    The primary judge adopted the same approach to the construction and application of s 94 as he did in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No. 3) [2015] FCCA 3133 (Rigney). The primary judge said, Minici at [5], that his reasons should be read together with his reasons in that matter.

27    In Rigney, at [118], the primary judge described as, at first glance, “odd” that, under s 94, the power to terminate a lease was at the discretion of the Court. He described this power as “a large qualification to the ordinary right of a landowner, under common law, to the reversionary interest in the land as well as the contractual rights that ordinarily flow from leases of land”. The primary judge explained the power as part of a relevantly recent legislative response to “the imbalance in power between landlords and tenants and the changing need for rental accommodation throughout Australia … ”. His Honour confirmed that the power to make a termination order under s 94 was discretionary, but was subject to the following three conditions:

(1)    that the tenant had been in continual possession of the same residential premises for a period of 20 years or more;

(2)    that if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement had expired; and

(3)    that the Court was satisfied that it was appropriate to do so in the circumstances of the case.

28    The primary judge contrasted the discretion under s 94 of the 2010 RTA with s 64 of the Tenancies Act 1987 (NSW) (the 1987 RTA), which obliged the New South Wales Civil and Administrative Tribunal (the State Tribunal) to make an order terminating a residential tenancy agreement if certain conditions were met.

29    The primary judge referred to the judgment in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) (Swain). That decision related to the 1987 RTA and the State Tribunal’s duty to terminate an agreement under s 64(2)(c) (which provided for such an order to be made where “having considered the circumstances of the case, it is appropriate to do so”). Justice Rolfe described the possible “circumstances” which may have to be taken into account under that provision as:

… the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment …

30    The primary judge noted that Rolfe J’s decision was upheld on appeal in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 (Swain on appeal) where Meagher JA (with whom Priestley and Cole JJA agreed) held that the “circumstances referred to in s 64 were the particular case before the Tribunal” and the 1987 RTA “was intended to balance the rights of the landlords and tenants”. The primary judge also referred to another decision of the New South Wales Court of Appeal in Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 (Scicluna), where the Court found that the power conferred on the State Tribunal under s 64(2) of the 1987 RTA was not a discretionary power, but rather a matter of statutory obligation once an evaluative opinion had been formed. The primary judge described this conclusion as “clearly correct” in light of the terms of the chapeau to s 64 (i.e. that the State Tribunal “is to make an order terminating the agreements if it is satisfied … ”). The primary judge added, at [124] in Rigney, in respect of s 64 that:

The evaluative opinion referred to in the decision arises from the condition of the power that the Tribunal be satisfied, “having considered the circumstances of the case, it is appropriate to do so”.

(Emphasis in original.)

31    The primary judge then identified the following differences between the 2010 RTA and the 1987 RTA:

(a)    the power to terminate a periodic tenancy under s 85 of the 2010 RTA (other than where the tenant had been in occupation for 20 years or more) was not discretionary;

(b)    the evaluative opinion referred to in Scicluna was no longer a condition of the power to terminate under the 2010 RTA; and

(c)    the power to terminate was different depending on whether the tenant had been in occupation of the premises for 20 years or less. Where that occupation was greater than 20 years, the only power to terminate was under s 94.

32    The primary judge also considered the New South Wales Court of Appeal’s decision in Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 (Cain), where it was held that the power under s 91 of the 2010 RTA to make a termination order was discretionary and, as part of the reasoning of Leeming JA, that the word “may” in s 94(1) conferred a discretion on the State Tribunal. The primary judge, Rigney at [132], described this view as “clearly correct” and, Rigney at [132]-[138], as consistent with legislative reforms which were intended to address “the basic inequality of bargaining power between landlord and tenant”. The primary judge said, Rigney at [138], that the reforms introduced by the 1987 RTA and the 2010 RTA were “aimed at achieving a balance between the interests of the landlord and the tenant” and, in that context, it was not as surprising as it first appeared that there remained a discretion whether to make a termination order in respect of long term tenants.

33    The primary judge’s approach in determining whether or not to make a termination order under s 94 is reflected in [139] and [140] of his reasons for judgment in Rigney:

    The approach to this case must then be to first determine whether the power to make a termination order arises. That requires consideration of whether the three conditions set out in s.94 exist on the facts of the case. Those include whether “in the circumstances” the Court considers that a termination order is appropriate: sub-s.94(1)(c). Those circumstances are, as explained in Swain, all of the matters that arise on the material before the Court including the availability of suitable alternative accommodation. Once that is considered, the second step is to consider the exercise of the discretion. As Leeming JA said in Cain, this may be surplus and may be no more than an affirmation of the consideration under sub-s.94(1)(c). Although there is a real discretion, it is difficult to imagine the circumstances in which it would be appropriate to make a termination order and then exercise the discretion not to make such an order.

    Once the Court decides to make a termination order it must also make an order for possession of the residential premises specifying the day on which the orders takes or took effect: s.83(1). As the minimum 90 day period specified in s.94(4) does not apply to these proceedings, there is no explicit guidance in the Tenancies Act as to the date on which possession should be ordered. In light of that, the contextual matters considered above must also be involved in the determination of the date of possession. Essentially, the determination involves a balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant’s possession of the land.

34    Applying that approach to Mr and Mrs Minici’s circumstances, the primary judge found, at [19], that they were tenants of the premises and that they had been in continual possession for a period of more than 20 years. His Honour also found that the 52 week fixed term agreement had expired on 28 July 2009.

Whether appropriate to make a termination order

35    His Honour then turned his attention to whether he was satisfied that it was appropriate to make a termination order in the circumstances of the case, as required by s 94(1)(c). In [147] of Rigney, the primary judge described this issue as requiring “consideration of the interests of each of the parties that appear from the material before the Court”. That was the approach which his Honour applied here.

36    The primary judge first examined the circumstances relied upon by the Commonwealth, which included the history of the Commonwealth’s land acquisition program in the Badgerys Creek area to reserve land needed for an airport in Western Sydney, as well as the government’s announcement on 15 April 2014 that the Badgerys Creek site would be the site for Western Sydney’s new airport. The primary judge summarised the evidence of Mr Peter Robertson, who was a general manager at the Department of Infrastructure and Regional Development (the Department). Mr Robertson was one of three senior executive staff members managing the proposed Badgerys Creek airport project.

37    Mr Robertson had responsibility for management of policy development for the project and project timeframes.

38    The primary judge described, at [26], the following four aspects of Mr Robertson’s evidence concerning the “substantial urgency” of vacating the site:

(a)    obtaining vacant possession in accordance with the project timetable;

(b)    the incompatibility of continued residential accommodation and the ongoing investigation and demolition works, both in terms of cost and delay, which impacted work at the site and residential amenity and safety;

(c)    the balance to be struck between the interests of the tenants and the high costs of them remaining on the site; and

(d)    the importance of treating tenants equitably.

39    The primary judge summarised Mr Robertson’s evidence regarding planning for the airport and the need for substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. This work was expected to continue throughout 2015, although at the time of Mr Robertson’s affidavit dated 11 March 2015, geotechnical drilling work was being undertaken on a limited scale due to the presence of occupants at the site, which gave rise to safety concerns. The primary judge noted that Mr Robertson’s evidence did not deal directly with the part of the site on which Mr and Mrs Minici’s premises were located.

40    The primary judge referred to Mr Robertson’s evidence regarding the further work which was required at the site in general, which would be directed to obtaining further geotechnical and contamination information across the whole site. This information would provide inputs into the government’s consideration of the land use arrangements for the site and the associated costings. Mr Robertson described this information as being “urgently required”. The primary judge noted that there was no explanation of the basis for that urgency other than Mr Robertson saying that a delay in obtaining the information “risks delaying the proposal overall”.

41    The primary judge summarised Mr Robertson’s evidence concerning the process for assessing individual residential tenant blocks, which Mr Robertson described as being “administratively onerous” and taking up considerable resources.

42    The primary judge also summarised Mr Robertson’s evidence in his subsequent affidavits dated 30 March 2015 and 21 May 2015 respectively. These affidavits contained further evidence regarding the timeframe for clearing the site and demolition activities which were being carried out.

43    The primary judge summarised the cross-examination of Mr Robertson by counsel for Mr and Mrs Minici. He described the cross-examination as mainly being directed to establishing that there were other people in the Department with more knowledge of, and responsibility for, particular decisions with respect to the development of the site for an airport. The primary judge observed at [38] of his reasons for judgment that this line of questioning “did not assist the proceedings in any way”. His Honour said that the fact that someone else was responsible for decision-making or any other matter was irrelevant to the facts in issue. The primary judge found that Mr Robertson had given his evidence truthfully and he accepted that evidence.

44    The primary judge outlined the details of the “Right of First Refusal” under the Sydney Airport Group sale agreement in 2002. Mr Robertson’s evidence on this matter was described at [42] as follows:

Mr Robertson explained that whilst consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. He said that essential to such proposal was the outcome of the Environmental Impact Assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations. In his opinion, restricted access to the site due to tenants being in possession of individual properties limits this process in many practical ways.

45    The primary judge then addressed the circumstances affecting the interests of Mr and Mrs Minici which, apart from security, safety and convenience issues in relation to the whole site, comprised the following four matters:

(a)    the length of Mr and Mrs Minici’s occupation of the property;

(b)    the terms of the tenancy agreement between the Minicis and the Commonwealth;

(c)    the process undertaken by the Commonwealth to obtain vacant possession of the property, including notice of the proposed termination of the residential tenancy agreement; and

(d)    the availability of suitable alternative accommodation.

46    On the first of those matters, the primary judge reaffirmed his earlier findings that Mr and Mrs Minici had been in continual possession of the property for over 20 years.

47    On the second of those matters, his Honour referred to cl 42 of the residential tenancy agreement which we have set out at [3] above.

48    The primary judge stated that these clauses indicated that at least from the entry into the agreement in November 2007 Mr and Mrs Minici were aware of the possibility that the site might be developed for the purposes of the development of an airport.

49    The primary judge noted some relevant parts of the Commonwealth’s correspondence dated 29 October 2014 and 24 November 2014, which Mr and Mrs Minici received from the Commonwealth’s property managing agent. In the first of those letters, they were told that their property needed to be vacated in order to implement the Government’s decision that Badgerys Creek would be the site for Western Sydney’s airport. They were told that it was likely that the specific date by which they would be required to vacate the property would be in June 2015. Attached to that letter was a document entitled “Information to Assist You”, which gave information concerning garbage collection and internal roads.

50    The primary judge also noted some parts of the property manager’s letter dated 24 November 2014. Mr and Mrs Minici were notified in that letter that the Government required all tenants to vacate the site by 15 June 2015. His Honour stated that the “terms of this letter are somewhat surprising given that they were both inconsistent with the Tenancies Act and misleading to the extent that the letter suggests that there was an obligation on Mr and Mrs Minici at all to vacate their home by 15 June 2015”. The primary judge then noted that the misleading nature of this aspect of the letter dated 24 November 2014 was overcome to some extent by an attachment to the letter, which made reference to the government’s intention to apply for a termination order with effect from 15 June 2015 and that it was not necessary for Mr and Mrs Minici to do anything in relation to obtaining that order. In [51] of his reasons for judgment, the primary judge described these statements as also being misleading to the extent that they suggest that the right of Mr and Mrs Minici to be heard in connection with the termination orders was optional and that the impression created by the Commonwealth’s two letters was that Mr and Mrs Minici had no option but to vacate by June 2015.

51    The primary judge referred to Mr Robertson’s evidence concerning the assistance and information provided to tenants beyond the two letters, including the role of Ms Wendy Salkeld, a Place Manager, as a dedicated point of contact with responsibility for communicating with tenants on an individual basis concerning “the transition of the site and to help tenants understand the process”. His Honour found that it was not clear whether Mr and Mrs Minici were directly provided with this assistance but his Honour stated that it was at least available to them.

52    The primary judge then, at [54] and following, addressed the issue of the availability of suitable alternative accommodation. His Honour noted that, unlike some of the other proceedings, the Commonwealth had not relied upon the evidence of Mr Simon Azar, the Commonwealth’s registered real estate valuer, in Mr and Mrs Minici’s case, but noted that other witnesses did refer to Mr Azar’s evidence when giving their evidence.

53    The primary judge summarised the expert evidence filed on behalf of Mr and Mrs Minici. Those witnesses were Ms Simone Fogarty (the daughter of a tenant of another property, Mr Ken Shirvington), as well as the evidence of a registered real estate valuer, Mr Lopco Neskovski. Ms Leanne Uren, another tenant in these appeals, also gave evidence. The primary judge briefly described the evidence of each of these witnesses.

54    The primary judge said that Ms Uren’s evidence was that the properties said by Mr Azar to be comparable to the Minicis’ premises were, at the date of the hearing, no longer available for lease. His Honour described this evidence as showing that the market for rental properties in and around the Badgerys Creek area was not stagnant.

55    The primary judge then summarised Mr Neskovski’s evidence relating to suitable alternative accommodation. Mr Neskovski noted that most rural property was held for owner occupied lifestyle purposes, particularly larger rural blocks ranging from 10 to 40 hectares. This meant, he said, that there was a scarce supply available for rental. He also gave evidence of the effect on market demand caused by the number of residents required to locate with livestock and that rentals had dramatically increased over the last one to two years, with a “surge in the last six months”. The primary judge also summarised Mr Neskovski’s evidence of comparative rentals from early 2015 to mid-2015 and that, in considering the availability of suitable premises, he had specifically looked at and considered rental premises that were listed for rent in the last three months. This was a period of diminishing supply and heavy competition by tenants who were forced to relocate from the airport precinct. Mr Neskovski then described the properties which he believed were available in the period from May to July 2015, broken down into land which was available for agistment as opposed to properties for human accommodation and he divided them into groups according to age and size.

56    The primary judge stated that Ms Fogarty was a senior property manager but that, for various stated reasons, he did not find her to be a convincing witness. Having said that, however, the primary judge acknowledged that she had made some “reasonable” and “valid” points (some of which were also made by Mr Neskovski): that there must be some comparison made between the size of the land and not simply the size of the house for rent; the rental market had been impacted with the number of other tenants in the Badgerys Creek area who were relocating; and that some consideration had to be given to animals owned by a tenant.

57    At [67] of his reasons for judgment, the primary judge said that the question to which this evidence was directed was not whether identical or comparable properties were available but, rather, whether there was some suitable alternative accommodation that was reasonably available. Expressed that way, his Honour said that the question captured more accurately the balance sought to be struck between the interests of the landlord and those of the tenant. This meant that the evidence concerning the availability of premises was of limited assistance to the Court because of the proper focus required by the 2010 RTA.

58    Having said that, the primary judge concluded that the evidence indicated that there were properties available for rent in the vicinity of Badgerys Creek and that the rent was mostly higher than that being paid by Mr and Mrs Minici (who were paying rent of $330.00 per week). His Honour said that this was hardly surprising because there tenancy was always subject to the possibility of the airport being developed. The primary judge also noted that neither Mr nor Mrs Minici had given any evidence about their financial means.

59    His Honour found at [70] that, despite the evidence of Ms Fogarty and Mr Neskovski about the impact on the rental market of the large number of people relocating from the airport site area, there was “no real evidence to support those assertions”. Consequently, he gave little weight to their evidence on this matter.

60    The primary judge then discussed two further points made by Ms Fogarty. After noting her evidence that the properties listed by Mr Azar had all been rented, his Honour observed at [71] that this evidence did not suggest that there was not or would not shortly be other properties available for rent. Mr Neskovski had not suggested the contrary. At first sight it might seem strange that the primary judge made any reference in [71] to Mr Azar’s evidence in circumstances where, as noted above, his evidence was not relied upon by the Commonwealth in the Minicis’ proceeding. It is evident from [56] of his Honour’s reasons for judgment, however, that because the evidence of the Minicis’ experts was, to some extent, evidence in reply to Mr Azar’s evidence in the other matters, it was referred to for that purpose.

61    The second aspect of Ms Fogarty’s evidence was that she said that more time would improve the tenants’ chances of obtaining alternative accommodation, a view which the primary judge accepted at [71].

62    The primary judge then noted, at [72], that Mr and Mrs Minici had not given any evidence about looking for alternative accommodation. He noted that Mr Minici was 83 years old, retired and in poor health, and that Mrs Minici was 77 years old. His Honour added that, given that Mr Minici was retired, it was “very unlikely that he will need to engage in any more agricultural work and so will not need any amount of land in order to do so”. His Honour then noted that Mr and Mrs Minici had five children but that there was no evidence that any of them resided with their parents. Accordingly, his Honour found that although Mr and Mrs Minici’s house at the property was a five bedroom split level house with double garage/workshop there was no apparent need for Mr and Mrs Minici to remain living in a house of the same size.

63    For these reasons, the primary judge found that while it might take some time for Mr and Mrs Minici to find suitable alternative accommodation, he was not satisfied that none was available.

64    As noted above, the primary judge suspended the order for vacant possession in respect of Mr and Mrs Minici’s premises for 75 days.

65    In his concluding observations as to why he was satisfied that it was appropriate to make a termination order and an order for vacant possession, the primary judge stated that Mr and Mrs Minici had lived alone on a relatively large property which they no longer needed other than for residential purposes. He added that, apart from the fact that they had lived in the same house for a long time, there was no basis for the Court not to make a termination order and that, allowing for Mr and Mrs Minici’s health circumstances, 75 days was a sufficient period for them to relocate. That was particularly so given their awareness since at least November 2007 when they signed the agreement that they may have to move and that they had known of the Commonwealth’s intention to obtain vacant possession for more than a year.

66    At [77] of his reasons for judgment, the primary judge concluded that he was satisfied that the Commonwealth has “a very real need to obtain vacant possession” and that, for this to occur, the tenancy agreement had to be terminated. He added that this “need is a public one for the purposes of developing a second major airport for Sydney and a considerable amount of money and effort has already been spent on that development”.

Grounds of appeal

67    The Minicis sought leave to file and rely upon an amended notice of appeal, which was in the following terms:

1.    The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as involving the imposition of administrative power of a State tribunal upon a Chapter III court.

2.    The primary Judge erred in holding that the Respondent was empowered to make Federal Circuit Court [Commonwealth Tenancy Disputes] Instrument 2015 [Cth].

3.    The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as a law for the acquisition of property of the Appellant [sic] other than on just terms.

4.    The primary Judge erred in holding that it was ‘appropriate’ to order termination of the Appellant’s [sic] tenancy.

5.    The primary Judge erred in holding that the termination notice was valid and effective.

6.    The primary Judge erred in not admitting evidence of the Appellant [sic].

7.    The primary Judge erred in ordering termination forthwith and vacation on or before 18 12 2015 of the premises the subject of the action.

8.    The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].

9.    The primary Judge erred in not recusing himself from the matter before him in circumstances where he heard other cases in which he had made findings of credit and similar findings of fact against other Commonwealth tenants at Badgerys Creek.

10.    The primary judge erred in deferring costs or not making any orders as to costs.

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

12.    The primary Judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties.

13.    The primary Judge erred in accepting Mr Robertson’s statements regarding the construction and development of the airport, and not considering the long history of uncertainty and the changing position of the Commonwealth with regard to the building (or not building) of the airport. Extensive documents were submitted by the Respondents supporting these delays, which were not considered by the Primary Judge.

14.    The primary Judge erred in stating the Respondents [sic] were aware of the possibility that the site may be developed for the purposes of the development of an airport and disregarding that since December 2000 the Respondents reasonably believed Badgerys Creek was not being considered as a site for the airport.

15.    The primary Judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of Respondents [sic].

16.    The primary judge erred in not holding that the Respondent [sic] was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith.

17.    The primary judge erred in not considering compensation to the Appellant [sic] as a condition of the making of any order for possession, or for suspending such order for a period of years.

18.    The primary Judge erred in making tenancy orders having final effect and thereafter making directions at the request of the Respondent on costs which in the circumstances was an abuse of process.

68    The underlined paragraphs indicate Mr and Mrs Minici’s proposed amendments to their original notice of appeal for which leave was required. The paragraphs struck through, grounds 5, 6, 10 and 18, reflect the grounds in the proposed amended notice of appeal which counsel for the appellants notified the Court were abandoned. It is also clear the ground 9 concerning alleged bias was not pressed in that form in this appeal.

69    The proposed amendments, apart from paragraphs 13 and 14, were opposed by the Commonwealth on several grounds, including that some of the new grounds had not been argued below or were inconsistent with the way in which the case had been presented below.

70    Since the application to amend to add grounds 13 and 14 was not opposed, we would grant leave so to amend.

71    It is therefore necessary to rule on the application to amend to add grounds 11, 12, 15, 16 and 17. The Court indicated that it would rule on the proposed amendments in its final reasons for judgment.

72    The principles in relation to an application to amend a notice of appeal are well-established. As a Full Court said recently in Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153 at [99]:

Parties are bound by the way they conduct their case at trial: see Overton Investment Pty Ltd v Murphy [2001] NSWCA 183 per Mason P (at [86]–[87]) (Sheller JA and Beazley JA agreeing); University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 (at 483); Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [15]); Thompson v Palmer (1933) 49 CLR 507 per Starke J (at 528–529); Haig v Minister Administering National Parks and Wildlife Act1974 (1994) 85 LGERA 143 per Kirby P (at 155); Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ, Deane J contra) (at 7).

73    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 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).

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

75    As to ground 11, we would not allow the amendment to add the entirety of ground 11 since it is plain that the primary judge did have regard to expert evidence. We would allow the application to amend to add proposed ground 11 insofar as it raises the claim that the primary judge erred in not having sufficient regard to expert evidence, including but not limited to that of Ms Fogarty. The proposed ground 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 12, that the primary judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties, we would allow the amendment as it turns on an analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent.

77    In relation to proposed ground 15, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld, the Place Manager, in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of tenants, in our opinion leave to amend should be refused. First, the proposed ground finds no basis in the reasons for judgment of the primary judge in relation to the present appellants. Secondly, the proposed ground does not correspond to a ground taken by the appellants at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.

78    In relation to proposed ground 16, that the primary judge erred in not holding that the Commonwealth was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith, in our opinion leave to amend to add this ground should be refused as it was not a matter raised in this case before the primary judge and it is clearly a matter on which evidence could have been adduced. In addition, nothing was said about estoppel in the written and oral submissions in this Court on behalf of the appellants.

79    In relation to proposed ground 17, that the primary judge erred in not considering compensation to the appellants, we would refuse leave to amend to add this ground. Although the matter was pleaded in the FCCA, the primary judge, at [4.d]-[4.e], found that no particulars were provided and no evidence was adduced in support of the claim.

Parties’ submissions – common issues

80    The common issues were identified by the appellants 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 appellants on common issues also included a number of paragraphs, [33]-[44], referring to the evidence of Mr Robertson which was said to be common to the several matters.

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 did 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    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 was terminated and by which vacant possession of the residential premises was 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    Section 94, which applied to the present appeal, provided as follows:

94    Termination of long term tenancies

(1)    The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement:

(a)    if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and

(b)    if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and

(c)    if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.

(2)    A landlord may make an application under this section without giving the tenant a termination notice.

(3)    The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

(4)    The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.

94    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. Will

120    Repossession of residential premises—offences

(1)    A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless:

(a)    the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or

(b)    the tenant has abandoned the premises or given vacant possession of the premises.

Maximum penalty: 200 penalty units.

…

121 Enforcement of orders for possession

(1)    The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.

(2)    An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit.

(3)    Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.

(4)    A warrant for possession is to be in the approved form and must authorise a sheriff’s officer to enter specified residential premises and to give possession to the person specified in the warrant.

Note. See section 7A of the Sheriff Act 2005 for provisions relating to the enforcement of warrants.

The submissions of the parties on common issues of law and consideration of those submissions

Separation of powers

95    The appellants submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by way of the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellants submitted that the legislation being transported into the federal regime was a law which merely gave to the State Tribunal a discretion subject to conditions to terminate the long leases on a broad range of grounds ranging from the economic to the political, none with any legal content or involving the exercise of a mix of functions. The appellants, it was submitted, were entitled as of right by virtue of a fundamental incident of their subsisting leasehold tenure to remain in possession of the premises until a lawful termination order was made by an administrative not a legal tribunal. In that sense the leases were not terminable by law. The appellants submitted that no such administrative order was capable of being made by the FCCA.

96    The appellants also submitted that they had the right of quiet enjoyment conferred by Pt 3.3 of the 2010 RTA such that the tenancy could only be terminated by a discretionary order of the State Tribunal under Pt 5 of the 2010 RTA. The appellants submitted that because the tenancy was not terminable by any contractual or other action outside the State Tribunal, such as notice of the lessor or abandonment or frustration of the leasehold tenure, their tenure and cognate right of possession was a statutory lease subject to termination by the State Tribunal with “a strong affinity” with freehold tenure: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 421-422 [19].

97    The appellants submitted that at the time of the commencement of proceedings or any time prior to their commencement they had not been and were not in breach of any contractual term nor of any statutory term applied by the 2010 RTA which would confer a right of re-entry to their land. Even if the legal standard did apply to the question of the termination of their tenure, no evidence had been adduced to support such a legally endorsed outcome in the FCCA or elsewhere. Rather the Commonwealth’s case was founded solely upon the administrative powers vested in the FCCA by the Instrument which, the appellants submitted, were legally insufficient to authorise the exercise of any power of termination, or dispossession, or execution of a termination order as described in s 81 of the 2010 RTA. The appellants submitted that no right of re-entry at common law had arisen in respect of their property; rather, such right was contingent upon an order being made under Part 6 of the 2010 RTA.

98    The appellants also submitted that the findings as to competing needs of the lessees’ and lessors’ interests and what was “appropriate” was a determination which was clearly not of a legal character, which was the very reason that the State Tribunal was established and given exclusive jurisdiction in New South Wales with respect to termination of residential tenancies.

99    The appellants submitted that the primary judge erred, at [71] in Rigney, in relying on the consideration that the orders he was to make were “immediately enforceable by the Court.” However, the appellants submitted, a termination order as defined in Pt 5 of the 2010 RTA was not immediately enforceable because, until an order under Pt 6 of that Act was made, a “person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless … the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court …”: see s 120 of the 2010 RTA. In short, the appellants submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removing of chattels after a termination order was made was provided for by Part 6 of the 2010 RTA. Accordingly none of the orders sought or made was “immediately enforceable” in the present form by the FCCA.

100    The appellants submitted that the carve-out of the State Tribunal’s power in relation to the present matters and its conferral by way of an omnibus provision upon the FCCA was a carve-out of both the administrative and quasi-judicial power of New South Wales. Further, the Commonwealth must take New South Wales tenancy law as it found it. After referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson) the appellants submitted that no different result should follow now and the State Tribunal remained the appropriate venue for the claims made by the Commonwealth in the FCCA.

101    The appellants submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Part 5 of the 2010 RTA. The appellants referred to ss 81(1) and 119 of the 2010 RTA, the former providing that a residential tenancy agreement terminated only in the circumstances set out in that Act and the latter providing that a landlord must not commence proceedings against a tenant in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. The appellants submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.

102    The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 (Brandy) that “there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not”.

103    The respondent submitted that in determining a Commonwealth tenancy dispute, s 9 of the Instrument conferred on the FCCA any powers that were powers of the State Tribunal under the 2010 RTA as the applicable law, subject to those powers being relevant to determining the dispute and to the qualifications in s 5(3) of the Instrument. The Instrument did not apply any of the provisions of the Civil and Administrative Tribunal Act 2013 (NSW) which constituted the State Tribunal and prescribed its jurisdiction and procedures, to proceedings in the FCCA. The provisions of the FCCA Act governed the procedure to be applied.

104    The respondent submitted that the fact that the Commonwealth Parliament was picking up, for application in a Ch III court, legislation that would be administered at the state level by an administrative tribunal (which may exercise judicial power) was without constitutional difficulty provided that the conferral did not involve the Ch III court exercising non-judicial power. The respondent submitted that s 5(3) of the Instrument was significant in that context.

105    The respondent relied on the four features of s 10AA of the FCCA Act and the Instrument which had been relied on by the primary judge.

106    The first feature was that the exercise of the discretion conferred by s 8(2) of the Instrument, which modified the operation of s 94 of the 2010 RTA, guided by the scope, object and purpose of the 2010 RTA, was a familiar, if not daily, part of any court’s work. Given that the Instrument conferred on the FCCA powers by reference to the 2010 RTA, subject to s 8, the conclusion of the primary judge that the exercise of the discretion should be guided by the scope, object and purpose of the 2010 RTA was entirely orthodox and without error.

107    The second feature was that the power conferred was not “simply one that arises on the basis of some idiosyncratic notions of individual judges”. The primary judge noted that “as with any broad power with which a court is invested … guiding principles will emerge”. The respondent submitted that the development of principles was consistent with the judicial method, citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at 351. Reliance on what occurred in the State Tribunal was not determinative of the nature of the power being exercised, the proper characterisation of a power being contingent, inter alia, on the “nature of the body dealing with it”: HA Bacharach Pty Ltd v Queensland [1998] HCA 54; 195 CLR 547 at 562.

108    The third feature was that the determination by the FCCA would set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. The respondent submitted that the application of a broad criterion by reference to the circumstances of a particular case, whether imposed by the general law or pursuant to statute, was not an unusual feature in the exercise of judicial power: Thomas v Mowbray at 345-347. Section 94 of the 2010 RTA required the court to evaluate the nature of a tenant’s occupation of premises and whether it amounted to possession; the period of time for which the tenant had been in continual possession of the premises; whether the term of the original fixed term agreement had expired; and whether it, the Court, was satisfied that it was appropriate to make a termination order in the circumstances of the case.

109    The fourth feature was the enforceability of the Court’s orders. The respondent submitted that if the FCCA made an order terminating a residential tenancy agreement under the 2010 RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1). As the appellants accepted, the Court’s orders had the immediate effect of terminating the contractual relationship, without which the tenant was no longer lawfully in possession and should vacate in accordance with the order for possession. In the event of non-compliance with that order, a warrant may be obtained on the authority of the order for possession: s 121(1). (We note that by s 8 of the Instrument a reference to the Principal Registrar of the State Tribunal is a reference to a Registrar of the FCCA.) The respondent submitted that the process of obtaining the warrant did not involve any traversing of the circumstances in which the Court’s order was made, or whether it was valid: providing the Registrar was satisfied that the order had not been complied with the warrant would issue. By force of the FCCA’s orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable. The enforceability of decisions was, as the primary judge properly saw, significant and “one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal”: Brandy at 268.

110    In reply, the appellants submitted that the respondent’s argument should be rejected as it failed to articulate any clear answer to the case that the exercise of power by the FCCA was non-judicial in character. Having regard to the character of the State Tribunal whose powers were picked up and conferred on the FCCA and the nature of the decision under the applicable law adopted under s 10AA(3)(b) and (c) which was administrative in character creating rights as from the date of the hearing rather than deciding rights as at the date of the commencement of proceedings, the exercise of power by the FCCA should have been characterised by the primary judge as non-judicial and both the Instrument and the amendments to the FCCA Act authorising its use should have been held to be invalid.

111    The appellants submitted that their tenancy under the State Tribunal and the 2010 RTA was subject to a discretionary regime that had regard to economic and political considerations with respect to the length and character of her tenure; that discretionary regime was then imposed on a Ch III court that struggled to divorce those considerations from the decision-making process, and which demonstrated by its reasons that the court found the exercise unfamiliar. The appellants submitted that these “considerations included the general economy as being interests that prevailed over the specific issues of the appellants. When considering the individual circumstances of the appellant (i.e. to weigh in the balance against political and economic considerations) the former being more familiar issues to courts, the [primary judge] disregarded those and held examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances”.

112    The appellants submitted the mix of functions conferred on the FCCA led the court into error and also led to injustice to the appellants.

113    We turn to consider these submissions.

114    We first mention the reliance by the appellants in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had earlier 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 insufficiently took account of the States’ legislative competence to alter the structure and organization of State courts. His Honour also said, being the passage relied on by the appellants:

Although the Commonwealth Parliament has no power to alter the structure or organization of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. Moreover, it may condition the investment of federal jurisdiction on the existence of a suitably structured State court — see, for example, s. 39(2) of the Judiciary Act 1903 (Cth), as amended.

115    We see nothing of present assistance in that statement although, of course, we accept that there are limitations on the nature of the power which may be conferred on a Ch III court.

116    In that respect we note the terms of s 5(3) of the Instrument, which stated that nothing in ss 5 to 10 of the Instrument had effect so as to confer non-judicial power on the FCCA, unless the non-judicial power was incidental to the exercise of judicial power by that court.

117    We reject the appellants’ submission that merely because the State Tribunal formerly exercised powers in relation to Commonwealth tenancy disputes involving land in New South Wales this demonstrated or assisted in demonstrating that non-judicial power had been conferred on the FCCA.

118    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.

119    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.)

120    In Brandy at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, that there were functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.

121    Next, the appellants contended that the primary judge erred in Rigney at [71] in relying on the consideration that the orders he was to make were “immediately enforceable by the Court”. To give the context for his Honour’s statement, we reproduce the following paragraphs from that judgment at [69]-[71]:

The Court is required to apply the Tenancies Act to the facts and circumstances shown on the evidence before it. Thus, in this case, there will need to be a factual determination of, amongst other things, whether or not the respondents have been in continual possession of the premises for 20 years. This in turn will require an evaluation of the nature of the respondents’ occupation and whether that amounts to possession within the meaning of the Tenancies Act. Also in issue will be whether there is a residential tenancy agreement in respect of those premises, whether that agreement was for a fixed term, and whether that fixed term (if any) has expired. In short, the Court is required to conduct an enquiry concerning the law as it is on the facts as they are: see Tasmanian Breweries at 374 per Kitto J.

Once that inquiry has been conducted, the Court must then determine whether to make a termination order. Such a termination order requires there to be an order for possession at the same time to take effect as the Court considers appropriate. While the respondents are correct to say that this second inquiry is a very broad and arguably a discretionary one, that is not, in light of the authorities discussed above, decisive of the issue of whether the power is non-judicial.

First, any discretion, or more accurately, determination of appropriateness, must be bound by the object, scope and purpose of the Tenancies Act. This is a familiar, if not daily, part of any Court’s work. Secondly, it is to be expected, as with any broad power with which a Court is invested, that guiding principles will emerge so that the power is not simply one that arises on the basis of some idiosyncratic notions of individual judges. Thirdly, the determination by the Court will set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. Fourthly, and in my view, critically, those rights and obligations are immediately enforceable by the Court.

122    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 provided that a person must not enter residential premises for the purposes of taking possession of those premises unless the person was acting in accordance with a warrant arising out of an order for possession of the State Tribunal or a writ or warrant arising out of a judgment or order of a court. On the assumption that a warrant referable to s 120 of the 2010 RTA is necessary where the order for possession is made by the FCCA, it remains the case that the FCCA can enforce its own determinations. We accept the respondent’s submissions that the FCCA’s orders had the immediate effect of terminating the contractual relationship and, in the event of non-compliance, a warrant may be obtained on the authority of the order for possession: s 121(1). By force of the FCCA’s orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable.

123    In oral argument attention was given to the words in s 94(1)(c) of the 2010 RTA which provide that the State Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement “if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case”. Attention was given particularly to the scope of the discretion indicated by the word “appropriate” when the discretion came to be exercised by a Ch III court.

124    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1, the High Court noted that the Federal Court had jurisdiction with respect to a matter which arose under the Workplace Relations Act 1996 (Cth) in relation to which an application for orders under s 298U might 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: …

125    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”.

126    The High Court also referred to s 23 of the Federal Court of Australia Act 1976 (Cth) providing 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.)

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

128    We do not accept the appellants’ submission that the findings as to the competing needs of the lessee’s and lessor’s interests and what was “appropriate” was a determination which was clearly not of a legal character.

129    The appellants drew attention to the reference by the primary judge to principles emerging to guide the exercise of the discretion but in our opinion this was saying no more than was said in Thomas v Mowbray at 351, where their Honours said:

The following statement by Professor Zines, made after a review of a number of the decisions in this Court, is in point [Zines, The High Court and the Constitution, 4th ed (1997), p 195]:

“Any standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre – an area of choice and of discretion; an area where some aspect of policy will inevitably intrude. The degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents. Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard.”

The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether “making the order would substantially assist in preventing a terrorist act” (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.

130    A similar point had been made earlier in R v Joske; Ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; 135 CLR 194 at 215-216 where Mason and Murphy JJ wrote:

Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised—nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v. Cominos). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decisions; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under sub-s. (2)(a) and the impact which such an order will have on the interests of persons who may be affected.

(Footnote omitted.)

131    It follows, in our opinion, that the attack on the validity of the amendments to the FCCA Act and on the validity of the Instrument fails.

Whether no “matter” before the FCCA

132    The appellants submitted that at the date the application was filed in the FCCA no justiciable “matter” had arisen. This submission proceeded as follows. There was no controversy at all at the time of the filing of the application. The appellants were entitled as of right to remain in possession with full tenure up until the date of the FCCA’s decision. Thereafter a new relationship between the parties was created. The lessor wanted possession but without any legal right to obtain it, independently of the exercise of discretion of the Court, and there was no standard or right which conferred any such right. It was a case of the respondent applying to the Court for a decision to terminate the leasehold tenure, by a termination order, which the Court might or might not make, in its discretion as to what was appropriate.

133    The respondent submitted that the conferral of jurisdiction in s 10AA(1) of the FCCA Act was formulated in entirely orthodox terms. The Commonwealth was the owner of residential premises the subject of the agreement it sought to terminate in the court. The Commonwealth sought to exercise its entitlement under the 2010 RTA to apply to the FCCA to terminate its contractual arrangements with the appellants in circumstances where they remained in possession with no prospect of them abandoning the premises or otherwise vacating them by consent. The appellants’ response did not contend that there was no dispute between the parties. There was no evidentiary contest that the dispute arose from the fact that the Commonwealth wrote to the appellants stating that it wished to have vacant possession by June 2015, which they opposed. The proceedings before the Court involved the existence of a controversy as to whether the residential tenancy agreement should be terminated and on what terms (if any), and the corresponding liability of the appellants to vacate the premises upon termination. As the High Court stated in Precision Data at 191, “[t]he Parliament can, if it chooses, legislate with respect the rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities”.

134    In their written reply, the appellants did not make specific reference to this point.

135    We turn to consider these submissions.

136    In our opinion, in the case of the present appeal (20 years and over) the controversy or “matter” was sufficiently identified in the application to the FCCA filed on 12 March 2015. That is, as between the Commonwealth as applicant lessor and the appellants as tenants of the Commonwealth of the particular premises, the Commonwealth had notified the tenants that it required possession of the premises by a certain date and the tenants had not yet communicated to the Commonwealth their agreement to vacate the premises on or before that date. The Commonwealth, as lessor, sought an order under s 94 of the 2010 RTA that the residential tenancy agreement between it and the present appellants in relation to the premises was terminated and an order that the present appellants give vacant possession of the premises on or before 15 June 2015. In short, in our opinion, the application by the Commonwealth as landlord for a termination order for a residential tenancy agreement in circumstances where the appellants had not agreed to give possession of the premises to the Commonwealth sufficed to constitute a controversy or “matter” and this was confirmed by the appellants filing a response in the FCCA in opposition to the Commonwealth’s application. We reject the submission on behalf of the appellants that there was not a “matter” because s 94 made it a condition of the making of a termination order for the residential tenancy agreement that the Court was satisfied that it was appropriate to do so in the circumstances of the case. In our opinion, the dispute was about rights regardless of the terms of the discretion to be exercised by the Court.

Whether no legislative power

137    The appellants submitted that there was no head of legislative power in s 51 of the Constitution or elsewhere to make laws regarding land tenure matters with respect to Commonwealth tenancies. The appellants submitted the laws were not an incident of the power to define the jurisdiction of the FCCA under s 77(i) of the Constitution. Powers under s 51(xxxix) arose in the execution of legislative, executive or judicial powers, but not in substitution for such exercise, or as a means of conferring legislative power on the Parliament by the back door. Read properly, the appellants submitted, the “main purpose” of the law comprising Sch 2 to the Federal Courts Legislation Amendment Act, the Instrument and the 2010 RTA properly characterised did not “define the jurisdiction of a federal court but provided for and created a new federal substantive law with respect to residential tenancies to which the Commonwealth was a party by recognising and creating rights with respect to a statutory lease with a code of attendant mutual rights including as to termination and recovery and enforcement”. The appellants again submitted it was an attempt to get round the decision of the High Court in Henderson.

138    The respondent submitted that the Commonwealth entered into the subject tenancy agreement with the appellants in respect of land which it had acquired in order to reserve it for an airport. That acquisition was supported by s 51(i) of the Constitution. So also was the Commonwealth’s entry into the tenancy agreement with the appellants. The respondent submitted that the application of the 2010 RTA as surrogate Commonwealth law, and in particular its modification pursuant to s 8(2) of the Instrument, was supported by at least s 51(i): the power to acquire the land and to enter into a lease in respect of that land extended to the regulation of the circumstances in which such arrangements may be brought to an end (so as to give effect to the purpose of the acquisition). Alternatively, s 8(2) might find support in s 52(i) of the Constitution as the appellants’ premises were situated on land which was a Commonwealth place.

139    The respondent submitted that the substantive rights and liabilities of the parties were conferred pursuant to s 7 of the Instrument and modified in the case of the present appeal (continual possession of the premises of 20 years and over) by s 8. That provision picked up the New South Wales 2010 RTA in a manner similar to s 79 of the Judiciary Act. 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.

140    The respondent submitted that in the present appeal (20 years and over), s 8(2) of the Instrument was directed at the application of s 94(4) of the 2010 RTA and because s 94(4) was directly inconsistent with the law of the Commonwealth it was rendered inoperative to the extent that the Commonwealth provision applied. That section of the Instrument removed the requirement for notice that would otherwise oblige the Commonwealth to provide at least 90 days between obtaining a termination order and taking possession of the residential premises. This adjustment of the Commonwealth’s obligations, the respondent submitted, was authorised by the “full power” of the Parliament “to make laws governing the liability of the Commonwealth”: Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; 161 CLR 254 at 263.

141    The respondent submitted that that power derived at least in part from s 78 of the Constitution but more generally the Commonwealth may make laws such as s 8(2) based on the power or powers that supported the action taken by the Commonwealth that was the subject of the proceeding. The respondent referred, by analogy, to R v Hughes [2000] HCA 22; 202 CLR 535 at [40].

142    The respondent submitted that s 10AA of the FCCA Act constituted an exercise of the power in s 77(i) of the Constitution to make laws defining the jurisdiction of a federal court with respect to any of the matters in ss 75 and 76 which matters included, in s 75(iii), matters “in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party”. On the definition of “Commonwealth tenancy dispute” the Commonwealth was a party to any such dispute.

143    In their written reply, the appellants submitted that the Commonwealth was required by constitutional principles to identify in its submissions the sources of two legislative exercises of power in March 2015: first, the conferral of power on the FCCA; and, secondly, the creation of a new legal regime with respect to the subject matter of Commonwealth tenancies. The appellants submitted the respondent’s submissions failed in not separating those issues and in addressing neither. The appellants also submitted that s 78 of the Constitution did not avail the Commonwealth.

144    We turn to consider these submissions.

145    In our opinion, the source of legislative power to make laws regarding land tenure matters with respect to Commonwealth tenancies is plain. In the present case, it is s 51(i) of the Constitution, that is, the same power as enabled the Parliament to make a law for the acquisition of the real property, the subject of the tenancy, in order to reserve the land for an airport, as was reflected in the tenancy agreement. Before the making of the amendments to the FCCA Act and the Instrument it may be taken that the 2010 RTA applied to the tenancies. On the making of that Commonwealth legislation, including the Instrument, provision was made for the law to be applied in determining a Commonwealth tenancy dispute. Section 109 of the Constitution then applied so that the law of the Commonwealth prevailed and the law of the State was invalid to the extent of any inconsistency. At the same time the Commonwealth legislation, by s 10AA(1) of the FCCA Act, defined the jurisdiction of the FCCA (s 77(i) of the Constitution) with respect to matters in which the Commonwealth was a party (s 75(iii)) and arising under any laws made by the Parliament (s 76(ii)).

146    We reject the appellants’ submission that the legislation “was an attempt to get round the decision of the High Court in Henderson.” In that case it was held that the Commonwealth legislation, the Defence Housing Authority Act 1987 (Cth), did not create an inconsistency between that Act and the Residential Tenancies Act 1987 (NSW) to attract the operation of s 109 of the Constitution. In the present case the Commonwealth legislation, including the Instrument, expressly applied the law of New South Wales, subject to express modifications.

Whether the Instrument was invalid

147    The appellants submitted that the Instrument was invalid as it was ultra vires s 10AA(3) of the FCAA Act. This submission proceeded on three bases. First, the appellants submitted the power conferred by s 10AA(3) did not include the power to adopt by Instrument the 2010 RTA together with the associated powers of the State Tribunal as part of Commonwealth law. The appellants submitted that, read in context, s 10AA(3) was not the conferral of a general law-making power with respect to the rights of parties to a lease entered into by the Commonwealth but was a power only to define the Court’s jurisdiction with respect to a Commonwealth tenancy dispute, as defined in s 4. The appellants submitted there must be a dispute in which the Commonwealth was a party and a dispute must be about the termination of a lease, or the possession or use of land. It was submitted that s 10AA(3) authorised provision to be made for a matter involving a dispute in which the Commonwealth was a party. The appellants submitted that the law making power “for and in relation to … a Commonwealth tenancy dispute” was not a broad law making power. The appellants referred, amongst other authorities, to Shanahan v Scott [1957] HCA 4; 96 CLR 254 at 250.

148    The appellants submitted that the reference to “the applicable law” in s 10AA(3), in its natural and ordinary meaning, referred “to an existing Commonwealth law not the power to make a whole new law by reference to that of another jurisdiction, in this case the whole of the law of NSW being a code on residential tenancies law, with the result that the Parliament’s law making power [was] substituted for that of the Minister and the restrictions upon law-making power with respect to that subject matter [were] circumvented”. The appellants also submitted that the rule-making power did not extend to a regulation which itself imported the whole of a statute that conferred executive power to decide when and on what terms the use of land may end. The decision-making power introduced and conferred on the FCCA by the Instrument was executive power. The power to focus on events and the decisive facts at the date of the decision of the FCCA and not at 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.

149    Secondly, the appellants submitted s 10AA(3) did not authorise a retrospective law. The statutory scheme for over 20 year leases was a code and such a law could not operate retrospectively except by express and necessary statutory fiat, and the Legislation Act also restricted the operation of retrospective legislation. The appellants submitted there had been a failure to have regard to the disadvantage to tenants from the new importation of the new law as Commonwealth law, who under New South Wales law expected to be treated like all other residential tenants in New South Wales. The lease provided that the State Tribunal was to be the arbiter of disputes, suggesting that if the lessor sought to take advantage of its special status as a lawmaker it should have entered into fresh leases in different terms.

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

151    The respondent submitted that the appellants’ submission misunderstood the terms of s 10AA(3) of the FCCA Act and the purpose and effect of the Instrument. As the primary judge observed in Rigney at [90], 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.

152    As to the retrospectivity argument, the respondent submitted it rested on the fact that statutory notices were served on the 20 year and over tenants before the commencement of the Instrument. The respondent submitted that, as the primary judge held at [93] in Rigney, such an event could not be determinative of the character of the Instrument as retrospective. In order to fall within the terms of s 12 of the Legislation Act, the Instrument would have had to take effect before it was registered and it did not do so.

153    In reply, the appellants referred to McEldowney v Forde [1971] AC 632 at 658. The appellants submitted that the Instrument did not conform with the description of law-making power provided for in s 10AA(3): the limitation to a “matter” did not authorise the extensive enactment of tenancy legislation purportedly effected by the power. The appellants also submitted the FCCA Act did not confer retrospective power to make the laws, nor did it comply with the requirements of s 12 of the Legislation Act. The appellants also submitted the respondent’s submissions did not address the concern that the Instrument paid no attention to justice in acquiring property of the appellants, which itself destroyed any statutory authority in the Minister to make the delegated legislation.

154    We turn to consider those submissions.

155    The starting point must be the terms on which the power to make a legislative instrument was conferred. Section 10AA of the FCCA Act had two relevant subsections although each operated by reference to the defined term “Commonwealth tenancy dispute”. Relevantly, the tenancy must involve a lease and a dispute about the termination of the lease or the possession, occupation or use of the land. Further, the dispute must be one in which the Commonwealth is a party. Section 10AA(1) dealt with the jurisdiction of the FCCA to hear and determine a Commonwealth tenancy dispute between the parties to a lease in which the Commonwealth was the lessor and a person other than the Commonwealth was the lessee. It defined the jurisdiction of the FCCA, the power to do so being conferred by s 77(i) of the Constitution by reference to one of the matters mentioned in ss 75 and 76 (here, being a matter in which the Commonwealth was a party within s 75(iii)). Section 10AA(3) was the regulation-making power, thus, for present purposes it was the central provision.

156    Section 10AA(3) provided that the Minister may, by legislative instrument, make provision for and in relation to all or any of certain specified matters in respect of a Commonwealth tenancy dispute. This provision is set out at [84] above. It is also significant that, by s 5, the amendments made by the Part, which included s 10AA, applied in relation to a lease entered into before the day Item 4 of Sch 2 to the Federal Courts Legislation Amendment Act (namely, commenced on 26 February 2015) and a Commonwealth tenancy dispute between the parties to the lease that arose before, on or after that day.

157    The Instrument was registered on 5 March 2015. Turning to the terms of the Instrument, s 5 stated that the Part made 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 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.

158    We do not accept the appellants’ submission that the power conferred by s 10AA(3) did not include the power to adopt by Instrument the 2010 RTA. Nor do we accept the appellants’ submission that s 10AA(3) was a power only to define the Court’s jurisdiction with respect to a Commonwealth tenancy dispute. We also do not accept the appellants’ submission that the law-making power “for and in relation to … a Commonwealth tenancy dispute” was not a law making power since the legislation contemplated a legislative instrument-making provision for and in relation to, amongst other things, the law to be applied in determining the Commonwealth tenancy dispute. We do accept the appellants’ submission that not only must there be a dispute to 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, in any event, such a dispute in the present case.

159    We reject the submission that the reference to “the applicable law” in s 10AA(3) referred to an existing Commonwealth law as that submission is directly contrary to the express words of s 10AA(3)(b): “whether a law of the Commonwealth or a law of a State … ”. We have considered already the submission that the legislative scheme is invalid as conferring non-judicial power on a Ch III court.

160    We do not accept the appellant’s submission that the Instrument was relevantly retrospective. As we have said, s 5 of Sch 2 to the Federal Courts Legislation Amendment Act dealt expressly with the application of those amendments to existing leases and to Commonwealth tenancy disputes between the parties to such leases, whenever those disputes arose. In our opinion, the Instrument made provision for the rights of the parties and the applicable law for the future, although operating on disputes in relation to leases entered into before the date Pt 1 of Sch 2 commenced and before the Instrument commenced. The relevant principle was explained in Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 at 309 per McHugh and Gummow JJ where their Honours made a distinction between a statute which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions. The Instrument was of the latter character.

161    We also reject the submission that the statutory scheme for leases of 20 years and over, the 2010 RTA, was a code and could not operate retrospectively except by express and necessary statutory fiat, by which we understood the appellants to mean the Instrument could not operate retrospectively except by express and necessary statutory fiat. We refer again to s 5 of Sch 2. Further, s 12 of the Legislation Act had no relevant operation in respect of the Instrument since it did not take effect before it was registered.

162    In our opinion, there is no substance in the submission by the appellants that the Federal Courts Legislation Amendment Act or the Instrument failed to have regard to the disadvantage to tenants from the importation of the new law as 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 lawmaker it should have entered into fresh leases in different terms.

163    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.

164    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 that is inconsistent with what their Honours there said.

165    As to the appellants’ reliance on McEldowney v Forde, we see nothing in what Lord Diplock there said which suggests that the Instrument is ultra vires. We have of course carried out the three-fold task to which Lord Diplock referred at 658E-G: first, to determine the meaning of the words used in the Act itself to describe the subordinate legislation which that authority is authorised to make; secondly, to determine the meaning of the subordinate legislation itself; and finally to decide whether the subordinate legislation complies with that description.

Section 51(xxxi) of the Constitution - Acquisition of property otherwise than on just terms

166    The appellants submitted the law resumed the three-month possession right by operation of s 8(2) of the Instrument, which was itself an acquisition of an interest in land for the obvious benefit of the Commonwealth, hence satisfying the tests recently restated in JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1. The appellants also referred to James Stellios, Zines’s High Court and the Constitution (6th ed, The Federation Press, 2015) p 620ff. The appellants submitted that Pt 5 of the 2010 RTA, being a State law, made no provision for just terms if the law effected an acquisition of property. The Commonwealth law, in importing the State law, paid no attention to just terms. The consequence was, the appellants submitted, that the law was invalid for the absence of just terms. Alternatively, the FCCA should have framed its orders so as to give effect to the constitutional guarantee.

167    The respondent submitted that in the Court below the present appellants adopted the s 51(xxxi) arguments put by the applicant in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 (Hevers), and contended that the grant of jurisdiction to the FCCA created a federal tenancy law which meant that the 20 years and over tenants were a party to a different agreement to that created under State law and the Commonwealth had acquired benefits which the appellants had previously enjoyed. The differences that the appellants then relied on were, first, that the term of the agreement was originally “indefinite” because no termination of the agreement could occur except pursuant to s 94; secondly, the security of at least 90 days between the making of a termination order and any order for the vacant possession provided under s 94(4); and, thirdly, that under State law there would be no order as to costs made between the parties in the event of a dispute and the State Tribunal could exercise its powers to adjust the relationship between the parties during the termination period.

168    As to the appellants’ submissions on the appeal, that if the tenancy was ultimately terminated the Commonwealth would acquire some proprietary benefit otherwise than on just terms, the respondent submitted the argument was misconceived. Any “benefit” that might accrue to the Commonwealth from the termination of the tenancy followed irrespective of the body that made the order. It was not a consequence of the impugned legislation which conferred jurisdiction on the FCCA to make the order. Furthermore, the respondent submitted, to the extent that the appellants’ argument was that the tenancy was somehow protected from termination because of what the tenants had done to the land, it wrongly conflated the interest the tenants had in the land, being the tenancy, with the land itself.

169    In their written reply, the appellants submitted that the property loss to them in respect of their tenure had arisen under a law of the Commonwealth and so the constitutional protection was engaged. It was not suggested that such a protection was available to the appellants under State law “which conferred the protection taken by the Commonwealth”. Immediately prior to the Commonwealth law being made the appellants had a right, in the nature of a right in property to possession, to three calendar months’ occupation of the land before any order for vacant possession could have effect under s 94(4) of the 2010 RTA. After the Commonwealth law commenced, that right was lost i.e. resumed by that law without compensation. Thus, at the time the appellants were served with the correspondence in November 2014, before the new law was made, regarding the proposed termination of the tenancy the appellants had reason to believe that they had such a property right by virtue of their long tenure on the land. When the matter was heard such right had been acquired by the Commonwealth. Thus, there was both a taking and the conferral of benefit upon the Commonwealth from the law, the benefit being the additional three months’ tenure and occupation rights of the appellants which the Commonwealth acquired at no cost to itself.

170    In oral submissions, the appellants put that the just terms provision was engaged in two ways so as to make invalid the Instrument.

171    First, looking at the Instrument, particularly s 8(2) of the Instrument, which was purportedly authorised by s 10AA(3)(c), being a modification of the applicable law, it denuded from the appellants the reasonable right of further residency under statutory tenancy pending re-entry, without any just terms being provided. There was a clear benefit to the Commonwealth as it got the benefit of a three months’ curtailment of the property right of the appellants which would otherwise exist. As to it being a statutory right of property, the appellants submitted that the High Court had made it clear that the mere fact that a right of property was statutory was not a disentitling factor with respect to impairment of the constitutional guarantee. Further, the appellants submitted there was a taking. The taking occurred at that moment of time when the Commonwealth picked up the State law, removed the three months’ statutory entitlement and then conferred a different right, a modified right, without just terms.

172    In oral submissions the respondent submitted that the focus of the appellants’ submissions on the appeal appeared to be that if their tenancy was ultimately terminated, the Commonwealth would acquire some proprietary benefit otherwise than on just terms. But, the respondent submitted, if that were the result, the Commonwealth obtained the benefit irrespective of whether it be the State Tribunal or the FCCA exercising the power. So that result did not flow from the legislation challenged in the present case. It would flow either way. So, the respondent submitted, there was no acquisition as a result of the legislation that was the subject of challenge.

173    We turn to consider these submissions.

174    The issue as argued involved a comparison between the terms of s 94(4) of the 2010 RTA, on the one hand and s 8(2) of the Instrument on the other hand. Before the Instrument was made, that is, before s 6 of the Instrument came into force, a party was entitled to make an application to the State Tribunal under the 2010 RTA in relation to the lease that was the subject of the Commonwealth tenancy dispute. Under the 2010 RTA a landlord could apply to the State Tribunal for a termination order and the State Tribunal had a discretion whether or not to make a termination order. By s 94(4), the State Tribunal, in determining the day on which vacant possession of the residential premises was to be given to the landlord, “must not order that vacant possession be given earlier than 90 days after the order is made”. By s 8(2) of the Instrument, the 2010 RTA was to be applied as if it included the following section:

Despite anything else in this Act, if the Federal Circuit Court of Australia makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.

175    This issue was considered by the primary judge in Hevers at [74]-[78].

176    In our opinion, the combination of the following circumstances means that the Commonwealth legislation, including the Instrument, was not a law with respect to the acquisition of property other than on just terms. First, s 94(4) of the 2010 RTA did not come into force until 31 January 2011 and formed part of the statutory conditions and procedures to which the present lease, most recently entered into on 27 November 2007 for a term of 52 weeks beginning on 29 July 2008 and ending on 28 July 2009, then became subject. After the commencement of the 2010 RTA on 31 January 2011 the agreement applied as a periodic agreement under s 18(a) of the 2010 RTA. Thus neither s 94(4) of the 2010 RTA nor s 8(2) of the Instrument affected the original tenancy agreement between the parties. This is not to say that the constitutional guarantee does not extend to property rights created by statute, but the terms of the statute and the nature of the claimed property rights which it creates require examination to determine whether and to what extent that property attracts the protection of s 51(xxxi). Secondly, the question of the State Tribunal or the FCCA determining the day on which vacant possession was to be given was a matter of the discretion of the relevant tribunal. The 90 day period in s 94(4) affected the exercise of that discretion. The non-applicability of the 90 day period affected the exercise of discretion of the FCCA. It may be that the FCCA in a particular case orders vacant possession on a day 90 days after the order is made or on a later day. Thirdly, insofar as there is a statutory “right” created by the terms of s 94(4) of the 2010 RTA, its continued and fixed content depended upon the will from time to time of the legislature which created that “right”: see Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651 at 664. Fourthly, it is difficult to see that there is an acquisition of property involved in the modification of a right or interest that has not yet accrued: Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 at 559. It is more difficult to see that there is an acquisition of property involved in the modification of a discretion as to the earliest day on which a tribunal may order that vacant possession be given. We do not see JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1 as suggesting a different conclusion.

Recusal on the ground of (apprehended) institutional bias

177    The appellants submitted that the question of recusal was limited to one issue, namely apprehended institutional bias founded upon a close connection between the lessor/Commonwealth and the FCCA. This, the appellants submitted, was evidenced by consultation in the making of the Instrument under s 10AA prior to March 2015, which Instrument conferred jurisdiction on the FCCA under s 10AA, and the imposition by the Commonwealth of public pressure on the Court to impose a new expense regime involving increased fees and loss of judges. Actual bias was not alleged, what was alleged was that an institutional appearance of bias had been allowed to appear by reason of the consultation by the lessor with the very Court deciding the matters about the basis on which that should happen. The appellants referred to Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J and to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner). The appellants submitted that judges who knew of this governmental consultation with the FCCA must be presumed to support the new law or at least have a view about its utility and not to object to the conferral of jurisdiction on the Court. Those judges, so the appellant submitted, would presumably adopt the approach when the law was challenged as to its validity before him or her with the apparent bias of approbation not rejection. In this regard, the appellants submitted, the case could be distinguished from the allegation of apparent institutional bias in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J. Similarly, the appellants submitted, the public issue of filing fee increases and loss of judges in the manner raised by Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 was a further basis for a finding that the Commonwealth’s public intervention in the Court’s affairs and governance directing its affairs gave the appearance of the possibility that the FCCA had been compromised.

178    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”.

179    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.

180    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].

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

182    In their reply, the appellants said that the issue of institutional integrity was one of increasing importance in the authorities and in this case that integrity had been compromised by conduct in ways that had not been explained by the respondent, except by a blanket rejection.

183    We turn to consider these submissions.

184    As a preliminary matter, no formal application for recusal was made to the primary judge in the FCCA in the Minicis’ 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 was 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 was nothing to suggest that the FCCA itself imposes increased fees. There is nothing relevant in Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J to which the appellants referred. Nor is there anything relevant in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J, to which the appellants also referred. We reject the claim that the Commonwealth’s alleged public intervention in the Court’s affairs and governance directing its affairs gave the appearance of the possibility that the FCCA had been compromised.

The evidence of Mr Peter Robertson

185    As we have said, in the appellants’ revised written submissions reference was made to the affidavits and other evidence of Mr Robertson, his evidence being common to the several appeals. The appellants submitted that the common issue was the issue of commercial need. The appellants submitted that they produced substantial material to demonstrate their competing needs for the future use of the land. It was also submitted that the further evidence to be read on the appeal was relevant to this issue. The appellants referred to the affidavit of Mr Anthony Green. The appellants submitted that, in not having regard to such issues and material, the primary judge erred. It was submitted that apart from the issue of the Commonwealth’s needs there was also the more important question of the needs of the appellants and the adverse local social and environmental effects with respect to the loss of their land. The appellants submitted that the evidence led by them “was relevant but its content and subject matter was [not] the subject of any or sufficient regard by the Judge”.

186    The appellants also submitted many references to documents which were before the primary judge.

187    The respondent relied on the primary judge’s acceptance of Mr Robertson’s evidence and emphasised that the appellants’ criticisms were largely undeveloped. The respondent submitted that it was open to the primary judge to conclude, as he did, that Mr Robertson had given his evidence truthfully, notwithstanding the cross-examination which, for the most part, was directed to the issue of whether there were other persons in the Department with more knowledge of, and responsibility for, decision-making concerning the development of the site for an airport. The respondent noted the observation of the primary judge that the cross-examination did not assist the proceedings in any way.

188    In oral submissions, the respondent referred to that part of Mr Robertson’s affidavit evidence as to the announcement on 15 April 2014 that land owned by the Commonwealth at Badgerys Creek would be the site for Western Sydney’s airport and the Commonwealth had taken steps to progress the development of the proposed airport site. The respondent said that, according to Mr Robertson’s affidavit, this had included a process of obtaining vacant possession of the site from the existing residential tenants of land owned by the Commonwealth. There followed Mr Robertson’s description of the reasons why vacant possession was required; and, the respondent submitted, what Mr Robertson clearly identified was that there had been no decision as to any specific proposal for this airport, but a decision had been made that Badgerys Creek was to be the site of a second airport, subject to any specific decision about a particular proposal being made. The respondent submitted that the Commonwealth had commenced the necessary environmental impact studies and even that process was invasive since various engineering studies needed to be undertaken involving drilling rigs and other machinery. The respondent submitted that Mr Robertson’s evidence described in detail the process by which most of the dwellings on the site had been demolished, in order to vacate the site for its use as an airport site and why, in particular, the process was inconsistent with continued occupancy by tenants. In order to make the site ready for use as part of the national infrastructure, the site needed to be vacant and available for that use, as the respondent and the particular Department, vested with the management of national infrastructure, were doing. The respondent submitted that the primary judge considered these matters in his judgment. The respondent said that there were also commercial arrangements which would affect any final decision to proceed with any particular proposal for the site. The respondent submitted, in answer to the appellants’ 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.

189    We turn to consider these submissions.

190    In our opinion, the appellants’ submissions proceed upon a misconception, not shared by the primary judge, of the basis on which the Commonwealth sought the termination order. The termination order was sought in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act 1996 (Cth). It was the preparation of that site which was the subject of Mr Robertson’s evidence as to commercial need and as to why vacant possession was urgently required. In our opinion, the point is not whether the construction of the airport itself may be delayed or abandoned by a change in policy or by other considerations but whether, as things stand, the premises were urgently required for the preparation of the airport site.

191    In Mr Robertson’s oral evidence the contractual relations with the Sydney Airport Group were described briefly. Mr Robertson said that the Commonwealth may make an offer to the market against which the owners of Sydney Airport Group had a right of first refusal. This, he said, was a term of the initial share sale agreement for Sydney Airport. Mr Robertson said that while consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the Australian Government itself. He said that essential to any such proposal was the outcome of the environmental impact assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations.

192    In our opinion, whether and on what environmental terms the second airport may be built remains in the future. Thus what may be the outcome of an environmental assessment was not a matter which the primary judge was required to evaluate further than he did. As we have indicated, the primary judge considered this material at [22] and following of the reasons for judgment in the present appeal under the heading “The first steps towards construction of an airport”. The primary judge then summarised the position in relation to the Sydney Airport Group under the heading “Preparation for development by a private sector operator”. The primary judge then considered the circumstances affecting the appellants. The primary judge addressed the statutory question, that is, whether he should make a termination order on the basis that he was satisfied that it was appropriate to do so in the circumstances of the case.

193    As to the many documents referred to in the appellants’ written submissions, a reading of those documents, so far as they are in evidence, does not cast doubt on the treatment by the primary judge of the evidence of Mr Robertson as to the commercial need for and the urgency of the timing of possession of the premises. As we have said that evidence went to the preparation of the site intended to form part of an airport site to be declared for the purposes of the Airports Act.

The needs of the appellants

194    The appellants also submitted many references to documents as to their needs and “the adverse local social and environmental effects with respect to the loss of [their] land”.

195    Reference was made by the appellants to the evidence of Mr Azar, described by the primary judge as a registered real estate valuer. He gave evidence for the Commonwealth although not in this matter. The appellants submitted that the evidence of Mr Azar was seriously undermined by the evidence that the appellants brought, both as to availability and suitability of other accommodation, and that was not reflected in the reasons of the primary judge. In our opinion, the primary judge accepted, at [60], the evidence of Ms Leanne Uren that the properties used by Mr Azar as comparable to some of the other tenants’ properties were, as at the date of the hearing, no longer available for lease. We also note that Ms Leanne Uren accepted that her table did not suggest that the agents she contacted did not have other properties available at the date of her inquiries. As noted above the Commonwealth did not rely on Mr Azar’s evidence in this matter at first instance. We do not accept that the primary judge failed to evaluate the competing evidence. In relation to the evidence of Mr Azar being seriously undermined, it appears that the point was that the properties to which he had referred in his original report were available in May 2015, at the time he did his research, but the position had changed by the date of his report in July 2015.

196    Reference was also made by the appellants to the affidavits of Ms Leanne Uren and of Ms Fogarty and their cross-examination. It was submitted that this evidence was relevant “but its content and subject matter was [not] the subject of any or sufficient regard by the Judge.” However this material was referred to at length by the primary judge at [57]-[71]. The primary judge accepted Ms Fogarty’s evidence that more time would improve the tenants’ chances of obtaining alternative accommodation.

197    In oral submissions, the appellants submitted the way in which the primary judge approached the question was to reason that he was not concerned with comparable properties but only with the more general question of whether some suitable alternative accommodation was reasonably available. The appellants submitted that that meant that the primary judge did not look at the particular circumstances relating to the properties, but asked a more general question which, the submission continued, did not look at all the circumstances of the case. The appellants also submitted that that approach did not accord with what Rolfe J had said in Swain where his Honour referred to, as a possible “circumstance” which may have to be taken into account, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation, in which his Honour included accommodation in an area suitable for matters such as proximity to family, facilities or employment. So, it was submitted, the appropriateness was never balanced from the point of view of the appellants on the evidence which they adduced before the court.

198    Rather than any specific attack on the fact-finding of the primary judge the thrust of the submission went to the exercise by the primary judge of his discretion under s 94 of the 2010 RTA in respect of which counsel for the appellants accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 applied. There, Dixon, Evatt and McTiernan JJ said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

199    In our opinion, the appellants have not made good this challenge to the exercise of the primary judge’s discretion.

200    We reject the submission that the only matter, or the only real matter, which the primary judge had regard to in relation to the appellants’ interest outweighing the general economic, political and social requirements of the Commonwealth, was the availability of suitable alternative accommodation. First, we do not accept that the Commonwealth’s requirements are properly described as “general economic, political and social requirements”. The Commonwealth wanted to recover possession of the premises to use the land for its own purposes for the preparation of the site for an airport. Secondly, in the exercise of the discretion under s 94 of the 2010 RTA the primary judge considered each of the matters on which the appellants relied. A major matter was the availability of suitable alternative accommodation.

201    We reject the submission that the primary judge did not look at the particular circumstances relating to the premises, but asked a more general question which did not look at all the circumstances of the case.

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

Appellants’ submissions specific to this appeal summarised

203    In the outline of written submissions dated 28 March 2016 on behalf of Mr and Mrs Minici, their counsel adopted what he described as “the general argument set out in the Submissions in each matter”, which we assume was a reference to the written submissions dated 23 March 2016 dealing with common issues (which were then replaced by the document entitled “Revised written submissions of appellants’ common issues” dated 6 April 2016).

204    The outline of submissions dated 28 March 2016 addressed what were described as “the particular findings and issues” raised in the reasons for judgment in Mr and Mrs Minici’s appeal. These submissions may be summarised as follows.

205    First, the primary judge was criticised for rejecting Mr and Mrs Minici’s case because of lack of detail or particulars of loss or benefit. As an example, counsel referred to the primary judge’s rejection of Mrs Minici’s evidence even though she was not cross-examined nor “her evidence queried at [11]”. Counsel submitted that the “rejection of these elderly and longstanding Australians with no reason to lie, who were defending themselves in difficult circumstances is perverse, and in error”.

206    Secondly, it was submitted that the primary judge’s reliance upon Mr Robertson’s evidence, which was it was claimed inadmissible as to form, was in error in respect of the Commonwealth’s actual need for the present use of the land. Moreover, it was submitted that weighing the Commonwealth’s need against that of Mr and Mrs Minici involved error. In particular, it was submitted that their needs had been weighed unsatisfactorily and that the primary judge’s conclusion was flawed “for the reasons of principle referred to above, and in Uren, Shirvington, Jelfs, Dattilo and the common arguments”. We assume this was a reference to the contentions made in those and other appeals criticising the primary judge’s construction and application of s 94 of the 2010 RTA. For convenience, the submissions made in Uren on this matter may be summarised as follows.

207    Counsel for the appellants challenged the primary judge’s construction and application of s 94 of the 2010 RTA. He submitted that the primary judge applied the wrong test by purportedly adopting the test established by Rolfe J in Swain and Swain on appeal and then applying that test to the Commonwealth law. In oral submissions the appellant said that the short point was that there was required to be separate consideration of the date for the possession order, which did not occur.

208    The appellants submitted that the primary judge erred in stating that the question of the determination of the date on which possession should be ordered or take effect attracted no explicit guidance in the 2010 RTA. They submitted that, while the combined effect of s 10AA(3)(c) of the FCCA Act and s 8(2) of the Instrument provided for a power in the FCCA to revoke or reduce the 90 day period which would otherwise apply, s 8(2) adopted the test “such orders as [the FCCA] considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord”. Despite the tension which, it was submitted, existed between the concepts of “possession” and “vacant possession”, the appellants submitted that was “explicit guidance” for the exercise of the discretion under s 94(1)(c) of the 2010 RTA.

209    The appellants also submitted that the primary judge erred in construing and applying s 94 in his Honour’s reference to “balancing the interests” of the parties, which they submitted was unsupported by any approach and led the primary judge to emphasise the more weighty interests of the Commonwealth over those of the tenants. The appellants submitted that, rather than balancing interests, the correct test was to first find “all the circumstances” and then ask what was the appropriate order in those circumstances. Moreover, they submitted, there remained a residual discretion whether or not to make an order. The Court could refuse to make a termination order or, if it decided to make such an order, it could do so with a relevant order for possession.

210    In carrying out the balancing exercise required by the test adopted by the primary judge, it was submitted that his Honour considered facts which were in common with other tenants, as well as facts which were peculiar to Mr and Mrs Minici’s case.

211    In the former category were the facts relating to the urgency of the Commonwealth’s need to clear the land. The appellants submitted that the primary judge’s consideration of the Commonwealth’s circumstances was based on his erroneous acceptance of Mr Robertson’s evidence. They submitted that the primary judge erred in accepting Mr Robertson’s hearsay assertion about the “first right of refusal” of the present owners of Sydney (Kingsford Smith) Airport, Macquarie Airports, to lease, construct and manage an airport at Badgerys Creek. The appellants’ counsel said that the primary judge made no reference to the pleaded case, which was that Macquarie Airports had no intention of exercising its “first right of refusal” for the foreseeable future.

212    The appellants also criticised the primary judge for paying “full regard” to the Commonwealth’s correspondence dated October and November 2014 despite his Honour’s finding that parts of the correspondence were “surprising and misleading”.

213    The appellants also contended that the following additional matters were also given no or no sufficient regard by the primary judge with respect to the Minicis in conducting the balancing exercise:

(a)    the fact that 20 years plus of continuous possession meant that under New South Wales law which applied to the matter Mr and Mrs Minici were more than lessees and had a leasehold tenure in the nature of freehold (referring to Wilson v Anderson);

(b)    the continued use, as distinct from possession, of the premises by Mr and Mrs Minici for that period was to be contrasted with the effect of having them vacate the land which would render the land waste like the “zombie” mortgage belt in the United States;

(c)    the safety of the premises because Mr and Mrs Minici had kept the land in “immaculate condition”;

(d)    reducing risks, such as fire, by having the land in possession rather than vacant; and

(e)    the environmental benefits of retaining lawful tenants in occupation.

214    Counsel for Mr and Mrs Minici summarised their case relating to the primary judge’s determination of factual issues by reference to the following matters:

(a)    the primary judge adopted a test in exercise of his discretion which was most unfavourable to Mr and Mrs Minici’s position;

(b)    the primary judge failed sufficiently to identify “all the circumstances” as required by s 94 of the 2010 RTA;

(c)    the primary judge did not conduct a fair and reasonable balancing exercise;

(d)    the primary judge did not ask himself with respect to either the termination or possession orders whether the result as expressed in his orders was appropriate;

(e)    the primary judge did not exercise a discretion with respect to the making of the orders; and

(f)    the primary judge made orders that did not reflect Pts 5 and 6 of the 2010 RTA.

215    In oral submissions, the appellants expanded upon the following matters in relation to their appeal. First, they submitted that in looking at what order was appropriate, the primary judge made reference to their 20-year plus residence gave no or no sufficient emphasis, beyond a passing reference, to the fact that that possession had remained undisturbed over such a long period of time in which they had worked up the land and looked after it. Secondly, the appellants emphasised that the error of adopting a “balancing test” in applying s 94 rather than determining what was appropriate in all the circumstances of the case was highlighted in a case such as this, which involved competing public and private interests, where there was likely to be an inclination to give more weight to public interests than to private interests. In doing so, the primary judge failed to direct himself to the correct statutory test. Thirdly, there was required to be separate consideration of the possession order, and in particular the date of the making of the possession order, which did not occur. Fourthly, the primary judge did not sufficiently identify or look at all the circumstances. The circumstances were submitted to be the length of tenure; keeping land productive and not wasting; maintaining the land; reduced fire risk; and protecting the land. Fifthly, in balancing, even on the test that he adopted, the primary judge did not conduct an appropriate balancing exercise. Sixthly, he did not ask himself, with respect to the termination order or the possession order, whether that result, as expressed in the orders, was appropriate.

Respondent’s submissions specific to this appeal summarised

216    As noted above, the respondent did not object to Mr and Mrs Minici relying upon the revised written submissions on common issues dated 6 April 2016.

217    On 8 April 2016, the respondent filed an outline of its written submissions on general common issues and issues specific to individual appeals.

218    The respondent acknowledged that the statutory environmental assessment process concerning the development of an airport at Badgerys Creek was still underway, however, substantial progress had been made in clearing the area (which had been declared as an “airport site” under the Airports Act 1996 (Cth) by the Airports Legislation Amendment (2015) Measures No 1 Regulation 2015 (Cth)). As at 22 October 2015, 117 out of an estimated 163 tenants across the site had been “vacated” and 116 structures demolished. To further secure the site, roads were being progressively closed and municipal services reduced as the land was vacated. It was contended that the site was being cleared not only to permit swift development once the environmental assessment process was completed, but also to remove impediments to the environmental and engineering investigative work which was relevant to the design and assessment of the environmental impact of the airport proposal. Reference was made to the affidavit of Mr Robertson affirmed on 30 March 2015, at [13].

219    The respondent emphasised that the tenants had entered into a written tenancy agreement as defined by s 13 of the 2010 RTA. The tenancy agreement contained an acknowledgement on the part of the tenants that the land in question was intended to be used for the proposed airport. In circumstances where the term of the original tenancy agreement had expired, it continued under s 18 of the 2010 RTA as a periodic agreement on the same terms as applied immediately before the end of the fixed term.

220    The respondent submitted in relation to “long term tenancies”, no notice was required before applying to the appropriate tribunal for an order: s 94(2) of the 2010 RTA. Upon application, a termination order was to be made “if the Tribunal is satisfied that it was appropriate to do so in the circumstances of the case”. The primary judge expressly acknowledged “the requirement for that discretionary factor” in his judgments, for example, Rigney at [118]-[119] and [139].

221    It is convenient next to summarise the respondent’s submissions on common issues other than those dealt with above.

Jurisdiction to make orders concerning licensed land

222    The respondent submitted that the appellants contended that the FCCA had no power separately to address an ordinary lease/licence other than under the jurisdiction conferred on the FCCA concerning the 2010 RTA. The respondent contended that this proposition was plainly wrong having regard to the terms of s 10AA of the FCCA Act, which made express reference to the FCCA having jurisdiction to hear and determine any Commonwealth tenancy dispute between the parties to “a lease (or) licence”.

Predominant use of the leased premises

223    The respondent submitted that criticism was levelled at 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 respondent contended that this complaint remained largely undeveloped in the appellants’ submissions. It contended that the primary judge had made appropriate findings about predominant use after an examination and assessment of the available evidence. That examination and assessment was to be found in [8]-[12] of the primary judge’s reasons for judgment. The respondent defended the primary judge’s approach, which saw the issue arising under s 7(h) as a qualitative one, rather than as a mathematical exercise. The respondent also contended that the primary judge’s conclusion was consistent with the fact that there was a signed residential tenancy agreement which referred to there being a house on the relevant land which was occupied by the appellants or their subtenant.

Weighing of competing considerations

224    The respondent contended that to succeed in challenging the primary judge’s exercise of discretion, the appellants needed to establish a reviewable error in the sense of House v The King. It was insufficient that the appeal court might reach a different conclusion and if the matter boiled down to one of different views regarding the weight to be given to relevant items no reviewable error was established (referring to Gronow v Gronow [1979] HCA 63; 144 CLR 513 at 519 per Stephen J, at 525 per Mason and Wilson JJ and at 534 per Aickin J).

225    The respondent also rejected any contention by Mr and Mrs Minici that the primary judge failed to address whether it was “appropriate” to make either a termination or a possession order, having regard to his Honour’s reasons for judgment stating that he was satisfied that it was appropriate to do so.

226    In the table annexed to the respondent’s written submissions the following matters were the subject of submissions in relation to the appellants’ appeal.

(a)    As to the submission that 20 years plus of continuous possession meant that the appellants were more than a lessee, the respondent submitted that this was not advanced below; the law of New South Wales did not regard a 20 year residential tenancy as in the nature of freehold; and Wilson v Anderson related to a “lease in perpetuity” and had no application.

(b)    As to the submission that the land would be made waste, the respondent submitted that there was no evidence led below nor any submission made as to any risk of the land becoming a “zombie mortgage belt”. The primary judge reasonably accepted the evidence called by the Commonwealth that the land the subject of the tenancy was needed urgently for the purpose of progressing the declared airport site.

(c)    As to the safety of the premises and the land being kept in immaculate condition and as to the reduction of fire risks, the respondent submitted that this was not advanced below and there was no evidence adduced below that the land was “environmentally significant”.

(d)    As to environmental care being an important consideration, the respondent submitted that the primary judge accepted Mr Robertson’s evidence about the dangers presented to tenants remaining on-site due to the decline in residential amenity and safety as vacant houses were demolished, and noise and disturbance caused by machinery.

(e)    As to the submission that the primary judge adopted a test which was an approach to the exercise of his discretion which was the most unfavourable to the appellants’ position, the respondent submitted that the statutory determination required by s 94 was made by the primary judge in accordance with that section, the primary judge properly identified whether the statutory prerequisites existed for his exercise of the power, and the discretion was discharged taking into account relevant matters.

(f)    As to the submission that the primary judge did not sufficiently identify “all the circumstances” as required by s 94, the respondent submitted the primary judge properly had regard to all of the material that was admissibly adduced before him that had relevance to the statutory determination required to be made under s 94.

(g)    As to the submission that the primary judge did not ask himself, with respect to either the termination order or the possession order, whether the results expressed in his orders were appropriate, the respondent submitted that the primary judge did consider, and was satisfied, reasonably, that it was appropriate to make a termination order and set an effective date for vacant possession in the Minicis’ case of 75 days. (See further below under the subheading “Date of termination order”.)

(h)    As to the submissions that the primary judge did not conduct a “fair and reasonable balancing exercise” and made orders that did not reflect Pts 5 and 6 of the 2010 RTA, the respondent submitted that the appellants’ submissions were too vague to answer meaningfully.

Date of termination order

227    As to the appellants’ contention in ground 7 of the amended notice of appeal that the primary judge erred in ordering termination forthwith and vacant possession on or before 18 December 2015, the respondent contended that this incorrectly recorded the orders made by the primary judge. These orders included that vacant possession be given on or before 18 December 2015, but that the order for vacant possession be suspended until 24 February 2016. The respondent contended that the orders were lawfully made, having regard to the definition of “termination order” in s 80 of the 2010 RTA where it was defined to mean “an order terminating a residential tenancy agreement together with an order for possession of the residential premises”.

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

228    The respondent contended that there was no substance in the contention that the primary judge erred by failing to determine whether or not the lease of the premises was a residential tenancy agreement within the meaning of s 19 of the 2010 RTA in circumstances where part of their land was not used for residential purposes. This was said by the respondent to be inconsistent with the definition of “residential premises” in s 3 of the 2010 RTA where it is defined to include “any premises or part of premises (including any land occupied with the premises)” (emphasis added).

229    The respondent’s submissions in respect of matters arising in Mr and Mrs Minici’s case which were not common with other appeals may be summarised as follows.

230    First, the respondent challenged the submission made on behalf of Mr and Mrs Minici that the primary judge found that either of them had “lied”, as well as disputing their contention that their evidence was rejected by the primary judge. Rather, so the respondent submitted, the primary judge concluded that he was not satisfied Mrs Minici had understood the contents of her affidavit, and that he was justified in so finding, having regard to Mrs Minici’s own evidence concerning her inability to speak, read or write English and that her affidavit had not been certified by an interpreter.

231    Secondly, as to the primary judge’s observations regarding Mrs Minici’s failure to attend for cross-examination as required by the Commonwealth, the respondent submitted that the primary judge correctly relied upon the limitations in the medical certificate produced by Mrs Minici.

Consideration

232    We have considered some of these grounds above, in relation to the expert evidence and the evidence of Mr Azar. We do not repeat what we have there written.

233    We turn to consider the remaining issues.

234    It may be recalled that the primary judge said, in his reasons for judgment in this matter at [74]-[75], that in the circumstances to which he referred, he considered that it was appropriate that the residential tenancy agreement be terminated and that there be an order for vacant possession which was to take effect 75 days from the date of judgment. He therefore ordered, by orders made on 11 December 2015, that the residential tenancy agreement be terminated forthwith; vacant possession of the premises be given to the applicant Commonwealth on or before 18 December 2015; and that the order for vacant possession be suspended until 24 February 2016.

235    We do not accept the appellant’s submission that the primary judge was required to give “separate” consideration to the determination of the day on which vacant possession was to be given. The primary judge recognised that there was a discretion to make the termination order and a discretion to determine the day on which vacant possession was to be given. The form of the orders demonstrates this recognition. So also does what the primary judge said at [17], repeating what he had said in Rigney, at [140], which we have set out at [33] above.

236    We also do not accept the appellants’ submission that this part of the reasons of the primary judge disclosed a further error in stating that there was “no explicit guidance in the Tenancies Act as to the date on which possession should be ordered” in light of, as we would read it, the operation of cl 8(2) of the Instrument. If s 94(4) of the 2010 RTA had applied, the explicit guidance would have been (in the present case of continual possession for a period of 20 years or more) that vacant possession must not be ordered to be given earlier than 90 days after the order is made.

237    In oral submissions attention was given to the form of the order made by the primary judge that vacant possession be given on or before 18 December 2015, but that the order for vacant possession be suspended until 24 February 2016. The appellants submitted that this form of order disclosed error. In our opinion, the primary judge was applying s 83 of the 2010 RTA, that is, making an order for possession of the residential premises and specifying the day on which the order was to take effect. So much appears from Rigney at [140]. In our opinion, the words in s 83(1) “specifying the day on which the order takes or took effect” refer to the order for possession. Also, the definition of “termination order” in s 80 of the 2010 RTA states that it means an order terminating a residential tenancy agreement together with an order for possession of the residential premises. The primary judge was making clear that the order for possession was not to take effect on the same day as the order terminating the residential tenancy agreement. We also note that under s 85 of the FCCA Act it was provided that the Rules of Court may make provision for or in relation to the stay of proceedings under judgments of the FCCA. By r 29.04 of the Federal Circuit Court Rules 2001 (Cth) a party bound by a judgment or order may apply to the court for an order that the judgment or order be stayed and by r 29.12 a party may apply to the court for a stay of execution of the judgment or order. It is also relevant that s 8(2) of the Instrument provided that, when making a termination order, the court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord. In our opinion, there was ample power available to the primary judge to make the order for vacant possession in the terms he did.

238    The appellants submitted that no reasons were given as to why a different suspension period was made with respect to different appellants. The appellants also submitted that the consideration about desirability, as distinct from appropriateness, as to the making of the order at all gave rise to a confusion which led to an injustice to the appellants because the considerations that led to a suspension for the three different periods that the primary judge used, being 60 days or 75 days or 90 days, should have been taken into account at the level as to whether or not it was appropriate to make an order at all. So in other words, it was submitted, the primary judge pushed back the issue of what was appropriate to particular cases and dealt with it under the issue of suspension and desirability of making such an order, rather than looking at it from the point of view of the appellants at the level of appropriateness, so that it was an error in the application of the two different tests. We took this to be a reference to s 94 on the one hand and s 114 on the other. However the primary judge did not refer to s 114 at all.

239    We reject these submissions. The primary judge was in each case exercising his discretion and doing so by reference to the statutory language. In our opinion, it is not a ground of criticism that the exercise of the discretion led to three categories of periods of suspension of the orders. No separate reasons explaining the three categories needed to be given as in each case the orders flowed from the prior fact-finding and reasoning. The primary judge was posing the question whether it was appropriate that the tenancy agreement in each case be terminated; whether it was appropriate that there be an order for vacant possession; and the appropriate date at which that order should take effect. In our opinion, there was no failure on the part of the primary judge to consider the appropriateness of making an order at all.

240    It is also convenient to note here that we reject the submission put by the appellants that the primary judge had allowed only two weeks, after 20 years, for the appellants to give up possession. In fact, the effect of the orders of the primary judge were to give 75 days from the date the order was made.

241    As to the reference to the purported balancing test applied, the primary judge said at [67], with reference to the availability of suitable premises in the market for relocation:

The question to which this evidence is directed is not whether identical or comparable properties are available but rather, whether there is some suitable alternative accommodation that is reasonably available. I do not mean to state the question in a concrete way so as to substitute what is a broad discretion for some narrower, potentially stricter, test. However, framed in that way, the question captures, in my view, more accurately the balance that is sought to be struck between the interests of the landlord and those of the tenant. That aim has not gone so far as to require the eradication of any difficulty or hardship that might be suffered by a tenant who must leave a property after a long occupation. Nor does it require an order that ensures that the tenant is able to live in near identical circumstances as those to which he or she has become accustomed.

242    In our opinion, read in context, no error is disclosed by this use of language. The primary judge specifically referred to the broad discretion under s 94 of the 2010 RTA. Also in Swain on appeal Meagher JA, with whom Priestley and Cole JJA agreed, after referring to what the words “circumstances of the case” meant in the then s 64, said at 456, “I think it can be fairly stated that the Act is intended to balance the rights of landlords and tenants”. In our opinion, the appellants’ submissions sought to take the word “balance” out of context when it is clear that that was not the test that was applied by the primary judge and, speaking generally, it is correct to say that the legislation does seek to strike a balance between the interests of the landlord and those of the tenant.

243    We see no error in the manner in which the primary judge took into account the correspondence between the Commonwealth, or its agents, and the appellants. His Honour set out the correspondence at some length in his consideration of the circumstances affecting the appellants from [45] and following of the reasons for judgment. The correspondence was taken into account by the primary judge in the exercise of his discretion.

244    We see no error in the manner in which the primary judge considered the first right of refusal in relation to the construction of the airport. At [42] of the reasons for judgment the primary judge accepted the evidence of Mr Robertson and found a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. We refer to, but do not repeat, what we have already said about this above.

245    We reject as untenable the submission that the effect of s 94 of the 2010 RTA meant that in the eyes of the law in New South Wales, the appellants were more than lessees, and had a leasehold tenure in the nature of freehold. The statute does not have that effect. We see no force in the appellants’ reference to Wilson v Anderson which concerned a “lease in perpetuity” granted by the Crown under s 23 of the Western Lands Act 1901 (NSW).

246    We reject the submission that the primary judge did not take into account the continued use of the premises by the appellants for more than 20 years. The primary judge was well aware of the use of the premises having considered it at some length at [8] and [75] and because use of the land went hand in hand with possession. Since the Commonwealth proposed to use the land it would not make the land waste.

247    We see no error in the conclusion of the primary judge, at [12], that the appellants had not established on the evidence that the predominant use of the premises was for the purposes of agriculture. We accept the submission on behalf of the respondent in this respect.

248    The other submissions put by the appellants about the safety of the premises, reducing fire risk and enhancing environmental care of the land show no error on the part of the primary judge in light of the proposal by the Commonwealth to prepare the land for use as an airport site. As we read them, at [26] and following of his reasons for judgment, the primary judge accepted the evidence of Mr Robertson as to the incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site and the residential amenity and safety.

249    Further to our reasoning above on the correctness of the primary judge’s approach to s 94, we reject the submissions that the primary judge adopted a test embodying an approach to the exercise of his discretion under s 94 that was the most unfavourable to the appellants’ position and that the primary judge did not sufficiently identify “all the circumstances” as required by s 94. We also reject the submissions that the primary judge did not conduct a fair and reasonable balancing exercise and did not ask himself, with respect to either the termination or possession orders, whether the result as expressed in his orders was appropriate. We also reject the submissions that the primary judge did not exercise a discretion with respect to the making of the orders; and made orders which did not reflect Pts 5 and 6 of the 2010 RTA. Each of these submissions is inconsistent with the terms of the primary judge’s reasons for judgment.

Other grounds in the amended notice of appeal

250    As to ground 9 in the amended notice of appeal, that the primary judge erred in not recusing himself where he had heard other cases, this ground was not pressed. We have considered and rejected above the claim of so-called institutional bias.

251    As to ground 11 in the amended notice of appeal, in relation to expert evidence, this centres on the claim concerning the availability of suitable alternative accommodation. The primary judge considered the evidence of Ms Fogarty throughout paragraphs [54]-[73] of the reasons for judgment and, in our opinion, evaluated that evidence, giving reasons for concluding that she was not a convincing witness but did make a number of reasonable points which the primary judge then considered. Insofar as the ground as allowed claims that the primary judge did not have sufficient regard to that evidence, in our opinion it also fails in light of the detailed consideration the primary judge gave to it. We see no appellable error in the primary judge’s approach to the evidence.

252    As to ground 12, concerning the Commonwealth’s urgent need for vacant possession, we have considered above the evidence of Mr Peter Robertson. There was no error in the primary judge accepting that evidence. We reject the submission that there was no real evidence to support the Commonwealth’s claim in that respect. It follows that there was evidence to take into account as against the evidence of the appellants in this respect. This ground therefore fails. We add that there was no error in the primary judge evaluating the competing evidence as he did.

253    Grounds 13 and 14 centre on the claimed long history of uncertainty and the changing position of the Commonwealth with regard to the building or not building of the airport and the claimed reasonable belief on the part of the appellants that since December 2000 they really believed that Badgerys Creek was not being considered as a site for the airport.

254    As to the first of these matters, ground 13, in our opinion, it was open to the primary judge to accept Mr Robertson’s statements as to the airport site without rehearsing the history of decision-making about whether or not the second airport at Badgerys Creek would proceed. As we have said above, the basis on which the Commonwealth sought the termination order was in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act. It was the preparation of that site which was the subject of Mr Robertson’s evidence as to commercial need and as to why vacant possession was urgently required. Further, in our opinion, it was not necessary for the primary judge, in the exercise of his discretion under s 94 of the 2010 RTA to take into account the documents submitted by the appellants in relation to the history of decision-making. In any event, we note that at [22] of the reasons for judgment the primary judge referred to the Commonwealth undertaking in the late 1980s and 1990s a land acquisition program in the Badgerys Creek area to acquire and reserve the land needed for an airport in Western Sydney and that the acquisition program resulted in the acquisition by the Commonwealth of a large number of individual titles in the suburbs of Badgerys Creek, Luddenham and Greendale.

255    As to the second of these matters, ground 14, that the appellants believed that Badgerys Creek was not being considered as a site for the airport, we do not see this as having a foundation in the evidence. Objectively, the residential tenancy agreement in respect of the premises was entered into on 27 November 2007, expiring on 28 July 2009, and containing cl 42 which we have set out at [3] above. We reject the submission that because the lessor did not plead that express provision for termination that it was legally irrelevant to rely upon it in evidence. As the primary judge pointed out at [4], the application to that Court was not a pleading.

The application to adduce further evidence on appeal

256    On this appeal the appellants sought to adduce the following further evidence:

1.    Affidavit of Mrs Maria Minici dated 11 January 2016;

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

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

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

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

6.    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 out of 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 at [116] and[119] as follows:

[116]    The Court’s power to receive further evidence is contained in s 27 of the Federal Court of Australia Act 1976 (Cth). The authorities make it clear that in exercising the discretion the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan[1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.

…

[119]    In addition to the above matters, it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result: CDJ v VAJ; Sharp v Rangott [2008] FCAFC 45; (2008) 167 FCR 225 at 228–229 [8] per Gray and North JJ; at 248 [92] per Besanko J.

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 six affidavits listed above.

Affidavit of Mrs Maria Minici dated 11 January 2016

261    We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellants relied dated 12 April 2016 which the Court directed the appellants to file.

262    In our opinion, the affidavit referred to nothing relevant to this appeal and, on the assumption we have made, we reject it.

Affidavit of Ms Sandra Uren dated 6 March 2016

263    The appellants sought leave to rely upon this affidavit in their appeal. The respondent notified objections to it on 18 March 2016.

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

265    We accept that, with the exception of paragraph 9, this material would not have been available at the time of the hearing before the primary judge.

266    However, we reject paragraphs 4 and 5 as having an insufficient relevance to the matters at issue in the appeal. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial. We reject paragraphs 6, 7 and 8 as hearsay. We reject paragraph 9 since evidence of Ms Uren’s cooperation would have been available at the time of the hearing; could have been put to Mr Peter 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 we reject the entirety of the affidavit including the formal paragraphs 1 and 2.

Further affidavit of Ms Sandra Uren dated 6 March 2016

267    Ms Uren swore a further affidavit dated 6 March 2016 and the appellants sought leave to rely upon it in their appeal. The respondent notified objections to it on 18 March 2016. This affidavit is of 10 paragraphs.

268    In paragraph 5, Ms Uren sought to give evidence about what she said were deficiencies of the Western Sydney Airport Draft Environmental Impact Statement released October 2015 and sought to attach a transcript of the speech in Parliament by a Senator to establish this proposition. The first sentence of this paragraph we reject as hearsay. The second sentence we also reject as hearsay and because its tender, or reception into evidence, would be 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.

269    In paragraph 6, Ms Uren sought to annex part of a copy of a Peer Review dated 25 November 2015 of the Western Sydney Airport Draft Environmental Impact Statement conducted, it appears, by an entity engaged by Western Sydney Regional Organisation of Councils and MacArthur Regional Organisation of Councils. We accept that the document was not available at the time of the hearing before the primary judge. Nevertheless, we reject this paragraph. There is nothing to suggest that the Peer Review, or its contents, go to any issue in the appeal. It was not explained how it was 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.

270    In paragraph 7, Ms Uren sought to annex a copy of part of the Sydney Airport, Half Year Results 2015 and extracts from the Sydney Airport Financial Report dated December 2015 and a Sydney Airport Financial Report which Ms Uren sought to say showed “the delay in issuing Sydney Airport the Notice of Intention”. We reject this material. We do not consider that the material sought to be annexed bears the meaning sought to be attributed to it. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

271    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 reject this paragraph. It is in any event very difficult to see how it is relevant to the present appeal. It is in any event general evidence in conclusory form. As to the paper sought to be annexed, it too is in a general form. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

272    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.

273    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.

274    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

275    The respondent notified objections to this affidavit on 18 March 2016. Those objections were that the expert evidence was inappropriate for an appeal; the material was either not relevant or, if it was, it could have been adduced before the primary judge; and queried the expertise of the deponent. The appellants submitted that the draft EIS was not released until 18 October 2015 and that the material was relevant to the Commonwealth’s asserted need for urgency and, it was submitted, the local council’s diminished support for the airport project. The appellants submitted that Dr Green’s curriculum vitae should be sufficient to establish his expertise.

276    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 was 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 a therefore invalid and flawed” in paragraph 9. To that extent this material would have been available to the appellants at the hearing before the primary judge and there was no evidence explaining why it was not.

277    More importantly, it was not shown that Dr Green’s opinions as expressed in his affidavit were founded in his expertise. Thus a criterion for the admissibility of an expert report was not met.

278    Indeed, it was 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, fell 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 turned to what was said to be ten critical infrastructures where the airport introduced risks. Mr Green’s affidavit then concluded 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 Camera 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 was not plain that, although there were references to what Dr Green describes as the “draft airport plan and EIS”, his conclusions were founded in the questions he was asked to address. To that extent, as we have said, the material would have been available to the appellants at the hearing before the primary judge and there was no evidence explaining why it was not then sought to be adduced.

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

280    We reject this affidavit.

Affidavit of Mr Kingsley Liu dated 1 February 2016

281    We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellants relied dated 12 April 2016 which the Court directed the appellants to file.

282    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

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

284    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

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

Associate:

Dated:    2 March 2017