Frost v Commonwealth of Australia
[2015] FCCA 3386
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FROST & ORS v COMMONWEALTH OF AUSTRALIA | [2015] FCCA 3386 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – purported representative action – tenancies terminated in concurrent proceedings – application dismissed. |
| Legislation: Constitution (Cth), s.51 |
| Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Carr [2015] FCCA 3382 Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Frost [2015] FCCA 3397 Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Kenney & Anor [2015] FCCA 3400 Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Kenney [2015] FCCA 3401 Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Watkins & Anor [2015] FCCA 3399 Stephens & Ors v Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) [2015] FCCA 1548 |
| First Applicant: | BARRY LEONARD FROST |
| Second Applicant: | LORRAINE WATKINS |
| Third Applicant: | WILLIAM CARR |
| Fourth Applicant: | CATHERINE BRABIN |
| Fifth Applicant: | PAUL KENNEY |
| Respondent: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| File Number: | SYG 1506 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 Applicants: | Mr P.E. King |
| Counsel for the Respondent: | Mr J. Doyle, Mr D.W. Rayment & Ms A. Mitchelmore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1506 of 2015
| BARRY LEONARD FROST |
First Applicant
| LORRAINE WATKINS |
Second Applicant
| WILLIAM CARR |
Third Applicant
| CATHERINE BRABIN |
Fourth Applicant
| PAUL KENNEY |
Fifth Applicant
And
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Respondent
REASONS FOR JUDGMENT
The Commonwealth is the registered proprietor of the land comprised in folio identifier 1/838361 (“airport site”) which is situated in the area of Badgerys Creek and Luddenham on the western fringe of the city of Sydney. It now wishes to develop the airport site for the purpose of an airport and, in order to facilitate that, has served notices of termination on the tenants on the land. A number of those tenants have not vacated the airport site and the Commonwealth has brought proceedings seeking orders terminating the leases and for vacant possession.
The first, second, third and fifth applicants are tenants of properties on the airport site, have been given notices of termination, have not vacated the properties on which they reside and, as a consequence, are respondents to proceedings brought by the Commonwealth. Judgment in each of those proceedings has been handed down at the same time as this judgment. The fourth applicant is the partner of Patrick Kenney, a respondent in another proceeding brought by the Commonwealth. Judgment has also been handed down in that proceeding.
The applicants have brought these proceedings against the Commonwealth seeking, amongst other matters, the following declarations:
(1)DECLARATION that the notices of termination served in respect of Commonwealth tenancies at Badgerys Creek NSW specified in the schedule hereto on the Applicants on or about 24 11 2014 and/or 9 12 2014 is each invalid and of no effect.
(2)DECLARATION that the law made by the Respondent on 4 3 2015 titled Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 ['the Instrument'] is invalid and is not authorised by the amending law Federal Courts Legislation Amendment Act 2015 [Cth].
(3)DECLARATION that Residential Tenancies Act 2010 [NSW] has no application to tenancy disputes requiring the making of orders under the said State law in Federal Circuit Court of Australia under Federal Circuit Court of Australia Act 1999 [Cth] section l0AA.
(4)DECLARATION that Federal Circuit Court of Australia Act 1999 [Cth] section 10AA is invalid as unauthorised by Constitution section 51, nor by any other constitutional power of the parliament, and is made in contravention of Constitution Chapter III.
(5)DECLARATION that the Instrument is invalid as unauthorised by Constitution section 51 nor by any other constitutional power of the parliament.
(Errors in original)
The applicants also sought various interlocutory orders. On 3 June 2015 Judge Street dismissed the application for interlocutory orders: see Stephens & Ors v Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) [2015] FCCA 1548. The proceedings were subsequently transferred to my docket and, on 13 July 2015, I ordered that they be determined concurrently with a number of the proceedings brought by the Commonwealth.
The proceedings were heard concurrently with a number of other matters concerning tenancies of properties on the airport site. Judgment in each of those matters has been handed down at the same time as this judgment.
The issues raised in these proceedings were also raised in the Commonwealth proceedings brought against Mr Frost, Ms Watkins, Mr Carr, Paul Kenney and Patrick Kenney. No additional evidence was adduced or submissions made in these proceedings.
For the reasons that I have given in:
a)Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Frost [2015] FCCA 3397;
b)Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Watkins & Anor [2015] FCCA 3399;
c)Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Carr [2015] FCCA 3382; and
d)Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Kenney [2015] FCCA 3401;
the notice of termination served on each of the first, second, third and fifth applicants was valid and none of the applicants’ challenges to the jurisdiction of this Court succeed. I note that the tenancy of Ms Brabin’s partner, Patrick Kenney, the subject of her claim in these proceedings, was also terminated: see Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development v Kenney & Anor [2015] FCCA 3400.
It may be noted that these proceedings were purportedly brought as representative proceedings. No argument was presented in support of this Court’s jurisdiction to determine such proceedings. My preliminary view is that there is none. However, as the arguments raised in the proceedings have been rejected and the proceedings must fail, it is unnecessary to give any further consideration to that question.
Conclusion
The application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
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