Commonwealth of Australia (As Represented By the Department of Infrastructure and Regional Development) v Rigney

[2015] FCCA 1274

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v RIGNEY & ANOR [2015] FCCA 1274

Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – interlocutory application – application to set aside substituted service orders in relation to first respondent – application for an injunction restraining the applicant from various matters – application to vacate hearing dates – application for applicant to produce documents – interlocutory application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.6.14(1), 15A.17(1)
Residential Tenancies Act 2010 (NSW)

Applicant: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

First Respondent: ANTHONY RIGNEY

Second Respondent: KERRY RIGNEY

File Number: SYG 652 of 2015

Judgment of: Judge Smith

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Doyle & Ms A. Mitchelmore

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Second Respondent: Mr P. King

ORDERS

1. The interlocutory application filed by the second respondent on 11 May 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 652 of 2015

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Applicant

And

ANTHONY RIGNEY

First Respondent

KERRY RIGNEY

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, the second respondent, Mrs Rigney, applies for the following orders:

   a)the consent orders against the second respondent be set aside;

   b)the substituted service orders in respect of the first respondent be set aside;

   c)an order restraining the applicant by its servants or agents or otherwise from taking any steps to evict or otherwise disturb the occupation by the respondents of their land at Badgerys Creek leased from the applicant pending the determination of the proceedings;

   d)an order for the production of certain documents;

   e)the vacation of the hearings of 18 May 2015 and 20 July 2015;

   f)directions; and

   g)costs.

2. The matter was brought on the hearing at short notice. At the hearing Mr King, who appeared for the second respondent but not for the first respondent, did not press for the first order. That was no doubt due to the fact that the consent orders made in this matter and entered on 27 March 2015 had already been set aside by consent on 22 April 2015.

3. Mrs Rigney  relied upon two affidavits affirmed by her: the first on 28 April 2015 and the second on 10 May 2015. She also tended a document that appeared to be a printout from an online news service run by the Australian Broadcasting Corporation (“ABC”) headed “Badgerys Creek residents given deadline to move for construction of Sydney’s proposed second airport” updated 21 December 2014. Mr King relied upon the following extract from that document:

   After the deadline, utilities such as water and power will be turned off and local roads will be closed.

4. In Mrs Rigney’s first affidavit she stated that the last court orders she had received were dated 22 April 2015 indicating that the matter was stood over for further directions and that service was to be effected “by fixing it to the front door or the front gate of 2072 the Northern Road Luddenham NSW 2745”.  However, she further affirmed that her address was 96 Eaton Road Luddenham. She said that she has been a long-term tenant of the property and that it would be extremely difficult for her to find an alternate suitable solution in the timeframe dictated. She further affirmed:

   The property manager told me that I would not get a reference from her to favour me re-leasing alternative housing unless I signed consent not to go to court for my rights and self-evict.

   She also stated that she became afraid as a result of this and upset and did not understand the legal terms. This latter evidence appears to be addressed to the setting aside of consent orders but, as I have indicated, Mr King no longer pursued such an order.

5. In her affidavit of 10 May 2015 Mrs Rigney gave evidence about the whereabouts of her husband, Anthony Rigney, the first respondent. She said that he had been at Broken Hill on walkabout and uncontactable since January 2015. She then gave evidence about receiving court documents and taking them to a woman named Pam, an agent purportedly for the Commonwealth. She stated in effect that she then signed the consent orders that had been sent to her under pressure because she thought that if she did not sign them she would be evicted and then taken to court.

6. Mrs Rigney stated that her son is in year 10 at high school and that she had recently moved him to Bathurst with his older sister in a share house to go to a new school because she was afraid of having him in the house if she was evicted. The paragraph in her affidavit particularly relied upon by Mr King was as follows:

   After 20 years I’m very concerned I will not get a reference to go to another rental place because of all that has happened at Badgery’s Creek. I have been offered no assistance to move. ‘Wendy’ from the government called me the Tuesday after Easter. She asked me ‘How are you going to get out on 15 June?’ I said ‘I’m working towards the dates. Is there nothing you can do to help.’ She said ‘go and see the Housing Department in Bathurst’. I said ‘I don’t have a bond. I don’t have rentals to go to. I don’t have any assistance to move’.

7. Mr Doyle, who appeared with Ms Mitchelmore, for the Commonwealth tendered a transcript of the proceedings before me on 1 May 2015. Mr King did not object to that tender. The purpose of the tender, it seems, was to establish that Mr Doyle himself had at that hearing said that the Commonwealth accepted that this tribunal (no doubt intending to mean this Court) was responsible for determining the fate of the tenancies subject to a constitutional argument in which case a different tribunal would be responsible. He said “there is no plan to execute self-help remedies against the respondents”. Those statements to the Court, however, were not made by way of giving an undertaking and, in in my view, were not an acceptable way to put before the Court evidence of the Commonwealth’s intention.

8. The Commonwealth also relied upon an affidavit of Mr Peter Robertson affirmed on 30 March 2015 and in particular paragraphs 17 to 20 (inclusive) of that affidavit in which Mr Robertson explained the steps which are ordinarily taken for accessing residential properties for the purposes of undertaking investigations in relation to the proposed airport site.

9. Finally, the Commonwealth relied upon the affidavit sworn by Stephen Goodwin, a licensed process server, on 18 March 2015 who said that he had served a number of court documents on Mrs Rigney personally at 2072 The Northern Road Luddenham NSW and had the following conversation with her on 14 March 2015:

   [Goodwin]:Are you Kerry Rigney the person referred to in these documents?

   [Mrs Rigney]:   Yes.

   And after handing her the documents:

   [Goodwin]Does Anthony Rigney live here?

   [Mrs Rigney]:   No. He moved out over twelve months ago. I don’t know where he is.

Interim injunction

1. Mr King argued that there was a prima facie case that the Commonwealth would interfere with Mrs Rigney’s rights as a tenant prior to the determination of these proceedings by terminating her lease and forcefully evicting her. He said that in the circumstances of the case the balance of convenience favoured the granting of an interim injunction. He did not address me on the interesting question that, at the same time as seeking the exercise of the Court’s jurisdiction in this matter, Mrs Rigney was challenging that very jurisdiction as being granted beyond the constitutional competence of the Commonwealth Parliament. In any event, I need not consider that situation because the application for an interim injunction is hopeless and will be refused.

2. There is, simply put, no evidence whatsoever that the there is any risk that the Commonwealth will interfere with any of Mrs Rigney’s rights as a tenant such as taking steps either to terminate Mrs Rigney’s tenancy or to remove her and her possessions from the property. The highest that Mrs Rigney’s own evidence goes is that she is afraid that she might not be able to obtain alternative housing. The evidence of the news article not only discloses no basis for the assertion that utilities and power will be turned off and local roads will be closed but also does not relate that assertion in any way to Mrs Rigney’s property. I give that evidence no weight.

3. In addition, the basic premise of Mrs Rigney’s application is entirely inconsistent with the approach taken by the Commonwealth in respect of her tenancy. These proceedings have been instituted and are being pursued by the Commonwealth on the basis that her rights are regulated by the Residential Tenancies Act2010 (NSW). In particular, they are framed on the basis that her tenancy cannot be terminated other than by order of the Court.

4. For those reasons, Mrs Rigney has established no basis upon which the Court might exercise its power to grant an injunction pending the determination of these proceedings and the application for such an order is dismissed.

Setting aside substituted service order

1. On 23 March 2015 the Court ordered pursuant to r.6.14(1) of the Federal Circuit Court Rules 2001 (“Rules”) that service on the first respondent of various documents including the application be dispensed with. It also ordered that sealed copy of the order be served on the first respondent by one of the following methods (“the Substituted Methods”):

   a)by having a delivered to the letterbox at 2072 The Northern Road Luddenham NSW 2745 in a sealed envelope addressed to the respondent; or

   b)by fixing to the front door or the front gate of 2072 The Northern Road Luddenham NSW 2745 in a sealed envelope addressed to the respondent; or

   c)by handing it to any person apparently over the age of 16 years apparently residing at 2072 The Northern Road Luddenham NSW 2745.

2. On 27 March 2015 the Court made orders by consent terminating the residential tenancy agreement in relation to the properties leased by the respondents, requiring them to give vacant possession to the Commonwealth by 15 June 2015. Those orders were set aside by consent on 22 April 2015. On that date the Court also ordered that service of the first respondent of the order be dispensed with but then ordered that a sealed copy of the order be served by on the first respondent by 24 April 2015 by one of the substituted methods.

3. Mrs Rigney, who clearly received notice of the above orders, seeks to set aside “the substituted service orders on the first respondent.” She does not seek to do so as an agent for the first respondent and has given evidence that she has not been in communication with him since January of this year. On that basis it is unclear how she has any sufficient interest in the substituted service orders. Further, it is not precisely clear to me which of the above orders she seeks to set aside.

4. In any event, her application fails for a more fundamental reason. As I have noted, her affidavit evidence was that her husband has been in Broken Hill on walkabout and uncontactable since January 2015. She was briefly cross-examined by Mr Doyle on her affidavit and gave evidence that she last spoke to her husband when he was in Sydney for two weeks around Christmas 2014. She said that he talked constantly about coming back to Sydney and she said that that is what he will do when he decides that he wants to do it. She said that he changes telephone numbers frequently in that she cannot contact him.

5. Mr King argued that there was simply no evidence before the Court at the time that it made the substituted service orders that was sufficient for the making of those orders. However, it is difficult to understand the basis upon which he made that submission. He did not take the Court to any of the material that was before it at that time and it is possible to infer that in fact he had never seen it. The evidence given by Mrs Rigney on this occasion supports the conclusion that it will be difficult if not impossible for the Commonwealth to personally serve Mr Rigney with any court documents. If his wife does not know where he is and cannot contact him I have little doubt that the Commonwealth would be unable to. The evidence thus supports rather than undermines the making of the substituted service order. I dismiss Mrs Rigney’s application to have that order set aside.

Production of documents

1. Mrs Rigney also sought an order for the production of documents including the account or accounts of the Commonwealth in relation to the properties leased or occupied by the respondents, the original of the consent orders, and the original of the lease. Mr King did not explain what documents other than those listed might be subject of an order for the production of documents nor did he explain the power of the Court to make such an order. There was no evidence or submission before me that Mrs Rigney had sought production of any documents from the Commonwealth and that they had refused to give such documents.

2. Rule 15A.17(1) of the Rules provides that a party may, by providing notice in writing, require another party to produce, at the hearing of the proceeding, the specified document that is in the possession, custody or control of the other party. Such production is to be at the hearing unless the Court otherwise orders. The orders sought in this application however do not seek production on a particular date. If that is what Mrs Rigney wants she can exercise liberty to apply and ask for an order to that effect. In light of the availability of the production of documents by notice to produce under the Court’s Rules, I do not consider it appropriate to make an order in the open-ended form asked for by Mrs Rigney and I reject the application.

Vacating the hearing dates of 18 May 2015 and 20 July 2015

1. This matter is listed for hearing in respect of arguments relating to the jurisdiction of the Court on 18 May 2015. It is listed with a number of other matters of a similar nature involving residential tenancies in and around the Badgerys Creek area. The substantive matter has been listed for final hearing before me on 20 July 2015. The order for separate hearings was made at the insistence of Mrs Rigney and other respondents to proceedings brought by the Commonwealth. The basis upon which Mrs Rigney has now sought to vacate those hearing dates was in order to permit proper preparation of the case from for the respondents. However, Mr King, who appeared for her, did not explain what that proper preparation required. In light of the fact that these matters have been agitated on a number of previous occasions and Mr King has raised nothing new before me, I reject the application. It is not in the interests of the administration of justice to continually change hearing dates when other parties are affected and there is no evidence or other basis to support the suggestion that one party is unable to properly prepare its case. In my view, this part of the application bordered on vexatious.

Directions

1. Although Mrs Rigney seeks directions she never articulated what directions she sought. For that reason I make none.

Costs

1. I will hear the parties on costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 15 May 2015