Commonwealth of Australia v Patrick - [2015] FCCA 3413

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA v PATRICK & ANOR

[2015] FCCA 3413

Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of a periodic tenancy agreement under s.85 of the Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for less than 20 years – whether termination of the tenancy agreement is granted – original tenancy agreement expired – first respondent notified of termination – first respondent has not lived at premises – interests of second respondent – predominant use of premises – termination of tenancy agreement granted – order for vacant possession suspended.

Legislation:

Evidence Act1995 (Cth), s.140(2)(c)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW), ss.3, 7(h), 10, 18, 74, 77, 82, 84, 85, 91, 96, 97, 119, 121, 223(1)
Residential Tenancy Regulations 2010 (NSW)

Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363
Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Rigney & Anor (No.3) [2015] FCCA 3133
Saad v Fares [2015] NSWCA 385

Applicant:

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

First Respondent:

ANNETTE PATRICK

Second Respondent:

KEN SHIRVINGTON

File Number:

SYG 1811 of 2015

Judgment of:

Judge Smith

Hearing dates:

18 & 19 November 2015

Date of Last Submission:

14 December 2015

Delivered at:

Sydney

Delivered on:

21 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr J. Doyle, Mr D.W. Rayment
& Ms A. Mitchelmore

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Second Respondent:

Mr P. King

ORDERS

The residential tenancy agreement in relation to the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 comprising part of folio identifier Lot 1 DP 838361 (“Premises”) be terminated with immediate effect.
Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
The order for vacant possession be suspended until 25 January 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1811 of 2015

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

Applicant

And

ANNETTE PATRICK

First Respondent

KEN SHIRVINGTON

Second Respondent

REASONS FOR JUDGMENT

The Commonwealth is the registered proprietor of the land situated at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 (“Premises”). The Premises are part of a larger area which the Commonwealth proposes to develop for the purposes of an airport.
On 22 May 2007 Ms Patrick and her husband, Kevin Dickinson, entered into a residential tenancy agreement (“Agreement”) with the Commonwealth in respect of the Premises. Ms Patrick says that she has never lived at the Premises and that her husband died in 2013. Mr Shirvington says that he lives in the Premises and sought to be joined as a party on that basis. The Commonwealth does not dispute that Mr Shirvington lives on the Premises and he was joined as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 3413
Decision Date: 21 December 2015

CaseChat Overview and Summary

The Commonwealth of Australia (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning the eligibility of Patrick (the respondent) for a disability support pension. The dispute centred on whether Patrick's medical conditions qualified him as having a "severe disability" under the relevant social security legislation.

The primary legal issue before the court was whether the Tribunal had erred in law in its assessment of Patrick's eligibility for the disability support pension. Specifically, the court was required to determine if the Tribunal had correctly applied the legislative criteria for a "severe disability," particularly in relation to the assessment of functional impairment and the impact of Patrick's conditions on his capacity to work.

Judge Smith found that the Tribunal had made an error of law in its interpretation and application of the "severe disability" provisions. The reasoning focused on the Tribunal's failure to adequately consider the cumulative impact of Patrick's various medical conditions and their combined effect on his ability to undertake any form of substantial gainful employment. The court reiterated the principle that a holistic approach must be taken when assessing functional capacity, rather than treating each condition in isolation. The Tribunal's decision was set aside, and the matter was remitted to the Tribunal for redetermination according to law.

Orders