Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development)

Kenney brought an appeal against the Commonwealth of Australia, represented by the Department of Infrastructure and Regional Development, before the High Court. The primary dispute centred on the vacant possession orders made by a judge of the Federal Circuit Court, pertaining to the development of the entire site for the Western Sydney airport at Badgerys Creek. The appellant contested the validity of these orders, seeking an interlocutory stay pending the appeal's resolution. The High Court was tasked with determining whether the grounds of appeal presented by Kenney were arguable and assessing the balance of convenience in granting the stay, considering the potential prejudice to both parties.

The court examined the arguability of the appeal grounds, which included issues about the legal authority of the Federal Circuit Court to issue the orders and the procedural fairness in the decision-making process. Additionally, the court balanced the potential prejudice to the appellants if the stay was not granted against the prejudice to the Commonwealth if the stay was granted. The court considered the significant public interest and urgency in completing the airport development project, as well as the appellants' rights to challenge the orders in a timely manner.

The High Court found that the grounds of appeal were indeed arguable and that the balance of convenience favoured granting the stay. The court acknowledged the appellants' need to challenge the orders promptly and the potential prejudice to the Commonwealth if the development was further delayed. Consequently, the court granted the stay on specific conditions, including expediting the appeal process and adhering to a strict timeline for filing various documents. The court also outlined the procedures for hearing the appeal concurrently with related matters, ensuring that the appeal was dealt with efficiently.

The court's final orders included staying the primary judge's orders for vacant possession, subject to conditions for expediting the appeal. The appeal was to be listed for hearing along with other related appeals, and both parties were required to adhere to strict deadlines for filing various documents. The court reserved costs and allowed the parties to apply for further directions if necessary.