FEDERAL COURT OF AUSTRALIA

Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 841

ORDERS

THE COURT ORDERS THAT:

1.    Upon the Commonwealth by its counsel undertaking to the Court:

(a)    not to apply for a warrant for possession prior to 24 July 2017; and

(b)    to grant the applicant reasonable access for a period of 21 days after whichever of the following event first occurs, to remove her and her family’s belongings and any livestock, after she vacates, or the warrant is executed to give the Commonwealth possession of, her premises;

the application for an interlocutory injunction to restrain the Commonwealth from applying for or executing any warrant for possession be dismissed.

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 23 June 2017, Judge Smith ordered that the time within which the Commonwealth could apply for a warrant for possession in respect of the property occupied by the applicant before me, Lorraine Watkins, be extended to 90 days from the date of that order, but that the order itself be stayed for a period of 14 days. The property is located at Badgerys Creek on land designated for use as the second Sydney airport. His Honour gave detailed reasons for those orders when he made them on 23 June 2017: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins (No 2) [2017] FCCA 1325.

Background

2    On 18 May 2017, Judge Smith had heard argument and evidence about the Commonwealth’s application for an extension of time in which it could apply for the warrant in respect of Ms Watkins’ property. His Honour made orders on that day extending the time in which the Commonwealth could apply for a warrant in respect of related proceedings against numerous of its other former tenants at Badgerys Creek in which the Commonwealth had sought to enforce earlier orders made by Judge Smith for vacant possession of other land needed for the second airport. His Honour gave reasons in one of those matters, involving Ms Uren, as well as making orders, but reserving his reasons until 23 June 2017, in respect of 10 other matters. I dismissed an application for an interlocutory injunction to restrain the enforcement of warrants in 11 of those other cases on 22 June 2017: Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) (No 2) [2017] FCA 759.

3    In his reasons of 23 June 2017, Judge Smith described the particular circumstances of Ms Watkins that distinguished her case from that of other occupants of the kind I considered in Uren [2017] FCA 759. Ms Watkins has made this application for a further stay of the order extending the time in which the Commonwealth could seek a warrant for possession. On 30 June 2017, counsel for Ms Watkins, who had also appeared for Ms Uren and the other applicants before me and in other stages of the proceedings, conceded that the prospects of success and balance of convenience relating to interlocutory relief pending the determination of Ms Watkins’ application for leave to appeal against his Honour’s orders of 23 June 2017, which was filed in this Court on 30 June 2017, were, relevantly, the same as those I considered in Uren [2017] FCA 759. However, during the course of argument on 30 June 2017, I adverted to the fact that in Ms Watkins’ case there were two material differences, first, her need to care for a dependent adult son, David, who has a severe intellectual disability and, secondly, the circumstances described in Judge Smith’s reasons attending another of her children, her son Steven, who had attempted suicide for the second time in recent history on 29 March 2017, a day before the stay granted by the Full Court of the order for vacant possession made by Judge Smith on 21 December 2015 expired.

4    At the time of the hearing before Judge Smith, and until two weeks ago, Steven had been in Nepean Hospital in the intensive care unit. Ms Watkins had to attend the care of Steven’s son, aged four, and his German wife, who had no family in Australia. At the conclusion of his Honour’s reasons, he said in [39] that an extension of time of 30 days in which the Commonwealth could apply for a warrant would reflect the original limit in s 121 of the Residential Tenancies Act 2010 (NSW) and would provide a sufficient opportunity to enforce his judgment for vacant possession, but that in the circumstances of Ms Watkins’ case he considered that an extension for a longer period:

should be given in order to allow the Commonwealth time to take into account the difficulties that face [Ms Watkins] in connection with her son’s condition. The appropriate period in the circumstances is 90 days.

5    His Honour then also stayed that order for 14 days.

The issue

6    In my opinion, the difficulty with the orders that his Honour made giving effect to a stay and an extended period in which the Commonwealth could apply for a warrant, could have resulted in a possible circumstance that his Honour did not intend to occur, namely, that the Commonwealth would be at liberty immediately to enforce the execution of the warrant upon the expiry of the 14 day stay, as it informed me it intended to do.

7    Ms Watkins had not identified to his Honour any proposal or given any outline for a period in which she could attend to her affairs so as to vacate the premises. When this was discussed during the course of argument on 30 June 2017, I suggested that there was a need for some evidence to address that question.

8    Ms Watkins made a further affidavit yesterday in which she explained some matters and updated her present circumstances. In effect, she sought to have an extension of time for another 90 days before she had to leave. She pointed out that she would have packing difficulties because of David’s obsessive compulsive disorder that prompted him to snatch things from her when she tried to move things around the house or looked like she was preparing to move house, and that it would take her a further two months to organise packing, hence her estimate of 90 days. She mentioned that she had dogs which she bred on the property and that one had had a litter a week before. She also explained that Steven had been released from hospital two weeks ago and was now residing at his home with his wife and child. However, Ms Watkins said that for the last 12 months she had spent every day looking after him and his family, including spending an amount of $15,000 of her savings to care for them. She also said that at around the time that Steven was released from hospital, her 86-year-old father, who is deaf and blind, had broken his hip and had an emergency operation. Her father was now in Kurri Kurri rehabilitation hospital, adding a fresh family difficulty to her situation.

9    During the course of argument today, I suggested that a further stay of 14 days before which the Commonwealth could execute the warrant beyond the term that Judge Smith had ordered may be the appropriate course. The Commonwealth sought instructions and offered the following undertakings, after discussion with Ms Watkins’ counsel and myself as to their terms, which I consider to be appropriate. Those undertakings were that first, the Commonwealth would not apply for a warrant prior to 24 July 2017 and, secondly, it would grant Ms Watkins reasonable access for a period of 21 days after she vacated or the warrant was executed, to enable her to remove her and her family’s belongings and any livestock.

10    In my opinion, those undertakings are appropriate in the particular and special circumstances of Ms Watkins’ case and the evidence of her unusual and very difficult family circumstances. In light of that, it is unnecessary to determine her application for an interlocutory injunction to restrain the Commonwealth from executing a warrant immediately after the expiry of the 14 day stay granted by Judge Smith (as it had intended before the matters raised in argument today). Those undertakings also make it unnecessary to resolve Ms Watkins’ and the Commonwealth’s applications for costs.

Associate:

Dated:    24 July 2017