Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) - [2017] FCAFC 27

FEDERAL COURT OF AUSTRALIA
Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27

Appeal from: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs& Anor (No 2) [2015] FCCA 3262

File number: NSD 68 of 2016

Judges: KENNY, ROBERTSON AND GRIFFITHS JJ

Date of judgment: 2 March 2017

Catchwords:
ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

Legislation:
Constitution ss 51(i), 51(xxxi), Ch III

Airports Act 1996 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Federal Court of Australia Act 1976 (Cth) s 27

Federal Circuit Court of Australia Act 1999 (Cth) s 10AA

Federal Courts Legislation Amendment Act 2015 (Cth) s 2, Sch 2

Legislation Act 2003 (Cth) s 12

Parliamentary Privileges Act 1987 (Cth) s 16

Residential Tenancies Act 1987 (NSW)

Residential Tenancies Act 2010 (NSW) ss 3, 7, 13, 18, 80, 81, 83, 84, 94, 119, 120

Airports Legislation Amendment (2015 Measures No 1) Regulation 2015 (Cth)

Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

Cases cited:
Antoun v R [2006] HCA 2; 224 ALR 51

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651

August v Commissioner of Taxation [2013] FCAFC 85

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245

Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1

Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Rigney (No 3) [2015] FCCA 3133

Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52

JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1

Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14

McEldowney v Forde [1971] AC 632

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

R v Joske; Ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; 135 CLR 194

Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410

Roads and Traffic Authority v Swain (1997) 41 NSWLR 452

Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674

Shanahan v Scott [1957] HCA 4; 96 CLR 245

Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420

Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995)

Thomas v Mowbray [2007] HCA 33; 233 CLR 307

Victoria v Commonwealth [1996] HCA 56; 187 CLR 416

Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300

Wilson v Anderson [2002] HCA 29; 213 CLR 401

Date of hearing: 13, 14 and 15 April 2016

Date of last submissions: 26 April 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 281

Counsel for the Appellant: Mr PE King

Solicitor for the Appellant: The People’s Solicitor Pty Ltd

Counsel for the Respondent: Mr J Doyle with Mr DW Rayment and Ms A Mitchelmore

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 68 of 2016

BETWEEN:
KIM JELFS

Appellant

AND:
COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) (NO 2)

Respondent

JUDGES:

KENNY, ROBERTSON AND GRIFFITHS JJ

DATE OF ORDER:

2 MARCH 2017

THE COURT ORDERS THAT:
1.Leave be granted to the appellant to amend her notice of appeal dated 5 March 2016 (notice of appeal) to add grounds 11, 13, 17, 18 and 19.
2.As to ground 16 in the notice of appeal, leave be granted to the appellant to amend the notice of appeal to add the following ground:
The primary judge erred in not having sufficient regard to expert evidence including, but not limited to, that of Simone Fogarty.

but otherwise leave to amend to add ground 16 be refused.
3.Leave be refused to the appellant to amend the notice of appeal to add grounds 12, 14, 20, 21 and 22.
4.The appeal be dismissed.
5.The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
THE COURT:
Introduction

Ms Kim Jelfs has lived at 677 Badgerys Creek Road, Badgerys Creek, New South Wales since April 1990. It was common ground that the Jelfs’ tenancy was a long term tenancy for the purposes of the Residential Tenancies Act 2010 (NSW) (the 2010 RTA), because Ms Jelfs has been in continual possession of the premises for 20 years or more.
The Commonwealth and the Jelfs most recently entered into a residential tenancy agreement dated 27 November 2007. This was between the Commonwealth and Ms Jelfs and her son, Casey-Dean Jelfs.
The primary judge said at [5] of his reasons for judgment:
Casey-Dean Jelfs is the second respondent named on the tenancy agreement between him, Kim Jelfs and the Commonwealth. However, Casey-Dean did not take part in any of the proceedings. In Ms Jelfs’ affidavit dated 27 May 2015, she explained that the second respondent was “only on the lease, because Pam Kennison proposed that he go on the lease as well in 2008” as she was undergoing major cancer surgery at the time. She further explains that he no longer lives at the Premises permanently and “has not lived there regularly since 26 August 2011.” In light of these circumstances, I have treated the arguments and evidence put forward by Ms Jelfs as dealing with the interests of both her and the second respondent.
Ms Jelfs is the only appellant. Orders were made by Robertson J on 10 March 2016 giving time to join Ms Jelfs’ son as a further appellant. No such application was made.
The term of the residential tenancy agreement entered into on 27 November 2007 was for 52 weeks beginning on 1 December 2008 and ending on 30 November 2009.
The additional terms to the residential tenancy agreement included cl 40, which relevantly provided:
Proposed Airport Site
40.1The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport;
40.2In the event that the Commonwealth of Australia requires vacant possession of the premises:
b) to develop the Sydney West Airport; or
c) for any other purpose
the landlord may terminate this Agreement by serving on the tenant written notice expiring six months from the date of the notice or on expiration of the term (whichever is the earlier);
40.3The tenant shall not be entitled to any payment or compensation from the landlord arising from such termination;
40.4A termination of the Agreement under clause 40.2 shall not affect an existing right or obligation accrued or incurred by the landlord or by the tenant under this Agreement or otherwise at law or in equity.
(Emphasis in original.)
By letter dated 29 October 2014, Ms Jelfs was notified by the Commonwealth’s agent that the Commonwealth was likely to require possession of the premises by June 2015.
In a subsequent letter dated 24 November 2014, the Commonwealth’s agent notified Ms Jelfs that the Commonwealth required possession of the premises by 15 June 2015.
On 16 April 2015, the Commonwealth applied in the Federal Circuit Court of Australia (FCCA) for an order terminating the Jelfs’ tenancy agreement and an order for vacant possession. Ms Jelfs opposed those orders being made. She contested the urgency of the Commonwealth’s need for vacant possession. In support of that contention, Ms Jelfs relied upon the 99 year “Right of Refusal” conferred upon the owner of Sydney’s Kingsford Smith Airport as part of the 2002 sale agreement relating to that airport. Ms Jelfs said the owner of that airport had no interest nor plan to operate or use Badgerys Creek as an airport site in the foreseeable future.
Before the primary judge, Ms Jelfs said that she had incurred losses “in breach of the contract or in breach of duty by the Applicant in relation to the land, and will provide particulars of losses which exceed 3 folios.” The primary judge pointed out, at [4.d], that no particulars of any loss had been provided, no evidence of any loss had been adduced and no explanation had been given as to what breaches of contract or duty were referred to. Ms Jelfs also complained that the Commonwealth had not offered to compensate her for the costs of complying with the “eviction notice”. However, the primary judge pointed out, at [4.e], no particulars of this claim were provided and nor was any evidence adduced in support of the existence of any obligation on the Commonwealth to do so.
It was not in dispute that Ms Jelfs now lives alone in the three bedroom house at the premises. She lives there with two small house dogs. Her son occasionally comes to stay with her there, but he does not live there permanently. It was also common ground that Ms Jelfs has ongoing health issues as a result of treatment for cancer over several years.
The orders made by the primary judge were as follows:
(1)The residential tenancy agreement between the applicant and the respondents in relation to the property situated at 677 Badgerys Creek Road, Badgerys Creek, NSW 2555 comprising part of folio identifier Lot 1 DP 838361 (“Premises”) be terminated forthwith.
(2)Vacant possession of the Premises be given to the applicant on or before 18 December 2015.
(3)The order for vacant possession be suspended until 9 February 2016.
On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted her appeal with expedition and complied with certain directions: Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14.
Adjournment application
At the commencement of the hearing of the appeal counsel for the appellant applied for the hearing of the appeal to be adjourned to a date to be fixed. We refused that application and said that we would give our reasons later. These are those reasons.
The principal ground of the application was that through the failure of the respondent to comply with directions, the appellant had been put in a position where she was not able to present her case and that a refusal to allow an adjournment would result in a serious injustice to the appellant.
In our opinion, although there was some non-compliance with directions by the respondent that non-compliance was minor and was not of such a nature that the appellant was not able to present her case. Although it was submitted on behalf of the appellant that she was not in a position to assist the Court with reference to the material to be the subject of the Court’s consideration, in our opinion, to the extent to which cross-references were not available, that did not have the consequence that the appellant was not able to present her case. The material that was missing, in a particular form, at the commencement of the three-day appeal was available early in the course of the hearing of the appeal and we do not accept that the appellant was denied the reasonable opportunity to prepare the case to present to the Court with respect to that material.
We take into account that the appellant had limited resources but we also take into account that it was on 22 January 2016 that directions were made with a view to the appeal being set down for hearing beginning on 13 April 2016, that hearing date was confirmed by letter sent on 1 February 2016, and the appellant’s submissions were then directed to be filed and served by 16 March 2016. This period for the appellant’s submissions was extended on 26 February 2016 to 23 March 2016. We also take into account that the appellant knew the reasons for judgment of the primary judge; she knew her own material; she knew her own case; she knew the respondent’s submissions; and she had replied to those submissions in writing.
We have taken into account the material in the affidavits sworn by Ms Keith on 7 April 2016 and 12 April 2016 but there is nothing in those affidavits that persuades us that the appellant was prejudiced in the presentation of her appeal.
The appellant relied on Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420. In our opinion, the principles are not in doubt but each exercise of discretion to grant or refuse an adjournment must depend on the particular circumstances of the case.
The primary judge’s reasons for judgment summarised
The judgment of the primary judge has the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs (No 2) [2015] FCCA 3262 (Jelfs).
In [12]-[15] of his reasons for judgment, the primary judge considered the proper construction and application of s 94 of the 2010 RTA.
His Honour said, at [6], that his reasons in the present matter ought to be read with his reasons in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Rigney (No 3) [2015] FCCA 3133 (Rigney).
His Honour confirmed that the power to make a termination under s 94 was discretionary, but was subject to the following three conditions:
(a)that the tenant had been in continual possession of the same residential premises for a period of 20 years or more;
(b)that if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement had expired; and
(c)that the Court was satisfied that it was appropriate to do so in the circumstances of the case.
The primary judge referred in Rigney at [121] to the judgment in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) (Swain). That decision related to the Residential Tenancies Act 1987 (NSW) (the 1987 RTA) and the Tribunal’s duty to terminate an agreement under s 64(2)(c) (which provided for such an order to be made where “having considered the circumstances of the case, it is appropriate to do so”). The primary judge said the circumstances referred to in the third condition were all of the matters that arose on the material before the Court including the availability of suitable alternative accommodation. Justice Rolfe described the possible “circumstances” which may have to be taken into account under that provision as:
… the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment….
In Rigney at [122], the primary judge noted that Rolfe J’s decision was upheld on appeal in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 (Swain on appeal) where Meagher JA (with whom Priestley and Cole JJA agreed) held that the “circumstances” referred to in s 64 were the particular case before the Tribunal and the 1987 RTA was intended to balance the rights of the landlords and tenants. In Rigney at [123], primary judge also referred to another decision of the New South Wales Court of Appeal in Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 (Scicluna), where the Court found that the power conferred on the Tribunal under s 64(2) was not a discretionary power, but rather a matter of statutory obligation once an evaluative opinion had been formed. The primary judge, in Rigney at [124], described this conclusion as “clearly correct” in light of the terms of the chapeau to s 64 (i.e. that the Tribunal “is to make an order terminating the agreements if it is satisfied … ”). The primary judge added in respect of s 64 that:
The evaluative opinion referred to in the decision arises from the condition of the power that the Tribunal be satisfied, “having considered the circumstances of the case, it is appropriate to do so”.
(Emphasis in original.)
The primary judge then identified, in Rigney at [126], the following differences between the 2010 RTA and the 1987 RTA:
(a)the power to terminate a periodic tenancy under s 85 (other than where the tenant has been in occupation for 20 years or more) was not discretionary;
(b)the evaluative opinion referred to in Scicluna was no longer a condition of the power to terminate under the 2010 RTA; and
(c)the power to terminate was different depending on whether the tenant had been in occupation of the premises for 20 years or less and where that occupation was greater than 20 years, the only power to terminate was under s 94.
The primary judge also considered in Rigney at [127]-[132], the New South Wales Court of Appeal’s decision in Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 (Cain), where it was held that the power under s 91 of the 2010 RTA to make a termination order was discretionary and, as part of the reasoning of Leeming JA, that the word “may” in s 94(1) conferred a discretion on the NSW Civil and Administrative Tribunal (the State Tribunal).

The primary judge’s approach in determining whether or not to make a termination order under s 94 was, at [14], reproduced from [140] of his reasons for judgment in Rigney:
Once the Court decides to make a termination order it must also make an order for possession of the residential premises specifying the day on which the orders takes or took effect: s.83(1). As the minimum 90 day period specified in s.94(4) does not apply to these proceedings, there is no explicit guidance in the Tenancies Act as to the date on which possession should be ordered. In light of that, the contextual matters considered above must also be involved in the determination of the date of possession. Essentially, the determination involves a balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant’s possession of the land.
Applying that approach, the parties were in agreement and the primary judge found that Ms Jelfs had been in continual possession of the premises for well over 20 years. His Honour also found that he was satisfied that the original term of the agreement expired on 30 November 2009.
The primary judge then turned to consider, from [18] onwards, whether he was satisfied that it was appropriate to make a termination order in the circumstances of the case.
Putting to one side the jurisdictional and constitutional issues, the primary issues determined by the primary judge in respect of Ms Jelfs’ case may be summarised as follows:
(a)whether there were lawful and effective notices of termination;
(b)whether the Commonwealth needed vacant possession having regard to the 99 year “right of refusal” of the purchaser of the Sydney (Kingsford Smith) Airport;
(c)a claim for compensation for the costs of Ms Jelfs having to comply with what was described as the “eviction notice”; and
(d)whether the Court should make a termination order under s 94(1)(c) of the 2010 RTA, which depended upon whether the Court was satisfied “that it is appropriate to do so in circumstances of the case”.
The primary judge’s reasons in respect of each of these matters may be summarised as follows.
As to whether there were lawful and effective notices of termination, the primary judge proceeded on the correct basis that by virtue of s 94(2) no formal notice of termination was required in respect of long-term tenancies under the 2010 RTA. Nevertheless, the primary judge considered the two notices dated 29 October 2014 and 24 November 2014 respectively.
In the first of those letters, the Commonwealth’s agent who was managing the premises informed Ms Jelfs of the Government’s decision that the site at Badgerys Creek would be the site for Western Sydney’s airport. The letter contained the following statements:
To implement the Australian Government’s decision, all properties on the site, including the property you occupy, will need to be vacated…
In the coming weeks, you will receive a formal notice of termination of your occupancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 – but it will not be earlier.
The document dated 24 November 2014, which was expressed to be a notice of termination under s 85 of the 2010 RTA, was also sent by the Commonwealth’s property manager to both Ms Jelfs and her son. The notice advised them that because the original fixed term of their residential tenancy agreement had expired, they occupied the premises as a tenant under a periodic agreement for the purposes of 2010 RTA. The document then stated that the Commonwealth gave them notice under s 85 of the 2010 RTA terminating the tenancy agreement on 15 June 2015 and requiring them to give vacant possession of the premises to the Commonwealth by that date.
In [48] of his Honour’s reasons for judgment in Jelfs, the primary judge noted that the notice of termination dated 24 November 2014 had apparently been sent to Ms Jelfs on the misunderstanding that she had not been in possession of the premises for 20 years (hence the reference to notice being given under s 85 of the 2010 RTA). His Honour noted that the Commonwealth did not rely on the notice as having any legal affect and that Ms Jelfs gave no evidence about it.
His Honour referred to the evidence given by Mr Peter Robertson, a general manager at the Commonwealth Department of Infrastructure and Regional Development, concerning the assistance and services provided to tenants by the Commonwealth, which included the appointment of a Place Manager (Ms Wendy Salkeld) as a dedicated point of contact responsible for communicating with the tenants of the site on an individual basis concerning the transition of the site and to help tenants understand the process. The primary judge accepted Mr Robertson’s evidence that there was an optional information drop-in session held on 25 February 2015, which was attended by bodies such as NSW Housing Services, Centrelink and local real estate agents. His Honour concluded at [50] that it was not clear whether Ms Jelfs was directly provided with this assistance, but he found that it was at least available to her.
The primary judge had earlier considered the circumstances of the Commonwealth.
The primary judge outlined the history of various proposals to build Sydney’s second airport at Badgerys Creek. This history was given by Mr Robertson. Mr Robertson was described as one of three senior executive service staff members managing the proposed Badgerys Creek airport project. Mr Robertson had responsibility for management of policy development and project timeframes.
The primary judge described, at [24], the following four aspects of Mr Robertson’s evidence concerning the “substantial urgency” of vacating the site:
(a)obtaining vacant possession in accordance with the project timetable;
(b)the incompatibility of continued residential accommodation and the ongoing investigation and demolition works, both in terms of cost and delay, which impacted work at the site and residential amenity and safety;
(c)the balance to be struck between the interests of the tenants and the high costs of them remaining on the site; and
(d)the importance of treating tenants equitably.
The primary judge summarised Mr Robertson’s evidence regarding planning for the airport and the need for substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. This work was expected to continue throughout 2015, although at the time of Mr Robertson’s affidavit dated 11 March 2015, geotechnical drilling work was being undertaken on a limited scale due to the presence of occupants at the site, which gave rise to safety concerns. The primary judge noted that Mr Robertson’s evidence did not deal directly with the part of the site on which Ms Jelfs’ premises were located.
The primary judge referred to Mr Robertson’s evidence regarding the further work which was required at the site in general, which would be directed to obtaining further geotechnical and contamination information across the whole site. This information would provide inputs into the Government’s consideration of the land use arrangements for the site and associated costings. Mr Robertson described this information as being “urgently required”. The primary judge noted that there was no explanation of the basis for that urgency other than Mr Robertson saying that a delay in obtaining the information “risks delaying the proposal overall”.
The primary judge also summarised Mr Robertson’s evidence concerning the process for assessing individual residential tenant blocks, which Mr Robertson described as being “administratively onerous” and taking up considerable resources.
The primary judge also summarised Mr Robertson’s further evidence in his subsequent affidavits dated 30 March 2015 and 21 May 2015 respectively. These affidavits contained further evidence regarding the timeframe for clearing the site and demolition activities which were being carried out.
The primary judge summarised the cross-examination of Mr Robertson by counsel for Ms Jelfs. He described the cross-examination as mainly being directed to establishing that there were other people in the Department with more knowledge of, and responsibility for, particular decisions with respect to the development of the site for an airport. The primary judge observed, at [36] of his reasons for judgment, that this line of questioning “did not assist the proceedings in any way”. His Honour said that the fact that someone else was responsible for decision-making or any other matter was irrelevant to the facts in issue. The primary judge concluded, at [36], that Mr Robertson had given his evidence truthfully and he accepted that evidence.
The primary judge outlined the details of the “Right of First Refusal” under the Sydney Airport Group sale agreement in 2002. Mr Robertson’s evidence on this matter was described at [40]:
Mr Robertson explained that whilst consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. He said that essential to such proposal was the outcome of the Environmental Impact Assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations. In his opinion, restricted access to the site due to tenants being in possession of individual properties limits this process in many practical ways.
The primary judge rejected Ms Jelfs’ claims for losses and compensation on the basis that the claims were not supported by any particulars nor evidence, with the consequence that the primary judge stated at [4.d] and [4.e] that it was unnecessary to consider the claims further.
The primary judge then addressed the circumstances affecting Ms Jelfs which, apart from security, safety and convenience issues in relation to the whole site, he identified as comprising the following four matters:
(a)the length of Ms Jelfs’ occupation of the property;
(b)the terms of the tenancy agreement between Ms Jelfs and the Commonwealth;
(c)the process undertaken by the Commonwealth to obtain vacant possession of the properties, including notice of the proposed termination of the residential tenancy agreement; and
(d)the availability of suitable alternative accommodation, which included consideration of Ms Jelfs’ health.
On the first of those matters, the primary judge reaffirmed his earlier finding that Ms Jelfs had been in continual possession of the property for over 20 years.
On the second of those matters, his Honour referred to cl 40 of the residential tenancy agreement, the terms of which are set out in [5] above.
After setting out cl 40, the primary judge reiterated that if the 2010 RTA did not apply (as contended by Ms Jelfs) arguably the tenancy would already have been terminated by operation of cl 40.2. He added that these clauses also indicated that at least from the entry into the agreement in November 2007, Ms Jelfs was aware of the possibility that the site might be developed for the purposes of the development of an airport. Furthermore, his Honour noted that Ms Jelfs had given evidence that, when she first entered into possession of the premises, she was told that the land was Commonwealth land and that an airport was to be built there (see [44] of the reasons for judgment).
The primary judge also noted Ms Jelfs’ evidence that, in 2004, the then Prime Minister had announced that the airport would not proceed and Ms Jelfs said that she thought that she had a tenancy for life. His Honour found that this understanding appeared to have been based solely on what other Commonwealth tenants in the area had told her. His Honour stated that the other tenants had told her that, as a longstanding tenant, she would be given an option to purchase the property if the airport did not proceed, with a pro rata discount for the rent paid. The primary judge stated that he had taken Ms Jelfs’ understanding into account but that she did not, and could not, argue that any estoppel arose in these circumstances.
The primary judge then summarised the correspondence which Ms Jelfs received from the Commonwealth’s property manager, as described above, as well as Mr Robertson’s evidence concerning assistance and services provided by the Commonwealth to tenants in respect of the termination of their tenancies.
The primary judge then addressed the issue of the availability of suitable alternative accommodation. He summarised the evidence of the Commonwealth’s expert valuer, Mr Simon Azar, which was to the effect that he had located a number of properties comparable to Ms Jelfs’ property which were currently available for rent in or around the Badgerys Creek area.
The primary judge also considered expert evidence provided by various witnesses called by Ms Jelfs in response to the evidence given by Mr Azar. Those witnesses were Ms Simone Fogarty (the daughter of a tenant of another property, Mr Ken Shirvington), as well as the evidence of a registered real estate valuer, Mr Lopco Neskovski. Ms Leanne Uren also gave evidence. The primary judge briefly described the evidence of each of these witnesses.
He described Ms Leanne Uren’s evidence as showing that the properties used by Mr Azar as being comparable to Ms Jelfs’ premises were, at the date of the hearing, no longer available for lease. His Honour described this evidence as showing that the market for rental properties in and around the Badgerys Creek area was not stagnant.
The primary judge then summarised Mr Neskovski’s evidence relating to suitable alternative accommodation.
His Honour stated that Ms Fogarty was a senior property manager but that, for various stated reasons, he did not find her to be a convincing witness. Having said that, however, the primary judge acknowledged that Ms Fogarty had made some “reasonable” and “valid” points (some of which were also made by Mr Neskovski), including that there must be some comparison made between the size of the land and not simply the size of the house for rent; the rental market had been impacted with a number of other tenants in the Badgerys Creek area who were relocating; and that some consideration had to be given to animals owned by a tenant.
At [65], the primary judge said that the question to which this evidence was directed was not whether identical or comparable properties were available but, rather, whether there was some suitable alternative accommodation that was reasonably available. Expressed that way, his Honour said that the question captured more accurately the balance sought to be struck between the interests of the landlord and those of the tenant. This meant that the evidence concerning the availability of premises was of limited assistance to the Court because of the proper focus required by the 2010 RTA.
Having said that, the primary judge concluded that the evidence indicated that there were properties available for rent in the vicinity of Badgerys Creek and that the rent was higher than that which Ms Jelfs was paying ($175 per week). His Honour said that this was hardly surprising because Ms Jelfs’ tenancy was always subject to the possibility of the airport being developed. The primary judge also noted that Ms Jelfs had given no evidence about her financial means. We note that the rent of $175 per week was the amount stated in the residential tenancy agreement but we also note that there was evidence from Mr Azar that Ms Jelfs was currently paying $190 per week. In our opinion, nothing turns on this.
His Honour found that, despite the evidence of Ms Fogarty and Mr Neskovski about the impact on the rental market of the large number of people relocating from the airport site area, there was “no real evidence to support those assertions”. Consequently, he gave little weight to their evidence on this matter (see [68]).
Finally, the primary judge noted that while Ms Fogarty gave evidence that the properties listed by Mr Azar had all been rented, this did not suggest that other properties would not shortly become available for rent. The primary judge accepted Ms Fogarty’s evidence that more time would improve the tenants’ chances of obtaining alternative accommodation.
The primary judge also stated, at [70], that Ms Jelfs had given no evidence about alternative accommodation but that, instead, she had submitted that her agreement with the Commonwealth should not be terminated or, alternatively, she should be given at least six months to move and also receive compensation for “loss of amenity and difficulties in finding alternative accommodation ‘for ourselves and our animals’”. The primary judge observed that this submission should be understood as referring only to Ms Jelfs herself (and not to her son who no longer lived with her) and he added that the two dogs which Ms Jelfs had were described by her as “small house dogs”. In those circumstances, the primary judge inferred that the dogs would not add to the burden of Ms Jelfs relocating.
The primary judge concluded, at [71] of his reasons for judgment that, while he accepted that it may take time for Ms Jelfs to find suitable alternative accommodation, he was not satisfied that none was available.
The primary judge also took into account the evidence given by Ms Jelfs concerning her health. He accepted that she was very concerned about her health and the possible impact of having to relocate. His Honour concluded, however, that there was no evidence to suggest that there would be any real impact on her health if Ms Jelfs was required to move home.
After identifying what he described as the “proper focus” required by the 2010 RTA, the primary judge observed at [66] that all of the evidence concerning the availability of premises was of limited assistance to the Court.
Grounds of appeal
Ms Jelfs sought leave to file and reply upon an amended notice of appeal, which was in the following terms:
1.The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as involving the imposition of administrative power of a State tribunal upon a Chapter III court.
2.The primary Judge erred in holding that the Respondent was empowered to make Federal Circuit Court [Commonwealth Tenancy Disputes] Instrument 2015 [Cth].
3.The primary Judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as a law for the acquisition of property of the Appellant other than on just terms.
4.The primary Judge erred in holding that it was ‘appropriate’ to order termination of the Appellant’s tenancy.
~~5.The primary Judge erred in holding that the termination notice was valid and effective.~~
~~6.The primary Judge erred in not admitting evidence of the Appellant.~~
7.The primary Judge erred in ordering termination forthwith and vacation on or before 18 12 2015 of the premises the subject of the action.
8.The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].
9.The primary Judge erred in not recusing himself from the matter before him in circumstances where he heard other cases in which he had made findings of credit and similar findings of fact against other Commonwealth tenants at Badgerys Creek.
10.The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to Simone Fogarty.
11.The primary Judge erred in stating Miss Jelfs had known about the possibility of having to move since 1990, in circumstances where in 2000 the airport was announced as “shelved” by then Prime Minister Howard.
12.The primary Judge erred in assuming there would be no impact on Miss Jelfs health.
13.The primary Judge erred in stating that the fact that Miss Jelfs has pets and this would not contribute to difficulties in finding alternate rental accommodation.
14.The primary judge erred in failing to have regard to the fact that on 24 11 2014 the Appellant was given an invalid termination notice as if the Appellant was an under 20 years tenant.
~~15.The primary judge erred in deferring costs or not making any orders as to costs.~~
16.The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
17.The primary Judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties.
18.The primary Judge erred in accepting Mr Robertson’s statements regarding the construction and development of the airport, and not considering the long history of uncertainty and the changing position of the Commonwealth with regard to the building (or not building) of the airport. Extensive documents were submitted by the Respondents supporting these delays, which were not considered by the Primary Judge.
19.The primary Judge erred in stating the Respondents were aware of the possibility that the site may be developed for the purposes of the development of an airport and disregarding that since December 2000 the Respondents reasonably believed Badgerys Creek was not being considered as a site for the airport.
20.The primary Judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of Respondents.
21.The primary judge erred in not holding that the Respondent was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith.
22.The primary judge erred in not considering compensation to the Appellant as a condition of the making of any order for possession, or for suspending such order for a period of years.
~~23.The primary Judge erred in making tenancy orders having final effect and thereafter making directions at the request of the Respondent on costs which in the circumstances was an abuse of process.~~

The underlined paragraphs identify the new grounds of appeal raised by Ms Jelfs for which leave was required. The paragraphs struck through, grounds 5, 6, 15 and 23, reflect the grounds in the proposed amended notice of appeal which counsel for the appellant notified the Court were abandoned. It is also appears that ground 9 concerning alleged bias was not pressed in that form in this appeal.
The proposed amendments, apart from paragraphs 13, 18 and 19, were opposed by the Commonwealth on several grounds, including that some of the new grounds had not been argued below or were inconsistent with the way in which Ms Jelfs’ case had been presented below.
Since the application to amend to add grounds 13, 18 and 19 was not opposed, we would grant leave so to amend.
It is therefore necessary to rule on the application to amend to add grounds 11, 12, 14, 16, 17, 20, 21 and 22.
The principles in relation to an application to amend a notice of appeal are well-established. As a Full Court said recently in Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153 at [99]:
Parties are bound by the way they conduct their case at trial: see Overton Investment Pty Ltd v Murphy [2001] NSWCA 183 per Mason P (at [86]–[87]) (Sheller JA and Beazley JA agreeing); University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 (at 483); Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [15]); Thompson v Palmer (1933) 49 CLR 507 per Starke J (at 528–529); Haig v Minister Administering National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 per Kirby P (at 155); Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ, Deane J contra) (at 7).
Although a question of law may be raised for the first time on appeal and it will be expedient in the interests of justice that that should permitted to be done, this exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the
case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 per Mason P (Gleeson CJ and Priestley JA agreeing).
Also, the discretion to permit an amendment should not be exercised favourably where the proposed ground of appeal is self-evidently bound to fail.
Applying these principles, we would allow the application to amend to add ground 11, that the primary judge erred in stating Ms Jelfs had known about the possibility of having to move since 1990, because the proposed ground turns on an analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent.
As to the application to amend to add ground 12, relating to Ms Jelfs’ health, it turns on whether the primary judge assumed there would be no impact on Ms Jelfs’ health. The primary judge mentioned this matter at [41(iv)] and at [72]-[73]. The primary judge accepted that Ms Jelfs was very concerned for her health and was worried about the possible impact of having to relocate. However the primary judge said there was no evidence to suggest, and he was not satisfied that there would be, any real impact on her health if she was required to move home. We would refuse leave to amend to add this ground as it does not reflect the reasons of the primary judge and, in our opinion, it is bound to fail.
As to the application to amend to add ground 14, which concerns the termination notice given on 24 November 2014, as noted by the primary judge at [48] the Commonwealth did not rely on that notice having any legal effect; Ms Jelfs did not give any evidence about it; and, clearly enough, did not take any steps to vacate the premises as a result of receiving it. We would refuse leave to amend to add this ground as, in our opinion, it is bound to fail.
Similarly, we would not allow the amendment to add the entirety of ground 16 since it is plain that the primary judge did have regard to expert evidence. We would allow the application to amend to add proposed ground 16 insofar as it raises the claim that the primary judge erred in not having sufficient regard to expert evidence including but not limited to that of Ms Fogarty. The proposed ground turns on analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent Commonwealth.
In relation to proposed ground 17, that the primary judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties, we would allow the amendment as it turns on an analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent.
In relation to proposed ground 20, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Salkeld, the Place Manager, in circumstances where government and non-government accommodation services, information about the rental process, local government pick up services, Centrelink loan programs and local charity assistance provided little or no assistance to the majority of respondents, in our opinion leave to amend should be refused. First, the proposed ground finds no basis in the reasons for judgment of the primary judge in relation to the present appellant. Secondly, the proposed ground does not correspond to a ground taken by the appellant at first instance. Thirdly, the proposed ground could have been met by evidence at first instance, if developed before the primary judge.
In relation to proposed ground 21, that the primary judge erred in not holding that the respondent was estopped in the circumstances from relying upon any notice to quit or any order of the Court that had the effect of giving vacant possession of the land forthwith, in our opinion leave to amend to add this ground should be refused as it was not a matter raised in this case before the primary judge and it is clearly a matter on which evidence could have been adduced. In addition, nothing was said about estoppel in the written and oral submissions in this Court on behalf of the appellant.
In relation to proposed ground 22, that the primary judge erred in not considering compensation to the appellant as a condition of the making of any order for possession, or for suspending such order for a period of years, we would refuse leave to amend to add this ground. Although the matter was pleaded in the FCCA, the primary judge, at [4], found that no particulars of the claim were provided and no evidence was adduced in support of the existence of any obligation on the Commonwealth to offer to compensate Ms Jelfs. In addition, the submissions on behalf of the appellant did not address this claim or proposed ground of appeal.
Parties’ submissions – common issues
The common issues were identified by the appellant as, first, a separation of powers issue; second, that there was no “matter before the FCCA”; third, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act); fourth, that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (the Instrument) was invalid; fifth, that there was an impairment of the constitutional guarantee in s 51(xxxi) of the Constitution dealing with acquisition of property other than on just terms; and sixth, that there was apprehended institutional bias.
The revised written submissions of the appellants on common issues also included a number of paragraphs, [33]-[44], referring to the evidence of Mr Robertson which was said to be common to the several matters.
Before addressing these matters it is convenient to set out the statutory provisions.
By the Federal Courts Legislation Amendment Act 2015 (Cth), which by s 2 commenced on 26 February 2015, the FCCA Act was amended as set out in the applicable items in Sch 2. By item 5(a) of Sch 2 the amendments were said to apply, relevantly, to “a lease, licence or other arrangement entered into before the day this item commences and a Commonwealth tenancy dispute between the parties to the lease, licence or other arrangement that arises before, on or after that day; … ”.
The relevant operative provisions were as follows:
Commonwealth tenancy dispute means a matter:
(a)involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about:
(i)the recovery of rent or other payments payable under or in relation to the lease, licence or other arrangement; or
(ii)       the termination of the lease, licence or other arrangement; or
(iii)      the possession, occupation or use of the land; and
(b)in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.
…
3        After subsection 10(1)
Insert:
(1A)The Federal Circuit Court of Australia also has such original jurisdiction as is vested in it by a legislative instrument made under section 10AA.
4        After section 10
Insert:
10AA Original jurisdiction—Commonwealth tenancy disputes
(1)The Federal Circuit Court of Australia has jurisdiction to hear and determine a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement in which:
(a)the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is:
(i)        the lessor (other than as a sublessor); or
(ii)        the licensor (other than as a sublicensor); or
(iii)the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and
(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.
(2)The Minister may, by legislative instrument, confer jurisdiction on the Federal Circuit Court of Australia in respect of any other specified Commonwealth tenancy dispute.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(3)The Minister may, by legislative instrument, make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:
(a)the rights of the parties to the Commonwealth tenancy dispute;
(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);
(c)any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute;
(d)the powers that the Federal Circuit Court of Australia may exercise under the applicable law;
(e)if the Federal Circuit Court of Australia makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.
Section 12 of the Legislation Act2003 (Cth) was in the following terms, so far as relevant:
12 Commencement of legislative instruments and notifiable instruments
…
Retrospective application
(2)A provision of a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result:
(a)the person’s rights as at that day would be affected so as to disadvantage the person; or
(b)liabilities would be imposed on the person in respect of anything done or omitted to be done before that day.
(3)However, subject to subsection (2), a legislative instrument or notifiable instrument may provide that a provision of the instrument commences before the day the instrument is registered.
(4)The effect of subsection (2) or (3) in relation to an instrument is subject to any contrary provision in an Act.
…
The Instrument, as originally made, was in the following terms:
4 Definitions
In this instrument:
Act means the Federal Circuit Court of Australia Act 1999.
applicable NSW law has the meaning given by subsection 7(2).
Part 2—Commonwealth tenancy disputes involving land in New South Wales
5 Operation of this Part
(1)This Part makes provision in relation to the following matters in respect of a Commonwealth tenancy dispute involving land in New South Wales:
(a)       the rights of the parties to the dispute;
(b)       the law to be applied in determining the dispute;
(c)the powers that the Federal Circuit Court of Australia may exercise under that law;
(d)the powers that may be exercised when executing an order made by the Court.
(2)This 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 (NSW).
(3)Nothing in this Part has effect so as to confer non-judicial power on the Federal Circuit Court of Australia, unless the non-judicial power is incidental to the exercise of judicial power by the Court.
6 Rights of the parties
(1)This section applies to a party to a Commonwealth tenancy dispute involving land in New South Wales if:
(a)the party is a tenant within the meaning of the Residential Tenancies Act 2010 (NSW); and
(b)the Federal Circuit Court of Australia has jurisdiction to hear and determine the dispute.
(2)The party must not make an application to the Civil and Administrative Tribunal under the Residential Tenancies Act 2010 (NSW) in relation to a lease, licence or other arrangement to possess, occupy or use land that is the subject of the dispute.
7 Law to be applied
(1)In determining a Commonwealth tenancy dispute involving land in New South Wales, the Residential Tenancies Act 2010 (NSW) and any regulations made under that Act are to be applied:
(a) to the extent necessary to determine the dispute; and
(b) subject to the modifications set out in section 8 of this instrument.
(2)       The law mentioned in subsection (1) is the applicable NSW law.
8 Modifications of applicable NSW law
(1)       The applicable NSW law is to be applied as if:
(a)a reference to the Tribunal were a reference to the Federal Circuit Court of Australia; and
(b)a reference to the principal registrar of the Tribunal were a reference to a Registrar of the Federal Circuit Court of Australia; and
(c)a reference to the Sheriff, or to a sheriff’s officer, were a reference to the Sheriff of the Federal Circuit Court of Australia.
(2)The Residential Tenancies Act 2010 (NSW) is to be applied as if it included the following section:
Despite anything else in this Act, if the Federal Circuit Court of Australia makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.
9 Powers of the Court
In determining a Commonwealth tenancy dispute involving land in New South Wales, the Federal Circuit Court of Australia may exercise any powers that are:
(a)powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b)       relevant to determining the dispute.
10 Powers when executing orders made by the Court
(1) If the Federal Circuit Court of Australia makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in New South Wales:
(a)the Federal Circuit Court of Australia may exercise any powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b)a Registrar of the Federal Circuit Court of Australia may exercise any powers of the principal registrar of the Civil and Administrative Tribunal under the applicable NSW law; and
(c)subject to subsection (2), the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia may exercise any powers of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW);
to the extent that those powers are relevant to the execution or enforcement of the order.
(2)In exercising a power of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW) to execute a warrant for possession of residential premises, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia:
(a)may obtain the assistance of a member or special member of the Australian Federal Police; and
(b)must not enter a dwelling house between 9 pm one day and 6 am the next day unless the Sheriff or Deputy Sheriff reasonably believes that it would not be practicable to execute the warrant at another time; and
(c)must not use more force, or subject any person on the premises to greater indignity, than is necessary and reasonable to execute the warrant; and
(d)must not do anything that is likely to cause the death of, or grievous bodily harm to, any person on the premises unless the Sheriff or Deputy Sheriff reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the Sheriff or Deputy Sheriff).
(3)       To avoid doubt, nothing in this section limits any other power of:
(a)       the Federal Circuit Court of Australia; or
(b)       a Registrar of the Federal Circuit Court of Australia; or
(c)the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia.
The 2010 RTA, the applicable New South Wales law, contained the following relevant provisions.
In s 3, residential premises was defined to mean any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. The same section defined tenant to mean:
(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
(c) a sub-tenant of a tenant,
and includes a prospective tenant.
Section 3 defined termination notice and termination order by reference to s 80 of the 2010 RTA.
Section 7 provided that the 2010 RTA does not apply, relevantly, to “(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.”
Section 18 provided that a fixed term agreement that continues after the day on which the fixed term ends continues to apply:
(a) as if the term of the agreement were replaced by a periodic agreement, and
(b) on the same terms as immediately before the end of the fixed term.
Section 80 provided that in Pt 5 termination date meant the day specified in a termination notice as the day on which the residential tenancy agreement was terminated and by which vacant possession of the residential premises was to be given; termination notice meant a notice terminating a residential tenancy agreement; and termination order meant an order terminating a residential tenancy agreement together with an order for possession of the residential premises.
Section 94, which applied to the present appeal, provided as follows:
94 Termination of long term tenancies
(1)The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement:
(a)if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and
(b)if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and
(c)if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.
(2)A landlord may make an application under this section without giving the tenant a termination notice.
(3)The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
(4)The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.

Part 6 of the 2010 RTA included the following provisions:
119     Prohibition on certain recovery proceedings in courts
A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.
120     Repossession of residential premises—offences
(1)A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless:
(a)the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or
(b)the tenant has abandoned the premises or given vacant possession of the premises.
Maximum penalty: 200 penalty units.
…
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.
(4)A warrant for possession is to be in the approved form and must authorise a sheriff’s officer to enter specified residential premises and to give possession to the person specified in the warrant.
Note. See section 7A of the Sheriff Act 2005 for provisions relating to the enforcement of warrants.
The submissions of the parties on common issues of law and consideration of those submissions
Separation of powers
The appellant submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the Federal Circuit Court of Australia Act involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellant submitted that the legislation being transported into the federal regime was a law which merely gave to the State Tribunal a discretion subject to conditions to terminate long leases on a broad range of grounds ranging from the economic to the political, none with any legal content or involving the exercise of a mix of functions. The appellant, it was submitted, was entitled as of right by virtue of a fundamental incident of her subsisting leasehold tenure to remain in possession of the premises until a lawful termination order was made by an administrative not a legal tribunal. In that sense the leases were not terminable by law. The appellant submitted that no such administrative order was capable of being made by the FCCA.
The appellant also submitted that she had the right of quiet enjoyment conferred by Pt 3.3 of the 2010 RTA such that the tenancy could only be terminated by a discretionary order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant submitted that because the tenancy was not terminable by any contractual or other action outside the State Tribunal, such as notice of the lessor or abandonment or frustration of the leasehold tenure, her tenure and cognate right of possession was a statutory lease subject to termination by the State Tribunal with “a strong affinity” with freehold tenure: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 421-422 [19].
The appellant submitted that at the time of the commencement of proceedings or any time prior to their commencement, she had not been and was not in breach of any contractual term, nor of any statutory term applied by the 2010 RTA which would confer a right of re-entry to her land. Even if the legal standard did apply to the question of the termination of her tenure, no evidence had been adduced to support such a legally endorsed outcome in the FCCA or elsewhere. Rather, the Commonwealth’s case was founded solely upon the administrative powers vested in the FCCA by the Instrument which, the appellant submitted, were legally insufficient to authorise the exercise of any power of termination, or dispossession, or execution of a termination order as described in s 81 of the 2010 RTA. The appellant submitted that no right of re-entry at common law had arisen in respect of her property; rather such right was contingent upon an order being made under Pt 6 of the 2010 RTA.
The appellant also submitted that the findings as to competing needs of the lessee’s and lessor’s interests and what was “appropriate” was a determination which was clearly not of a legal character, which was the very reason that the State Tribunal was established and given exclusive jurisdiction in New South Wales with respect to termination of residential tenancies.
The appellant submitted that the primary judge erred at [71] in Rigney in relying on the consideration that the orders he was to make were “immediately enforceable by the Court.” However, the appellant submitted, a termination order as defined in Pt 5 of the 2010 RTA was not immediately enforceable because, until an order under Pt 6 of that Act was made, a “person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless … the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court … ”: see s 120 of the 2010 RTA. In short, the appellant submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removing of chattels after a termination order was made was provided for by Pt 6 of the 2010 RTA. Accordingly none of the orders sought or made were “immediately enforceable” in the present form by the FCCA.
The appellant submitted that the carve-out of the State Tribunal’s power in relation to the present matters and its conferral by way of an omnibus provision upon the FCCA was a carve-out of both the administrative and quasi-judicial power of New South Wales. Further, the Commonwealth must take New South Wales tenancy law as it found it. After referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson) the appellant submitted that “no different result should follow now” and the State Tribunal remained the appropriate venue for the claims made by the Commonwealth in the FCCA.
The appellant submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant referred to ss 81(1) and 119 of the 2010 RTA, the former providing that a residential tenancy agreement terminated only in the circumstances set out in that Act and the latter providing that a landlord must not commence proceedings against a tenant in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. The appellant submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.
The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 that “there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not”.
The respondent submitted that in determining a Commonwealth tenancy dispute, s 9 of the Instrument conferred on the FCCA any powers that were powers of the State Tribunal under the 2010 RTA as the applicable law, subject to those powers being relevant to determining the dispute and to the qualifications in s 5(3) of the Instrument. The Instrument did not apply any of the provisions of the Civil and Administrative Tribunal Act 2013 (NSW), which constituted the State Tribunal and prescribed its jurisdiction and procedures, to proceedings in the FCCA. The provisions of the FCCA Act governed the procedure to be applied.
The respondent submitted that the fact that the Commonwealth Parliament was picking up, for application in a Ch III court, legislation that would be administered at the State level by an administrative tribunal (which may exercise judicial power) was without constitutional difficulty provided that the conferral did not involve the Ch III court exercising non-judicial power. The respondent submitted that s 5(3) of the Instrument was significant in that context.
The respondent relied on four features of s 10AA of the FCCA Act and the Instrument which had been relied on by the primary judge.
The first feature was that the exercise of the discretion conferred by s 8(2) of the Instrument, which modified the operation of s 94 of the 2010 RTA, guided by the scope, object and purpose of the 2010 RTA was a familiar, if not daily, part of any court’s work. Given that the Instrument conferred on the FCCA powers by reference to the 2010 RTA, subject to s 8, the conclusion of the primary judge that the exercise of the discretion should be guided by the scope, object and purpose of the 2010 RTA was entirely orthodox and without error.
The second feature was that the power conferred was not “simply one that arises on the basis of some idiosyncratic notions of individual judges”. The primary judge noted that “as with any broad power with which a court is invested … guiding principles will emerge”. The respondent submitted that the development of principles was consistent with the judicial method, citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at 351. Reliance on what occurred in the State Tribunal was not determinative of the nature of the power being exercised, the proper characterisation of a power being contingent, inter alia, on the “nature of the body dealing with it”: HA Bacharach Pty Ltd v Queensland [1998] HCA 54; 195 CLR 547 at 562.
The third feature was that the determination by the FCCA would set the rights and obligations of each of the parties to this dispute which must then be observed by the parties. The respondent submitted that the application of a broad criterion by reference to the circumstances of a particular case, whether imposed by the general law or pursuant to statute, was not an unusual feature in the exercise of judicial power: Thomas v Mowbray at 345– 347. Section 94 of the 2010 RTA required the FCCA to evaluate the nature of a tenant’s occupation of premises and whether it amounted to possession; the period of time for which the tenant had been in continual possession of the premises; whether the term of the original fixed term agreement had expired; and, whether it, the court, was satisfied that it was appropriate to make a termination order in the circumstances of the case.
The fourth feature was the enforceability of the FCCA’s orders. The respondent submitted that if the FCCA made an order terminating a residential tenancy agreement under the 2010 RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1). As the appellant accepted, the court’s orders had the immediate effect of terminating the contractual relationship, without which the tenant was no longer lawfully in possession and should vacate in accordance with the order for possession. In the event of non-compliance with that order, a warrant may be obtained on the authority of the order for possession: s 121(1). (We note that by s 8 of the Instrument a reference to the Principal Registrar of the State Tribunal is a reference to a Registrar of the FCCA.) The respondent submitted that the process of obtaining the warrant did not involve any traversing of the circumstances in which the FCCA’s order was made, or whether it was valid: providing the Registrar was satisfied that the order had not been complied with, the warrant would issue. By force of the FCCA’s orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable. The enforceability of decisions was, as the primary judge properly saw, significant and “one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal”: Brandy at 268.
In reply, the appellant submitted that the respondent’s argument should be rejected as it failed to articulate any clear answer to the case that the exercise of power by the FCCA was non-judicial in character. Having regard to the character of the State Tribunal whose powers were picked up and conferred on the FCCA and the nature of the decision under the applicable law adopted under s 10AA(3)(b) and (c) which was administrative in character creating rights as from the date of the hearing rather than deciding rights as at the date of the commencement of proceedings, the exercise of power by the FCCA should have been characterised by the primary judge as non-judicial and both the Instrument and the amendments to the FCCA Act authorising its use should have been held to be invalid.
The appellant submitted that her tenancy under the State Tribunal and the 2010 RTA was subject to a discretionary regime that had regard to economic and political considerations with respect to the length and character of her tenure; that discretionary regime was then imposed on a Ch III court that struggled to divorce those considerations from the decision-making process, and which demonstrated by its reasons that the court found the exercise unfamiliar. The appellant submitted that these “considerations included the general economy as being interests that prevailed over the specific issues of the appellant[]. When considering the individual circumstances of the appellant[] (i.e. to weigh in the balance against political and economic considerations) the former being more familiar issues to courts, the [primary judge] disregarded those and held that examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances.”
The appellant submitted the mix of functions conferred on the FCCA led the court into error and also led to injustice to the appellant.
We turn to consider these submissions.
We first mention the reliance by the appellant in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had previously held, it was correct to say that “court” in s 77(iii) of the Constitution meant the judges and judicial officers who were members of the court but did not include the organisation and officers through which its powers and jurisdiction were exercised. The High Court held that this narrow interpretation was not to be preferred and that a master, although not a member of the court, was encompassed by the words “any court of a State” in s 77(iii) (whereby in respect of any of the matters in ss 75 and 76 the Parliament may make laws investing any court of a State with federal jurisdiction). The circumstances in that case were therefore very different to the issues in this appeal which concern the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach insufficiently took account of the States’ legislative competence to alter the structure and organisation of State courts. His Honour also said, being the passage relied on by the appellant:
Although the Commonwealth Parliament has no power to alter the structure or organization of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. Moreover, it may condition the investment of federal jurisdiction on the existence of a suitably structured State court — see, for example, s. 39(2) of the Judiciary Act 1903 (Cth), as amended.
We see nothing of present assistance in that statement although, of course, we accept that there are limitations on the nature of the power which may be conferred on a Ch III court.
In that respect, we note the terms of s 5(3) of the Instrument which stated that nothing in ss 5 to 10 of the Instrument had effect so as to confer non-judicial power on the FCCA, unless the non-judicial power was incidental to the exercise of judicial power by that court.
We reject the appellant’s submission that merely because the State Tribunal formerly exercised powers in relation to Commonwealth tenancy disputes involving land in New South Wales this demonstrated, or assisted in demonstrating, that non-judicial power had been conferred on the FCCA.
As a matter of history, landlord and tenant disputes were heard and determined by the ordinary courts for many decades. Further, a State Tribunal may exercise State judicial power, even if it is not a court.
In Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 (Precision Data) the High Court said, at 189:
… although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
(Footnotes omitted.)
In Brandy, at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, that there were functions which, when performed by a court, constituted the exercise of judicial power but, when performed by some other body, did not.
Next, the appellant contended that the primary judge erred in Rigney at [71] in relying on the consideration that the orders he was to make were “immediately enforceable by the Court”. To give the context for his Honour’s statement, we reproduce the following paragraphs from that judgment at [69]-[71]:
The Court is required to apply the Tenancies Act to the facts and circumstances shown on the evidence before it. Thus, in this case, there will need to be a factual determination of, amongst other things, whether or not the respondents have been in continual possession of the premises for 20 years. This in turn will require an evaluation of the nature of the respondents’ occupation and whether that amounts to possession within the meaning of the Tenancies Act. Also in issue will be whether there is a residential tenancy agreement in respect of those premises, whether that agreement was for a fixed term, and whether that fixed term (if any) has expired. In short, the Court is required to conduct an enquiry concerning the law as it is on the facts as they are: see Tasmanian Breweries at 374 per Kitto J.
Once that inquiry has been conducted, the Court must then determine whether to make a termination order. Such a termination order requires there to be an order for possession at the same time to take effect as the Court considers appropriate. While the respondents are correct to say that this second inquiry is a very broad and arguably a discretionary one, that is not, in light of the authorities discussed above, decisive of the issue of whether the power is non-judicial.
First, any discretion, or more accurately, determination of appropriateness, must be bound by the object, scope and purpose of the Tenancies Act. This is a familiar, if not daily, part of any Court’s work. Secondly, it is to be expected, as with any broad power with which a Court is invested, that guiding principles will emerge so that the power is not simply one that arises on the basis of some idiosyncratic notions of individual judges. Thirdly, the determination by the Court will set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. Fourthly, and in my view, critically, those rights and obligations are immediately enforceable by the Court.

We reject the submission that the primary judge did not take into account the continued use of the premises by the appellant for more than 20 years. The primary judge was well aware of the use of the premises and use of the land went hand-in-hand with possession. Since the Commonwealth proposed to use the land it would not make the land waste.
The other submissions adopted by the appellant about the safety of the premises, reducing fire risk, and enhancing environmental care of the land show no error on the part of the primary judge in light of the proposal by the Commonwealth to prepare the land for use as an airport site. The primary judge accepted the evidence of Mr Robertson as to the incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site and the residential amenity and safety. It was open to him to do so.
As to the respondent not providing sufficient assistance to tenants, we see no force in this ground. The point relevant to the exercise of the discretion by the primary judge was the availability of suitable alternative accommodation and, as we have said, the primary judge addressed this issue at some length.
Further to our reasoning above on the correctness of the primary judge’s approach to s 94, we reject the submissions that the primary judge adopted a test which was an approach to the exercise of his discretion under s 94 which was the most unfavourable to the appellant’s position and that the primary judge did not sufficiently identify “all the circumstances” as required by s 94. We also reject the submissions that the primary judge did not conduct a fair and reasonable balancing exercise and did not ask himself with respect to either the termination or possession orders whether the result as expressed in his orders was appropriate. We also reject the submissions that the primary judge did not exercise a discretion with respect to the making of the orders; and made orders which did not reflect Pts 5 and 6 of the 2010 RTA. Each of these submissions is inconsistent with the terms of the primary judge’s reasons for judgment.
Other grounds in the amended notice of appeal
As to ground 9 in the amended notice of appeal, that the primary judge erred in not recusing himself where he had heard other cases, this ground was not pressed. We have considered above and rejected the claim of so-called institutional bias.
As to ground 11, concerning when Ms Jelfs had known about the possibility of having to move and whether that was since 1990, we consider there was an error at [74] of the reasons for judgment of the primary judge in stating that Ms Jelfs had been aware of the possibility that she would have to move from at least April 1990 when she first entered into possession of the premises, but we are not satisfied that the error was material. Earlier, at [45], the primary judge had referred to Ms Jelfs saying that she thought she had a tenancy for life when in 2004 the then Prime Minister announced that the airport would not proceed. The primary judge said he had taken Ms Jelfs’ understanding into account in reaching his decision. At [44], the primary judge found that at least from the entry into the tenancy agreement in November 2007, in light of cl 40 of the lease Ms Jelfs was aware of the possibility that the site may be developed for the purposes of the development of an airport. Her evidence was that when she first entered into possession of the premises she was told that the land was Commonwealth land and that an airport was to be built there. At [74], the primary judge said that more recently Ms Jelfs was told in 2014 that the possibility that she would have to move would soon become a reality and that she had known of the Commonwealth’s intention to obtain vacant possession for over a year. For these reasons, the error at [74] is immaterial and this ground fails.
As to ground 13, relating to Ms Jelfs’ pets, the primary judge referred at [70], in the context of considering the availability of alternative accommodation, to the submission that she should have not less than 6 months to move and compensation for loss of amenity and difficulties in finding alternative accommodation “for ourselves and our animals”. The primary judge took the reference to “ourselves” to be only to Ms Jelfs. The primary judge said that Ms Jelfs had two dogs which she described as “small house dogs.” From that description the primary judge inferred that they would not add to the burden of relocating. In these circumstances it is difficult to understand the first limb of ground 13 to the effect that the primary judge erred in stating the fact that Ms Jelfs had pets. The written submission was that the primary judge referred dismissively to Ms Jelfs’ dogs as they were a very significant part of her life and they had never had another home. However the primary judge said that Ms Jelfs gave no evidence about alternative accommodation. It follows there was no evidence to establish that two small house dogs would add to the burden of relocating or cause difficulties in finding alternate rental accommodation. In our opinion this ground fails.
As to ground 16 in the amended notice of appeal, which we have allowed insofar as it raises a claim that the primary judge did not sufficiently consider the expert evidence, this centres on the claim concerning the availability of suitable alternative accommodation. The primary judge considered the evidence of Ms Fogarty throughout paragraphs [54]-[69] and evaluated that evidence. The primary judge gave reasons for concluding that Ms Fogarty was not a convincing witness but that she did make a number of reasonable points, which the primary judge then considered. We see no appellable error in the primary judge’s approach to the expert evidence.
As to ground 17, concerning the Commonwealth’s urgent need for vacant possession, we have considered at [185] and following above the evidence of Mr Robertson. There was no error in the primary judge accepting that evidence. We reject the submission that there was no real evidence to support the Commonwealth’s claim in that respect. It follows that there was evidence to take into account as against the evidence of the appellant in this respect. This ground therefore fails.
The remaining grounds, grounds 18 and 19, centre on the claimed long history of uncertainty and the changing position of the Commonwealth with regard to the building or not building of the airport; the claimed reasonable belief on the part of the appellant that since December 2000 she really believed that Badgerys Creek was not being considered as a site for the airport.
As to the first of these matters, ground 18, in our opinion it was open to the primary judge to accept Mr Robertson’s statements as to the airport site without rehearsing the history of decision-making about whether or not the second airport at Badgerys Creek would proceed. As we have said above, the basis on which the Commonwealth sought the termination order was in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act. It was the preparation of that site which was the subject of Mr Robertson’s evidence as to commercial need and as to why vacant possession was urgently required. Further, in our opinion, it was not necessary for the primary judge, in the exercise of his discretion under s 94 of the 2010 RTA, to take into account the documents submitted by the appellant in relation to the history of decision-making. In any event, we note that, at [19] of his reasons for judgment, the primary judge referred to the Commonwealth undertaking in the late 1980s and 1990s a land acquisition program in the Badgerys Creek area to acquire and reserve the land needed for an airport in Western Sydney and that the acquisition program resulted in the acquisition by the Commonwealth of a large number of individual titles in the suburbs of Badgerys Creek, Luddenham and Greendale.
As to the second of these matters, ground 19, that the appellant believed that Badgerys Creek was not being considered as a site for the airport, we do not see this as having a foundation in the evidence. Objectively, the residential tenancy agreement in respect of the premises was entered into on 27 November 2007, expiring on 30 November 2009, and containing cl 40 which we have set out at [5] above. For completeness, we reject any submission that because the lessor did not plead that express provision for termination then it was legally irrelevant to rely upon it in evidence. As the primary judge pointed out, at [4], the application to that Court was not a pleading.
The application to adduce further evidence on appeal
On this appeal the appellant sought to adduce the following further evidence:
1.Affidavit of Ms Kim Jelfs dated 11 January 2016;
2.Affidavit of Ms Sandra Uren dated 6 March 2016;
3.Further affidavit of Ms Sandra Uren dated 6 March 2016;
4.Affidavit of Dr Anthony Green dated 9 March 2016;
5.Affidavit of Mr Kingsley Liu dated 1 February 2016;
6.Affidavit of Mr Kingsley Liu dated 9 March 2016.
Section 27 of the Federal Court of Australia Act provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings from which the appeal arose, and has power in its discretion, to receive further evidence.
The principles to be applied were considered in August v Commissioner of Taxation [2013] FCAFC 85 at [116] and [119] as follows:
[116]The Court’s power to receive further evidence is contained in s 27 of the Federal Court of Australia Act 1976 (Cth). The authorities make it clear that in exercising the discretion the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.
…
[119]In addition to the above matters, it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result: CDJ v VAJ; Sharp v Rangott [2008] FCAFC 45;(2008) 167 FCR 225 at 228–229 [8] per Gray and North JJ; at 248 [92] per Besanko J.
In CDJ v VAJ [1998] HCA 67; 197 CLR 72, McHugh, Gummow and Callinan JJ said, at 202:
… it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
In light of these principles, we turn to consider the six affidavits listed above.
Affidavit of Ms Kim Jelfs dated 11 January 2016
We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellant relied dated 12 April 2016 which the Court directed the appellant to file.
In our opinion, the affidavit referred to nothing relevant to this appeal and, on the assumption we have made, we reject it.
Affidavit of Ms Sandra Uren dated 6 March 2016
The appellant sought leave to rely upon this affidavit in her appeal. The respondent notified objections to it on 18 March 2016.
This affidavit was of nine paragraphs. In this affidavit Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose to various telephone conversations she had had with New South Wales departmental officers with responsibility for the upgrade and the interrelationship between the stage 4 roadworks and the possible construction of an airport at Badgerys Creek. Ms Uren sought to depose at paragraph 9 that whenever either the NSW Roads and Maritime Services or the Department of Infrastructure and Regional Development sought access to her premises, she always gave access and cooperated.
We accept that, with the exception of paragraph 9, this material would not have been available at the time of the hearing before the primary judge.
However, we reject paragraphs 4 and 5 as having an insufficient relevance to the matters at issue in the appeal. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial. We reject paragraphs 6, 7 and 8 as hearsay. We reject paragraph 9 since evidence of Ms Uren’s cooperation would have been available at the time of the hearing; could have been put to Mr Peter Robertson in cross-examination; would not appear to be relevant to the present appeal; and we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. In the result we reject the entirety of the affidavit including the formal paragraphs 1 and 2.
Further affidavit of Ms Sandra Uren dated 6 March 2016
Ms Uren swore a further affidavit dated 6 March 2016 and the present appellant sought leave to rely upon it in her appeal. The respondent notified objections to it on 18 March 2016. This affidavit is of 10 paragraphs.
In paragraph 5, Ms Uren sought to give evidence about what she said were deficiencies of the Western Sydney Airport Draft Environmental Impact Statement released in October 2015, and sought to attach a transcript of the speech in the Parliament by a Senator to establish this proposition. The first sentence of this paragraph we reject as hearsay. The second sentence we also reject as hearsay and because its tender, or reception into evidence, is contrary to s 16 of the Parliamentary Privileges Act 1987 (Cth). Further, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In paragraph 6, Ms Uren sought to annex part of a copy of a Peer Review dated 25 November 2015 of the Western Sydney Airport Draft Environmental Impact Statement conducted, it appears, by an entity engaged by Western Sydney Regional Organisation of Councils and MacArthur Regional Organisation of Councils. We accept that the document was not available at the time of the hearing before the primary judge. Nevertheless, we reject this paragraph. There is nothing to suggest that the Peer Review, or its contents, go to any issue in the appeal. It was not explained how it was said to be relevant to the evidence given by Mr Peter Robertson as to the need for urgency. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In paragraph 7, Ms Uren sought to annex a copy of part of the Sydney Airport, Half Year Results 2015 and extracts from the Sydney Airport Financial Report dated December 2015 and a Sydney Airport Financial Report which Ms Uren sought to say showed “the delay in issuing Sydney Airport the Notice of Intention”. We reject this material. We do not consider that the material sought to be annexed bears the meaning sought to be attributed to it. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In paragraph 8, Ms Uren sought to state that, as a low-income earner, she has had great difficulty finding alternate affordable accommodation and sought to annex a report by the NSW Parliamentary Research Service dated September 2015 entitled: “Affordable rental housing: the problem and its causes.” We reject this paragraph. The first sentence is not relevant to the present appeal. As to the paper sought to be annexed, it too is in a general form. It does not go to the specific position of Ms Uren or of the present appellant. We are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In paragraph 9, Ms Uren sought to give evidence as to a factor taken into account by UNESCO, in 1999, in considering the World Heritage Listing for the Greater Blue Mountains Area. We reject this paragraph. This material, if relevant, could have been tendered before the primary judge. Secondly, Ms Uren sought to give hearsay evidence. Thirdly, the Annexures do not appear to contain the material about which Ms Uren sought to give evidence. Fourthly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In paragraph 10, Ms Uren sought to annex a media release by a Senator. We reject that paragraph as hearsay. Further, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
In summary, we reject the entirety of the affidavit, including the formal parts in paragraphs 1 to 4.
Affidavit of Dr Anthony Green dated 9 March 2016
The respondent notified objections to this affidavit. Those objections were that the expert evidence was inappropriate for appeal; the material was either not relevant or, if it was, it could have been adduced before the primary judge; and queried the expertise of the deponent. The appellant submitted that the draft EIS was not released until 18 October 2015 and that the material was relevant to the Commonwealth’s asserted need for urgency and, it was submitted, the local council’s diminished support for the airport project. The appellant submitted that Dr Green’s curriculum vitae should be sufficient to establish his expertise.
Although, at paragraph 5, Dr Green stated that he had limited his observations to facts and matters arising after or affected by events occurring after August 2015, we do not accept that this is so. For example, many paragraphs were directed to what were described as deficiencies in establishing the need to build an airport at Badgerys Creek. Dr Green purported to say: “The decisions arrived at are therefore invalid and flawed” in paragraph 9. To that extent this material would have been available to the appellant at the hearing before the primary judge and there is no evidence explaining why it was not.
More importantly, it is not shown that Dr Green’s opinions as expressed in his affidavit, which involved a statement of opinion in paragraph 39 as to what was or was not “in the economic or societal interest of Australians”, were founded in his expertise. Thus, a criterion for the admissibility of an expert report is not met.
Indeed, it was not at all clear that the matters that he was asked to consider, whether the EIS was severely flawed and whether these deficiencies affected the timescale for future planning in the area, fell within his expertise at all. Dr Green’s curriculum vitae stated that his research covered a broad spectrum of problems that were relevant to the assessment and control of catastrophic risks, particularly fire and explosion phenomenon, and terrorism in industry and major infrastructure. Nevertheless, the material set out in his affidavit was focused on matters of economics; the choosing of an airport location; the assessment of combining an existing airport with high-speed rail as an alternative; and then turned to what was said to be ten critical infrastructures where the airport introduced risks. Mr Green’s affidavit then concluded that “the airport should be built if it is to be built at all outside the Sydney Basin and connected by High Speed rail to Western Sydney and Central Sydney. This can include extension of Camera Airport rather than new airport infrastructure at Badgerys Creek.” Dr Green then stated that the need for a new airport before 2040 in any event “has not been established if high-speed rail transport is included as part of Eastern Australia infrastructure development”. Thus it was not plain that, although there were references to what Dr Green describes as the “draft airport plan and EIS”, his conclusions were founded in the questions he was asked to address. To that extent, as we have said, the material would have been available to the appellants at the hearing before the primary judge and there was no evidence explaining why it was not then sought to be adduced.

Lastly, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
We reject this affidavit.
Affidavit of Mr Kingsley Liu dated 1 February 2016
We shall assume that this affidavit was sought to be read in the appeal. It was contained in a list of the affidavits on which the appellant relied dated 12 April 2016 which the Court directed the appellant to file.
In our opinion, the affidavit referred to nothing relevant to this appeal and, on the assumption we have made, we reject it. It appears to go only to interlocutory questions.
Affidavit of Mr Kingsley Liu dated 9 March 2016
The respondent notified objections to this affidavit on 18 March 2016.
The affidavit is in terms formal and, so far as relevant, does no more than identify the affidavits sought to be read, stating: “The evidence to be adduced was not submitted in the Court appealed from as it was not then available, or not then relevant.” We admit only those parts of this affidavit. We give that general statement little weight.
Conclusion
The appeal should be dismissed. Counsel for the appellant accepted that in those circumstances costs should follow the event. We will therefore order that the appellant pay the respondent’s costs, as agreed or taxed.

I certify that the preceding two hundred and eighty-one (281) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny, Robertson and Griffiths.
Associate:
Dated: 2 March 2017

Appeal from:	Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs& Anor (No 2) [2015] FCCA 3262
File number:	NSD 68 of 2016
Judges:	KENNY, ROBERTSON AND GRIFFITHS JJ
Date of judgment:	2 March 2017
Catchwords:	ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth) APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence
Legislation:	Constitution ss 51(i), 51(xxxi), Ch III Airports Act 1996 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Federal Court of Australia Act 1976 (Cth) s 27 Federal Circuit Court of Australia Act 1999 (Cth) s 10AA Federal Courts Legislation Amendment Act 2015 (Cth) s 2, Sch 2 Legislation Act 2003 (Cth) s 12 Parliamentary Privileges Act 1987 (Cth) s 16 Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) ss 3, 7, 13, 18, 80, 81, 83, 84, 94, 119, 120 Airports Legislation Amendment (2015 Measures No 1) Regulation 2015 (Cth) Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)
Cases cited:	Antoun v R [2006] HCA 2; 224 ALR 51 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651 August v Commissioner of Taxation [2013] FCAFC 85 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Rigney (No 3) [2015] FCCA 3133 Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 JT International SA v Commonwealth of Australia [2012] HCA 43; 250 CLR 1 Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2016] FCA 14 McEldowney v Forde [1971] AC 632 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 R v Joske; Ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; 135 CLR 194 Re Colina; Ex parte Torney [1999] HCA 57; 200 CLR 386 Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 Shanahan v Scott [1957] HCA 4; 96 CLR 245 Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420 Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) Thomas v Mowbray [2007] HCA 33; 233 CLR 307 Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 Wilson v Anderson [2002] HCA 29; 213 CLR 401
Date of hearing:	13, 14 and 15 April 2016
Date of last submissions:	26 April 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	281
Counsel for the Appellant:	Mr PE King
Solicitor for the Appellant:	The People’s Solicitor Pty Ltd
Counsel for the Respondent:	Mr J Doyle with Mr DW Rayment and Ms A Mitchelmore
Solicitor for the Respondent:	Australian Government Solicitor

JUDGES:	KENNY, ROBERTSON AND GRIFFITHS JJ
DATE OF ORDER:	2 MARCH 2017