FEDERAL COURT OF AUSTRALIA

Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) (No 2) [2017] FCA 759

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicants pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicants pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction dated 8 June 2017 be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

3.    In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 11 December 2015, after a lengthy trial, Judge Smith ordered that, first, each of the present applicants (the occupants), and some others, give vacant possession of their respective premises at Luddenham or Badgerys Creek on or before 18 December 2015, but, secondly, that order be suspended for a period, and in Ms Uren’s case until 10 March 2016: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren [2015] FCCA 3280. Those premises form part of a large parcel of land required for the purposes of building an airport at Badgerys Creek. That is a major public infrastructure project that was announced by the Commonwealth in 2014 and has been pursued by it through the course of the various proceedings involving the occupants.

2    Each of the occupants, and some others, appealed as of right to this Court and sought a further stay pending the resolution of their appeals. On 22 January 2016, Robertson J granted those stays on condition, including that the appeals be pursued with expedition: Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14.

3    The Full Court ultimately dismissed each of the 17 appeals on 2 March 2017 (see e.g. Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 30, and 16 related judgments). Later that day, Griffiths J granted a further stay of 28 days, that is, to 30 March 2017, to enable all, or at least some, of the occupants to decide whether to apply to the High Court for special leave to appeal.

4    On 5 April 2017, Nettle J refused Mr and Mrs Dattilo, two of the occupants, a further stay of Judge Smith’s order for vacant possession pending the hearing of their application for special leave to appeal: Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] HCA Trans 067 at p 11. His Honour noted that Mr and Mrs Dattilo were then over $13,000 in arrears of their rent or occupation fee and were unwilling to provide any undertaking as to damages. Mr and Mrs Dattilo have now changed their position and in their application today seek to offer an undertaking as to damages, along with the other 10 sets of occupants.

5    On 20 April 2017, the Commonwealth applied to Judge Smith for an order that the time within which it could apply for a warrant of possession be extended to 30 days from the date of the order. Two other members of the group of the occupants, Mr and Mrs Odzic, applied to Robertson J for a stay of the order for vacant possession and, on 5 May 2017, his Honour dismissed that application: Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 439. Peter King of counsel, who has appeared at all relevant times for the occupants, instructed by The People’s Solicitors’ principal, Kingsley Liu, informed me that Mr and Mrs Odzic’s application to the High Court for a further stay of the order for vacant possession has not yet been listed for determination by that Court.

6    On 12 May 2017, Judge Smith heard the Commonwealth’s application made on 20 April 2017 and reserved his decision. On 18 May 2017, Judge Smith made orders that the time within which the Commonwealth could apply for a warrant for possession be extended to 30 days thereafter, that is, to 17 June 2017, and that the occupants pay the Commonwealth’s costs: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren (No 2) [2017] FCCA 1014. However, his Honour stayed the first order until 25 May 2017, so that the first day on which the Commonwealth could apply for a warrant was 26 June 2017 (25 June in any event being a Sunday). On 18 May 2017, Mr King, who was, as here, counsel for each of the occupants before Judge Smith, conceded to his Honour that the cases of all of the other occupants had “no different arguments … and [they] will not, on that basis, oppose the making of the orders made in similar terms to [Ms] Uren[’s case], including the seven day stay, and the costs order”. His Honour acted on that basis by making the same orders against each of the other occupants but reserved his reasons in each of their matters, which are listed for delivery tomorrow.

7    Judge Smith noted in his reasons of 18 May 2017 that his orders of 11 December 2015 had terminated the occupants’ residential tenancies in accordance with the Residential Tenancies Act 2010 (NSW). Those orders had ceased to be the subject of any stay by this Court on 30 March 2017 and, as I have noted, Nettle J also refused to grant a stay of the order for vacant possession to Mr and Mrs Dattilo and Robertson J refused to grant one to Mr and Mrs Odzic.

8    Judge Smith found, as a reason why he was prepared to make an order extending the period within which the Commonwealth could apply for a warrant for possession under s 121(2) of the Residential Tenancies Act, that, as a result of the removal to stay on 30 March 2017, there was no impediment to the Commonwealth exercising its right to immediate possession. He found that any difficulty in vacating their premises should fall on the occupants in those circumstances, and that they had not acted in obedience to the orders for vacant possession of which they had been aware for a very long time, albeit subject to their bona fide appeals that they had pursued, but ultimately lost, in the Full Court of this Court.

9    On 26 May 2017, from about 9.55am, the Commonwealth applied to the Registrar of the Federal Circuit Court, giving notice to Mr Liu and Mr King by email, for a warrant for enforcement of the orders for possession under s 121 of the Residential Tenancies Act in accordance with Judge Smith’s grant of leave. The Registrar issued warrants later that day in accordance with the approved form that provided that, in paragraph 9, each be executed within 60 days of the issue date. For example, the warrant affecting the premises occupied by Mr and Mrs Dattilo, was filed electronically by the Registrar at about 4.19pm on 26 May 2017.

10    Ms Uren, one of the occupants who is making a further application to me today for a stay, had applied on 8 June 2017 for a stay of enforcement of the warrant affecting the land she and her sister occupied. Burley J heard that application on 14 June 2017. On Monday 19 June 2017, his Honour refused to grant Ms Uren any stay for reasons that he gave that are comprehensive and, in my opinion, correct: Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 691. Burley J noted that the Commonwealth currently intends, unless a stay or injunction is granted, to cause the Sheriff to execute the warrants not before 26 June 2017, hence the urgency of the present applications, including Ms Uren’s renewed application, before me today by the 11 sets of occupants.

11    Each of the occupants today seeks an interlocutory injunction restraining the Commonwealth from relying on the warrants, or having them enforced, until 10 July 2017.

The statutory context

12    Importantly, Judge Smith, in exercising his discretion to make the orders that he did on 18 May 2017, acted under s 121(2) of the Residential Tenancies Act, as it applied to proceedings in the Federal Circuit Court pursuant to s 10(1A) of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) made pursuant to s 10AA(2) and (3) of the Federal Circuit Court Act.

13    Relevantly, Judge Smith exercised powers conferred on the Federal Circuit Court under ss 83 and 85 of the Residential Tenancies Act, as applied by s 10(1A) of the Federal Circuit Court Act and or the Instrument, when his Honour made the orders for vacant possession on 11 December 2015. Section 119 of the Residential Tenancies Act provided that a landlord or former landlord could not commence proceedings against a tenant or former tenant of the landlord in any of the Supreme, District or Local Courts of New South Wales to obtain recovery of possession of residential premises that were subject to a residential tenancy agreement.

14    In the present circumstances, by reason of Judge Smith’s earlier orders for vacant possession, and the necessary concomitant that in making those orders, any tenancy previously granted to the occupants had been or was then terminated, that section could have no application where there was no existing residential tenancy agreement.

15    Section 120(1) provided that a person could not enter residential premises for the purposes of taking possession of those premises before, or after, the end of a residential tenancy agreement unless the person was acting in accordance with a warrant arising out of an order for possession of, relevantly in this case, the Federal Circuit Court or a writ or warrant arising out of a judgment or order of a court. There is no doubt that Judge Smith’s order of 11 December 2015 was an order of a court. Section 121 relevantly provided:

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. (emphasis added)

16    Section 123 provided that where a tenant failed to comply with an order for possession made under the Residential Tenancies Act, the tenant was liable to pay an occupation fee to the landlord for the period during which the tenant remained in possession of the residential premises after the date that the tenant was required to vacate the premises and that that fee was payable in an amount equal to the rent that would have been payable for the period, had the residential tenancy agreement not been terminated.

The issue

17    The occupants seek interlocutory injunctions preventing the execution of the warrants enforcing the orders for possession until 10 July 2017. They also seek orders to require the parties to negotiate on the terms of the preparation of application books and case management directions for the hearing of Ms Uren’s application for leave to appeal that was filed on 26 May 2017 and the other 10 occupants’ applications for an extension of time and leave to appeal that were all filed on 13 June 2017. Each of the occupants offers undertakings that he, she or they will take all reasonable steps to expedite their respective applications and will co-operate with the Commonwealth in respect of any requests for access to their respective premises upon reasonable notice to them or their solicitor, and each offers the usual undertaking as to damages.

18    The nature of the jurisdiction which I am exercising is relevant. It is an application, in each case (except Ms Uren’s), for an extension of time in which to seek leave to appeal, and, in Ms Uren’s case, simply, for leave to appeal, from Judge Smith’s orders of 18 May 2017. The extensions of time are necessary because none of the occupants, except Ms Uren, filed an application for leave to appeal, in accordance with r 35.13(a) of the Federal Court Rules 2011, within 14 days (i.e. 1 June 2017) of the time after Judge Smith made his orders. Moreover, the occupants all needed leave to appeal from the orders of 18 May 2017. This is because the orders made by Judge Smith were interlocutory. The orders simply granted an extension of time to the Commonwealth in which it could apply for warrants for possession. In Bienstein v Bienstein (2003) 195 ALR 225 at 230 [25] McHugh, Kirby and Callinan JJ said that:

The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties [Licul v Corney (1976) 180 CLR 213 at 225 per Gibbs J (referring to Hall v Nominal Defendant (1966) 117 CLR 423)]. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them [Hall v Nominal Defendant (1966) 117 CLR 423 at 443 per Windeyer J].

19    In my opinion, the orders that determined the parties’ rights in the principal cause pending between them were the orders that are now the subject of the applications to the High Court for special leave to appeal, namely, the orders for vacant possession made on 11 December 2015. Judge Smith’s orders of 18 May 2017 were simply orders as to the enforcement of those final orders and, so, were interlocutory. That is because the orders of 18 May 2017 granted permission to the Commonwealth to proceed to seek the issue of writs of execution to enforce the final orders of 11 December 2015 that are the subject of challenges in the special leave applications.

20    The occupants (other than Ms Uren) explained why their applications for leave to appeal were filed out of time, as being due to the intervening sickness of their solicitor, Mr Liu, and misunderstandings between his office and him as to communicating with each of the occupants personally to give instructions to bring such proceedings. Were the applications of sufficient merit, I would be prepared to accept that that was an adequate explanation of the delays. At all times counsel for the occupants, who seems to have been actively briefed and able to communicate with them himself, Mr King, has known of all of the steps being taken and had been copied into all of the correspondence sent to Mr Liu albeit that he could not act except on instructions from Mr Liu or his employees. However, it was not Mr King’s role as counsel, when briefed by Mr Liu, to seek or take instructions from any of the occupants directly and thus notice to him, in the present circumstances, is not equivalent to notice to his instructing solicitor or clients.

The principles for an extension of time and leave to appeal

21    An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

22    In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein 195 ALR at 231 [29].

23    Of course, the issue that I am addressing now is whether I should grant an interlocutory injunction in aid of changing the current status quo, namely, the efficacy of the warrants, in order that the applications for an extension of time and leave to appeal might not be rendered futile, as it is alleged, were the warrants to be executed on or from next Monday 26 June 2017.

The occupants’ submissions

24    The occupants argued that, in effect, Judge Smith erred because he misconstrued the power to extend time under s 121 of the Residential Tenancies Act, and erred in the exercise of his discretion. They say that:

    first, his Honour misconceived the facts by failing to admit evidence that they said was critical. That evidence related to an event shortly before his Honour decided the Commonwealth’s application on 18 May 2017 when it had announced that it was not proceeding with a particular contractor for the development of the Badgerys Creek airport site;

    secondly, his Honour should have admitted evidence that the Commonwealth had failed to comply with its obligations as a landlord under the Residential Tenancies Act in the period between October 2014 and 11 December 2015 when the order for vacant possession was made, thereby causing loss or damage or other non-economic harm to each of the occupants; and

    thirdly, the power that his Honour exercised under ss 120 or 121 of the Residential Tenancies Act had been conferred invalidly by a Ministerial act in making the Instrument, and not by the Parliament in enacting legislation in accordance with s 77(1) of the Constitution.

25    A number of the occupants asserted that, subsequent to the lifting of any stay, and in some cases after the orders of 18 May 2017, the Commonwealth received payments by them of what had been the amount of rent that they previously had to pay as tenants and issued them receipts referring to that payment as “rent”. They contended that that circumstance made it arguable that the payments made by them had somehow created a new tenancy.

26    Next, the occupants argued that, on the proper construction of s 121(1) of the Residential Tenancies Act, the Registrar had to afford them an opportunity to be heard before he issued the warrants on 26 May 2017. The occupants pointed to the decision of the Court of Appeal of New South Wales in King v New South Wales Land and Housing Corporation (1992) 26 ALD 684, where the Court gave reasons for making orders setting aside an order for possession that a Tribunal had made. The occupants contended that they could have sought to persuade the Registrar to delay, or put conditions upon, the time before which the warrants could be issued or executed based on their personal circumstances, because, they submitted, the power in s 121(1) of the Residential Tenancies Act imported an obligation to afford them procedural fairness. They argued that they had compelling personal circumstances that they wished to put to the Registrar before he issued the warrants and that his failure to hear them deprived them of the possibility of a successful outcome in obtaining a delay in the time before which the warrants would be issued or enforced, as held in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146.

27    The occupants also relied on observations by the Full Court of the Supreme Court of Western Australia in Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121 at [5]. There, Malcolm CJ, with whom Murray J agreed (and see too at [69] per Anderson J), held that the discretion to grant a stay of proceedings pending an appeal was unfettered, but the Court had to be satisfied that the appeal had not been instituted merely for the purposes of delay. The Chief Justice added that it was also necessary to balance the convenience and rights of the parties. There, the Full Court found that a ground of appeal was sufficiently strong to support the grant of a stay of execution of a warrant for possession (see [2003] WASCA 121 at [4], [63] per Malcolm CJ, [66] per Murray J, [69]-[70] per Anderson J). Their Honours found that the appeal might be rendered nugatory if a stay were not granted and that, in the absence of a stay, the appellants would be required to quit the premises pursuant to an order of the Local Court, despite having a sufficiently arguable appeal. Accordingly, they held that a stay was necessary to prevent substantial injustice.

28    Most recently, Burley J’s decision in Uren [2017] FCA 691 canvassed virtually all of the issues that the occupants, again including Ms Uren, now seek to ventilate on the basis that they say that his Honour, in effect, wrongly decided Ms Uren’s application. Leaving to one side the apparent abuse of a process of the Court in her conduct, I am mindful that the occupants are seeking to preserve what they regard as their rights to continue to occupy premises that for many years have been their home, and that they are exhibiting a natural emotional attachment to being able to remain there, which is understandable.

Consideration

29    For the following reasons, I am not satisfied that the occupants have established a sufficiently strong prima facie case that there is any probability that at a final hearing the occupants would obtain relief so as to support the grant of an injunction to preclude the imminent execution of the warrants for possession: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-84 [65]-[72], esp at 81-82 [65], per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed on the principles at 68 [19]; Bienstein 195 ALR at 231 [29].

30    The occupants made a decision not to file or serve a notice under s 78B of the Judiciary Act 1903 (Cth) despite their obligation to do so under rr 8.11 and 8.12 of the Federal Court Rules. Ordinarily, that would entail that I would be obliged to not hear their applications for an injunction unless I were satisfied that it was necessary in the interests of justice to do so under s 78B(5). In my opinion, the deliberate default of the occupants tells very much against them in that regard. The importance of s 78B is that the Attorneys-General of the Commonwealth and each of the States and Territories have the opportunity to consider any constitutional point that arises in proceedings so as to be able to decide whether to exercise their rights to intervene or remove the matter into the High Court. Of course, in the proceedings for a stay before him, Nettle J said:

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.

31    It now appears that the occupants will seek to raise an argument to the contrary of what Nettle J said had not been in issue earlier, under the guise of a constitutional matter. In my opinion, the mooted new constitutional matter is so flimsy and unlikely to be found to have any substance that I need not grant a stay. Both Robertson and Burley JJ also did not regard the point as sufficiently worthy of either granting a stay under s 78B of the Judiciary Act or of interfering with the operation of the order that the Commonwealth could apply for the warrants or enforce any warrant after its issue.

32    In my opinion, there is no sufficient likelihood of success for the occupants’ arguments that Judge Smith erred in the exercise of his discretion. It is likely that a Court would find that the circumstance that the Commonwealth was not proceeding with a particular contractor to construct the proposed infrastructure at Badgerys Creek was of no relevance to its right to enforce immediately the order giving effect to its right to vacant possession. Nor, in my opinion, is there any substance, sufficiently likely to attract success on an appeal, in the argument that the occupants suffered any harm prior to the termination of their tenancies when Judge Smith made the order for vacant possession on 11 December 2015 that could possibly bear on whether that order should be enforced. Any harm can, and would be, harm suffered as a pre-existing breach of a landlord’s obligation that could be compensated, if proved, by an order for damages.

33    For those reasons, there is not a sufficiently arguable prospect of success on the argument that his Honour erred in the exercise of his discretion.

34    In my opinion, the occupants’ contention that the Commonwealth had somehow waived its right to enforce the order for vacant possession because it had created a new tenancy by accepting “rent” is in the teeth of the express provisions of s 123 of the Residential Tenancies Act and is unlikely to provide any foundation for such a contention, were any final hearing of the proposed appeals to occur.

35    The characterisation of the relationship between landlord and tenant or licensee and licensor is a question of law as to the substance of the relationship and is not determined by the form or way in which the parties necessarily act or describe themselves or their dealings: Radaich v Smith (1959) 101 CLR 209 at 214 per McTiernan J, at 220 per Taylor J, at 220 per Menzies J, at 224 per Windeyer J, Dixon CJ agreeing with all of the other Justices at 213; Street v Mountford [1985] AC 809.

36    Here, the Commonwealth had obtained an order for vacant possession of the real properties that the occupants had held previously as its tenants and on which they still remained. In that situation, s 123 of the Residential Tenancies Act imposed a liability on the occupants to pay an occupation fee in the same sum as the immediately preceding rent. In this context, I do not consider that there is a sufficiently strong argument that the Commonwealth acted in a way that would be likely to be found, at a final hearing, to have created a new relationship of landlord and tenant in circumstances where it has been actively trying to evict the occupants from the properties on which they still reside.

37    In addition, as I have noted at [18] above, the character of the jurisdiction that the Court is exercising in the proceedings in which the relief is sought is a relevant consideration. Here, the occupants seek the exercise of the Court’s power to stay, or to grant an interlocutory injunction to prevent, enforcement of a final order, being the order for vacant possession. In that regard I note that every application for a stay or the grant of other interlocutory relief that any of the occupants has made, since the Full Court decided that the appeals against the orders for vacant possession should be dismissed, has resulted in a refusal to grant those occupants any interlocutory relief on the various grounds on which they applied.

38    The challenged exercise of the Registrar’s power to issue the warrants must be considered in light of the applications to Judge Smith, his Honour’s reasons and orders made on 18 May 2017. His Honour noted that the occupants had argued that any extension of time ought to be subject to conditions, including one that the warrants not be applied for within 90 days. He considered the evidence put before him of the individual difficulties of Ms Uren in removing her livestock and possessions from her premises. But his Honour also made orders on 18 May 2017 against the other occupants on the basis of the concession that I have noted at [6] above. As Mr King argued, Mr and Mrs Shirvington also had put evidence before Judge Smith and me about difficulties that they alleged affected their entry to some land that they had earlier occupied. Those matters were before his Honour.

39    In light of Mr King’s concession to Judge Smith on 18 May 2017, I can see no sufficiently arguable error in the cases of Mr and Mrs Shirvington to distinguish, from the cases of the other occupants, their present application, or its lack of sufficient prospects of raising a successful ground of appeal.

40    In Stead 161 CLR at 147, Mason, Wilson, Brennan, Deane and Dawson JJ said:

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. (emphasis added)

41    In this case, the question whether Judge Smith and the Full Court erred in relation to upholding the Commonwealth’s right to orders for vacant possession is the subject of the application for special leave to appeal to the High Court, in respect of which Nettle J and judges of this Court have refused to grant any stay. The warrants enforcing that order are the subject matter of the application now before me. Judge Smith exercised his discretion to allow the Commonwealth to apply for the issue of those warrants and granted a seven day stay before it could do so. His Honour acted on the basis of the arguments, and submissions to like effect, which the occupants now say that they also should have had a further opportunity to put yet again to the Registrar in the hope of achieving a different outcome.

42    I reject that argument. Relevantly, the Registrar’s power under s 121(1) was enlivened if the Registrar was satisfied that the order for vacant possession (or a condition of suspension of that order) had not been complied with. There was no suggestion that the orders for vacant possession had been complied with, and there were no conditions applying to those orders despite the attempt by the occupants to obtain such conditions.

43    As I have noted, in this case, the present applications are not appeals instituted in the Court. Rather, they are applications for an extension of time in which the occupants other than Ms Uren can seek leave to appeal, and, in her case, an application for leave to appeal, against the Registrar’s decision to issue, without conditions, warrants for possession. The occupants had a full opportunity of litigating, before Judge Smith, their arguments for the imposition of the very conditions that they say the Registrar was then required to consider again, notwithstanding that his Honour granted each of the occupants only a seven day stay before the Commonwealth could apply for immediately enforceable warrants to issue.

44    His Honour granted that stay in respect of each of the occupants’ arguments before him after delivering his reasons in Ms Uren’s case. As I have noted, his Honour had not delivered (and will tomorrow deliver) reasons for his identical orders in respect of each of the other occupants that he made based on Mr King’s concession that I have recorded at [6] above.

45    In any event, each of the occupants was aware that, first, the Commonwealth would wish to enforce its orders for vacant possession once that seven day stay had expired and, secondly, each could have made, but did not make, an application in advance to the Registrar for the imposition of any conditions or delays in the issue of any warrants.

46    I am not satisfied that, in the circumstances, the occupants were denied an opportunity to be heard before the Registrar made his decisions to issue the warrants. At the time of the Registrar’s decisions to issue the warrants on 26 May 2017, there is no doubt that, first, the orders for vacant possession had not been obeyed and, secondly, the occupants would not comply with them unless the warrants were issued and enforced.

47    I am of opinion that the occupants had put already their cases for conditions and stays on the issue and immediate enforceability of the warrants to Judge Smith before he made his orders on 18 May 2017. His Honour had dealt with the cases as put, including in light of the concession that I have noted at [6] above, fairly and appropriately. Ms Uren advanced a similar range of arguments to Burley J and Mr and Mrs Odzic made similar arguments to Robertson J as are now sought to be made to me.

48    The occupants have known for a long time that there is an enforceable, final order that each of them give vacant possession of their properties. I am not satisfied that any of the arguments which they say they wished to put before the Registrar would have made a difference to his decision to issue warrants immediately in their current form without additional conditions: Stead 161 CLR at 147. This is particularly so in light of the fact that the occupants put those very arguments to Judge Smith, or relied on the discretionary considerations that Ms Uren had raised before his Honour, which formed the basis on which his Honour made his orders on 18 May 2017. Therefore, his Honour’s orders and the conceded common matters that he had already taken into account in Ms Uren’s case, conditioned the ambit of what the Registrar could do when the Registrar came to consider whether the only precondition for the grant of a warrant in s 121(1) was satisfied, namely that each of the occupants had not complied with the immediately enforceable orders for vacant possession.

49    I am not persuaded that any of the occupants has established a sufficiently arguable prima facie case to support the grant of interlocutory injunctions in accordance with the principles identified in O’Neill 227 CLR 57; see too, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at 260-261 [66]-[67] per Dowsett, Foster and Yates JJ. Nor am I persuaded that the balance of convenience would justify the grant of any such injunction in the nature of a stay.

50    The balance of convenience, in relation to the enforcement of the orders for vacant possession made on 11 December 2015, has been considered by every Court to which any of the occupants has applied since the Full Court determined the occupants’ appeals adversely to them on 2 March 2017. There are no relevantly different considerations that would affect my assessment that the balance of convenience weighs heavily against the occupants. In effect, they are seeking to delay giving effect to the final orders of Judge Smith made on 11 December 2015 that the Full Court affirmed when it dismissed their appeals on 2 March 2017. Nettle J refused to grant a further stay to two of the occupants, Mr and Mrs Dattilo, in aid of their application for special leave to appeal.

51    If the applications for special leave to appeal are refused, that will be the end of the occupants’ ability to challenge the orders for vacant possession. If special leave is granted, that may change the forensic landscape, but at the moment, I am dealing with the position as it is, in which a Justice of the High Court, as well as other judges of this Court, has refused to grant a stay or interlocutory injunction preventing enforcement of the orders for vacant possession.

52    In all of the circumstances, I am not satisfied that any of the occupants is entitled to an interlocutory injunction to restrain the enforcement of the warrants.

Conclusion

53    For these reasons, I order that each of the applications for an interlocutory injunction must be dismissed with costs.

Associate:

Dated:    6 July 2017