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

Patrick Kenney appealed a decision of the primary judge of the Federal Circuit Court of Australia that dismissed his application to set aside a termination order made in favour of the Commonwealth of Australia (the Respondent). The Respondent, as lessor, had applied 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 less than 20 years. The Respondent argued that the tenancy agreement was not for the predominant use of the premises for the purposes of agriculture or business and sought an order for vacant possession. The primary judge dismissed Mr Kenney's application and ordered that he vacate the premises by a specified date. The appeal raised several issues, including whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) 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. The court found that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) was not ultra vires and that the primary judge's decision was correct. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.