Odzic & Anor v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development)

[2017] HCATrans 143

[2017] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S73 of 2017

B e t w e e n -

STOJAN ODZIC

First Applicant

MELITTA ODZIC

Second Applicant

and

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Respondent

NETTLE ACJ

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 12 JULY 2017, AT 2.14 PM

Copyright in the High Court of Australia

HIS HONOUR:   This is an application pursuant to r 8.07.2 of the High Court Rules 2004 (Cth) for a stay of execution of judgment pending the determination of an application for special leave to appeal from the dismissal by the Full Court of the Federal Court of Australia (Kenny, Robertson and Griffiths JJ) of an appeal from orders of the Federal Circuit Court of Australia (Judge Smith) terminating a residential tenancy agreement (“the lease”) between the respondent (“the Commonwealth”) and the applicants in relation to property situated at 1932 (formerly Lot 11) Elizabeth Drive, Badgerys Creek, New South Wales (“the premises”), being part of the land in Badgerys Creek, west of Sydney, which has been acquired by the Commonwealth for the purpose of constructing, or having constructed, on it Sydney’s second major airport.

The Full Court’s orders dismissing the appeal from the orders of Judge Smith were made on 2 March 2017.  On the same day, Griffiths J granted a stay of execution for 28 days to enable the applicants to decide whether to pursue special leave to appeal to this Court.  On 24 March 2017, the applicants provided a draft application for stay pending the determination of an application for special leave to appeal and a draft application for special leave, and sought the Commonwealth’s consent to a continuation of the stay of execution granted on 2 March 2017.  The Commonwealth, however, did not consent.  On 30 March 2017, the applicants filed the application for special leave to appeal.

On 29 March 2017, Griffiths J refused an application for continuation of a stay granted by his Honour in related proceedings concerning Mr and Mrs Dattilo.  Griffiths J granted a shorter stay, until 5.00 pm on 5 April 2017, to enable an application by the Dattilos to this Court for a stay of execution pending determination of their application for special leave to appeal.  The Dattilos were in a similar position to the applicants.  They had been tenants under a residential tenancy agreement with the Commonwealth in relation to a property situated at 2026 The Northern Road, Luddenham.  That property was also part of the land acquired by the Commonwealth for construction of the airport at Badgerys Creek.  The Dattilos were seeking special leave to appeal against orders of the Full Court of the Federal Court dismissing their appeal from orders of Judge Smith terminating their tenancy agreement.  Evidently, that application was considered to be a test case that would or might determine the position in relation to tenants similarly affected in 16 related proceedings[1].  On 5 April 2017, I refused the Dattilos’ application for a stay of execution pending the determination of their application.

[1]  Dattilo v Commonwealth [2017] FCA 329 at [2]‑[3].

On 6 April 2017, the present applicants filed an amended application for special leave to appeal to this Court and, on 12 April 2017, the applicants filed in the Federal Court a further application for a stay of execution of the Full Court’s orders pending the determination of the amended application for special leave to appeal.  On 5 May 2017, Robertson J dismissed that further application.

As Robertson J observed in his Honour’s reasons for judgment, the three grounds identified by the Dattilos in the proceedings before Griffiths J as forming the basis for their application for special leave to appeal were the same as those stated by the present applicants in their application filed 30 March 2017, namely:

“(a)the Parliament of the Commonwealth has no power under section 77 of the Constitution or otherwise to make a law delegating to a Minister of the Commonwealth the power to define the jurisdiction of a Chapter III court in this case the Federal Circuit Court of Australia [‘FCCA’];

(b)the Parliament of the Commonwealth has no power under section 77(iii) of the Constitution or otherwise to define the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in an administrative tribunal of a state that is not a court of a state;

(c)in so far as the 2015 Instrument made by the Minister by Clause 6(2) purported to deprive NSW parties/citizens of the right to approach the NSW Civil and Administrative Tribunal (NCAT) it was neither “investing” the FCCA with jurisdiction nor was it “defining” the jurisdiction of the FCCA within the meaning of s 77 of the Constitution.”

On 5 April 2017, I concluded in relation to the grounds of appeal proposed by the Dattilos that, for the reasons then given, none of those grounds enjoyed sufficient prospects of success to warrant the grant of a stay of execution pending the determination of the Dattilos’ application for special leave to appeal[2].

[2]  Dattilo v Commonwealth [2017] HCA Trans 67.

The grounds of appeal now specified in the applicants’ amended application for special leave, filed on 6 April 2017, are as follows (amendments emphasised):

“(a)the Parliament of the Commonwealth has no power under section 77 of the Constitution or otherwise to make a law delegating to a Minister of the Commonwealth the power to define and invest the jurisdiction of a Chapter III court in this case the Federal Circuit Court of Australia [‘FCCA’];

(b)the jurisdiction and powers conferred on the Federal Circuit Court of Australia were beyond power in that such comprised the jurisdiction and powers of the New South Wales Civil and Administrative Tribunal [“NCAT”] which is not a “court” within the meaning of Constitution Chapter III thereby in error compromising the separation of powers required by the Constitution;

(c)the 2015 Instrument made under Federal Circuit Court of Australia Act 1999 section 10(1A) and 10AA(2) and (3) was invalid because upon the true construction of section 10AA the Instrument was not authorised by the law;

(d)     the termination notice relied on was not valid;

(e)the Respondent was estopped from serving the termination notice under the Residential Tenancies Act 2010 [NSW] sections 82 and 85 by the representation relied upon by the Applicants, or by a collateral contract to the same effect;

(f)the exercise of discretion by the Federal Circuit Court of Australia miscarried.”

Ground (a) is identical to the first ground of appeal proposed by the Dattilos, except for the addition of the words “and invests”.  Like Robertson J[3], I do not consider that the addition of those words materially adds to the prospects of success of that ground of appeal.

[3]  Odzic v Commonwealth [2017] FCA 439 at [50]‑[51].

In essence, Ground (b) contends that because the power to terminate Commonwealth tenancy agreements conferred on the Federal Circuit Court by s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) as introduced by the Federal Courts Legislation Amendment Act 2015 (Cth) and cl 10 of Pt 2 of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (“the Legislative Instrument”) is a power previously exercisable by the New South Wales Civil and Administrative Tribunal (“NCAT”), it is a non‑judicial power and, therefore, invalidly conferred on the Federal Circuit Court. Neither the Dattilos nor the present applicants relied on this ground of appeal in proceedings before the Full Court[4].  Nonetheless, in case the applicants were to be taken as having advanced that ground, the Full Court dealt with it (at [101]) as follows:

[4]  Odzic v Commonwealth [2017] FCAFC 28 at [96]; Dattilo v Commonwealth [2017] FCA 329 at

“We would reject the submission, if made in the Odzics’ case, 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 has 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 v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 (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, constitute the exercise of judicial power but, when performed by some other body, do not.”

The applicants have not identified an arguable basis to doubt the correctness of that reasoning, and I note that that was also the case when the matter was before Robertson J[5].

[5]  Odzic v Commonwealth [2017] FCA 439 at [52].

The argument advanced in support of Ground (c) is that the law which the Legislative Instrument applies to Commonwealth tenancy disputes is not a law “in respect of” a Commonwealth tenancy dispute within the meaning of s 10AA(2) and (3) of the Federal Circuit Court of Australia Act.  I do not consider that that ground of appeal would enjoy any prospect of success.

Ground (d) is a contention that the termination notice which the Commonwealth served on the applicants was issued prior to the commencement of the Federal Courts Legislation Amendment Act, which introduced s 10AA of the Federal Circuit Court of Australia Act, and, therefore, operated retrospectively in a manner inconsistent with the Legislation Act 2003 (Cth). The Full Court dealt with that contention (at [138]) as follows:

“We do not accept the appellants’ submission that the Instrument was relevantly retrospective. As we have said, s 5 of Sch 2 to the Federal Courts Legislation Amendment Act dealt expressly with the application of those amendments to existing leases and to Commonwealth tenancy disputes between the parties to such leases, whenever those disputes arose. This covered the circumstance where, as here, the termination notice was served on the tenants before the commencement of the Instrument. In our opinion, the Instrument makes provision for the rights of the parties and the applicable law for the future, although operating on disputes in relation to leases entered into before the date Pt 1 of Sch 2 commenced and before the Instrument commenced. The relevant principle is explained in Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 at 309 [57] per McHugh and Gummow JJ where their Honours made a distinction between a statute providing that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions. The Instrument is of the latter character. Further, s 12 of the Legislation Act had no relevant operation in respect of the Instrument since it did not take effect before it was registered.”

The applicants have not identified any basis to doubt the correctness of that conclusion, and, once again, I note that that was also the case when the matter was before Robertson J[6].

[6]  Odzic v Commonwealth [2017] FCA 439 at [56], [59], [60].

Ground (e) is dependent upon overturning Judge Smith’s rejection of the first applicant’s evidence as to representations which he alleged were made to him on behalf of the Commonwealth[7].  The Full Court could find no reason to doubt the rectitude of Judge Smith’s rejection of that evidence.  As their Honours concluded (at [209]):

[7]  Commonwealth v Odzic [2015] FCCA 3363 at [88]‑[90].

“[W]e discern no error in the primary judge’s rejection of Mr Odzic’s evidence concerning the alleged representations made to him by Ms Bellero.  As we have already stated, it was clearly open to his Honour to find that Mr Odzic was not a truthful witness for the reasons given by him, including in particular those at [88]‑[90].  His evidence was, moreover, directly inconsistent with the terms of the residential tenancy agreement made on 27 November 2007 and which contained cl 42 which we have set out at [4] above.  We reject the submission that the primary judge should have found that the conversation did occur in the terms claimed by Mr Odzic, and that the representations were relied upon by him, giving rise to an estoppel in his favour.”

I am not persuaded that there is sufficient prospect of the applicants obtaining a grant of special leave to appeal on Ground (e) to warrant the grant of a stay of execution.

In addition to the foregoing, it is to be observed that, according to the affidavit of Benjamin James May, affirmed on 29 June 2016 [sic], in support of the Commonwealth, by 27 June 2017 a warrant for possession of the premises had been executed and the respondent had obtained possession of the premises.  And, according to the uncontradicted affidavit of Brendan Ewen McRandle, affirmed on 29 June 2017, in support of the Commonwealth, the front door of the premises has since been boarded up, the windows have been screwed shut, the locks to the doors have been changed, a chain with a new lock has been fitted to the front gate, a sign has been placed at the front gate of the premises and, as at 29 June 2017, the applicants had been given access to the premises to remove their possessions during the period up to and including 2 July 2017.  Thus, although, unlike the Dattilos, the applicants are not in arrears in the payment of rent and are willing to give certain undertakings as to damages, there is no reason to conclude that there would be any utility of a stay in circumstances where the relevant orders have been exhausted.

Conclusion and orders

In the result, I do not consider that either the prospects of the applicants succeeding in their application for special leave to appeal or the balance of convenience is such as to warrant a stay of execution pending determination of the application for special leave.  Therefore, the application is dismissed with costs.

AT 2.14 PM THE MATTER WAS CONCLUDED

   [17].