Commonwealth Of Australia (As Represented By the Department Of Infrastructure and Regional Development) v Watkins and Anor (No.2) - [2017] FCCA 1325

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v WATKINS & ANOR (No.2)

[2017] FCCA 1325

Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of tenancy agreement – application for extension of time within which to apply for a warrant of possession – extension necessitated by the first respondent’s appeal and stay of orders previously made – discretion under s.121 of the Residential Tenancies Act 2010 (NSW) – application for extension of time granted.

Legislation:

Residential Tenancies Act 2010 (NSW), ss.80, 94, 121, Pt.5, Pt.6

Cases cited:

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No.2) [2017] FCCA 1014

King v New South Wales Land & Housing Corporation (1992) 26 ALD 684

Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 25

Applicant:

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

First Respondent

LORRAINE WATKINS

Second Respondent

NIKKI ALLEN

File Number:

SYG 1803 of 2015

Judgment of:

Judge Smith

Hearing date:

18 May 2017

Date of Last Submission:

18 May 2017

Delivered at:

Sydney

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr J. Doyle and Mr D.W. Rayment

Solicitors for the Applicant:

Australian Government Solicitor

Solicitors for the First Respondent:

Mr K. Liu, The People's Solicitor Pty Ltd

ORDERS

The time within which the applicant may apply for a warrant for possession is extended to 90 days from the date of this order.
The first respondent pay the applicant’s costs in the application in a case.
The applicant’s costs referred to in order 2 are fixed in the amount of $2,900.
Order (1) be stayed for a period of 14 days from the date of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1803 of 2015

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

Applicant

And

LORRAINE WATKINS

First Respondent

NIKKI ALLEN

Second Respondent

REASONS FOR JUDGMENT

The Commonwealth is the registered proprietor of the land situated at 404721, 195 Longleys Road (formerly Lot 55), Badgerys Creek NSW 2555, part of Lot 1 DP 838361 (Premises). The first respondent has lived on the Premises for less than 20 years. Both the first and second respondents were parties to a residential tenancy agreement in respect of the Premises. However, at the time the Commonwealth brought these proceedings, the second respondent no longer lived at the Premises and the first respondent lived there with her son David. The second respondent took no part in the proceedings. For that reason, I will refer to the first respondent as the respondent.
In June 2015, the Commonwealth commenced proceedings seeking orders terminating the residential tenancy agreement between it and the respondents in respect of the Premises and for possession of the Premises.
Those proceedings were contested and after a number of hearings, I made the following orders on 21 December 2015:
1.The residential tenancy agreement in relation to the premises at 404721, 195 Longleys Road (Formerly Lot 55), Badgerys Creek NSW 2555 (“Premises”), comprising part of folio identifier Lot 1 DP 838361 be terminated with immediate effect.
2.Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
3.The order for vacant possession be suspended until 8 February 2016.
…
The respondent appealed from that judgment and on 22 January 2016 Robertson J stayed Orders 2 and 3.
On 2 March 2017, the Full Court of the Federal Court (Kenny, Robertson and Griffiths JJ) dismissed the appeal: Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 25.
On the same day, Griffiths J ordered that Orders 2 and 3 made by me and the Orders of the Full Court of the Federal Court be stayed for a period of 28 days to enable the respondent to decide whether or not to apply for special leave to appeal to the High Court of Australia.
On 30 March 2017 the respondent applied for special leave to appeal to the High Court and, on the same day, the stay ordered by Griffiths J on 2 March 2017 lapsed.
There has been no further stay of Orders 2 and 3 made by me on 21 December 2015.
The Commonwealth now seeks an extension of time within which to apply for a warrant for possession.
This application was heard with a number of similar matters on 18 May 2017. While I made orders in the other matters on that day I reserved my decision in this matter.
These reasons are similar to the reasons I gave in the matter of Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No. 2) [2017] FCCA 1014 (Uren) which dealt with the same issues and arguments by the parties in this application.
For the reasons explained by the Full Court of the Federal Court, the law to be applied to the dispute between the parties was the Residential Tenancies Act 2010 (NSW) (Act).
Section 121 of the Act relevantly provides:
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 in original)
The reference to “Tribunal” is taken to be a reference to the Court.
The “date by which vacant possession was required” referred to in s.121(2) of the Act was originally 8 February 2016; however, that changed because of the Federal Court orders staying the orders I made on 21 December 2015. In effect, Order 3 made on that day has been overcome by the stay ordered by Robertson J on 22 January 2016. The consequence is that the order for immediate possession took effect only on 30 March 2017.
The Commonwealth argues that the Court ought to allow a further period under s.121(3) for the following reasons:
(i)Order 1 made on 21 December 2015 operated to immediately terminate the residential tenancy. The order has never been stayed and so the respondent has had no legal right to possession since 21 December 2015;
(ii)the respondent is in breach of Order 2 requiring her to give vacant possession to the Commonwealth;
(iii)the only reason why the Commonwealth has not moved more quickly to apply for a warrant is because the relevant orders were stayed until very recently; and
(iv)to refuse the grant of an additional period within which a warrant may be applied for by the Commonwealth would defeat the purposes for which the orders were made.
The respondent resisted the application on a number of bases.
Amongst those was the argument that the conferral on the Court of powers under the Act was unconstitutional. I note that, in support of an application for a stay of the order granting an extension of time within which to apply for a warrant in the matter of Uren, counsel for the respondent argued that I had not dealt with that argument in my judgment. That contention was correct only in that I did not deal with the argument expressly. However, I observed in Uren, as I have observed at [12] above, that the law to be applied in these proceedings was the Act. That implicitly dealt with the argument and nothing further needs to be said about it. Indeed, as I noted in response to the argument in the application for a stay in Uren, nothing of any substance was said about it in the respondent’s oral submissions. The point was, and remains, unarguable in light of the decision of the Full Court.
Turning to the more substantial arguments, the respondent first argued that, in light of s.121(3) of the Act, the fact that the Commonwealth has given no assistance to her to move, weighs against any extension of time. The argument is based on the purpose of s.121(3) which is to encourage genuine attempts to resolve difficulties between the parties. The difficulty with this submission is that it ignores the opening words of s.121(3) “without limiting subsection (2)”. While it may be accepted that s.121(3) encourages negotiation between the parties, it does nothing to limit the power of the Court to extend time under s.121(2), even if such attempts to reach agreement do not take place. Certainly, it does not, in my view, make the existence of negotiations a prerequisite, or even necessarily relevant to the exercise of the power in s.121(2).
The respondent then argued that there was no evidence that the Commonwealth had approached the Registrar of the Court for the issue of a warrant, or that the orders made on 21 December 2015 had been served on the respondent. I do not accept that either of those matters makes any difference.
First, there is no express or implicit limitation on the power to extend the time within which to apply for a warrant connected with an application to the Registrar, or the service of the relevant orders. Counsel for the respondent referred to a decision of the New South Wales Residential Tenancies Tribunal[1] (RTT) in which, he said, the Tribunal held that there was no power in the Registrar to make an order for the issue of a warrant in the absence of proof of service of the orders. That however, addressed a different question to the one I am asked to consider. I am not determining whether to issue a warrant, but only to extend the time within which the Commonwealth might ask for a warrant to be issued. In any event, although the Registrar may properly refuse to exercise the power to issue a warrant for possession in the absence of satisfaction that a former tenant is on notice of the order for possession, I do not accept that he or she has no power to issue a warrant in those circumstances.
[1] As it was then known. On 1 January 2014, it became the NSW Civil and Administrative Tribunal, also known as “NCAT”.
Secondly, and in any event, the respondent was clearly aware of the orders made on 21 December 2015: she both appealed from them and sought a stay of them.
The respondent next argued that any extension of time ought to be subject to conditions, namely, that the warrant not be applied for within 90 days. In support of this, the respondent relied on the broad protective provisions in Pt.5 of the Act commencing with s.80 and, in particular, s.94. She also relied on the decision of the New South Wales Court of Appeal in King v New South Wales Land & Housing Corporation (1992) 26 ALD 684 (King).
Part 5 of the Act deals with the termination of residential tenancy agreements. The residential tenancy agreement between the respondent and the Commonwealth was terminated in accordance with those provisions by Order 1 made on 21 December 2015. I do not accept that those provisions have any impact once an order for possession has been made and, as in this case, not complied with. It may be that those provisions were intended to address the imbalance of power between landlords and tenants, but that does not appear to be the purpose of the provisions in Pt.6 of the Act, such as s.121, which concern the recovery of possession of residential premises.
The decision in King does not assist the respondent. That case was an appeal by leave from the refusal by a judge of the Supreme Court of New South Wales to grant interlocutory relief pending the determination of a summons seeking judicial review of the decision of the RTT. The RTT had made an order for possession in respect of premises occupied by Mr King but had suspended that order subject to a number of conditions. It also ordered that, if Mr King did not comply with those conditions, the respondent could apply for the issue of a warrant of possession without further notice to Mr King. The case did not involve an extension of time under s.121(2), and gives no support to the proposition that such an extension can be made subject to conditions.
Even if I did have the power to impose conditions on the extension of time under s.121(2), I would not impose any condition on that extension.
First, the delay has not been caused by the Commonwealth. Rather, the extension of time has been necessitated by the respondent’s appeal and the orders staying the orders of 21 December 2015 for possession. Although the respondent seems to have pursued her appeal with all due expedition, the appeal was ultimately unsuccessful.
Secondly, the respondent has no right to remain on the Premises and has known for many months of the possibility that she would have to leave with little or no notice.
Thirdly, the respondent has 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 her as does any difficulty created by her failure to do so. My view in that respect is not affected by the respondent’s evidence.
The respondent’s evidence was as follows:
…
[5]Time to look for another home should also be taken into consideration in determining the amount of time that I have to move as I have other considerations in my family that I believe the Court should take into account.
-Caring for David is difficult at times and making phone calls or inspecting properties that may be suitable can be challenging.
-My son Steven is going through a very difficult time. He had been diagnosed and treated for Narcolepsy but he has recently undergone more tests and he has been diagnosed with Idiopathic Hypersomnia. This has been very distressing as there is currently very little treatment. Steven has attempted suicide twice recently, the last attempt was on 29 March 2017. He remains in Nepean Hospital in the Intensive Care Unit.
-Stephen [sic] has a 4 year old boy Ashley and this makes it very difficult for me as I am concerned for his welfare. Steven’s wife is German and has no family other than us in Australia for support. They live in Bringelly.
[6]I had previously considered moving to the Hunter Valley as I thought this would be a more affordable option and I would be near my parents. This is no longer a good option for me. My parents are now in aged care and I would not have the family support I now have. One of my daughters lives at Plumpton and she has three children, Jayden who is 5 years old and is currently being investigated for autism or ADHD, Zachary is 3 years old and Alyssa is 1. My other daughter lives at Moss Vale and has three children, Lily is 5 years old, Tyler is two years old and Nicholas is a newborn. David was able to stay with his father in Penrith recently for a night while I was at the hospital with his brother. Moving to another area that may be more affordable would be difficult as I depend on family support in caring for David and he loves being with his siblings and nieces and nephews.
[7]David does not cope well with change. I cannot live in suburbia with David and having dogs and horses is an important part of his therapy. I cannot imagine what would happen if I did have close neighbours, it would cause considerable stress to both them and me. …
[8]I do not have a problem moving to another suitable home, I have endured living in a poorly maintained home with limited resources as it met most of my needs. I have not been able to lock either my front or rear door and living in a semi-rural area has maybe feel very vulnerable at times. My financial resources to actually move are very limited.
[9]I am time poor, financially restricted, have very specific needs and also now have a poor rental history as a result of being before the Federal Circuit Court, Federal Court and High Court. I need assistance in finding suitable alternate accommodation for myself, David and our animals.
There was also evidence concerning the condition with which the respondent’s son Steven has been diagnosed, and the condition of her son David.
Idiopathic Hypersomnia is considered a rare sleep disorder with a primary symptom of excessive daytime sleepiness that is not improved regardless of how much time is spent asleep. It responds poorly to traditional treatments and negatively impacts upon the patient’s life, to such an extent that working, socialising and even driving, eventually become impossible due to an inability to sustain vigilant wakefulness.
In a letter dated 10 April 2017, Doctor Sharon Gupta explains that the respondent’s son David suffers from severe intellectual disability and epilepsy (secondary to Angelman’s syndrome). She states that David is almost non-verbal and that his mother/carer cares for all his basic needs. Dr Gupta gives the opinion that she did not believe that it was a very reasonable option for David (at this stage) to move out of his current residence for a number of reasons:
[1]Being in an open environment (large acreage of land) is vital to David’s mental and emotional health. He is used to caring for the farm animals and being able to go out into open farmland and this is part of his therapy. Moving to a much smaller accommodation will be very restrictive and claustrophobic for David and will severely negatively impact his mental health. For his mother/carer to be able to recreate this environment for him, she requires more time to be able to financially afford such accommodation.
[2]Attempting to maintain consistency in David’s life (his farm animals, rural life, disability services) in a new location, is both physically and financially very taxing for his mother. And lack of consistency is a key reason for David’s anxiety.
[3]Due to his severe intellectual disability, he requires that farm/rural life, which is also close to his regular disability services that he has access to.
[4]David has severe anxiety and lacking coping skills. Being in environments that are new or stressful, can often trigger panic and a severe stress reaction. He has recently been commenced on an antidepressant medication to help with this. Accessing psychotherapy has been very difficult, as David is non-verbal.
[5]He has severe obsessive compulsive disorder. He can become extremely distressed and at times aggressive/obscene when he experiences sudden change to his day to day routine and other specific aspects of life.
[6]He suffers from epilepsy, which is secondary to microcephaly and abnormal brain structure.
[7]He is also on the waiting list for a hernia operation and he needs to be in close proximity to the hospital/specialist to be able to make his appointment.
The Commonwealth accepted that the respondent has a severely disabled son and will find it difficult to find alternative premises which would be suitable for her and her son. However, it submitted that there was nothing in the evidence to suggest that the current circumstances would change in the immediate future and that whenever the respondent was to leave the premises she would face the same challenges that she would face now. It submitted that suspending any order for an extension of time within which to apply for a warrant would do nothing more than defer a very difficult transition for the respondent. It also submitted that, at the date of the hearing on 18 May 2017, the respondent had had a further six weeks on top of the period initially allowed by orders made on 21 December 2015 to take steps to find alternative accommodation.

The respondent’s counsel had, without either notice or explanation, left the courtroom by the time the Commonwealth’s submissions were made in this matter. However, the respondent was still represented by her solicitor who was able to reply to the Commonwealth submissions. He said that the respondent’s circumstances have got more difficult recently with the attempted suicide of her son, Steven, and that this had added a tremendous amount of stress for her. He emphasised that s.121(2) of the Act provided for a discretion, and for that reason the Court need not make an order extending the period under that provision.
I accept that the respondent’s current circumstances arising out of the health of her sons, Steven and David, give rise to difficulties for the respondent not only in terms of day-to-day living, but also in terms of finding alternative suitable accommodation. Much of the evidence, and especially that of Dr Gupta, really goes to whether the respondent should be required to leave the Premises at all. As the Commonwealth submits, there is nothing to suggest that the respondent’s circumstances are likely to improve in the foreseeable future. However, I have already made orders terminating the residential tenancy agreement pursuant to which the respondent and her son were entitled to live on the Premises, and an appeal from that order was dismissed by the Full Court. The fact is that the respondent has no right to remain on the Premises and the only question remaining is the way in which the Commonwealth can enforce its right to possession.
The Commonwealth wishes to proceed pursuant to the Act and so, as has been explained, requires an extension of time. While the respondent’s circumstances evoke a good deal of sympathy, they do not impact upon the Commonwealth’s right to vacant possession of its property. That said, the practical reality is that the respondent’s circumstances will, from this point on, make it difficult for her to find alternative accommodation within a short period of time. I consider that that fact ought to be reflected in the orders made by the Court on this application.
None of the evidence established with any clarity or specificity the amount of time which might be reasonably required for the respondent now to locate and move to alternative premises. However, having regard to the fact that the respondent has other children in apparent good health who might be able to assist in either locating alternative premises, or providing short-term accommodation, and the fact that the orders that the respondent vacate the Premises have been in effect for over 2.5 months, the period should not be a lengthy one. It must be recalled that the respondent is in fact acting in defiance of the Court’s orders.
In those circumstances the only reasonable decision is to extend the time to apply for a warrant. An extension of 30 days would reflect the original limit in s.121 of the Act and would provide for a sufficient opportunity to enforce the judgment obtained on 21 December 2015. However, in this case I consider 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 the respondent in connection with her son’s condition. The appropriate period in the circumstances is 90 days. I will also stay the order for a period of 2 weeks to allow further time for the respondent to make suitable arrangements to leave the Premises.
The respondent should pay the costs of the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date: 23 June 2017