Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Tucev
[2015] FCCA 1276
•15 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v TUCEV | [2015] FCCA 1276 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – interlocutory application – application to set aside consent orders made and entered by the Court – allegation that consent orders made in “the absence of the parties” and signed under economic duress – interlocutory application dismissed. |
| Legislation: Residential Tenancies Act2010 (NSW), s.94(1) |
| Rajunder Narain Rae v Bijai Govind Sing (1839) 2 Moo Ind App 181; 18 ER 269 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 Cameron v Cole (1944) 68 CLR 571 Australia Ltd v Brown (2003) 58 NSWLR 322 John Alexander’s Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Crescendo Management v Westpac Banking Corporation (1988) 19 NSWLR 40 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| Respondent: | BRANISLAV TUCEV |
| File Number: | SYG 638 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 Respondent: | Mr P. King |
ORDERS
The interlocutory application filed by the respondent on 14 May 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 638 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| BRANISLAV TUCEV |
Respondent
REASONS FOR JUDGMENT
The applicant (“Commonwealth”) is the registered proprietor of the land situated at 40 Leggo Street Badgerys Creek NSW 2555 comprising part of folio identifier Lot 1 DP 838361 (“the property”). Mr Tucev is a tenant of the property under a residential tenancy agreement entered into with the Commonwealth. By application dated 12 March 2015 the Commonwealth sought an order under s.94(1) of the Residential Tenancies Act2010 (NSW) that the residential tenancy agreement between it and Mr Tucev be terminated and an order that they give vacant possession of the property on before 15 June 2015.
The parties signed consent orders in the proceedings on 17 and 19 March 2015. Those orders were sent to the Court and orders were made in accordance with those consent orders on 27 March 2015. The orders were entered on 30 March 2015.
Mr Tucev has filed an interlocutory application in the same proceedings seeking, amongst other things, an order setting aside the consent orders and any judgement against him. If that order is not made then it will be unnecessary to consider whether the other orders sought should be made. The applicant was listed at short notice in light of the fact that a number of other similar matters are listed for hearing on a constitutional issue on 18 May 2015. Another matter raising the same issues as Mr Tucev (Commonwealth v Brizzolara & Anor (SYG663/2015)), was also listed at the same time and heard on the same day as this application. Mr King, who appeared for the respondents in Brizzolara, essentially relied on his arguments in that case in support of Mr Tucev’s application. For that reason, these reasons are similar to those in Brizzolara which have been published at the same time as these reasons.
Mr King identified rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“Rules”) as the source of the Court’s power to make the orders sought.
Rule 16.05(2)(a) provides that the Court may vary or set aside a judgment or order after it has been entered if the order is made in the absence of a party. It seems a novel proposition to me that parties who consent to orders can nevertheless claim that those orders should be set aside because they were not physically present when the orders were made. That proposition appears to me to be inconsistent with the purpose of the rule. Lord Brougham explained in Rajunder Narain Rae v Bijai Govind Sing (1839) 2 Moo Ind App 181 at 220; 18 ER 269 at 284, that the "indulgence" to allow a case to be reheard:
… is mainly owing to the natural desire prevailing to present irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard."
This passage was cited by Brennan J in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 45 – 46 and, in turn by the Full Court of the Federal Court in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 550.
In a different context, concerning similar principles, it was said that an order setting aside orders made in the absence of a party “lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial” Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J. See also at 590-591, and see BP Australia Ltd v Brown (2003) 58 NSWLR 322 at 347-348 [132]-[134] cited in John Alexander’s Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1.
While neither party addressed me on these issues it is important to note them and, in my view, critical to understand precisely the basis upon which the consent orders were made in the first place. The Rules, in accordance with the objects of the Federal Circuit Court Act 1999, are aimed at assisting the Court to operate as informally as possible and to use streamlined processes. It was with those objects in mind that I allowed this application to continue by way of an application in the case in spite of apparent authority to the effect that such an application should be made by new action brought for that purpose: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 per Handley JA.
No doubt it was also in pursuit of those objects that the Rules do not contain detailed provisions in respect of every aspect of procedure that might occur in the Court. However, that situation is dealt with by r.1.05 which provides in the first place that if the rules are insufficient or inappropriate the Court may apply the Federal Court Rules 2011 in whole or in part modified or dispensed with as necessary and, in the second part, that the provisions of the Federal Court Rules set out in pt.2 of sch.3 apply with necessary changes to general federal proceedings (such as these). One of the Rules set out in part 2 of sch.3 to the Rules is r.39.11 of the Federal Court Rules. Rule 39.11 of the Federal Court Rules deals with consent orders and provides:
(1)A Judge may make an order in accordance with the terms of a written consent of the parties by initialling or otherwise annotating the consent and placing it on the Court file.
(2)The order must state that is made by consent.
(3)The order has the same force and validity as an order made after a hearing by the Judge.
That was the procedure adopted in this case. It seems at least arguable to me that Mr King’s proposition is inconsistent with r.39.11 and that the power upon which he relied is simply not available in circumstances where orders have been made by consent in accordance with that rule.
However, the Commonwealth did not take this point and I do not find it necessary to determine it on a final basis. It appears to me that it is at least arguable that the circumstances in which the consent was obtained could effectively mean that there was no consent. In those circumstances, it could readily be said that the relevant party did not have an opportunity to be heard and so the order was made in his or her absence. This line of argument, however, is also apposite to the question whether or not the Court should exercise its discretion under r.16.05 once that discretion has been enlivened by proof of the absence of a party. Thus, it seems to me, this is the critical issue in the application and it does not matter whether it be decided in terms of the “jurisdictional fact” in r.16.05(2)(a) or in the exercise of the discretion. As the parties only addressed me in respect of the latter, I will make my decision by reference to the exercise of discretion.
Mr King argued that Mr Tucev’s consent had been given under economic duress. I emphasise that this was the only matter he relied on in support of the application and, for that reason, the outcome of the application is dependent on the success of this argument. I note in passing that the usual matters to be considered in the exercise of the Court’s power under r.16.05(2)(a) include whether the applicant has provided a reasonable excuse for his or her absence and the relative merits of the case. The latter played no part in argument before me. In light of that, and the fact that there is very little indication in the material before me by which the strengths of Mr Tucev’s case may be judged, I have given this question little consideration. In respect of the reason for Mr Tucev’s absence, it is clear that he was not before the Court because, on the face of it, he consented to the orders. Thus, the question of the quality of that consent is relevant to the ordinary principles applied by the Court, albeit in an unusual situation.
Mr King’s argument relied upon the judgment of McHugh JA in Crescendo Management v Westpac Banking Corporation (1988) 19 NSWLR 40. In that case his Honour said at 46:
The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
Mr Tucev relied on two affidavits affirmed by himself. In his first affidavit, affirmed on 28 April 2015, he relevantly stated that he was “forced to sign a consent to vacate and therefore not to go to court”. In his second affidavit, affirmed on 10 May 2015, Mr Tucev explained the circumstances of his signing the consent orders as follows:
8.When I received the documents I looked at them and did not understand them. I spoke to my daughter Natasha who was living with me. She is not a lawyer. She said to me ‘It seems that if you do not want to go to court you have to sign these documents’.
9.I say that the Orders were made by mistake in that I thought that Pam and the Commonwealth required the Orders for the purpose of dealing fairly with me. This has not been the case. I misapprehended the reason for the signing of the Orders.
10.When signing the Orders, we say we did not know what we were doing, and had received no legal advice when doing so.
11.I say I signed the Orders under economic duress, believing I had no choice.
Mr Tucev also says that he had been informed by other tenants that Ms Pam Kennison had said to residents in the area regarding the present evictions from Badgerys airport area including “our own premises” that:
If you do not sign to collect your paperwork or not out by 16th June the Commonwealth and its agents will blacklist you and you will not be able to rent another property.
Mr Tucev said that he was also informed that that meant that:
If you do not vacate by 16th June the Commonwealth will cut power and water to the properties and stop garage (sic) removals by the local government.
Mr Tucev did not explain in his evidence which other tenants had informed him what had been told to them by Ms Kennison nor, more importantly, when he was told those things. What is certain is that neither Ms Kennison nor anybody else on behalf of the Commonwealth said those things or anything else which might amount to the application of pressure to sign consent orders to Mr Tucev. To the contrary, in the letter that accompanied the Court documents that were served on Mr Tucev on 14 March 2015, the solicitor acting for the Commonwealth made it abundantly clear that there was no pressure to sign the consent orders. The relevant portion of that letter was:
Consent Orders
203.As outlined in the letter to you dated 27 February 2015, if you agree to give vacant possession of your property by 15 June 2015 you can sign consent orders to bring the proceedings to an end.
204.A copy of the Consent orders is enclosed should you wish to sign them. If you sign the consent orders, you should understand that you are agreeing to a Court order to vacate your property and hand over vacant possession by 15 June 2015.
205.You will be able to resolve the proceedings by sending us a signed copy of the consent orders from now up until the proceedings are finally determined by the Court.
Next Steps
206.You should read the documents carefully and may wish to seek legal advice by consulting a solicitor. We can answer any questions you may have about the process, but are unable to give you legal advice.
207.Alternatively, the Tenants Advice and Advocacy Service (TAAS) provide free, independent information, advice and advocacy to tenants in NSW. TAAS is located at 317 Queen Street, Campbelltown. The telephone number for TAAS is 1800 251 101.
208.If you sign and return the consent orders to us by Thursday, 19 March 2015, it will not be necessary for you or your legal representative to attend Court. Consent orders can be sent to Donna Boyce, Australian Government Solicitor, GPO Box 2727, Sydney, NSW 2001.
209.Otherwise, it is important that either you or your legal representative attend Court at 9.30am on Friday 20 March 2015.
(Emphasis in original)
Quite apart from the confusing paragraph numbers (the letter had nowhere near 200 paragraphs), that letter clearly indicated to Mr Tucev that he should read documents carefully and if he wished to obtain legal advice it was available free from the Tenant Advice and Advocacy Service. The letter gave both the address and telephone for that service.
Conclusion
In those circumstances, there is no evidentiary basis for the assertion made by Mr Tucev that he was under economic duress at the time he entered into the consent orders. As economic duress was the only matter put forward in support of the application and that has not been made out the application must be dismissed.
As I have noted, although Mr Tucev also sought further orders, it is unnecessary to deal with them.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 15 May 2015
3