Giuseppe DATTILO and Caterina DATTILO v Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development)

Giuseppe and Caterina Dattilo sought a stay of execution of a judgment pending their application for special leave to appeal to the High Court of Australia. The dispute concerned the termination of a residential tenancy agreement for premises at Luddenham, New South Wales, which formed part of land acquired by the Commonwealth for the Sydney second airport. The termination orders were made by the Federal Circuit Court, pursuant to a legislative instrument made under section 10AA of the Federal Circuit Court of Australia Act 1999 (Cth). The Full Court of the Federal Court of Australia had previously dismissed the Dattilos' appeal against these orders.

The legal issues before the High Court, in the context of the stay application, revolved around the validity of the legislative provisions and instrument empowering the Federal Circuit Court to hear and determine Commonwealth tenancy disputes. Specifically, the applicants contended that section 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) purported to confer non-judicial power on the Federal Circuit Court, that there was no constitutional power to enact these amendments, and that the legislative instrument itself was invalid. Further grounds raised included an alleged impairment of the constitutional guarantee of acquisition of property on just terms and apprehended institutional bias.

In considering the application for a stay, the High Court noted that the Full Federal Court had rejected all the applicants' contentions. The primary judge, Griffiths J, had also concluded that the applicants had only a negligible prospect of obtaining special leave to appeal, particularly on grounds not previously advanced before the Full Court. While acknowledging that the applicants had pursued a stay diligently, the limited prospect of success on appeal weighed heavily against the grant of a further stay beyond the short interim one that was due to expire.