FEDERAL COURT OF AUSTRALIA

Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to amend her notice of appeal dated 5 March 2016 (notice of appeal) to add grounds 11, 13, 17, 18 and 19.

2.    As to ground 16 in the notice of appeal, leave be granted to the appellant 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 16 be refused.

3.    Leave be refused to the appellant to amend the notice of appeal to add grounds 12, 14, 20, 21 and 22.

4.    The appeal be dismissed.

5.    The appellant 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    Ms Kim Jelfs has lived at 677 Badgerys Creek Road, Badgerys Creek, New South Wales since April 1990. It was common ground that the Jelfs’ tenancy was a long term tenancy for the purposes of the Residential Tenancies Act 2010 (NSW) (the 2010 RTA), because Ms Jelfs has been in continual possession of the premises for 20 years or more.

2    The Commonwealth and the Jelfs most recently entered into a residential tenancy agreement dated 27 November 2007. This was between the Commonwealth and Ms Jelfs and her son, Casey-Dean Jelfs.

3    The primary judge said at [5] of his reasons for judgment:

Casey-Dean Jelfs is the second respondent named on the tenancy agreement between him, Kim Jelfs and the Commonwealth. However, Casey-Dean did not take part in any of the proceedings. In Ms Jelfs’ affidavit dated 27 May 2015, she explained that the second respondent was “only on the lease, because Pam Kennison proposed that he go on the lease as well in 2008” as she was undergoing major cancer surgery at the time. She further explains that he no longer lives at the Premises permanently and “has not lived there regularly since 26 August 2011.” In light of these circumstances, I have treated the arguments and evidence put forward by Ms Jelfs as dealing with the interests of both her and the second respondent.

Ms Jelfs is the only appellant. Orders were made by Robertson J on 10 March 2016 giving time to join Ms Jelfs’ son as a further appellant. No such application was made.

4    The term of the residential tenancy agreement entered into on 27 November 2007 was for 52 weeks beginning on 1 December 2008 and ending on 30 November 2009.

5    The additional terms to the residential tenancy agreement included cl 40, which relevantly provided:

Proposed Airport Site

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

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

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 term (whichever is the earlier);

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

40.4    A termination of the Agreement under clause 40.2 shall not affect an existing right or obligation accrued or incurred by the landlord or by the tenant under this Agreement or otherwise at law or in equity.

(Emphasis in original.)

6    By letter dated 29 October 2014, Ms Jelfs was notified by the Commonwealth’s agent that the Commonwealth was likely to require possession of the premises by June 2015.

7    In a subsequent letter dated 24 November 2014, the Commonwealth’s agent notified Ms Jelfs that the Commonwealth required possession of the premises by 15 June 2015.

8    On 16 April 2015, the Commonwealth applied in the Federal Circuit Court of Australia (FCCA) for an order terminating the Jelfs’ tenancy agreement and an order for vacant possession. Ms Jelfs opposed those orders being made. She contested the urgency of the Commonwealth’s need for vacant possession. In support of that contention, Ms Jelfs relied upon the 99 year “Right of Refusal” conferred upon the owner of Sydney’s Kingsford Smith Airport as part of the 2002 sale agreement relating to that airport. Ms Jelfs said the owner of that airport had no interest nor plan to operate or use Badgerys Creek as an airport site in the foreseeable future.

9    Before the primary judge, Ms Jelfs said that she had incurred losses “in breach of the contract or in breach of duty by the Applicant in relation to the land, and will provide particulars of losses which exceed 3 folios.” The primary judge pointed out, at [4.d], that no particulars of any loss had been provided, no evidence of any loss had been adduced and no explanation had been given as to what breaches of contract or duty were referred to. Ms Jelfs also complained that the Commonwealth had not offered to compensate her for the costs of complying with the “eviction notice”. However, the primary judge pointed out, at [4.e], no particulars of this claim were provided and nor was any evidence adduced in support of the existence of any obligation on the Commonwealth to do so.

10    It was not in dispute that Ms Jelfs now lives alone in the three bedroom house at the premises. She lives there with two small house dogs. Her son occasionally comes to stay with her there, but he does not live there permanently. It was also common ground that Ms Jelfs has ongoing health issues as a result of treatment for cancer over several years.

11    The orders made by the primary judge were as follows:

(1)    The residential tenancy agreement between the applicant and the respondents in relation to the property situated at 677 Badgerys Creek Road, Badgerys Creek, NSW 2555 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 9 February 2016.

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

Adjournment application

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

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

15    In our opinion, although there was some non-compliance with directions by the respondent that non-compliance was minor and was not of such a nature that the appellant was not able to present her case. Although it was submitted on behalf of the appellant that she was not in a position to assist the Court with reference to the material to be the subject of the Court’s consideration, in our opinion, to the extent to which cross-references were not available, that did not have the consequence that the appellant was not able to present her case. The material that was missing, in a particular form, at the commencement of the three-day appeal was available early in the course of the hearing of the appeal and we do not accept that the appellant was denied the reasonable opportunity to prepare the case to present to the Court with respect to that material.

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

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

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

The primary judge’s reasons for judgment summarised

19    The judgment of the primary judge has the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs (No 2) [2015] FCCA 3262 (Jelfs).

20    In [12]-[15] of his reasons for judgment, the primary judge considered the proper construction and application of s 94 of the 2010 RTA.

21    His Honour said, at [6], that his reasons in the present matter ought to be read with his reasons in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Rigney (No 3) [2015] FCCA 3133 (Rigney).

22    His Honour confirmed that the power to make a termination under s 94 was discretionary, but was subject to the following three conditions:

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

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

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

23    The primary judge referred in Rigney at [121] to the judgment in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) (Swain). That decision related to the Residential Tenancies Act 1987 (NSW) (the 1987 RTA) and the Tribunal’s duty to terminate an agreement under s 64(2)(c) (which provided for such an order to be made where “having considered the circumstances of the case, it is appropriate to do so”). The primary judge said the circumstances referred to in the third condition were all of the matters that arose on the material before the Court including the availability of suitable alternative accommodation. 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….

24    In Rigney at [122], 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. In Rigney at [123], 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 Tribunal under s 64(2) was not a discretionary power, but rather a matter of statutory obligation once an evaluative opinion had been formed. The primary judge, in Rigney at [124], described this conclusion as “clearly correct” in light of the terms of the chapeau to s 64 (i.e. that the Tribunal “is to make an order terminating the agreements if it is satisfied … ”). The primary judge added 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.)

25    The primary judge then identified, in Rigney at [126], the following differences between the 2010 RTA and the 1987 RTA:

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

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

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

26    The primary judge also considered in Rigney at [127]-[132], 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 NSW Civil and Administrative Tribunal (the State Tribunal).

27    The primary judge’s approach in determining whether or not to make a termination order under s 94 was, at [14], reproduced from [140] of his reasons for judgment in Rigney:

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.

28    Applying that approach, the parties were in agreement and the primary judge found that Ms Jelfs had been in continual possession of the premises for well over 20 years. His Honour also found that he was satisfied that the original term of the agreement expired on 30 November 2009.

29    The primary judge then turned to consider, from [18] onwards, whether he was satisfied that it was appropriate to make a termination order in the circumstances of the case.

30    Putting to one side the jurisdictional and constitutional issues, the primary issues determined by the primary judge in respect of Ms Jelfs’ case may be summarised as follows:

(a)    whether there were lawful and effective notices of termination;

(b)    whether the Commonwealth needed vacant possession having regard to the 99 year “right of refusal” of the purchaser of the Sydney (Kingsford Smith) Airport;

(c)    a claim for compensation for the costs of Ms Jelfs having to comply with what was described as the “eviction notice”; and

(d)    whether the Court should make a termination order under s 94(1)(c) of the 2010 RTA, which depended upon whether the Court was satisfied “that it is appropriate to do so in circumstances of the case”.

31    The primary judge’s reasons in respect of each of these matters may be summarised as follows.

32    As to whether there were lawful and effective notices of termination, the primary judge proceeded on the correct basis that by virtue of s 94(2) no formal notice of termination was required in respect of long-term tenancies under the 2010 RTA. Nevertheless, the primary judge considered the two notices dated 29 October 2014 and 24 November 2014 respectively.

33    In the first of those letters, the Commonwealth’s agent who was managing the premises informed Ms Jelfs of the Government’s decision that the site at Badgerys Creek would be the site for Western Sydney’s airport. The letter contained the following statements:

To implement the Australian Government’s decision, all properties on the site, including the property you occupy, will need to be vacated…

In the coming weeks, you will receive a formal notice of termination of your occupancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 – but it will not be earlier.

34    The document dated 24 November 2014, which was expressed to be a notice of termination under s 85 of the 2010 RTA, was also sent by the Commonwealth’s property manager to both Ms Jelfs and her son. The notice advised them that because the original fixed term of their residential tenancy agreement had expired, they occupied the premises as a tenant under a periodic agreement for the purposes of 2010 RTA. The document then stated that the Commonwealth gave them notice under s 85 of the 2010 RTA terminating the tenancy agreement on 15 June 2015 and requiring them to give vacant possession of the premises to the Commonwealth by that date.

35    In [48] of his Honour’s reasons for judgment in Jelfs, the primary judge noted that the notice of termination dated 24 November 2014 had apparently been sent to Ms Jelfs on the misunderstanding that she had not been in possession of the premises for 20 years (hence the reference to notice being given under s 85 of the 2010 RTA). His Honour noted that the Commonwealth did not rely on the notice as having any legal affect and that Ms Jelfs gave no evidence about it.

36    His Honour referred to the evidence given by Mr Peter Robertson, a general manager at the Commonwealth Department of Infrastructure and Regional Development, concerning the assistance and services provided to tenants by the Commonwealth, which included the appointment of a Place Manager (Ms Wendy Salkeld) as a dedicated point of contact responsible for communicating with the tenants of the site on an individual basis concerning the transition of the site and to help tenants understand the process. The primary judge accepted Mr Robertson’s evidence that there was an optional information drop-in session held on 25 February 2015, which was attended by bodies such as NSW Housing Services, Centrelink and local real estate agents. His Honour concluded at [50] that it was not clear whether Ms Jelfs was directly provided with this assistance, but he found that it was at least available to her.

37    The primary judge had earlier considered the circumstances of the Commonwealth.

38    The primary judge outlined the history of various proposals to build Sydney’s second airport at Badgerys Creek. This history was given by Mr  Robertson. Mr Robertson was described as one of three senior executive service staff members managing the proposed Badgerys Creek airport project. Mr Robertson had responsibility for management of policy development and project timeframes.

39    The primary judge described, at [24], 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.

40    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 Ms Jelfs’ premises were located.

41    The primary judge referred to Mr Robertson’s evidence regarding the further work which was required at the site in general, which would be directed to obtaining further geotechnical and contamination information across the whole site. This information would provide inputs into the Government’s consideration of the land use arrangements for the site and associated costings. Mr Robertson described this information as being “urgently required”. The primary judge noted 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”.

42    The primary judge also 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.

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

44    The primary judge summarised the cross-examination of Mr Robertson by counsel for Ms Jelfs. 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 [36] of his reasons for judgment, that this line of questioning “did not assist the proceedings in any way”. His Honour said that the fact that someone else was responsible for decision-making or any other matter was irrelevant to the facts in issue. The primary judge concluded, at [36], that Mr Robertson had given his evidence truthfully and he accepted that evidence.

45    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 [40]:

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.

46    The primary judge rejected Ms Jelfs’ claims for losses and compensation on the basis that the claims were not supported by any particulars nor evidence, with the consequence that the primary judge stated at [4.d] and [4.e] that it was unnecessary to consider the claims further.

47    The primary judge then addressed the circumstances affecting Ms Jelfs which, apart from security, safety and convenience issues in relation to the whole site, he identified as comprising the following four matters:

(a)    the length of Ms Jelfs’ occupation of the property;

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

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

(d)    the availability of suitable alternative accommodation, which included consideration of Ms Jelfs’ health.

48    On the first of those matters, the primary judge reaffirmed his earlier finding that Ms Jelfs had been in continual possession of the property for over 20 years.

49    On the second of those matters, his Honour referred to cl 40 of the residential tenancy agreement, the terms of which are set out in [5] above.

50    After setting out cl 40, the primary judge reiterated that if the 2010 RTA did not apply (as contended by Ms Jelfs) arguably the tenancy would already have been terminated by operation of cl 40.2. He added that these clauses also indicated that at least from the entry into the agreement in November 2007, Ms Jelfs was aware of the possibility that the site might be developed for the purposes of the development of an airport. Furthermore, his Honour noted that Ms Jelfs had given evidence that, when she first entered into possession of the premises, she was told that the land was Commonwealth land and that an airport was to be built there (see [44] of the reasons for judgment).

51    The primary judge also noted Ms Jelfs’ evidence that, in 2004, the then Prime Minister had announced that the airport would not proceed and Ms Jelfs said that she thought that she had a tenancy for life. His Honour found that this understanding appeared to have been based solely on what other Commonwealth tenants in the area had told her. His Honour stated that the other tenants had told her that, as a longstanding tenant, she would be given an option to purchase the property if the airport did not proceed, with a pro rata discount for the rent paid. The primary judge stated that he had taken Ms Jelfs’ understanding into account but that she did not, and could not, argue that any estoppel arose in these circumstances.

52    The primary judge then summarised the correspondence which Ms Jelfs received from the Commonwealth’s property manager, as described above, as well as Mr Robertson’s evidence concerning assistance and services provided by the Commonwealth to tenants in respect of the termination of their tenancies.

53    The primary judge then addressed the issue of the availability of suitable alternative accommodation. He summarised the evidence of the Commonwealth’s expert valuer, Mr Simon Azar, which was to the effect that he had located a number of properties comparable to Ms Jelfs’ property which were currently available for rent in or around the Badgerys Creek area.

54    The primary judge also considered expert evidence provided by various witnesses called by Ms Jelfs in response to the evidence given by Mr Azar. Those witnesses were Ms Simone Fogarty (the daughter of a tenant of another property, Mr Ken Shirvington), as well as the evidence of a registered real estate valuer, Mr Lopco Neskovski. Ms Leanne Uren also gave evidence. The primary judge briefly described the evidence of each of these witnesses.

55    He described Ms Leanne Uren’s evidence as showing that the properties used by Mr Azar as being comparable to Ms Jelfs’ premises were, at the date of the hearing, no longer available for lease. His Honour described this evidence as showing that the market for rental properties in and around the Badgerys Creek area was not stagnant.

56    The primary judge then summarised Mr Neskovski’s evidence relating to suitable alternative accommodation.

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

58    At [65], 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.

59    Having said that, the primary judge concluded that the evidence indicated that there were properties available for rent in the vicinity of Badgerys Creek and that the rent was higher than that which Ms Jelfs was paying ($175 per week). His Honour said that this was hardly surprising because Ms Jelfs’ tenancy was always subject to the possibility of the airport being developed. The primary judge also noted that Ms Jelfs had given no evidence about her financial means. We note that the rent of $175 per week was the amount stated in the residential tenancy agreement but we also note that there was evidence from Mr Azar that Ms Jelfs was currently paying $190 per week. In our opinion, nothing turns on this.

60    His Honour found that, despite the evidence of Ms Fogarty and Mr Neskovski about the impact on the rental market of the large number of people relocating from the airport site area, there was “no real evidence to support those assertions”. Consequently, he gave little weight to their evidence on this matter (see [68]).

61    Finally, the primary judge noted that while Ms Fogarty gave evidence that the properties listed by Mr Azar had all been rented, this did not suggest that other properties would not shortly become available for rent. The primary judge accepted Ms Fogarty’s evidence that more time would improve the tenants’ chances of obtaining alternative accommodation.

62    The primary judge also stated, at [70], that Ms Jelfs had given no evidence about alternative accommodation but that, instead, she had submitted that her agreement with the Commonwealth should not be terminated or, alternatively, she should be given at least six months to move and also receive compensation for “loss of amenity and difficulties in finding alternative accommodation ‘for ourselves and our animals’”. The primary judge observed that this submission should be understood as referring only to Ms Jelfs herself (and not to her son who no longer lived with her) and he added that the two dogs which Ms Jelfs had were described by her as “small house dogs”. In those circumstances, the primary judge inferred that the dogs would not add to the burden of Ms Jelfs relocating.

63    The primary judge concluded, at [71] of his reasons for judgment that, while he accepted that it may take time for Ms Jelfs to find suitable alternative accommodation, he was not satisfied that none was available.

64    The primary judge also took into account the evidence given by Ms Jelfs concerning her health. He accepted that she was very concerned about her health and the possible impact of having to relocate. His Honour concluded, however, that there was no evidence to suggest that there would be any real impact on her health if Ms Jelfs was required to move home.

65    After identifying what he described as the “proper focus” required by the 2010 RTA, the primary judge observed at [66] that all of the evidence concerning the availability of premises was of limited assistance to the Court.

Grounds of appeal

66    Ms Jelfs sought leave to file and reply 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 other than on just terms.

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

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

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

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

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

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

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

11.    The primary Judge erred in stating Miss Jelfs had known about the possibility of having to move since 1990, in circumstances where in 2000 the airport was announced as “shelved” by then Prime Minister Howard.

12.    The primary Judge erred in assuming there would be no impact on Miss Jelfs health.

13.    The primary Judge erred in stating that the fact that Miss Jelfs has pets and this would not contribute to difficulties in finding alternate rental accommodation.

14.    The primary judge erred in failing to have regard to the fact that on 24 11 2014 the Appellant was given an invalid termination notice as if the Appellant was an under 20 years tenant.

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

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

17.    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.

18.    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.

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

20.    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.

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

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

23.    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.

67    The underlined paragraphs identify the new grounds of appeal raised by Ms Jelfs for which leave was required. The paragraphs struck through, grounds 5, 6, 15 and 23, reflect the grounds in the proposed amended notice of appeal which counsel for the appellant notified the Court were abandoned. It is also appears that ground 9 concerning alleged bias was not pressed in that form in this appeal.

68    The proposed amendments, apart from paragraphs 13, 18 and 19, 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 Ms Jelfs’ case had been presented below.

69    Since the application to amend to add grounds 13, 18 and 19 was not opposed, we would grant leave so to amend.

70    It is therefore necessary to rule on the application to amend to add grounds 11, 12, 14, 16, 17, 20, 21 and 22.

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

Parties are bound by the way they conduct their case at trial: see Overton Investment Pty Ltd v Murphy [2001] NSWCA 183 per Mason P (at [86]–[87]) (Sheller JA and Beazley JA agreeing); University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 (at 483); Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [15]); Thompson v Palmer (1933) 49 CLR 507 per Starke J (at 528–529); Haig v Minister Administering National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 per Kirby P (at 155); Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ, Deane J contra) (at 7).

72    Although a question of law may be raised for the first time on appeal and it will be expedient in the interests of justice that that should permitted to be done, this exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 per Mason P (Gleeson CJ and Priestley JA agreeing).

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

74    Applying these principles, we would allow the application to amend to add ground 11, that the primary judge erred in stating Ms Jelfs had known about the possibility of having to move since 1990, because 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.

75    As to the application to amend to add ground 12, relating to Ms Jelfs’ health, it turns on whether the primary judge assumed there would be no impact on Ms Jelfs’ health. The primary judge mentioned this matter at [41(iv)] and at [72]-[73]. The primary judge accepted that Ms Jelfs was very concerned for her health and was worried about the possible impact of having to relocate. However the primary judge said there was no evidence to suggest, and he was not satisfied that there would be, any real impact on her health if she was required to move home. We would refuse leave to amend to add this ground as it does not reflect the reasons of the primary judge and, in our opinion, it is bound to fail.

76    As to the application to amend to add ground 14, which concerns the termination notice given on 24 November 2014, as noted by the primary judge at [48] the Commonwealth did not rely on that notice having any legal effect; Ms Jelfs did not give any evidence about it; and, clearly enough, did not take any steps to vacate the premises as a result of receiving it. We would refuse leave to amend to add this ground as, in our opinion, it is bound to fail.

77    Similarly, we would not allow the amendment to add the entirety of ground 16 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 16 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 analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent Commonwealth.

78    In relation to proposed ground 17, 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.

79    In relation to proposed ground 20, 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 respondents, 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 appellant. Secondly, the proposed ground does not correspond to a ground taken by the appellant at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.

80    In relation to proposed ground 21, that the primary judge erred in not holding that the respondent was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith, in our opinion leave to amend to add this ground should be refused as it was not a matter raised in this case before the primary judge and it is clearly a matter on which evidence could have been adduced. In addition, nothing was said about estoppel in the written and oral submissions in this Court on behalf of the appellant.

81    In relation to proposed ground 22, that the primary judge erred in not considering compensation to the appellant as a condition of the making of any order for possession, or for suspending such order for a period of years, we would refuse leave to amend to add this ground. Although the matter was pleaded in the FCCA, the primary judge, at [4], found that no particulars of the claim were provided and no evidence was adduced in support of the existence of any obligation on the Commonwealth to offer to compensate Ms Jelfs. In addition, the submissions on behalf of the appellant did not address this claim or proposed ground of appeal.

Parties’ submissions – common issues

82    The common issues were identified by the appellant as, first, a separation of powers issue; second, that there was no “matter before the FCCA”; third, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act); fourth, that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (the Instrument) was invalid; fifth, that there was an impairment of the constitutional guarantee in s 51(xxxi) of the Constitution dealing with acquisition of property other than on just terms; and sixth, that there was apprehended institutional bias.

83    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.

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

85    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; … ”.

86    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.

87    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.

…

88    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.

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

90    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.

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

92    Section 7 provided that the 2010 RTA does not apply, relevantly, to “(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.”

93    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.

94    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.

95    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.

96    Part 6 of the 2010 RTA included the following provisions:

119    Prohibition on certain recovery proceedings in courts

A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.

120    Repossession of residential premises—offences

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

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

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

Maximum penalty: 200 penalty units.

…

121 Enforcement of orders for possession

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

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

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

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

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

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

Separation of powers

97    The appellant submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the Federal Circuit Court of Australia Act involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellant 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 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 appellant, it was submitted, was entitled as of right by virtue of a fundamental incident of her 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 appellant submitted that no such administrative order was capable of being made by the FCCA.

98    The appellant also submitted that she 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 appellant 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, her 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].

99    The appellant submitted that at the time of the commencement of proceedings or any time prior to their commencement, she had not been and was 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 her land. Even if the legal standard did apply to the question of the termination of her 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 appellant 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 appellant submitted that no right of re-entry at common law had arisen in respect of her property; rather such right was contingent upon an order being made under Pt 6 of the 2010 RTA.

100    The appellant also submitted that the findings as to 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, 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.

101    The appellant 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 appellant 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 appellant submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removing of chattels after a termination order was made was provided for by Pt 6 of the 2010 RTA. Accordingly none of the orders sought or made were “immediately enforceable” in the present form by the FCCA.

102    The appellant 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 appellant 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.

103    The appellant submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant 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 appellant submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.

104    The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 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”.

105    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.

106    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.

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

108    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.

109    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.

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

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

112    In reply, the appellant 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.

113    The appellant submitted that her 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 appellant submitted that these “considerations included the general economy as being interests that prevailed over the specific issues of the appellant[]. 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 that examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances.”

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

115    We turn to consider these submissions.

116    We first mention the reliance by the appellant in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had previously held, it was correct to say that “court” in s 77(iii) of the Constitution meant the judges and judicial officers who were members of the court but did not include the organisation and officers through which its powers and jurisdiction were exercised. The High Court held that this narrow interpretation was not to be preferred and that a master, although not a member of the court, was encompassed by the words “any court of a State” in s 77(iii) (whereby in respect of any of the matters in ss 75 and 76 the Parliament may make laws investing any court of a State with federal jurisdiction). The circumstances in that case were therefore very different to the issues in this appeal which concern the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach insufficiently took account of the States’ legislative competence to alter the structure and organisation of State courts. His Honour also said, being the passage relied on by the appellant:

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

We 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.

117    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.

118    We reject the appellant’s 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.

119    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.

120    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.)

121    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, constituted the exercise of judicial power but, when performed by some other body, did not.

122    Next, the appellant 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.

123    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 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.

124    In oral argument attention was given to the words in s 94(1)(c) of the 2010 RTA which provided 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.

125    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1, the Court noted that the Federal Court had jurisdiction with respect to a matter which arose under the Workplace Relations Act 1996 (Cth) in relation to which an application for orders under s 298U may be made to it. The opening words of s 298U were as follows:

In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: …

126    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”.

127    The High Court also referred to s 23 of the Federal Court of Australia Act 1976 (Cth), which provided that the Court has power to make “orders of such kinds, including interlocutory orders … as the Court thinks appropriate”. In relation to interlocutory relief, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said at 32-33:

The powers of the Federal Court under s 23 of its Act are powers “to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’”, as Deane J noted in Jackson v Sterling Industries Ltd [[1987] HCA 23; (1987) 162 CLR 612 at 622]. He added:

“Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. … The moulding of an interlocutory injunction must depend upon the circumstances of each case.

(Footnote omitted.)

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

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

130    The appellant 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.

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

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

(Footnote omitted.)

132    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

133    The appellant 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 appellant was entitled as of right to remain in possession with full tenure up until the date of the FCCA’s decision. Thereafter a new relationship between the parties was created. 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.

134    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 appellant in circumstances where she remained in possession with no prospect of her abandoning the premises or otherwise vacating it by consent. The appellant’s response did not contend that there was no dispute between the parties. There was no evidentiary contest that the dispute arose from the fact that the Commonwealth wrote to the appellant stating that it wished to have vacant possession by June 2015, which she 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 appellant to vacate the premises upon termination. As the High Court stated in Precision Data at 191, “the Parliament can, if it chooses, legislate with respect to the rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities”.

135    In her written reply, the appellant did not make specific reference to this point.

136    We turn to consider these submissions.

137    In our opinion, in the case of the present appeal (20 years and over) the controversy or “matter” is sufficiently identified in the application to the FCCA filed on 16 April 2015. That is, as between the Commonwealth as applicant lessor and the appellant as one of the tenants of the Commonwealth of the particular premises, the Commonwealth had notified the tenant that it required possession of the premises by a certain date and the tenant had not communicated to the Commonwealth her 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 appellant, in relation to the premises, was terminated and an order that the appellant 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 tenant 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 appellant filing a response in the FCCA in opposition to the Commonwealth’s application. We reject the submission on behalf of the appellant 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

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

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

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

141    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. The 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.

142    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].

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

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

145    We turn to consider these submissions.

146    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)).

147    We reject the appellant’s submission that the legislation “was an attempt to get round the decision of the High Court in Henderson.” In that case, it was held that the Commonwealth legislation, the Defence Housing Authority Act 1987 (Cth), did not create an inconsistency between that Act and the 1987 RTA 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

148    The appellant submitted that the Instrument was invalid as it was ultra vires s 10AA(3) of the FCAA Act. This submission proceeded on three bases. First, the appellant submitted the power conferred by s 10AA(3) did not include the power to adopt by Instrument the 2010 RTA together with the associated powers of the State Tribunal as part of Commonwealth law. The appellant submitted that, read in context, s 10AA(3) was not the conferral of a general law making power with respect to the rights of parties to a lease entered into by the Commonwealth but was a power only to define the Court’s jurisdiction with respect to a Commonwealth tenancy dispute, as defined in s 4. The appellant submitted there must be a dispute in which the Commonwealth was a party and a dispute must be about the termination of a lease, or the possession or use of land. It was submitted that s 10AA(3) authorised provision to be made for a matter involving a dispute in which the Commonwealth was a party. The appellant submitted that the law making power “for and in relation to … a Commonwealth tenancy dispute” was not a broad law making power. The appellant referred, amongst other authorities, to Shanahan v Scott [1957] HCA 4; 96 CLR 245 at 250.

149    The appellant submitted that the reference to “the applicable law” in s 10AA(3), in its natural and ordinary meaning, referred “to an existing Commonwealth law not the power to make a whole new law by reference to that of another jurisdiction, in this case the whole of the law of New South Wales being a code on residential tenancies law, with the result that the law-making power was substituted for that of the Minister and the restrictions upon law-making power with respect to that subject matter [were] circumvented.” The appellant also submitted that the rule-making power did not extend to a regulation which itself imported the whole of a statute that conferred executive power to decide when and on what terms the use of land may end. The decision-making power introduced and conferred on the FCCA by the Instrument was executive power. The power to focus on events and the decisive facts at the date of the decision of the FCCA and not the date of the commencement of the action was another factor indicating that the power being exercised by the FCCA was executive. Accordingly, the Instrument impermissibly widened the purposes of the FCCA Act past the definition of the Court’s powers to the adoption of a wide variety of new rights and obligations and was ultra vires.

150    Secondly, the appellant submitted s 10AA(3) did not authorise a retrospective law. The statutory scheme for 20 year and over leases was a code and could not operate retrospectively except by express and necessary statutory fiat. The Legislation Act also restricted the operation of retrospective legislation. The appellant 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 New South Wales 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.

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

152    The respondent submitted that the appellant’s submission misunderstood the terms of s 10AA(3) of the FCCA Act and the purpose and effect of the Instrument. As the primary judge observed at [90] of the reasons for judgment in Rigney, the Instrument applied in respect of Commonwealth tenancy disputes of a particular class, consistently with s 10AA(3), and it did no more than pick up existing law and apply it, with some modification, to the resolution of such disputes. The respondent submitted the primary judge correctly dismissed this argument at [86]-[88] of the reasons for judgment in Rigney.

153    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.

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

155    We turn to consider those submissions.

156    The starting point must be the terms on which the power to make a legislative instrument is 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 was 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 conferred by s 77(i) of the Constitution by reference to one of the matters mentioned in ss 75 and 76 being a matter in which the Commonwealth was a party within s 75(iii). It was s 10AA(3) which was the regulation-making power, thus, for present purposes it was the central provision.

157    Section 10AA(3) provided that the Minister may, by legislative instrument, make provision for and in relation to all or any of certain specified matters in respect of a Commonwealth tenancy dispute. We have set out this provision at [87] 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 commenced on 26 February 2015 and a Commonwealth tenancy dispute between the parties to the lease that arose before, on or after that day.

158    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 s 7 and s 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.

159    We do not accept the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s submission that there must be a dispute to which the Commonwealth was a party and a dispute must be about the termination of a lease, or the possession or use of land but, in our view, there was in any event such a dispute in the present case.

160    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 was invalid as conferring non-judicial power on a Ch III court.

161    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.

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

163    In our opinion, there is no substance in the submission by the appellant that the Federal Courts Legislation Amendment Act or the Instrument failed to have regard to the disadvantage to tenants from the importation of the new law as a Commonwealth law, who under New South Wales law expected to be treated like all other residential tenants in New South Wales so as to affect the validity of the Instrument. Similarly, in our opinion there is no substance in the submission that, because the agreement provided that the State Tribunal was to be the arbiter of disputes, this suggested that if the lessor sought to take advantage of its special status as a law-maker it should have entered into fresh lease agreements in different terms.

164    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.

165    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 inconsistent with what their Honours there said.

166    As to the appellant’s reliance on McEldowney v Forde, we see nothing in what Lord Diplock said there which suggests that the Instrument was 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 was authorised to make; secondly, to determine the meaning of the subordinate legislation itself; and finally, to decide whether the subordinate legislation complied with that description.

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

167    The appellant submitted the law resumed the three-month possession right by operation of s 8(2) of the Instrument which was itself an acquisition of an interest in land for the obvious benefit of the Commonwealth, hence satisfying the tests of such a law recently restated in JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1. The appellant also referred to James Stellios, Zines’s High Court and the Constitution (6th ed, The Federation Press, 2015), p 620ff. The appellant 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 appellant 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.

168    The respondent submitted that in the Court below the present appellant 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 appellant had previously enjoyed. The differences that the appellant then relied on were, first, that the term of the agreement was originally “indefinite” because no termination of the agreement could occur except pursuant to s 94; second, the security of at least 90 days between the making of a termination order and any order for vacant possession provided under s 94(4); and, third, that under State law there would be no order as to costs made between the parties in the event of a dispute and the State Tribunal could exercise its powers to adjust the relationship between the parties during the termination period.

169    As to the appellant’s 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 those tenancies 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 appellant’s argument was that the tenancy was somehow protected from termination because of what the tenant had done to the land, it wrongly conflated the interest the tenant had in the land, being the tenancy, with the land itself.

170    In her written reply, the appellant submitted that the property loss to her in respect of her 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 appellant under State law “which conferred the protection taken by the Commonwealth”. Immediately prior to the Commonwealth law being made the appellant 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 appellant was served with the correspondence in November 2014, before the new law was made, regarding the proposed termination of the tenancy, the appellant had reason to believe that she had such a property right by virtue of her 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 appellant which the Commonwealth acquired at no cost to itself.

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

172    First, as applicable to all appellants including the present appellant, looking at the instrument, particularly s 8(2), which was purportedly authorised by s 10AA(3)(c), being a modification of the applicable law, it denuded from the appellant 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 appellant which would otherwise exist. As to it being a statutory right of property, the appellant submitted that the High Court had made it clear that the mere fact that the right of property was statutory was not a disentitling factor with respect to impairment of the constitutional guarantee. Secondly, the appellant 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.

173    In oral submissions, the respondent submitted that the focus of the appellant’s submissions on the appeal appeared to be that if her 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 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.

174    We turn to consider these submissions.

175    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.

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 appellant’s lease, most recently entered into on 27 November 2007 for a term of 52 weeks beginning on 1 December 2008 and ending on 30 November 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 for 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 was 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 as suggesting a different conclusion.

Recusal on the ground of (apprehended) institutional bias

177    The appellant submitted that the question of recusal was limited to one issue, namely apprehended institutional bias founded upon a close connection between the lessor/Commonwealth and the FCCA. This, the appellant submitted, was evidenced by consultation in the making of the Instrument under s 10AA prior to March 2015, which Instrument conferred jurisdiction on the FCCA under s 10AA, and the imposition by the Commonwealth of public pressure on the Court to impose a new expense regime involving increased fees and loss of judges. Actual bias was not alleged, what was alleged was that an institutional appearance of bias had been allowed to appear by reason of the consultation by the lessor with the very Court deciding the matters about the basis on which that should happen. The appellant referred to Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J and to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner). The appellant submitted that judges who knew of this governmental consultation with the FCCA must be presumed to support the new law or at least to have a view about its utility and to not object to the conferral of jurisdiction on the Court; those judges would presumably adopt the approach when the law was challenged as to its validity before him or her with the apparent bias of approbation not rejection. In this regard, the appellant submitted, the case could be distinguished from the allegation of apparent institutional bias in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J. Similarly, the appellant submitted, the public issue of filing fee increases and loss of judges in the manner raised by Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 was a further basis for a finding that the Commonwealth’s public intervention in the Court’s affairs and governance directing its affairs gave the appearance to a reasonable bystander 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 her reply, the appellant said that the issue of institutional integrity was one of increasing importance in the authorities and in this case by conduct that integrity had been compromised 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 before the primary judge in the present proceeding. Next, there was 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 imposed increased fees. There is nothing relevant in Antoun v R [2006] HCA 2; 224 ALR 51 at [83] per Callinan J to which the appellant referred. Neither is there anything relevant in Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 especially at [139]-[142] per Callinan J, to which the appellant also referred. We reject the claim that the Commonwealth’s alleged public intervention in the court’s affairs and governance directing its affairs gave the appearance to the reasonable bystander that the FCCA’s impartiality might have been compromised.

The evidence of Mr Peter Robertson

185    As we have said, in the appellant’s revised written submissions dealing with common issues reference was made to the affidavits and other evidence of Mr Peter Robertson, his evidence being common to the several appeals, including Ms Jelfs’. The appellant submitted that the common issue was the issue of commercial need. The appellant submitted that she produced substantial material to demonstrate her 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 appellant referred in that respect to the affidavit of Dr Anthony Green. The appellant submitted that in not having regard to such issues and material, the primary judge erred. It was submitted that apart from the issue of the Commonwealth’s need there was also the more important question of the needs of the appellant and the adverse local social and environmental effects with respect to the loss of her land. The appellant submitted that the evidence led by her “was relevant but its content and subject matter was [not] the subject of any or sufficient regard by the Judge”.

186    The appellant also provided by way of submission 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 appellant’s criticisms were largely undeveloped. The respondent submitted that it was open to the primary judge to conclude, as he did, that Mr Robertson had given his evidence truthfully, 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 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 appellant’s submission that the primary judge erred in accepting Mr Robertson’s statements regarding the construction and development of the airport and not considering the long history of uncertainty and the changing position of the Commonwealth with regard to the building of the airport, that extensive documents were submitted by the respondent supporting these delays, which were considered by the primary judge, and that issue was dealt with by Mr Robertson in his affidavit evidence.

189    We turn to consider these submissions.

190    In our opinion, the appellant’s submissions proceeded 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 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 [19] 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 appellant. 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 appellant’s revised written submissions on common issues, 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 appellant

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

195    Reference was made by the appellant to the evidence of Mr Azar, described by the primary judge as a registered real estate valuer. He gave evidence for the Commonwealth. The appellant submitted that the evidence of Mr Azar was seriously undermined in the evidence that the appellant 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 [57], 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. It does not appear that the primary judge placed weight on the evidence of Mr Azar. We do not accept that the primary judge failed to evaluate the competing evidence. In relation to the evidence of Mr Azar being seriously undermined, it appears that the point was that the properties to which he had referred in his original report were available in May 2015, at the time he did his research, but the position had changed by the date of his report in July 2015.

196    Reference was also made by the appellant to the affidavits of Ms Leanne Uren and of Ms Simone Fogarty and their cross-examinations. 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 [52]-[69]. 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 appellant 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 appellant 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 appellant also submitted that that approach did not accord with what Rolfe J had said in Swain where his Honour referred to, as a possible “circumstance” which may have to be taken into account, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation, in which his Honour included accommodation in an area suitable for matters such as proximity to family, facilities or employment. So, it was submitted, the appropriateness was never really balanced from the point of view of the appellant on the evidence which she 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 appellant 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 appellant has 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 appellant’s interest outweighing the general economic, political and social requirements of the Commonwealth, was the availability of suitable alternative accommodation. First, we do not accept that the Commonwealth’s requirements are properly described as “general economic, political and social requirements”. The Commonwealth wanted to recover possession of the premises to use the land for its own purposes for the development of an airport site. Secondly, in the exercise of the discretion under s 94 of the 2010 RTA the primary judge considered each of the matters on which the appellant 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 property, 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 appellant, no appellable error has been shown in the primary judge’s consideration of the evidence or in his consideration of the interests of the appellant and the interests of the respondent.

Appellant’s submissions specific to this appeal summarised

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

204    The outline of written submissions addressed what was described as “a general submission of her own as to the form of orders made in her case replicated in the other matters and the issue of costs arising from such orders”. This appears to be a reference to ground 23 in the proposed amended notice of appeal, which was abandoned. Accordingly, it is unnecessary to say anything more about it.

205    The outline of written submissions also addressed what were described as “the particular findings and issues raised” in the primary judge’s reasons for judgment in Jelfs. It also stated that Ms Jelfs adopted those parts of the submissions made in Ms Uren’s appeal relating to what was described as “the discretion issue”, which we assume related to the primary judge’s construction and application of s 94 of the 2010 RTA.

206    The submissions made in the Uren appeal on the construction and application of s 94 of the 2010 RTA may be summarised as follows.

207    The appellant summarised the challenge to the primary judge’s application of s 94 on the grounds that his Honour:

(a)    adopted a test which was an approach to the exercise of his discretion under that provision which was the most unfavourable to her position;

(b)    did not sufficiently identify “all the circumstances” as required by s 94;

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

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

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

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

208    The appellant further contended that the primary judge’s balancing exercise involved “no or no sufficient regard” to the following general circumstances:

(a)    the fact that 20 years or more of continuous possession meant that in the eyes of the law in NSW, the appellant was more than lessees, and had a leasehold tenure in the nature of freehold, referring to Wilson v Anderson [2002] HCA 29; 213 CLR 401;

(b)    the continued use, as distinct from possession, of the premises by various tenants for more than 20 years whereas removing these tenants forcibly will result in making the land waste as in the “zombie” mortgage belt in the United States;

(c)    the safety of the premises having regard to the care and attention paid by the tenants to their land;

(d)    reducing fire risk from having the land in possession and observed by persons interested; and

(e)    environmental care by retaining tenants in possession, who would care for the land.

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

210    In her outline of submissions, with specific regard to the particular circumstances of her appeal, the appellant submitted that the primary judge erred in:

(a)    finding that Ms Jelfs understanding that she had a tenancy for life was misconceived, a matter upon which she was not cross-examined;

(b)    Ms Jelfs’ rent was not $175 per week as found by the primary judge in [67] of his reasons for judgment but rather $190 per week;

(c)    the primary judge referred “dismissively” in [70] to Ms Jelfs’ dogs which were a very significant part of her life and had never had another home; and

(d)    the primary judge failed to give sufficient weight to Ms Jelfs’ health issues which were “a major part of her life” having regard to her history of cancer.

211    The outline of submissions dated 23 March 2016 did not otherwise address Ms Jelfs’ particular circumstances. It will be assumed, however, that Ms Jelfs relied upon the submissions which were made in the other appeals in respect of common grounds of appeal which were also raised by her in respect of her particular circumstances.

212    In his oral address, counsel drew attention to the evidence concerning Ms Jelfs’ health and to the primary judge’s reference to it in [73] of his Honour’s reasons for judgment. He submitted that the primary judge had given insufficient regard to Ms Jelfs’ health.

Respondent’s submissions specific to this appeal summarised

213    The Commonwealth did not object to Ms Jelfs relying upon the revised written submissions dated 6 April 2016.

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

215    The Commonwealth 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” 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 is 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.

216    The Commonwealth emphasised that Ms Jelfs had entered into written tenancy agreement as defined by s 13 of the 2010 RTA. The tenancy agreement contained an acknowledgement on the part of the tenant that the land in question was intended to be used for the proposed airport. In circumstances where 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.

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

Weighing of competing considerations

218    The respondent contended that, to succeed in challenging the primary judge’s exercise of discretion, the appellants needed to establish a reviewable error in the sense of House v The King [1936] HCA 40; 55 CLR 499. It was insufficient that the appeal court might reach a different conclusion and if the matter boiled down to one of different views regarding the weight to be given to relevant items no reviewable error is established (see 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).

219    With specific reference to Ms Jelfs and her submission that the primary judge failed to address whether either the termination or possession order were “appropriate”, the respondent contended that the primary judge did, in fact, consider and was reasonably satisfied that it was appropriate to make a termination order and that the effective date for vacant possession was 60 days from the date of judgment. Accordingly, although the Court ordered that Ms Jelfs give vacant possession on or before 18 December 2015, the order for vacant possession was suspended to 9 February 2016.

Date of termination order

220    As to Ms Jelfs’ 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. As we have said, those orders were that vacant possession be given on or before 18 December 2015, but that the order be suspended until 9 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 is defined to mean “an order terminating a residential tenancy agreement together with an order for possession of the residential premises”.

221    The respondent responded to the remaining submissions made by the Ms Jelfs as follows.

222    First, the respondent submitted that the submissions made in the outline of written submissions dated 23 March 2016 which addressed the issue of a stay were no longer relevant having regard to the fact that the proceedings were stayed by Robertson J on 22 January 2016.

223    As to the contention that the primary judge applied the wrong standard of proof in determining Ms Jelfs’ case, the respondent submitted that this complaint was immaterial in circumstances where the primary judge did not make any material factual findings which were contrary to Ms Jelfs’ evidence below. The respondent acknowledged, however, that one possible exception to that proposition related to the primary judge’s finding at [73] that he was not satisfied that there would be “real” impact on Ms Jelfs’ health if she had to move, but the respondent submitted that this finding was “inescapable” because Ms Jelfs had not adduced any evidence of the likely health impacts on her of such a move, apart from her subjective beliefs.

224    As to the submissions concerning the claim that the primary judge referred “dismissively” to Ms Jelfs’ dogs and gave insufficient weight to her cancer issues, the respondent submitted that these matters were not ignored and that Ms Jelfs needed to demonstrate an error in the exercise of the primary judge’s discretion.

225    Finally, as to the submission that the primary judge erred in his finding that Ms Jelfs was paying $175 per week rent (and not the true figure which was $190 per week), the Commonwealth described this as a “minor slip” which was in fact more favourable to Ms Jelfs and was not productive of any error in the orders which were ultimately made.

Consideration

226    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.

227    We turn to consider the remaining issues.

228    It may be recalled that the primary judge said, in his reasons for judgment in this matter at [74]-[76], that in the circumstances to which he referred, he considered it was appropriate that the residential tenancy agreement be terminated and that there be an order for vacant possession which was to take effect 60 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 then applicant Commonwealth on or before 18 December 2015; and that the order for vacant possession be suspended until 9 February 2016.

229    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 [14], repeating what he had said in Rigney at [140], which we have set out at [27] above.

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

231    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 9 February 2016. The appellant 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 is clear from Rigney at [140]. In our opinion, it is clear that the words in s 83(1) “specifying the day on which the order takes or took effect” refer to the order for possession. Also, the definition of “termination order” in s 80 of the 2010 RTA stated that it meant an order terminating a residential tenancy agreement together with an order for possession of the residential premises. The primary judge was making clear that the order for possession was not 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.

232    The appellant submitted, first, that no reasons were given as to why a different suspension period was made with respect to different appellants. Secondly, the appellant 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 relevant 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.

233    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 its 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.

234    It is also convenient to note here that we reject the submission put by the appellant that the primary judge had allowed only two weeks, after 20 years, for her to give up possession. In fact, the effect of the orders of the primary judge was to give 60 days from the date the order was made.

235    As to the reference to the purported balancing test applied, the primary judge said at [65], 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.

236    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 appellant’s 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 where, 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.

237    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 appellant. His Honour set out the correspondence at some length in his consideration of the circumstances affecting Ms Jelfs. The correspondence was taken into account by the primary judge in the exercise of his discretion.

238    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 [40] of the reasons for judgment the primary judge accepted the evidence given by 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 at [190]-[192] above.

239    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 appellant’s 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).

240    We reject the submission that the primary judge did not take into account the continued use of the premises by the appellant for more than 20 years. The primary judge was well aware of the use of the premises and 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.

241    The other submissions adopted by the appellant 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. The primary judge accepted the evidence of Mr Robertson as to the incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site and the residential amenity and safety. It was open to him to do so.

242    As to the respondent not providing sufficient assistance to tenants, we see no force in this ground. The point relevant to the exercise of the discretion by the primary judge was the availability of suitable alternative accommodation and, as we have said, the primary judge addressed this issue at some length.

243    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 which was an approach to the exercise of his discretion under s 94 which was the most unfavourable to the appellant’s 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

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

245    As to ground 11, concerning when Ms Jelfs had known about the possibility of having to move and whether that was since 1990, we consider there was an error at [74] of the reasons for judgment of the primary judge in stating that Ms Jelfs had been aware of the possibility that she would have to move from at least April 1990 when she first entered into possession of the premises, but we are not satisfied that the error was material. Earlier, at [45], the primary judge had referred to Ms Jelfs saying that she thought she had a tenancy for life when in 2004 the then Prime Minister announced that the airport would not proceed. The primary judge said he had taken Ms Jelfs’ understanding into account in reaching his decision. At [44], the primary judge found that at least from the entry into the tenancy agreement in November 2007, in light of cl 40 of the lease Ms Jelfs was aware of the possibility that the site may be developed for the purposes of the development of an airport. Her evidence was that when she first entered into possession of the premises she was told that the land was Commonwealth land and that an airport was to be built there. At [74], the primary judge said that more recently Ms Jelfs was told in 2014 that the possibility that she would have to move would soon become a reality and that she had known of the Commonwealth’s intention to obtain vacant possession for over a year. For these reasons, the error at [74] is immaterial and this ground fails.

246    As to ground 13, relating to Ms Jelfs’ pets, the primary judge referred at [70], in the context of considering the availability of alternative accommodation, to the submission that she should have not less than 6 months to move and compensation for loss of amenity and difficulties in finding alternative accommodation “for ourselves and our animals”. The primary judge took the reference to “ourselves” to be only to Ms Jelfs. The primary judge said that Ms Jelfs had two dogs which she described as “small house dogs.” From that description the primary judge inferred that they would not add to the burden of relocating. In these circumstances it is difficult to understand the first limb of ground 13 to the effect that the primary judge erred in stating the fact that Ms Jelfs had pets. The written submission was that the primary judge referred dismissively to Ms Jelfs’ dogs as they were a very significant part of her life and they had never had another home. However the primary judge said that Ms Jelfs gave no evidence about alternative accommodation. It follows there was no evidence to establish that two small house dogs would add to the burden of relocating or cause difficulties in finding alternate rental accommodation. In our opinion this ground fails.

247    As to ground 16 in the amended notice of appeal, which we have allowed insofar as it raises a claim that the primary judge did not sufficiently consider the 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]-[69] and evaluated that evidence. The primary judge gave reasons for concluding that Ms Fogarty was not a convincing witness but that she did make a number of reasonable points, which the primary judge then considered. We see no appellable error in the primary judge’s approach to the expert evidence.

248    As to ground 17, concerning the Commonwealth’s urgent need for vacant possession, we have considered at [185] and following above the evidence of Mr Robertson. There was no error in the primary judge accepting that evidence. We reject the submission that there was no real evidence to support the Commonwealth’s claim in that respect. It follows that there was evidence to take into account as against the evidence of the appellant in this respect. This ground therefore fails.

249    The remaining grounds, grounds 18 and 19, centre on the claimed long history of uncertainty and the changing position of the Commonwealth with regard to the building or not building of the airport; the claimed reasonable belief on the part of the appellant that since December 2000 she really believed that Badgerys Creek was not being considered as a site for the airport.

250    As to the first of these matters, ground 18, 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 appellant in relation to the history of decision-making. In any event, we note that, at [19] of his 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.

251    As to the second of these matters, ground 19, that the appellant believed that Badgerys Creek was not being considered as a site for the airport, we do not see this as having a foundation in the evidence. Objectively, the residential tenancy agreement in respect of the premises was entered into on 27 November 2007, expiring on 30 November 2009, and containing cl 40 which we have set out at [5] above. For completeness, we reject any submission that because the lessor did not plead that express provision for termination then 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

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

1.    Affidavit of Ms Kim Jelfs 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;

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

253    Section 27 of the Federal Court of Australia Act provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings from which the appeal arose, and has power in its discretion, to receive further evidence.

254    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.

255    In CDJ v VAJ [1998] HCA 67; 197 CLR 72, McHugh, Gummow and Callinan JJ said, at 202:

… it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

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

Affidavit of Ms Kim Jelfs dated 11 January 2016

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

258    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

259    The appellant sought leave to rely upon this affidavit in her appeal. The respondent notified objections to it on 18 March 2016.

260    This affidavit was of nine paragraphs. In this affidavit Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose to various telephone conversations she had had with New South Wales departmental officers with responsibility for the upgrade and the interrelationship between the stage 4 roadworks and the possible construction of an airport at Badgerys Creek. Ms Uren sought to depose at paragraph 9 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.

261    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.

262    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

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

264    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 in October 2015, and sought to attach a transcript of the speech in the Parliament by a Senator to establish this proposition. The first sentence of this paragraph we reject as hearsay. The second sentence we also reject as hearsay and because its tender, or reception into evidence, is contrary to s 16 of the Parliamentary Privileges Act 1987 (Cth). Further, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

265    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 Peter 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.

266    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.

267    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 entitled: “Affordable rental housing: the problem and its causes.” We reject this paragraph. The first sentence is not relevant to the present appeal. As to the paper sought to be annexed, it too is in a general form. It does not go to the specific position of Ms Uren or of the present appellant. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.

268    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 about which Ms Uren sought to give evidence. Fourthly, 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 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.

270    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

271    The respondent notified objections to this affidavit. Those objections were that the expert evidence was inappropriate for appeal; the material was either not relevant or, if it was, it could have been adduced before the primary judge; and queried the expertise of the deponent. The appellant submitted that the draft 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 appellant submitted that Dr Green’s curriculum vitae should be sufficient to establish his expertise.

272    Although, at paragraph 5, Dr Green stated that he had limited his observations to facts and matters arising after or affected by events occurring after August 2015, we do not accept that this is so. For example, many paragraphs were directed to what were described as deficiencies in establishing the need to build an airport at Badgerys Creek. Dr Green purported to say: “The decisions arrived at are therefore invalid and flawed” in paragraph 9. To that extent this material would have been available to the appellant at the hearing before the primary judge and there is no evidence explaining why it was not.

273    More importantly, it is not shown that Dr Green’s opinions as expressed in his affidavit, which involved a statement of opinion in paragraph 39 as to what was or was not “in the economic or societal interest of Australians”, were founded in his expertise. Thus, a criterion for the admissibility of an expert report is not met.

274    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.

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

276    We reject this affidavit.

Affidavit of Mr Kingsley Liu dated 1 February 2016

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

278    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

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

280    The affidavit is in terms formal and, so far as relevant, does 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

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

Associate:

Dated:    2 March 2017