FEDERAL COURT OF AUSTRALIA

Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 439

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ interlocutory application dated 11 April 2017 to stay the orders of the Full Court of the Federal Court made on 2 March 2017 is dismissed.

2.    The applicants pay the respondent’s costs of and incidental to that interlocutory application, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    The present applicants have been in continual possession of the premises at 1932 Elizabeth Drive, Badgerys Creek, New South Wales since January 2002. The residential tenancy agreement they had with the Commonwealth of Australia continued as a periodic agreement at the end of the fixed term on 4 August 2009. That the present applicants have been in continual possession of the premises for less than 20 years is relevant to the application of the Residential Tenancies Act 2010 (NSW) (2010 RTA).

2    One of the clauses in the agreement was as follows:

Proposed Airport Site

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

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

b)    to develop the Sydney West Airport; or

c)    for any other purpose

the landlord may terminate this Agreement by serving on the tenant written notice expiring six months from the date of the notice or on expiration of the fixed term (whichever is the earlier);

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

42.4    A termination of the Agreement under clause 42.2 shall not affect an existing right or obligation accrued or incurred by the landlord or by the tenant under this Agreement or otherwise at law or in equity.

(Original emphasis.)

3    On 2 March 2017, the Full Court made orders dismissing the present applicants’ appeal from orders made by the primary judge in the Federal Circuit Court of Australia (FCCA) on 21 December 2015: Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 28 (Odzic). The present application is, in substance, for a stay of those orders pending the determination of the applicants’ application for special leave to appeal to the High Court of Australia. The present reasons for judgment assume familiarity with the reasons of the Full Court in Odzic and with the statutory provisions there set out.

4    As stated by the Full Court at [8]:

On 29 June 2015, the Commonwealth applied to the FCCA for orders terminating the Odzics’ tenancy agreement and for vacant possession. The Odzics opposed the orders sought by the Commonwealth on various grounds, including that the 2010 RTA did not apply to the premises because they were predominantly used for non-residential purposes. The Odzics contested the jurisdiction of the FCCA. They contested the validity of the notice of termination; and they relied on representations allegedly made by an agent for the Commonwealth to the effect that they would receive at least 12 months’ notice of any termination. The Odzics argued that the Court should decline to exercise the claimed discretion to terminate the residential agreement because they would lose the value of their investment in the land if required to move; their age, health and family militated against their move from the premises; and the Commonwealth did not have urgent need of the premises. In contesting the urgency of the Commonwealth’s need for vacant possession, they relied amongst other things on a 99 year “right of refusal” conferred on Macquarie Airports. The Odzics also complained that the Commonwealth had offered them no compensation for the loss of their tenancy.

5    The orders of the primary judge were as follows:

1.    The residential tenancy agreement in relation to the premises at 1932 (formerly Lot 11) Elizabeth Drive, Badgerys Creek NSW 2555 comprising folio identifier Lot 11 DP 226448 (“Premises”) be terminated with immediate effect.

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

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

6    The primary judge discussed (at [7]-[18]) the relevant statutory framework, including the jurisdiction conferred by s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act); ss 81, 83, and 84-95 of the 2010 RTA; and ss 7 and 8 of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument). His Honour said (at [19]):

Once it is established that a notice of termination has been served on the lessee, the Court must terminate the residential tenancy agreement. However, the date of vacant possession is still a matter for the Court’s discretion. Section 8(2) of the Tenancy Disputes Instrument amends the [2010 RTA] so that the date for possession is the date that the Court considers appropriate.

(Emphasis in original.)

7    The Full Court said the following at [47]-[49] in relation to the claim for proprietary estoppel:

The Odzics claimed that they had relied on representations allegedly made to Mr Odzic by an agent of the Commonwealth in December 2001, including representations that the Odzics would not be evicted from the Premises for 20 years “so long as [they] paid [their] rent on time” and that the Odzics would “have at least 12 months to vacate the premises if [the Commonwealth] should ever give notice to vacate the land”. Mr Odzic stated that he and Mrs Odzic relied on these representations by entering into the original and later leases and by purchasing buildings and equipment for the land.

The primary judge noted that Mr Odzic was cross-examined on his affidavit. His Honour found that Mr Odzic “was not an impressive witness” and that “Mr Odzic’s evidence under cross-examination establishe[d] ... that he had fabricated his evidence about the representations made to him”. His Honour (at [90]) explained that:

It appeared to me that he gave whatever evidence suited his case and, when challenged on any aspect of that evidence, he changed it again to suit his case. I formed the view at the hearing that he was not telling the truth in the witness box and I do not accept any of his evidence apart from the fact that he lives on the Premises with his wife and two children. In arriving at this conclusion, I have taken into account the gravity of such a finding: sub s.140(2)(c) of the Evidence Act 1995; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Saad v Fares [2015] NSWCA 385.

After observing that Mrs Odzic did not give evidence, the primary judge held that there was “no foundation for the Odzics’ claim that a proprietary estoppel [had] arisen in their favour” (at [92]).

8    The Full Court said the following at [50] in relation to the Odzics’ claim for loss of investment in the land:

The Odzics claimed that, if forced to move, they would lose their investment in the land. The primary judge rejected this claim because he did not believe Mr Odzic’s evidence and, in any event, any amount spent by the Odzics on the premises was spent was “with full knowledge” of the fact that they were tenants and that there was a real possibility that they would be required to vacate the land in the event that the Commonwealth decided to use the land for other purposes, including for an airport.

9    The Full Court said the following at [51] in relation to the Odzics’ claim in respect of their age and health:

The Odzics argued that they were “relatively aged” and did not wish to move as it would impact their health and family. The primary judge held that “[t]here was no evidence about the health of either the Odzics or their children” and that although “it might be understandable that they do not wish to move, the fact that they must move is a consequence of being given a termination notice” (at [94]).

10    The Full Court said the following at [52]-[54] in relation to the Odzics’ claim in respect of lack of urgency for the Commonwealth to obtain vacant possession:

The Odzics submitted that there was no urgency for the Commonwealth to assume vacant possession because the Commonwealth had “given a 99 year right of refusal to open or use the site as a commercial airport to Macquarie Airports” (at [95]).

The Odzics similarly submitted that there was no pending commercial requirement for the termination orders for over 12 years and there was significant doubt as to the true purpose of the Commonwealth in applying for the orders.

The primary judge rejected both these submissions finding that they were not supported by the material before the Court. His Honour referred to the Odzics’ reference to “extensive documents” but observed that “none of those documents is specifically addressed in [the Odzics’] submissions” (at [97]). His Honour held that none of the matters to which the Odzics referred undermined Mr Robertson's evidence.

11    As to the claimed failure to offer compensation, the Full Court said the following at [56]:

The Odzics complained that the Commonwealth had not offered them any compensation for “the loss of their lease, the property affixed to it, or for the costs of complying with the eviction notice” (at [104]). His Honour held that there was no basis in evidence or submissions for any right to compensation. The primary judge also stated that it was not clear how such a right might bear upon the determination of an appropriate date for vacant possession of the premises, especially as there was no evidence about the Odzics’ financial means.

12    On 22 January 2016, this Court ordered that Orders 2 and 3 of the primary judge be stayed on condition that the then appellants, the present applicants, prosecuted their 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.

13    Thus, subject to appeal, the residential tenancy agreement was terminated on 21 December 2015 and the orders for vacant possession were stayed.

14    On 2 March 2017, the day the Full Court made the orders referred to in [3] above, Griffiths J granted a stay of the orders of the primary judge for 28 days.

15    On 24 March 2017, the present applicants provided a draft of a stay application and a special leave application seeking consent of the respondent to a continuation of the stay granted on 2 March 2017. That consent was not given.

16    On 29 March 2017 the present applicants filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia.

17    On 29 March 2017, Griffiths J refused with costs an application for the continuation of the stay granted by him on 2 March 2017, except that his Honour stayed orders 2 and 3 made by the primary judge and the orders made by the Full Court dated 2 March 2017 until 5 PM on 5 April 2017 to enable an application for a stay to be made to the High Court: Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329.

18    On 5 April 2017, Nettle J refused the application for a stay in the related matter of Dattilo: Dattilo & Anor v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] HCATrans 67.

19    On 6 April 2017 the present applicants filed an amended application for special leave to appeal in the High Court.

20    On 7 April 2017, an application for a stay of the orders of 2 March 2017 was lodged in the High Court.

21    The effect of this chronology is that the present applicants have been refused anything more than an interim stay by Griffiths J who, at [3] of his reasons for judgment of 29 March 2017, stated: “The interlocutory application seeking a stay was brought on the basis of this case being a sample case, the outcome of which would affect the other 16 matters.” I note in this respect the affidavit of Mr Odzic sworn on 11 April 2017, to which I will later refer in more detail, who at [3j] says that on 29 March 2017 Griffiths J refused with costs the continuation of the stay in each matter, granting a short extension of the stay to 5 April 2017. There has been no stay since 5 April 2017.

22    The three grounds identified in the draft special leave application which was before Griffiths J were as follows:

(a)    the Parliament of the Commonwealth has no power under section 77 of the Constitution or otherwise to make a law delegating to a Minister of the Commonwealth the power to define the jurisdiction of a Chapter III court in this case the Federal Circuit Court of Australia [‘FCCA’];

(b)    the Parliament of the Commonwealth has no power under section 77(iii) of the Constitution or otherwise to define the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in an administrative tribunal of a state that is not a court of a state;

(c)    in so far as the 2015 Instrument made by the Minister by Clause 6(2) purported to deprive NSW parties/citizens of the right to approach the NSW Civil and Administrative Tribunal (NCAT) it was neither “investing” the FCCA with jurisdiction nor was it “defining” the jurisdiction of the FCCA within the meaning of s.77 of the Constitution.

23    It was these three grounds which were before Nettle J on 4 and 5 April 2017 and about which his Honour said that neither the first nor the third of those grounds were advanced before the Full Court. As to the second of those grounds, which was argued before the Full Court, Nettle J said, at lines 345-346, “I doubt that the point is seriously arguable.” His Honour said, at lines 346-370:

It is not disputed that the Commonwealth had ample power to acquire the Badgerys Creek area as a Commonwealth place for the purpose of constructing the proposed new airport. Nor is it disputed that the Commonwealth Parliament had ample legislative power to enact laws with respect to that Commonwealth place, including laws governing the title to land within that place and, in particular, to enact the substantive law applicable to the lease and the conditions on which the lease may be determined. Subject only to Ground 3, therefore, to which I shall come in a moment, that means that the Commonwealth’s application to the Federal Circuit Court for an order for termination of the lease was a matter between the applicants and the Commonwealth which was governed by the law of the Commonwealth and, for that reason, was a matter within federal jurisdiction. Plainly, the Parliament of the Commonwealth alone has legislative power under s 77(i) of the Constitution to choose the court or courts on which to confer such federal jurisdiction and evidently it was in exercise of that power that the Parliament enacted the amendments to the FCCA Act which resulted in the conferral of that federal jurisdiction on the Federal Circuit Court. Contrary moreover to the applicants’ argument, this was not a case of the Commonwealth providing under s 77(ii) of the Constitution that such jurisdiction shall be exclusive of the jurisdiction of any state tribunal’s jurisdiction. It is simply that the matter is one within federal jurisdiction and, therefore, necessarily beyond the jurisdiction of any state tribunal, or at least will be so until and unless the Commonwealth Parliament chooses to and, having regard to the composition of the tribunal, is validly able to, confer that jurisdiction on that tribunal.

(Footnotes omitted.)

24    As to the third ground, for the same reasons his Honour doubted, at lines 372-373, that it was seriously arguable on the basis that there was no right to approach the NSW Civil and Administrative Tribunal (NCAT) in relation to a matter governed by the relevant provisions of the FCCA Act.

25    As to the first ground, Nettle J concluded, at lines 397-417:

… it appears to me to be clear that the first proposed ground of appeal is constructed upon the plainly false premise that the jurisdiction of the Federal Circuit Court to deal with the matter in suit was conferred, or purportedly conferred, under cl 8(2) of the Legislative Instrument issued under s 10AA(3) of the FCCA Act, rather than directly conferred by the Parliament under s 10AA(1).

The argument which was advanced in support of this ground was that, although general jurisdiction to deal with a Commonwealth tenancy dispute is directly conferred on the Federal Circuit Court under s 10AA(1) of the FCCA Act, the specific jurisdiction to make a termination order is purportedly conferred under cl 8(2) of the Legislative Instrument. But as it appears to me, the argument is directly opposed to the plain and ordinary meaning of the terms of s 10AA(1) and cl 8(2). Section 10AA(1) provides in terms that the Federal Circuit Court “has jurisdiction to hear and determine a Commonwealth tenancy dispute”. Clause 8(2) of the Legislative Instrument provides in terms that, if the Federal Circuit Court makes a termination order in exercise of that jurisdiction, it “may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given”. Clause 8(2) thus assumes, and is dependent for its operation in any given case upon, the existence and exercise of the jurisdiction conferred on the Federal Circuit Court under s 10AA(1). In both form and effect, therefore, cl 8(2) of the Legislative Instrument is a provision, promulgated pursuant to the powers conferred on the Minister by s 10AA(3) of the FCCA Act, as to the powers which the Federal Circuit Court may exercise within the ambit of the jurisdiction conferred on it under s 10AA(1). And needless to say, it has not been contended that it is beyond the legislative competence of the Commonwealth Parliament to enact that a Minister of the Commonwealth may provide by legislative instrument for the specific powers of a federal court within the ambit of any federal jurisdiction validly conferred on that court.

26    The present interlocutory application to this Court is dated 11 April 2017 and was filed on 12 April 2017. It is supported by an affidavit of Mr Stojan Odzic sworn 11 April 2017. I admit that affidavit insofar as it states the bases on which the present applicants contend that their application for a stay is urgent; that unless a stay is granted pending the hearing of their application for leave to appeal to the High Court the premises are likely to be demolished by the Commonwealth once it obtains vacant possession; that the present applicants are up to date with both rent and claimed occupation fees; and the medical evidence including the tendered certificates. I also note that, at [4] of that affidavit, Mr Odzic states: “We give as a condition of the stay sought in this application if required of us the usual undertaking as to damages.” For reasons I will come to, I give that statement little weight. I do not admit the contents of that affidavit or I give them little weight insofar as they purport to state facts inconsistent with those found by the primary judge, in respect of which the Full Court found no appellable error.

27    More specifically, I reject the part of [3a] “a jurisdiction conferred… February 2015” as a submission of law; I give [5] little weight if it is meant to have any specific content insofar as it states that the deponent has read the revised application for special leave to appeal and says its factual contents are true and correct; I reject the words in [6] “and resumed our improvements to the land and our valuable equipment on it” as this constitutes a submission of law; I reject the words in [8] apart from the first sentence as it purports to state facts inconsistent with those found by the primary judge and in respect of which the Full Court found no appellable error; I reject the words in [11] “and without the notice of 12 months to which we agreed with the lessor’s agent when entering into the lease in 2001, and on which we have relied since that time,” for the same reason; I reject [13] for the same reason; I reject [14] as it is defective in form and irrelevant; I reject [15] apart from the words “For example there are now cattle now at Vicarys (old winery) which is part of the proposed airport site.” as the balance is defective in form or is a submission; I reject in [16] the words “which has made access almost impossible in the case of many of the residences” as there is no sufficient factual basis for it; I reject [17] from the word “however…” to the end of that paragraph as there is no sufficient factual basis for it or it is a submission; I reject [18] as there is no sufficient factual basis for it and, in part, it purports to state facts inconsistent with those found by the primary judge, in respect of which the Full Court found no appellable error. Insofar as the affidavit makes general statements, I give those statements little weight. For example I give little weight to what is said in [12] about finding alternative accommodation and to what is said in [16] insofar as I have admitted it into evidence. As to [12], I note that the primary judge, at [102], rejected similar general evidence for reasons he had given about Mr Odzic’s credit and because “the evidence is so general as to be unhelpful.” This is set out in more detail in the judgment of the Full Court in Odzic at [55].

28    The applicants also rely on an affidavit by Mr Kingsley Liu, affirmed 1 May 2017. I reject that affidavit as irrelevant. I also reject it under s 135 of the Evidence Act 1995 (Cth) having regard to its form and contents.

29    In so far as the applicants seek to rely on a further affidavit by Mr Kingsley Liu, affirmed on 3 May 2017, there was no objection to it and I admit it. It annexes a newspaper article dated 2 May 2017 stating that “Sydney Airport” has turned down the opportunity to build and operate the new airport at Badgerys Creek.

30    The interlocutory application is in the following terms:

1.    Order that the orders of the Full Court of the Federal Court of Australia made on 2 March 2017 be further stayed pending determination of the Applicants' amended application for special leave to appeal filed 6 April 2017 by the High Court of Australia.

2.    That this application be determined by the Full Court which decided the matter on 2 March 2017 comprising Kenney [sic], Robertson and Griffiths JJ.

3.    Further or other directions.

4.    Costs

31    As to prayer 2 of the application, that the interlocutory application be determined by the same Full Court as made the orders on 2 March 2017, under s 25(2) of the Federal Court of Australia Act 1976 (Cth) an application to stay an order of the Full Court must be heard and determined by a single judge unless the circumstances set out in s 25(2)(e) or (f) obtain. The relevant provision is as follows:

25    Exercise of appellate jurisdiction

(1)    The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

…

(2)    Applications:

(a)    …; or

(b)    …; or

(c)    …; or

(d)    to stay an order of a Full Court;

must be heard and determined by a single Judge unless:

(e)    a Judge directs that the application be heard and determined by a Full Court; or

(f)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

There is a corresponding provision in s 25(2BB) in respect of the power in s 25(2B)(ab) whereby a single judge (sitting in Chambers or in open court) or a Full Court may make an interlocutory order pending, or after, the determination of an appeal to the Court.

32    Counsel for the applicants submitted, first, that it was appropriate for the Full Court as it had been constituted to hear the appeal to hear the application for a stay unless there was some reason why that ought not to happen. Secondly, counsel submitted that it appeared that this Court was exercising the power of the High Court or alternatively its inherent power to control its own jurisdiction. Thirdly, counsel submitted that the High Court in Mercanti v Mercanti [2017] HCA 1; 340 ALR 225 at [9] and in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681 focused on the court from which the appeal to the High Court was taken as being the appropriate forum. It was submitted that the ratio of these authorities required the Court which made the orders to consider the application and that might well be because the High Court would wish to have the benefit of the views of the Full Court that decided the matter, not a single judge comprising part of that Full Court. In relation to s 25 of the Federal Court of Australia Act, counsel for the applicants submitted that the proceeding had been assigned to a Full Court and it was only the Full Court that would determine the application. He submitted that the Full Court may have a reserve power to refer the application to a single judge although that proposition was not acceded to. Counsel submitted that the proceeding having been assigned to a Full Court, the jurisdiction was to be determined only by that Court and not by a single judge because, if the construction was otherwise, then a single judge could pre-empt the exercise of power by the Full Court on any occasion and that was not what the Parliament intended.

33    In my opinion, the default position established by s 25(2) is that such an application is to be heard by a single judge unless either of the events in (e) or (f) applies. That is the way the provision is written and there are obvious practical reasons why that should be so. I do not accept the submissions of counsel for the applicants to the contrary. For example, it may take time for a Full Court as originally constituted to be convened or reconvened where, as here, the interlocutory application cannot be dealt with at the time of the hearing of the appeal. As here, the application may be one which is required to be dealt with urgently. It may be that none of the judges who constituted the Full Court is available to hear such an interlocutory application. I do not accept the submission on behalf of the applicants that this Court is exercising the power of the High Court or its inherent jurisdiction or that Mercanti v Mercanti “which is the source of the Court’s jurisdiction” provides that the application should be heard by the Full Court which determined the matter. In my opinion the jurisdiction is statutory and is found in s 25 of the Federal Court of Australia Act. Next, I accept that an application for a stay pending the hearing of an application for special leave to appeal to the High Court should be heard and determined by the intermediate Court of Appeal or Full Court but in the case of this Court that does no more than take the question back to s 25. I reject the submission that s 25 means it is only the Full Court as constituted to hear the appeal that had the authority to determine an application for a stay or that the Full Court has only a reserve power to refer the application to a single judge. That is not the way s 25 is framed. I do not accept the submission that if the construction of s 25 was as I have found it to be, then a single judge could pre-empt the exercise of power by the Full Court on any occasion and that was not what the Parliament intended. That is not how the provision works or how the Court works.

34    In summary, in the present case if (f) does not apply, under (e) a judge has not directed that the application be heard and determined by a Full Court and if (f) does apply, which is the basis on which I proceed, the Full Court, being the judges who constituted the Full Court which heard and determined the appeal, has not considered it appropriate for it to hear and determine the interlocutory application for a stay. I refer to the consideration of the provision in Unit Trend Services Pty Ltd v Commissioner of Taxation [2013] FCA 333 at [4] and following and record that, similarly, I have consulted the other judges who, with me, constituted the Full Court.

35    That prayer of the interlocutory application is refused.

36    The amended application for special leave to appeal contains the following grounds, the amendments being underlined (compare the grounds I have set out at [22] above):

(a)    the Parliament of the Commonwealth has no power under section 77 of the Constitution or otherwise to make a law delegating to a Minister of the Commonwealth the power to define and invest the jurisdiction of a Chapter III court in this case the Federal Circuit Court of Australia [‘FCCA’];

(b)    the jurisdiction and powers conferred on the Federal Circuit Court of Australia were beyond power in that such comprised the jurisdiction and powers of the New South Wales Civil and Administrative Tribunal [‘NCAT’l which is not a ‘court’ within the meaning of Constitution Chapter III thereby in error compromising the separation of powers required by the Constitution;

(c)    the 2015 Instrument made under Federal Circuit Court of Australia Act 1999 section 10(1A) and 10AA(2) and (3) was invalid because upon the true construction of section 10AA the Instrument was not authorised by the law;

(d)    the termination notice relied on was not valid;

(e)    the Respondent was estopped from serving the termination notice under the Residential Tenancies Act 2010 [NSW] sections 82 and 85 by the representation relied upon by the Applicants, or by a collateral contract to the same effect;

(f)    the exercise of discretion by the Federal Circuit Court of Australia miscarried.

37    I have referred above to the affidavit of Mr Odzic sworn on 11 April 2017. I also admit into evidence three documents tendered on behalf of the applicants: first, a letter to the Registrar of the High Court requesting that the Dattilo application for special leave be listed “at your next earliest convenience”; second a certificate of capacity dated 10 March 2017 in relation to Mr Odzic; and third a certificate of capacity dated 8 December 2016 in relation to Mr Odzic. I reject the tender of a newspaper cartoon dated 3 May 2017.

38    The respondent Commonwealth relied on an affidavit affirmed on 26 April 2017 by Benjamin James May, lawyer, annexing correspondence between the parties’ solicitors and deposing to certain events in the conduct of the proceedings. There was no objection to it and I admit it into evidence.

39    The respondent also relied on an affidavit affirmed on 29 March 2017 by Brendan Ewen McRandle, an Executive Director at the Department of Infrastructure and Regional Development. There was no objection to it and I admit it into evidence.

40    The purpose of that affidavit was stated, at [3], to be to set out the reasons why vacant possession was urgently required by the Commonwealth and “to provide further information that may be relevant to the question of whether the orders of the Full Court of the Federal Court made on 2 March 2017… ought to be subject to an ongoing stay.”

41    Mr McRandle deposes, at [4], that since the hearing by the Full Court in April 2016 the Commonwealth has made a number of key decisions to progress the Western Sydney Airport which relate to the Commonwealth’s need for vacant possession of the Badgerys Creek airport site. Mr McRandle refers to a notice of intention to Sydney Airport Group, which holds a right of first refusal to build and operate Western Sydney Airport, issued on 20 December 2016; to the finalisation of the Environmental Impact Statement allowing for the Airport Plan to be determined; to the determination of that Plan by the Minister on 5 December 2016, providing the authorisation for the construction and operation of Stage 1 of the Western Sydney Airport; and to the Plan allowing a range of on-site works to commence, paving the way for the Commonwealth’s commitment to have construction commencing in 2018.

42    Mr McRandle deposes, at [17], that should occupants remain on the site, this schedule is at risk with consequences for project costs for a nationally significant infrastructure project. Mr McRandle states, at [20], that the presence of former licence holders and former tenants greatly impedes the ability of the Department to implement the Government’s decision on a nationally significant project and at the same time encumbers the Commonwealth with considerable costs of access, notification and ensuring the ongoing safety of occupants. In particular, he deposes, not having certainty of access before construction commences will impact planning and the orderly progression of activities on site which may cause delays to the project. He states, at [28], that the planning, assessment, site management and preparation activities for the airport site are being undertaken on a “whole of site” basis for all of the land included in the airport site. Mr McRandle also states, at [29], that planning for an airport requires substantial on-site technical work. Currently, Mr McRandle deposes at [31], the Department is progressing work on a range of preparatory site activities necessary for the project to progress to completion within the timeframes committed to, including the Government’s commitment to have construction commence in 2018. He provides details of those activities. He states, at [32], that the range of physical and construction activities on-site will only continue to increase in the coming months and is incompatible with continued occupation of the properties the subject of the stay application.

43    Mr McRandle then sets out, at [33] and following, the process for accessing occupied blocks, the interaction of which he described as complex and requiring careful coordination. He states, at [35], that if vacant possession cannot be obtained, the project management team cannot be certain that access to a particular site can be given on a particular day. He referred to those uncertainties as causing serious obstacles to planning, delay and additional costs for the work on site.

44    He then deposes to potential delays to the project schedule arising from continued occupation of the site and to difficulties for the Commonwealth arising from continued occupation of the site. In particular, at [43], Mr McRandle states by way of summary that: “Delays in vacating properties will delay the process of demolition and this would consequently impact the construction timeframes for the airport.” At [44] and following, Mr McRandle deposes to more specific difficulties for the Commonwealth arising from any continued occupation of the site.

45    I accept Mr McRandle’s evidence.

46    I also admit a document tendered in response to Mr Liu’s second affidavit being a press release dated 2 May 2017 by the Prime Minister confirming that the Commonwealth itself will build Western Sydney Airport.

Consideration

47    I note first that this is an application for a stay rather than for the continuation of a stay, the previous stay or stays granted by Griffiths J having expired.

48    The second matter I note is that the Odzics have already applied for and been refused a stay by this Court. It is not suggested that any facts have changed since that refusal, only that the grounds of the special leave application have been amended. In other circumstances I would give serious consideration to whether, having regard to the interests of justice, a second application for a stay may constitute an abuse of process: see Liu v Age Company Limited [2016] NSWCA 115 at [13], [219] and [292], [296]. It does not appear from [3n] of Mr Odzic’s affidavit that when an officer of the High Court Registry informed the present applicants’ solicitor that, as a condition of approaching the High Court, the present applicants had to approach the Court which heard the matter first, that officer understood that a stay application in respect of the present applicants had already been refused by this Court. Having said that, I accept that the present applicants have not had a determination of their application for a stay by the High Court and for that reason I propose to consider the grounds relied on by them in their amended application for special leave to appeal. Counsel for the applicants accepted that whatever might be the normal issues that may arise with a second application for a stay, the point of coming to this Court is that the Court has not looked at the amended application for special leave in the applicants’ matter and the High Court had not yet considered the present applicants’ application for a stay.

49    The submissions advanced in support of the amended application for special leave to appeal, and my consideration of them, are as follows.

50    As to ground (a), that the Parliament has no power to make a law delegating to a Minister the power to define the jurisdiction of a Ch III court, this ground, as sufficiently arguable to found a further stay of the orders of the Full Court, has been rejected by Griffiths J and by Nettle J. The issue of delegation does not arise. Amending to add the words “and invest” does not seem to me to improve the prospects of a grant of special leave. Section 71 of the Constitution relevantly provides that the judicial power of the Commonwealth shall be vested in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. Thereafter, the term “investing” relates, in s 77(ii), to defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States and, in s 77(iii), to investing any court of a State with federal jurisdiction. Section 77(i) provides, in substance, that with respect to a matter in which the Commonwealth is a party, the Parliament may make laws defining the jurisdiction of any federal court other than the High Court. In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

51    In oral argument, counsel for the applicants submitted, in effect, that Nettle J had focused on cl 8(2) of the Instrument whereas the argument was more relevantly directed to cll 7(1) and 8(1). It was put that there was an exclusive cause of action in respect of which the State tribunal had exclusive jurisdiction both of which had been affected by these clauses inconsistently with s 77(i) of the Constitution. In my opinion what was said by Nettle J necessarily covers that submission and there is no material difference between the clauses now emphasised and cl 8(2). What Nettle J said at lines 399-410 in Dattilo was that cl 8(2) assumed, and was dependent for its operation in any given case upon, the existence and exercise of the jurisdiction conferred on the FCCA under s 10AA (1). That clause was a provision as to the powers which the FCCA may exercise within the ambit of the jurisdiction conferred on it under s 10AA(1). As his Honour went on to note at lines 412-417, as I have set out at [25] above:

And needless to say, it has not been contended that it is beyond the legislative competence of the Commonwealth Parliament to enact that a Minister of the Commonwealth may provide by legislative instrument for the specific powers of the federal court within the ambit of any federal jurisdiction validly conferred on that court.

52    As to ground (b), according to the applicants’ written summary of argument at [18], this seeks to raise the point that the Federal Courts Legislation Amendment Act 2015 (Cth) “authorised the investing of the exclusive jurisdiction under 2010 RTA upon the FCCA”. To the extent the submission was made to the Full Court that a separation of powers issue was involved in the present case, it does not follow, as the Full Court said at [101], 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. Amongst other things this ignores the terms of s 5(3) of the Instrument which states that nothing in ss 5 to 10 of that Instrument had effect so as to confer non-judicial power on the FCCA, unless the non-judicial power is incidental to the exercise of judicial power by that Court. In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

53    As to ground (c), the contention that the Instrument is invalid, it is said that the applicable law is not “in respect of” a Commonwealth tenancy dispute within the meaning of s 10AA(3) of the FCCA Act. In my opinion, this proposition is not arguable. The Instrument makes provision for the applicable law in respect of a Commonwealth tenancy dispute, such as the dispute between the Commonwealth and the present applicants. That is the character of the law. It is a mischaracterisation to say that the Instrument is (only) in respect of NCAT’s exclusive jurisdiction “confined to and defined by the exclusive exercise of an administrative power to terminate the tenure relationship, later conferred on the FCCA.”

54    The ground contends that the Full Court erred in holding that Shanahan v Scott [1957] HCA 4; 96 CLR 245 was distinguishable. The Full Court considered this issue at [140]-[141]. The submissions on behalf of the present applicants do not explain what light Shanahan v Scott casts on the present issue. The general power there under consideration was held not to support the regulation which the majority held extended the legislative plan. In the present case the power to make the Instrument is specific and does not extend the operation of the enactment. In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

55    As to ground (d), the alleged invalidity of the termination notice, the present applicants contend that the termination notice was issued prior to the commencement of the Federal Courts Legislation Amendment Act and therefore the Instrument operated retrospectively, inconsistently with the Legislation Act 2003 (Cth).

56    The Legislation Act provides in s 12(2):

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.

Consistently with what the Full Court said at [138], s 12 has no relevant operation in respect of the Instrument since the Instrument, or a provision of it, did not commence before the day it was registered. I note here the discussion of the predecessor to this provision, s 48(2) of the Acts Interpretation Act 1901 (Cth) in Pearce D and Argument S, Delegated Legislation in Australia (4th edition, LexisNexis, 2012) at [31.10].

57    Lest there be any doubt as to the applicability to the Odzics’ lease of the amendments made by the Federal Courts Legislation Amendment Act, item 5 of Pt 1 of Sch 2 to that Act stated that the amendments made by that Part applied in relation to a lease entered into before the day that item commenced and to a Commonwealth tenancy dispute between the parties to the lease that arose before, on or after that day.

58    Part of this ground appears to involve the submission that because the notice of termination dated 24 November 2014 was given under s 85 of the 2010 RTA, the notice became invalid upon the commencement of the Federal Courts Legislation Amendment Act or on the making of the Instrument. It is not suggested that the termination notice failed to specify a termination date that was not earlier than 90 days after the day on which the notice was given: see s 85 of the 2010 RTA. The termination notice also complied with s 82 of the 2010 RTA as then applicable. There is a reference at [35] of the written submissions on behalf of the present applicants to s 82(1)(c) of the 2010 RTA, but that provision is inapplicable because the notice was given under s 85. No ground for the notice was therefore required to be set out in the termination notice.

59    The Odzics did not agree to vacate the premises. There was at that stage, if not before, a matter involving a lease and a dispute about the termination of the lease or the possession, occupation or use of the land in which the Commonwealth was a party. From 26 February 2015, the date on which the Federal Courts Legislation Amendment Act commenced, that “Commonwealth tenancy dispute” was a matter which the FCCA had jurisdiction to hear and determine, the Commonwealth being the lessor and a person (or persons) other than the Commonwealth being the lessee (or the lessees). Under the Instrument, by s 7, in determining the Commonwealth tenancy dispute, the 2010 RTA was to be applied to the extent necessary to determine the dispute, subject to the modifications set out in s 8 of the Instrument. None of this has the consequence that the Instrument operated retrospectively or that its operation was excluded by s 12 of the Legislation Act.

60    In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

61    As to ground (e), an estoppel argument, this was considered by the Full Court at [194]-[196] and at [209]. No error was found in the conclusion of the primary judge. The primary judge rejected Mr Odzic’s evidence concerning the alleged representations. The primary judge did not believe Mr Odzic, finding him not to be a witness of truth. The Full Court said it was clearly open to the primary judge to find that Mr Odzic was not a truthful witness for the reasons given by him. The Full Court also noted that Mr Odzic’s evidence was directly inconsistent with the terms of the residential tenancy agreement made on 27 November 2007 and which contained cl 42, which I have set out at [2] above. In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

62    As to ground (f), it is submitted that the FCCA erred in balancing the needs of both parties at the discretionary level. Reference is made to the discretion in s 114 of the 2010 RTA, but it seems likely that the relevant discretion was conferred by s 8(2) of the Instrument which gave the FCCA a discretion to make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord, the Commonwealth. In any event, the argument does no more than re-agitate matters that were put both to the Full Court and to the primary judge. The Full Court found no error within House v The King [1936] HCA 40; 55 CLR 499 in the exercise of the discretion of the primary judge. No error in the exercise of the relevant discretion has been identified, the exercise of the discretion of the primary judge being that vacant possession of the premises be given on or before 28 December 2015 and that order for vacant possession be suspended until 25 January 2016. I reject the submission at [43] that “representations, relevant to the situation of the Odzics, have been disregarded.” In my opinion this ground is not sufficiently arguable on an application for special leave to appeal to the High Court so as to warrant a stay by this Court.

Conclusion and orders

63    In my opinion, leaving aside for the moment the prospect of special leave to appeal being granted, the balance of convenience is as follows. Although the applicants have lived in the premises for many years, cl 42 has always formed part of the tenancy agreement. I take into account the extent of the Odzics’ family presently residing at the premises. I take into account Mr Odzic’s state of health. I also take into account his evidence as to the animals and his equipment on the land and the weather conditions. I find it is the Commonwealth’s practice to demolish any premises once it obtains possession of land at the Badgerys Creek airport site and this weighs substantially in favour of the applicants. However, there is no detailed or convincing evidence that the applicants have made recent attempts to obtain accommodation elsewhere. Further, I take into account that the Commonwealth in its notice of termination to the present applicants in respect of their residential tenancy agreement nominated 15 June 2015 as the date by which vacant possession was required to be given it and that the primary judge ordered on 21 December 2015 that vacant possession be given on or before 28 December 2015, that order being suspended until 25 January 2016 and those orders having been the subject of subsequent stay orders. I take into account but regard as neutral that the Odzics are up to date with the Department with both rent and claimed occupation fees.

64    I find the grant of a stay would also cause prejudice to the respondent Commonwealth, as deposed to by Mr McRandle and as I have earlier set out. I do not regard that prejudice as limited to economic loss but as extending to the delay of a major infrastructure project. I note in this respect the submission on behalf of the present applicants that the “special leave application and the appeal are likely to be heard before the end of the year.” As I understand it, no formal application for an expedited determination by the High Court of the application for special leave has been made by the applicants.

65    I do not regard the statement by Mr Odzic in his affidavit as to the usual undertaking as to damages as being of present significance as there is no evidence of the financial resources of the Odzics in light of what I find to be the substantial additional costs likely to be incurred by the Commonwealth if the preparation of the Badgerys Creek airport site cannot be undertaken on a “whole of site” basis. Indeed, the written submissions filed on behalf of the present applicants on 26 April 2017 refer to them being “in straitened circumstances”.

66    I find that the balance of convenience lies in favour of the respondent.

67    Of greatest weight in relation to the question of a further stay is that I have found that none of the six grounds relied on by the applicants in their amended application for special leave to appeal to the High Court is sufficiently arguable to warrant a stay. I reach the same conclusion in relation to the six grounds considered in the aggregate.

68    In so concluding I have considered the factors to which Kiefel J, as the Chief Justice then was, referred in Mercanti v Mercanti at [11]-[12]. I have also taken into account what Gageler J said in Obeid v R [2016] HCA 9; 329 ALR 372 at [14]:

Since Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd, [(1986) 161 CLR 681 at 684] judicial exposition of the conditions under which a stay will be granted in the context of an application for special leave to appeal has uniformly emphasised the need for the existence of “exceptional circumstances”. The standard exposition has gone on to emphasise the relevance, even where the Court or a Justice is satisfied that a stay is required to preserve the subject matter of litigation, of consideration of whether there is a substantial prospect that special leave to appeal will be granted, of whether the grant of a stay would occasion prejudice to a respondent, and of where the balance of convenience might lie in the circumstances of the case. Those factors, however, do not always arise for consideration and collectively they do not exhaust the considerations that may be relevant in every case.

69    Contrary to the submissions on behalf of the applicants, I do not regard as applicable to the present application the decision in Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9], which I considered in Kenney v Commonwealth (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14 at [10] in then granting a stay to the then appellants, including the present applicants. This is because there is a substantial difference between the granting of a stay in relation to an appeal as of right and the granting of a stay in respect of an application for special leave to appeal to the High Court, particularly having regard to the criteria for the grant of special leave to appeal in s 35A of the Judiciary Act 1903 (Cth).

70    For these reasons, I refuse the interlocutory application dated 11 April 2017 seeking a stay of the orders of the Full Court made on 2 March 2017. The application is dismissed, with costs.

Associate:

Dated:    5 May 2017