GANNON v Commonwealth of Australia
[2015] FCCA 1160
•4 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GANNON & ANOR v COMMONWEALTH OF AUSTRALIA | [2015] FCCA 1160 |
| Catchwords: ADMINISTRATIVE LAW – Interlocutory relief – application to restrain the respondent from evicting the applicants under the Residential Tenancy Agreement – federal jurisdiction. |
| Legislation: Acts Interpretation Act 1901 ss.12, 13, 15A |
| R v Bevan (1942) 66 CLR 452 |
| First Applicant: | SYLVIA GANNON |
| Second Applicant: | KENNETT GANNON |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 1220 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 4 May 2015 |
| Date of Last Submission: | 4 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. King |
| Solicitors for the Applicant: | V L Macri Lawyers |
| Counsel for the Respondent: | Mr K. Bellamy |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The interlocutory application be dismissed.
The first and second applicant to pay the respondent’s costs fixed in the amount of $3500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1220 of 2015
| SYLVIA GANNON |
First Applicant
| KENNNETT GANNON |
Second Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
This is a matter within the Court’s jurisdiction under s.10AA of the Federal Circuit Court Act 1999 in relation to which the applicants have filed an application seeking the following relief:
1. Declaration that the Applicants are residential tenants of land at Badgery's Creek within the meaning of Residential Tenancies Act 2010 [NSW] section 94(1) and Federal Circuits Court of Australia Act 1999 section 10AA.
2. Grant leave to file forthwith the Application of the Applicants dated today's returnable instanter before the Court.
3. Order restraining the Respondent from evicting the Applicants pending the determination of the matter in this Court.
4. Orders pursuant to Residential Tenancies Act 201 0 [NS W] section 94( 1) and Federal Circuits Court of Australia Act 1999 section 1 OAA that the residential lease of the Applicants is not terminated and should not be terminated or that due notice should be given to the Applicants with arrangements for their accommodation and future survival.
5. Further or other directions.
6. Costs.
The applicants were seeking to move this Court for urgent interlocutory relief to restrain the respondent from evicting the applicants pending the determination of the matter before the Court. The affidavit did not disclose that in fact a warrant had been issued on 16 January 2015, nor did the affidavit in support identify the facts relating to the termination of the Residential Tenancy Agreement, and the proceedings that had been brought before the Chief Judge in Equity Bergin J in the Supreme Court of New South Wales, and, relevantly, the orders that her Honour made on 11 February 2015. That application was made by the applicants in the Supreme Court, as I understand it, without legal representation. The transcript of the hearing before the Chief Judge in Equity was tendered and relevantly records at the end of the hearing :
HER HONOUR: Just listen, please, Mrs Gannon. This Court has given you an indulgence of the kind that is necessary in this case. I have listened patiently to your submissions and your application, but once you start indicating that the Department is brandishing inappropriate conduct, as you were about to embark upon, all good faith negotiations will fall away and you will find yourself at the other end of an application for an earlier date for your exit from your premises. The reality is you must get out.
The Court has before it an affidavit of Mr Alistair McHugh that identifies the history relating to the termination of the residential tenancy between the applicants and the Commonwealth and the proceedings that had been taken before the Tribunal under Civil and Administrative Tribunal Act 2013, and, relevantly, the making of consent orders on 10 October 2014 recording that the Residential Tenancy Agreement is to be terminated on 10 January 2015 from which no appeal was made under s.80 of the Civil and Administrative Tribunal Act 2013.
The affidavit of the applicants was one advanced on information relief through their solicitor and was significantly deficient in identifying in a full and frank manner the facts relating to the dispute between the applicants and the Commonwealth and the steps that had taken place. That is no criticism of the solicitor, as I accept Mr King’s indication that he and his instructing solicitor were unaware of the matters identified in the affidavit of Mr McHugh. However, even on the applicants’ own evidence, they identify that their occupation has been under a series of leases. There is no substance in Mr King’s contention that there was a residential tenancy agreement in excess of 20 years.
The jurisdiction conferred on this Court under s.10AA of the Federal Circuit Court Act 1999 is a law under s.77(i) of the Constitution in respect of a matter under s.75 (iii) and s.76 (ii) of the Constitution. That provision commenced on 26 February 2015. Subsection (1) clearly gives the Court jurisdiction to determine a Commonwealth tenancy dispute between parties to a lease, licence, or other arrangement, in which, and, relevantly, under (b):
(b) a person other than:
(i) the Commonwealth; or
(ii) a person suing or being sued on behalf of the Commonwealth; or
(iii) a Commonwealth officer or employee;
is
(iv) the lessee (other than as a sublessee); or
(v)the licensee (other than as a sublicensee); or
(vi) the grantee of the right or permission.
As a provision conferring jurisdiction s.10AA must be given a liberal construction. It has been accepted by the respondent that there is an arguable case of jurisdiction within s.10AA(1). I am satisfied that the allegation advanced by the applicants as to being lessees of Commonwealth property properly invokes a matter with this Court’s federal jurisdiction conferred by s.10AA. Whether in fact the applicants are lessees or whether their status as lessees has been terminated by the termination of the residential tenancy agreement does not deprive this Court of jurisdiction to determine the whole of the controversy once federal jurisdiction is properly invoked, see Starke J in R v Bevan (1942) 66 CLR 452 at 465-466 as follows:
And the jurisdiction being thus attracted, this Court is clothed with full authority essential for the complete adjudication of the matter and not merely the interpretation of the Constitution (Troy v. Wrigglesworth[12]; Hume v. Palmer[13]; O. Gilpin Ltd. v. Commissioner for Road Transport & Tramways (N.S.W.)[14]; Hopper v. Egg and Egg Pulp Marketing Board (Vict.)[15]). Once jurisdiction is acquired by the Court, that jurisdiction is not lost by reason of the rejection of the constitutional point (R. v. Carter; Ex parte Kisch[16]).
Section 10AA also purports to provide for a legislative instrument to make provision for or in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute, and, relevantly:
(a) the rights of the parties to the Commonwealth tenancy dispute; or
(b) the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law);
…
(d) the powers that the Federal Circuit Court of Australia may exercise under the applicable law.
For the purpose of this application, I treat s.10AA(2) and (3) as defining the jurisdiction of the Federal Circuit Court within s.77(i) of the Constitution.
On 4 March 2015, a legislative instrument under the Legislative Instruments Act 2003 was executed and it commenced on the date of registration, which I am informed was in the first week of March 2015. I am satisfied that the legislative instrument dated 4 March 2015 is within s.5 and s.6 of the Legislative Instruments Act 2003 and being made by a rule-maker within s.4(3) is accordingly within s.13. The legislative instrument dated 4 March 2015 is the subject of Parliamentary scrutiny under Part 5 of the Legislative Instruments Act 2003. Section 13 of the Legislative Instruments Act 2003 relevantly provides that the Acts Interpretation Act 1901 applies to the legislative instrument as if it were an Act and as if each provision were a section of an Act. Section 12 of the Acts Interpretation Act 1901 gives each clause of the legislative instrument effect as a substantive enactment and s.15A provides in effect that legislative instrument must be read and construed subject to the Constitution and so as not to exceed the legislative power of the Commonwealth. In these circumstances I treat the legislative instrument as defining the jurisdiction of the Federal Circuit Court within s.77(i) of the Constitution.
The legislative instrument dated 4 March 2015 identified a purported application of the Residential Tenancies Act 2010 (NSW) to a Commonwealth tenancy dispute involving land in New South Wales. Clause 5 of the legislative instrument dated 4 March 2015 relevantly identified the operation of Part 2, and subclause (2) of clause 5 makes it clear that the Part does not apply in relation to a Commonwealth tenancy dispute involving land in New South Wales unless the dispute involves a tenancy within the meaning of the Residential Tenancies Act 2010. The Residential Tenancies Act 2010 defines in s.3 ‘tenancy’ to mean:
… the right to occupy residential premises under a residential tenancy agreement.
In this case, it is clear on the evidence before the Court that the residential tenancy agreement has terminated. In these circumstances there is no tenancy within the meaning of clause 5 of the legislative instrument dated 4 March 2015.
Further, in relation to clause 6 of the legislative instrument, it indicates that the section applies to a party to a Commonwealth tenancy dispute involving land in New South Wales if, and relevantly:
(1) …
(a) the party is a tenant within the meaning of the Residential Tenancies Ac 2010 (NSW); and
(b) the Federal Circuit Court of Australia has jurisdiction here and determine a dispute.
Whilst I am satisfied that clause 6(1)(b) of the legislative instrument dated 4 March 2015 is satisfied, it is the requirement of clause 6(1)(a) that is deficient. In this regard ‘tenant’ is also defined in s.3 of the Residential Tenancies Act to mean:
tenant means:
(a) the person who has the right to occupy residential premises under a residential tenancy agreement, or
(b) the person to whom such a right passes by transfer or operation of the law, or
The applicants do not satisfy the meaning of tenant within clause 6, as the tenancy has been terminated.
To the extent that clause 7 of the legislative instrument dated 4 March 2015 provides a power to apply the Residential Tenancies Act 2010, it follows from the construction identified above of clause 5, in my opinion, clause 7 has no application.
However, even assuming in favour of the applicants that clause 5 and clause 7 did have application, which in my opinion is not correct, this is not a case in which application of the Residential Tenancies Act 2010 assist the applicants. It is clear that the applicants exhausted their rights under the Residential Tenancies Act 2010 and took no steps to further pursue their rights under that Act or under the Civil and Administrative Tribunal Act 2013. In those circumstances, I can see no reason why the provisions of the Act would be applied in circumstances such as the present, where the warrant has issued as a result of consent orders by the applicants.
Mr King sought to refine the application for substantive relief to identify a prima facie case by referring to s.94(3) and (4) of the Residential Tenancies Act 2010. In my opinion, s.94 does not assist the applicants in the present case, and, relevantly, on the evidence before me, I am satisfied that the residential tenancy agreement had been terminated. I do not accept Mr King’s argument that there was an oral residential tenancy agreement, or some implied agreement in the present case, or that there is to be found a 20-year lease. The evidence does not support any of those propositions. Mr King also sought to rely upon ss.103 and 104, both of which are provisions that apply in circumstances where there is in existence a residential tenancy agreement. I am satisfied that there is no residential tenancy agreement in existence, and that is has been terminated under Part 5 of the Residential Tenancies Act 2010.
Nothing was developed by Mr King to identify any breach of Part 6 of the Residential Tenancies Act 2010, and I am satisfied that there is no prima facie case to support any injunctive relief. Further, insofar as the balance of convenience is concerned, whilst Mr King is correct in saying that the applicants are elderly and their circumstances are clearly ones in which the execution of a warrant will impose hardship, the long litigious history identified in the affidavit of Mr McHugh, identifies that the balance of convenience weighs in permitting the execution of the warrant to proceed. I have been informed from the bar table that the execution of the warrant has in fact taken place and this would require give rise to the need for a mandatory interim order that would require more than determination of a prima facie case but also evaluation of the ultimate prospects of success. There is in this case no prima facie case and the originating applicant has in my opinion no prospects of success. I am not satisfied that this is an appropriate case to grant any interlocutory relief, and the interlocutory application is dismissed.
Mr Bellamy has made an application for costs or dismissal of the interlocutory application. This Court has ample jurisdiction to make an appropriate costs order. Section 208 of the Residential Tenancies Act indicates a procedure that can apply in circumstances where the application was not warranted. I accept Mr King’s proposition that s.208 in the circumstances that I have identified, is not a provision that applies. However, I am satisfied that the making of this interlocutory application was not warranted, further the respondent has succeeded in opposing the application and the ordinary rule is that costs follow the event. In these circumstances I order the applicants to pay the respondent’s cost fixed in the amount of $3,500.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 May 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Constitutional Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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