FEDERAL COURT OF AUSTRALIA

Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 691

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend her interlocutory application to include the words “That the warrant for enforcement of order for possession dated 26 May 2017 be stayed pending the outcome of the application for leave to appeal filed on 26 May 2017”.

2.    The interlocutory application be dismissed.

3.    The applicant pay the respondent’s costs of the interlocutory application.

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

REASONS FOR JUDGMENT

BURLEY J:

1    The applicant, Ms Sandra Uren (Ms Uren), is one of three tenants (the Urens) of premises in Vicar Park Lane, Luddenham, NSW (Premises) which are located within the parcel of land upon which the Commonwealth proposes to build the Western Sydney Airport.

2    By an interlocutory application dated 8 June 2017, Ms Uren seeks an interlocutory order that, pending the determination of an appeal from a decision dated 18 May 2017 (Decision) of the Federal Circuit Court of Australia (FCCA) (Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No 2) [2017] FCCA 1014) “the orders of the Court below be stayed” pursuant to s 29 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

3    The orders made on 18 May 2017 were:

(1)    The time within which the applicant may apply for a warrant for possession is extended to 30 days from the date of this order.

(2)    The respondents are to pay the applicant’s costs in the application in a case.

(3)    The applicant’s costs referred to in order to affix in the amount of $2,900.

(4)    Order 1 above be stayed for a period of seven days from the date of this order.

4    Following this order, on 26 May 2017 the Registrar of the FCCA issued a warrant entitled “Warrant for Enforcement of Order for Possession” addressed to the “Sheriff and all Sheriff's Officer[s]”. By that warrant the Sheriff or a Deputy Sheriff of the FCCA is authorised to enter the Premises and take all steps that are reasonably necessary to give possession to the Commonwealth including the use of such force as is reasonably necessary, subject to certain conditions. The warrant provides that it must be executed within 60 days of the date of issue. I have been informed by counsel representing the Commonwealth, Mr Doyle, that the Sheriff currently proposes to execute the warrant not before 26 June 2017. This date for potential execution of the warrant indicates that there is an element of urgency attending the interlocutory application.

5    It may immediately be seen that the interlocutory application as filed was misconceived, because by the date upon which it was filed the warrant in respect of which the leave was ordered had already been issued. However, during the course of argument, counsel appearing on behalf of Ms Uren, Ms Davy, sought leave to amend it by adding an additional order as follows:

That the Warrant for Enforcement of Order for Possession dated 26 May 2017 be stayed pending the outcome of the application for leave to appeal filed 26 May 2017.

6    Although the Commonwealth formally objected to the amendment, it accepted that it was in a position to answer the ground. In those circumstances I allow the oral application to amend.

7    Broadly speaking, Ms Uren contends that a stay should be granted pending the determination of her application for leave to appeal from the Decision, first, because there is an arguable case that the Decision was wrong with the consequence that the leave to apply for the warrant should be set aside, and secondly, because the balance of convenience favours a stay. Ms Uren relies upon two affidavits sworn by herself and one sworn by her sister, Ms Leanne Uren.

8    The Commonwealth opposes the grant of the stay submitting, in broad terms; that the balance of convenience does not favour the grant of a stay; that any undertaking as to damages offered is inadequate; and that a sufficiently arguable case has not been demonstrated, especially in light of previous decisions by this Court and the FCCA. The Commonwealth relies on three affidavits made by a senior lawyer at the Australian Government Solicitor, Benjamin May, dated 12 April 2017, 10 May 2017 and 13 June 2017. Mr May’s affidavit of 10 May 2017 included as an annexure a sworn affidavit made by Brendan McRandle dated 29 March 2017, who is the Executive Director of the Commonwealth Department of Infrastructure and Regional Development.

9    It is necessary to set out some of the history of the dispute between the parties.

10    The Urens have lived at the Premises for over 20 years as tenants of the Commonwealth pursuant to what is termed a “long-term tenancy” for the purposes of the Residential Tenancies Act 2010 (NSW) (RTA). The Commonwealth wishes to develop the land upon which the Premises are located, and in 2015 commenced proceedings for vacant possession. On 11 December 2015 Judge Smith of the FCCA gave judgement (Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors [2015] FCCA 3280) and made orders that the residential tenancy agreement between the Urens and the Commonwealth in respect of the Premises be terminated forthwith, that vacant possession of the Premises be given to the Commonwealth on or before 18 December 2015 and that the order for vacant possession be suspended until 10 March 2016 (VP orders).

11    The VP orders were the subject of an appeal, which was dismissed by orders made by the Full Court of the Federal Court of Australia made on 2 March 2017 (Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development [2017] FCAFC 30) (Uren Full Court Decision). Ms Uren has subsequently applied for special leave to appeal to the High Court in respect of that decision.

12    No stay is in place in respect of the VP orders, with the consequence that the Commonwealth is entitled to vacant possession of the Premises.

13    It is relevant at this point to note that there have been several applications to stay the VP orders and/or the orders of the Full Court. In this regard a broad outline of the chronology is as follows:

(a)    Judge Smith of the FCCA initially suspended the order for vacant possession until 10 March 2016;

(b)    On 22 January 2016, Robertson J made orders staying the order for vacant possession pending the determination of the appeal; Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14 (Kenney). In that case his Honour considered equivalent stay applications made by 17 appellants, including Ms Uren, each in substantially the same position;

(c)    On 2 March 2017, when the Uren Full Court Decision was delivered, Griffiths J allowed a stay for 28 days to permit Ms Uren an opportunity to file an application for leave to appeal to the High Court of Australia;

(d)    on 30 March 2017, Ms Uren filed an application for special leave to appeal to the High Court;

(e)    Since the grant of that stay, no further stay has been granted in respect of the order for vacant possession, although other similarly placed parties who were unsuccessful before the Full Court in separate proceedings have sought stays; see Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329 (Griffiths J) and subsequently Nettle J in the High Court (Dattilo & Anor v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] HCATrans 67 (Dattilo)) and also Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 439 (Robertson J) (Odzic).

14    On 21 April 2017 the Commonwealth filed an application in a case in the FCCA seeking orders, inter alia, that the time within which the Commonwealth may apply for a warrant for possession be extended to 30 days from the date of any order, and that a warrant for possession be issued for the premises. It was in response to this application that the VP orders were made.

15    The relevant statutory scheme, the subject of the present dispute, is set out in the Uren Full Court Decision at [77] – [88], and I do not repeat it here. For present purposes it is sufficient to note that the relevant provision regarding the application for a warrant for possession is set out in s 121 of the RTA which provides as follows (emphasis added):

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.

…

16    The reference to the “Tribunal” is, pursuant to the statutory regime applicable, taken to be a reference to the FCCA.

17    The primary judge found that the “date by which vacant possession was required” referred to in s 121(2) was in the present case originally 10 March 2016, however, that changed because of orders staying the orders made on 11 December 2015. His Honour found that, in effect, the order suspending the operation of the order for vacant possession made on that day was overcome by the stay ordered by Robertson J on 22 January 2016, with the consequence that the order for immediate possession took effect only on 30 March 2017; Decision at [11].

18    The primary judge then noted the arguments of the Commonwealth that the Court ought to allow a further period under s 121(2): first, because the respondents have had no legal right to possession since 11 December 2015; secondly, because the respondents are in breach of the order requiring them to give vacant possession; thirdly, because the only reason why the Commonwealth has not moved more quickly to apply for a warrant is that the relevant orders were stayed until very recently (being 30 March 2017); and fourthly, because to refuse the grant of an additional period within which a warrant may be sought would defeat the purposes for which the orders were made; Decision at [12].

19    The primary judge records and then rejects three arguments advanced the Urens. First, the fact that the Commonwealth has given them no assistance to move weighs against the grant of any extension of time. The primary judge found that the requirements of s 121(3) do not serve to limit the power of the Court to extend time pursuant to s 121(2), even though negotiation between the parties is encouraged by s 121(3). Secondly, the Urens contended that there was no evidence that the Commonwealth had approached the Registrar for the issue of a warrant or that the orders made on 11 December 2015 had been served on them. The primary judge rejected that these matters influence, in the present case, the application of s 121(2), noting that the Urens were clearly aware of the orders made on 11 December 2015 as they had both appealed from them and sought a stay of them. Thirdly, the Urens contended that any extension of time ought to be granted subject to conditions, namely that the warrant not be applied for within 90 days, taking into account, inter alia, the evidence that there would be difficulties associated in moving and the injuries sustained by one of Ms Uren’s horses which resulted in its death since the residential tenancy agreement was terminated. The primary judge rejected this argument, noting that these matters were not relevant to the discretion to be exercised under s 121(2) and in particular do not deal with the impact of the delay in the Commonwealth obtaining possession of its land, the Urens’ evidence only seeking to support further delay.

20    Moreover, the primary judge noted that if he had found these factors to be relevant, and if he did have power to impose conditions on the extension of time, he would not impose any condition in the circumstances of the present case.

21    The primary judge gave the following reasons for this conclusion:

22.     First, there is no question that the delay has not been caused by the Commonwealth. Rather, the extension of time has been necessitated by the respondents’ appeal and the orders staying the orders of 11 December 2015 for possession. Although the respondents seem to have pursued their appeal with all due expedition, the appeal was ultimately unsuccessful.

23.     Secondly, the respondents have no right to remain on the Premises and have known for many months of the possibility that they would have to leave with little or no notice.

24.     Thirdly, the respondents have known since 30 March 2017 that the Commonwealth has had the right to immediate possession. Any delay in taking all necessary steps to vacate the Premises falls on them as does any difficulty created by their failure to do so.

25.     The delay in seeking the issue of a warrant has not been caused by anything other than the appeals brought by the respondents. The Commonwealth expeditiously applied for an order extending the time for applying for a warrant. It is entitled to immediate possession and the respondents are not acting in accordance with the orders of this Court.

22    In relation to the current application, on 24 May 2017 Ms Uren made an affidavit in which she deposed to filing an application for special leave to appeal to the High Court in respect of the Uren Full Court Decision. In that affidavit she asks that the Court stay the 18 May 2017 Orders, and attaches a Draft Notice of Appeal from the Decision (although, as I have noted above, the interlocutory application seeking a stay was not filed until 8 June 2017).

23    The proposed grounds of appeal set out are as follows:

1.    The primary judge erred in holding that the orders sought under the Residential Tenancies Act 2010 (NSW) section 121 were correctly sought and may be made.

2.    The primary judge erred in not exercising properly or at all the court’s jurisdiction with respect to the issues raised and/or in not considering arguments of the applicant in answer to the respondent’s case under Residential Tenancies Act 2010 (NSW) section 121 including the absence of power to make such orders.

3.    The primary judge erred in not holding that there was a sufficient case to support a stay of the proceedings pending determination of the application of the respondent.

4.    The primary judge erred in not admitting evidence of the applicant.

5.    The primary judge erred in not admitting evidence of Mr Liu.

6.    The primary judge erred in finding that in fact although there was no evidence of any orders being served, and no application to the registrar that the orders sought should be made.

7.    The exercise of discretion of the primary judge miscarried.

24    The grounds of appeal reveal little relationship to the arguments that were advanced in support of the contention, in the present proceedings, that they were arguable, although Counsel helpfully indicated that the arguments (to which I refer below) relate to grounds 1, 2 and 7.

25    In considering the present application for a stay the relevant authorities and principles that are applicable are conveniently set out in the decision of Robertson J in Kenney as follows:

10 The appellants relied on Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9] per Rangiah J as follows, omitting references:

[9]    I was not referred to any authorities in which an application for a stay of a pecuniary penalty order had been considered. The application fell to be determined having regard to the nature of the order and upon general principles. Those principles include the following:

(a)    There is an onus on the applicant to demonstrate a proper basis for a stay that will be fair to all parties.

(b)    There is a prima facie assumption that the judgment appealed from is correct.

(c)    There is a prima facie assumption that the Court should not deprive a litigant of the benefit of a judgment in its favour.

(d)    The Court has a broad discretion as to whether to grant a stay, and it is not necessary for an applicant for a stay to demonstrate special or exceptional circumstances. It is sufficient that the applicant demonstrates a reason or an appropriate case to warrant the exercise of discretion in its favour.

(e)    The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case.

(f)    A stay will usually be granted if there is a real risk that the applicant will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal.

(g)    In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.

11    The appellants emphasised paragraph (f) and submitted that in a case such as the present the Court should not consider whether there are arguable grounds of appeal. I do not accept that submission. It is, in my view, inconsistent with the scope of the discretion conferred by s 29 of the Federal Court of Australia Act and with earlier decisions of the Court, for example, Australian Competition and Consumer Commission v BMW (Australia) limited (No. 2) [2003] FCA 864 at [5] and Watts v Bendigo and Adelaide Bank Ltd [2010] FCA 1013 at [11]. In the latter case, with reference to authority, Yates J said that the Court must consider whether an arguable ground has been raised on the appeal and whether the balance of convenience favours the granting of a stay. I refer also more generally to Australian Workers’ Union v Pilkington (Aust) Ltd (2001) 101 FCR 35.

26    The applicable law was not in dispute between the parties and, as I have noted above, Ms Uren advanced her application on the basis that there are reasonably arguable grounds raised on appeal and that the balance of convenience favours the granting of a stay. I first turn to consider whether or not Ms Uren’s grounds of appeal are reasonably arguable.

27    In relation to proposed ground 1, Ms Uren advanced several points. First, she submits that since the VP orders were made on 11 December 2015 the Commonwealth has accepted on a regular monthly basis further “rentals” from the Urens’. The consequence is that since the order for vacant possession a new tenancy has been created under s 13 of the RTA. This tenancy arises, Ms Uren submits, implicitly and subsists from month to month. The primary judge erred at Decision [13], [23] because he accepted the Commonwealth’s submission that the order for vacant possession operated to terminate the residential tenancy and that since then the Urens have had no legal right to occupy the premises.

28    In support of this contention Ms Uren relies upon her affidavit of 12 June 2017 where she asserts that she has continued to pay what she characterises as rent three weeks in advance. She annexes to that affidavit a document from the Commonwealth dated 5 June 2017 that states that it has received $850 for “Badgerys Creek rent”. Ms Leanne Uren also gives evidence in relation to this subject, which in [3] amounts to inadmissible conclusionary statements as to the legal relationship between the Urens and the Commonwealth. Objection was taken to that evidence, and I reject it.

29    Ms Uren relied upon Windmill Investments (London) Ltd v Milano Restaurant [1962] 2 QB 373 at 376 and Finley v Russell-Jones [1949] 49 SR (NSW) 96 at 101 (Jordan CJ, Street and Maxwell JJ) for the proposition that the unequivocal acceptance of rent on the part of the Commonwealth knowing of the termination order giving right to end the lease “gives rise to a new or further lease between the parties; whether or not rent has been received is a question of fact”. It is plain that, on Ms Uren’s own case, a factual question arises as to the proper characterisation of any payments made. Three matters inclined me to the view that this ground has little or no prospect on appeal, and that there is little prospect that Ms Uren will obtain leave to appeal.

30    First, as Ms Uren’s counsel accepts, it was not raised as an argument before the primary judge. Secondly, Ms Uren was unable to point to any evidence received by the primary judge that related to this issue. Plainly it was a matter of fact which ought to have been raised below and the Commonwealth ought to have had an opportunity to respond to it. Any characterisation of payments made by the Urens could be considered in the context of such evidence.

31    These factors alone tell strongly against the prospect that leave to appeal would be granted in respect of this ground; Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7; (2015) 227 FCR 95 at [162] (Kenny, Besanko, White JJ); Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71 – 72 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7.

32    Thirdly, the facts of the present case provide an unpromising start for the proposition that by accepting payment from the Urens a further and separate lease has been entered, rather than as something better characterised as payment of an occupation fee. The Commonwealth has at least since 2015 sought vacant possession of the premises, a point emphasised by judgments at first instance and on appeal. The terms of ss 117 and 123 of the RTA suggest that the factual matters raised afresh in relation to this argument are, in any event, irrelevant. Further in the present application, Mr May annexes a letter sent to the Urens dated 29 June 2016, advising them that all payments paid by them and accepted by the Commonwealth are without prejudice to its rights at law and in equity, including its right to possession, the termination notice and any court orders. It states that acceptance of any payments made does not imply any right to continued occupancy.

33    In the result, I consider that this argument is not reasonably arguable and that leave to advance it on appeal, or to advance evidence in support of it, would be required and, that such leave is unlikely to be given.

34    A further point advanced by Ms Uren in support of ground one is that the primary judge made an error at [11] in which he concluded that the “date by which vacant possession was required” within s 121(2) was the date concluding on the last day on which a stay was ordered, being 30 March 2017. Ms Uren contends that the correct construction of those words, when supplied to the facts of the present case, is 18 December 2015.

35    Ms Uren then submits that at [22] (quoted above) the primary judge, proceeded to consider whether the Commonwealth should be granted an extension of time from 11 December 2015. She submits that the primary judge adopted an inconsistent position in that regard because the effect of the finding in [11] was that the extension was only required from 30 March 2017. She submits that had the primary judge considered that the relevant date was 30 days from 30 March 2017, then the relevant period of delay was from 29 April 2017 (when the 30 days expired) until the date upon which the Commonwealth made its application. This, she submits, reflects an error within ground one and also ground seven of the proposed appeal.

36    It is difficult to see how this argument assists Ms Uren. As the evidence discloses, the Commonwealth in fact made its application for the warrant on 20 April 2017 which was within 30 days of 30 March 2017. If the construction set out by the primary judge at [11] is correct, then it was unnecessary for the Commonwealth to make an application for a further period of time in which to apply for the warrant within s 121(2). In any event, the primary judge appears at [22] – [26] to have proceeded on the basis that the Commonwealth required an extension of time from the date upon which the VP orders were made. On that basis, he concluded that the Commonwealth was entitled to the extension. In either situation, the result is that the Commonwealth is able to make the application for a warrant for possession.

37    Accordingly, this additional point raises no argument that would result in the warrant for possession being set aside.

38    Proposed ground two raises an argument that is described in Ms Uren’s written outline as “a constitutional question of general importance”. The point made is that s 77(i) of the Constitution imposes a restriction upon the power of the Parliament to make a law which confers power upon a Minister of the Commonwealth (as distinct from itself) to make a law defining the court’s jurisdiction, in this case the Commonwealth Tenancy Instrument under the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) s 10(1A). The point is that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) made by the Minister under s 77(i), incorporating the warrant powers under the RTA within Part 6 and s 121, is invalid. Ms Uren contends that this point is not the same one as that argued in Dattilo and that the primary judge failed to deal with it, although it was put to him.

39    At my request, at the conclusion of argument the parties considered the transcript below and have jointly informed me that this argument was referred to before the primary judge. In my view, it was raised only fleetingly, by a simple reference to the written submissions. The full extent of the written submissions before the primary judge on the subject is, the parties agree, as follows:

The application in a case of the Department [‘the applicant’] against each of the Respondents [‘the tenants’] listed in the Schedule brought under Residential Tenancies Act 2010 section 121(2) and Federal Circuit Court Act 1999 section 10AA(3) and the Instrument clauses 6(1) and 7(1) should be refused because: …

…

(e) in any event the Court’s powers under the RTA 2010 are invested in the Court and defined by an Instrument which the Minister had no power to make and which the parliament had no power to confer upon him under Constitution section 77.

40    No notice was given to the Attorneys General of the Commonwealth and of the States concerning the matter, as required by s 78B of the Judiciary Act 1903 (Cth). The primary judge did not address this argument in his reasons. In the circumstances, that is hardly surprising. He was entitled to take that course because, in the absence of notice being given, it was the duty of the Court not to proceed on the basis of this argument in the absence of the provision of notice. No submission was put to his Honour that s 78B did not apply.

41    No notice under s 78B has been provided in the present application, although I note the exception provided under s 78B(5), which is applicable for present purposes. Accordingly, I turn to consider the ground as raised.

42    It appears to me that the substance of Ms Uren’s argument has been addressed by two Courts, Nettle J, in Dattilo and Robertson J in Odzic, and rejected as untenable in both. In Dattilo Nettle J, in refusing the applicant a stay pending the outcome of an application for special leave to the High Court, said the following:

… 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.

43    Here, Nettle J observed the distinction to be drawn between the conferral of jurisdiction under s 10AA(1) of the FCCA Act, and the power for the Minister, by legislative instrument, to make provision a number of matters relating to tenancy disputes within s 10AA(3). The argument advanced by Mr Dattilo was that the specific jurisdiction to make a termination order is purportedly and incorrectly conferred under cl 8(2) of the Legislative Instrument (which provides that the RTA is to be applied as if it included a provision that; “Despite anything else in this Act, if the FCCA makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord”). That argument was rejected as being contrary to the plain and ordinary meaning of the terms of s 10AA(1) and cl 8(2). The former provides in terms that the FCCA has jurisdiction to determine a tenancy dispute. Clause 8(2) provides that if the FCCA makes a termination order in exercise of that jurisdiction, it may make such orders as it considers appropriate. Clause 8(2) thus assumes, and is dependent for its operation in any given case upon the existence of the jurisdiction conferred under s 10AA(1). The passage quoted confirms Nettle J’s firm view that the legislature was able to enact that a Minister may provide by legislative instrument, for the specific powers of the FCCA. The basis for that power derives from the conferral of jurisdiction under s 10AA(1) of the FCCA Act.

44    The submission put by Ms Uren in the present case is not relevantly different to that considered in Dattilo. The argument is that Parliament does not have power to make a law conferring power on a Minister to make a law defining the FCCA’s jurisdiction. However, as Nettle J notes, jurisdiction is conferred by Parliament pursuant to s 10AA(1) of the FCCA Act. That is clear from its language, having conferred jurisdiction on the FCCA, cl 8(2) is dependent for its operation in any case upon the existence and exercise of the jurisdiction conferred on the FCCA under s 10AA(1) of the FCCA Act.

45    Robertson J in Odzic at [51] said in this regard (emphasis added)

… 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). …

46    Accordingly, and contrary to the submission of Ms Uren, it is apparent that the argument now sought to be raised on appeal falls within not only Dattilo, but also the reasoning of Robertson J in Odzic. In my view, it is not reasonably arguable and leave to appeal is unlikely to be granted.

47    The final argument advanced in support of Ms Uren’s proposed grounds of appeal was not in submissions linked to any specific ground of appeal. In her written outline of submissions she contends that the primary judge held in error that discretionary factors such as breaches of the provisions of Part 3 of the RTA (“Rights and Obligations of Landlords and Tenants”) were not relevant to the exercise of the Court’s discretion to extend time under s 121. Ms Uren points to error in [17] – [19] of the Decision.

48    In these paragraphs, the primary judge addressed the Urens’ argument that an extension of time ought to be subject to conditions, relying on the broad protective provisions in Part 5 of the RTA. It is not apparent that the argument as currently articulated (concerning Part 3) was advanced before the primary judge. The primary judge, in rejecting the argument concerning the imposition of conditions, observed that the provisions relied upon by the Urens in Part 5, which deal with the termination of residential tenancy agreements, do not have any impact once an order for possession has been made and, as in this case, not complied with. His Honour observed that the provisions of Part 6 of the RTA, such as s 121, concern the recovery of possession.

49    Part 6 of the RTA is entitled “Recovery of Possession of Premises”. Division 1 of Part 6, in which s 121 appears, is entitled “Recovery of Possession”. Section 120 provides constraints upon the repossession of residential premises unless the person is acting in accordance with a warrant (or the tenant has abandoned the premises or given vacant possession). Section 121 provides for the issue of such a warrant.

50    It is apparent that the purpose of these provisions is largely facultative and designed to ensure that landlords do not engage in self-help once they have obtained orders for vacant possession. Their purpose is evidently to maintain the peace and avoid confrontation in relation to the recovery of possession of premises following the termination of a tenancy. In that context, the provisions of the RTA concerning steps anterior to the order for possession are unlikely to provide a basis for the exercise of discretion under s 121. The statutory focus of s 121 is conduct after the tenancy is terminated, the Court having already concluded that it is at an end.

51    Ms Uren’s argument encounters three substantial difficulties. First, it seeks to challenge the exercise by the primary judge of a discretion and accordingly the principles in House v The King (1936) 55 CLR 499 apply. Secondly, the argument raised contends, in effect, that his Honour failed to take into account a relevant consideration, when in fact the scheme of the RTA does not suggest that he did do so. Thirdly, the argument raised does not appear to have been advanced before the primary judge. In my view these points, taken collectively or individually, lead to the conclusion that the ground raised is not reasonably arguable. The prospect that leave to appeal on this basis would be allowed is low.

52    In relation to the balance of convenience, the position advanced by Ms Uren in submissions falls into two parts. First, she submits that “at worst” a stay should be put in place until 11 August 2017 to enable the Urens to move out of the premises in an orderly manner. In this regard she relies in particular on the evidence of Ms Leanne Uren to the effect that there are 25 years’ worth of belongings in their house, that it will take time to move them out, that they have “unique” moving requirements including the moving of farm machinery and horses, and that her father will not be available to assist until 24 July 2017. Secondly, Ms Uren submits that a stay should be granted pending resolution of the appeal. In this respect she contends that the result of not granting a stay will be that as soon as the premises are vacated the Commonwealth will demolish the dwellings on it and the appeal will be rendered nugatory. She submits that there is no urgency on the part of the Commonwealth and, relying on the decision of the primary judge in his reasons from 2015 ([2015] FCCA 3280), that the Commonwealth’s case as to urgency is “tenuous”.

53    In relation to the first of these points, it is to be noted that the Urens have been on notice of the Commonwealth’s intention to seek possession of the land at least since the dismissal of the appeal. Indeed, the evidence of Mr May indicates that on 29 October 2014 an agent on behalf of the Commonwealth informed the Urens that the Commonwealth required vacant possession of the Premises not before June 2015. I have in [33] above referred to the letter from the Commonwealth to the Urens of 29 June 2016. Consistent with this correspondence, the Commonwealth has continued to resist the Urens’ appeal and maintained its right to possession. On 8 May 2017 Mr May wrote to the solicitor representing the Urens, informing him that if the Commonwealth succeeded in obtaining leave to apply for the warrant for possession, it intended to seek to enforce vacant possession as soon as possible. In these circumstances it is hardly as if the Court should consider this application on the basis that Ms Uren comes to the Commonwealth’s position from a standing start. She has been aware for years that it seeks vacant possession. Furthermore, no convincing evidence has been supplied by Ms Uren to suggest that any attempt has been made to attempt to prepare to vacate the premises or move the possessions identified. In short, I do not regard as meritorious the argument that a stay should be granted to accommodate logistical issues faced by the Urens in circumstances where they have long been on notice of the need to vacate.

54    In relation to the second of these points it is necessary to consider the broader context of the present application.

55    Ms Uren brought the application before me as a single judge pursuant to s 29(1) Federal Court of Australia Act 1976 (Cth). In her written submissions, she “gives notice” that it is proposed to be submitted to the Court that, having regard to the nature of the issues raised in the appeal, and the number of like applications proposed to be made by third parties, that it would be appropriate for a Full Court to hear the application for leave to appeal pursuant to s 25(1AA)(b). No evidence or submission has been advanced by either party as to the likely timing of these hearings, and it is not appropriate that I make further comment in this regard. However, it may be observed that the effect of taking this course is that after determination of this application for a stay, two further steps in the appeal process are envisaged by Ms Uren.

56    I note and accept that if a stay is not granted, then, after the premises are vacated, the Commonwealth is likely to move swiftly to demolish the buildings. A consequence of that will be that the subject matter of the proceedings currently the subject of an application for special leave to appeal to the High Court, being the dwellings on the premises, will be removed and any appeal rendered nugatory. I also note the matters summarised at [53] above.

57    However, no stay has been obtained in relation to the subject matter of the appeal to the High Court, with the consequence that no stay is in force in relation to the termination of the tenancy agreement or the order for vacant possession.

58    In this context it is to be noted that the subject matter of the present application for leave to appeal is the legal correctness of the discretionary decision of the primary judge to extend the time pursuant to s 121(3). The need for the extension of time for leave to apply for a warrant for possession only arises because of the time taken for Ms Uren unsuccessfully to exercise her rights of appeal against VP orders. These are matters of relevance in assessing the balance of convenience.

59    Also in the matrix of assessing the balance of convenience is the evidence given in the detailed affidavit made by Mr McRandle. In it he deposes 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. He refers 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 one 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 and airport operations commencing by 2026.

60    Mr McRandle deposes that should occupants remain on the site, this schedule is at risk, with consequences for project costs for a nationally significant infrastructure project. He states 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 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 that planning for an airport requires substantial on-site technical work including invasive geotechnical drilling and ripping trials to obtain samples to inform the engineering options, which require substantial machinery on the site including large mobile rigs to drill and dig holes, often several metres deep. Such work can be intrusive, can require out of hours access and security arrangements and can cause safety concerns for occupants. Currently, the department is progressing work on a range of preparatory site activities necessary for the project to progress to completion within the timeframe it is committed to, including the Government’s commitment to have construction commence in 2018. He states 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 property which is the subject of the stay application.

61    Mr McRandle then sets out the process for accessing occupied blocks, the interaction of which he described as complex and requiring careful coordination. He states 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 refers to those uncertainties as causing serious obstacles to planning, delay and additional cost for the work on-site. He then deposes to potential delays to the project schedule arising from continued occupation of the site. In particular, he 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”. He deposes to more specific difficulties for the Commonwealth arising from any continued occupation of the site.

62    In a press release dated 2 May 2017 the Commonwealth Government reconfirmed its commitment to build the Western Sydney Airport, a project which it characterised as being vitally important for Western Sydney, for Sydney and the nation. Justice Robertson in Odzic accepted the evidence of Mr McRandle at [45], as do I. I find that the grant of a stay pending an application for leave to appeal and any appeal would cause substantial prejudice to the Commonwealth. That prejudice extends to significant economic loss and the delay of a major infrastructure project. In order to meet the case of the Commonwealth in relation to economic loss, Ms Uren proffered the usual undertaking as to damages. She adduced no evidence as to her financial position, or as to the resources available to meet any claim for damages under the undertaking. I do not accept that this offer is material in weighing the balance of convenience in the present case given the scale of economic loss which is likely to arise from the continued occupation by the Urens of the premises.

63    In summary, it is necessary for me to weigh all of the factors set out in Kenney in considering whether this is an appropriate case to warrant the exercise of discretion in favour of Ms Uren to grant a stay. As stated above I regard the proposed grounds of appeal not to be reasonably arguable and/or unlikely to benefit from the grant of leave to appeal. The balance of convenience is plainly also a significant consideration. I am aware that a likely consequence of the refusal of a stay is that the Commonwealth will obtain possession and swiftly move to demolish the buildings which the Urens currently occupy. This plainly weighs in favour of Ms Uren’s application. However, this must be considered in the light of the fact that she has already failed at first instance and on appeal in her case resisting the termination of the tenancy and that those decisions are not the subject of a stay. This application, and the proposed appeal, concern her attempt to resist the execution of a warrant for possession in circumstances where her arguments for entitlement to possession have failed. Furthermore, the proposed appeal is confined to consideration of whether the primary judge’s discretion to extend the time under RTA s 121(2) miscarried, where the need for the extension arose from the Urens’ own appeal.

64    Weighing the balance of convenience also involves consideration of the position of the Commonwealth. The undertaking as to damages offered does not answer the significant and daily prejudice caused by the impediment that remaining in possession poses to the conduct and continuation of the Western Sydney Airport project.

65    Taking all of these considerations into account, for the reasons more fully explained above, I am of the view that a stay ought not to be granted.

66    Accordingly, I order that:

(1)    the applicant have leave to amend her interlocutory application to include the words “That the warrant for enforcement of order for possession dated 26 May 2017 be stayed pending the outcome of the application for leave to appeal filed on 26 May 2017” ;

(2)    the interlocutory application be dismissed; and

(3)    the applicant pay the respondent’s costs of the interlocutory application.

Associate:

Dated:    19 June 2017