Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) - [2017] FCAFC 22

FEDERAL COURT OF AUSTRALIA
Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 22

Appeal from: Commonwealth of Australia v Patrick & Anor [2015] FCCA 3413

File number: NSD 62 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 power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – 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 less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession

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 Act1996 (Cth)

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

Federal Court of Australia Act 1976 (Cth) s 27

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, 82, 83, 84, 85, 94, 119, 120, 121

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

Federal Court Rules 2011 (Cth)

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

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

Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474

August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376

Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454

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

CDJ v VAJ [1998] HCA 67; 197 CLR 172

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

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

Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49

Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153

Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45

Fox v Percy [2003] HCA 22; 214 CLR 118

Gronow v Gronow [1979] HCA 63; 144 CLR 513

House v The King [1936] HCA 40; 55 CLR 499

Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623

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

McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019

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

Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67

Paterson v Paterson [1953] HCA 74; 89 CLR 212

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

Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167

R v Hughes [2000] HCA 22; 202 CLR 535

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

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

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

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588

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

Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300

Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447

Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016)

Date of hearing: 13 - 15 April 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 297

Counsel for the Appellant: P E King

Solicitor for the Appellant: The People’s Solicitors

Counsel for the Respondent: J Doyle with D W Rayment

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 62 of 2016

BETWEEN:
KEN SHIRVINGTON

Appellant

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

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 his notice of appeal to add grounds 18, 19 and 20 and to amend ground 11 (in accordance with these reasons).
2.Leave be refused to the appellant to amend his notice of appeal to add grounds 5, 9, 12, 17, 21, 22 and 23.
3.The appeal be dismissed.
4.The appellant pay the respondent’s costs, 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

This is an appeal by Mr Ken Shirvington from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment of the primary judge has the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Patrick & Anor [2015] FCCA 3413 (Patrick). The appeal concerns the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham, New South Wales (the premises). The Commonwealth is the registered proprietor of the land comprised in folio identifier 1/838361 (the airport site), of which the premises is a part. The Commonwealth initially instituted the proceedings in the FCCA against Ms Annette Patrick. Mr Shirvington was subsequently joined, by consent, as the second respondent.
On 25 May 2007, Ms Annette Patrick and her husband, Mr Kevin Dickinson (now deceased), entered into a residential tenancy agreement with the Commonwealth in respect of the premises (the residential tenancy agreement). The term of the residential tenancy agreement was 52 weeks beginning on 25 May 2007 and ending on 22 May 2008. As explained below, after the expiry of the term, the residential tenancy agreement continued as a periodic agreement on the same terms as immediately before the end of the fixed term.
Clause 40 of the residential tenancy agreement provided as follows:
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:
c) to develop the Sydney West Airport; or
d) for any other purpose [sic: numbering]
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 fixed 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.
The primary judge found (Patrick at [10(f)]) that Ms Patrick had been in continual possession of the premises for less than 20 years. As will be seen, this is relevant to the application of the Residential Tenancies Act 2010 (NSW) (2010 RTA). Ms Patrick’s evidence was, however, that she never lived on the premises and that her husband died in 2013. The primary judge accepted this evidence (Patrick at [35]). The primary judge also accepted that Mr Shirvington had occupied the premises since about 2011 (Patrick at [10(c)]).
In the FCCA proceeding, the Commonwealth did not dispute that Mr Shirvington was living on the premises and that Ms Patrick was not. In consequence, as noted above, Mr Shirvington was joined as a second respondent by consent. Ms Patrick gave evidence in the FCCA proceeding and also submitted to the orders of the Court, save as to costs (Patrick at [2]). In the appeal instituted in this Court by Mr Shirvington, Ms Patrick filed a submitting notice dated 31 March 2016, stating that she submitted to any order that the Court might make in the proceeding and that she did not want to be heard on the question of costs. In submissions specific to this appeal, Mr Shirvington made a submission concerning Ms Patrick’s status as an appellant. This is discussed below.
By letter dated 29 October 2014, an agent of the Commonwealth notified Ms Patrick that the Australian Government had announced that land owned by it at Badgerys Creek, including that occupied by Ms Patrick, would be the site for Western Sydney’s airport. The letter also stated that Ms Patrick would be given a formal notice of termination of her tenancy and would likely be required to vacate the premises by June 2015.
On 29 November 2014, so the primary judge found (at [10(i)]), an agent for the Commonwealth served Ms Patrick with a “Notice of Termination of Residential Tenancy Agreement” dated 24 November 2014. The notice was addressed to Ms Patrick and Mr Dickinson (who had died in the previous year). It read as follows:
Notice of Termination of Residential Tenancy Agreement
under Section 85 of the Residential Tenancies Act 2010 (NSW) (the Act) in respect of Premises identified in the Tenancy Agreement referred to below as 1962-1970 The Northern Road, Luddenham, NSW 2745 (the Premises)
Background
A.Pursuant to a residential tenancy agreement dated 25 May 2007 entered into by the Commonwealth ... and You in respect of the Premises, the Commonwealth has granted You a right to occupy the Premises on the terms contained in the residential tenancy agreement and the Act.
B.The original fixed term of the residential tenancy agreement has expired prior to the date of this notice and as a result You occupy the Premises as a tenant under a periodic agreement (the Tenancy Agreement) for the purposes of the Act.
Notice
The Commonwealth hereby gives you notice under section 85 of the Act:
1)terminating the Tenancy Agreement in respect of the Premises on 15 June 2015 (the Termination Date); and
2)that You are required to give vacant possession of the Premises to the Commonwealth by the Termination Date.
This notice is also served for the purposes of clause 40 of the Tenancy Agreement and it is served without prejudice to any other rights the Commonwealth may have under the Tenancy Agreement, at law or in equity.
The primary judge found that Ms Patrick did not agree to vacate the premises by 15 June 2015 and remained in possession of the premises. The primary judge also found that Mr Shirvington did not vacate the premises and claimed a right to remain in occupation of the premises.
On 29 June 2015, the Commonwealth applied to the FCCA for orders terminating the residential tenancy agreement and for vacant possession. Mr Shirvington opposed the orders sought by the Commonwealth on various grounds, including that no notice of termination was given; the 2010 RTA did not apply to the premises because it was predominantly used for non-residential purposes; and that the Court should decline to exercise its asserted discretion to terminate the residential tenancy agreement. Mr Shirvington also contested the jurisdiction of the FCCA, submitting that the law purporting to confer jurisdiction and to be applied was invalid.
The primary judge made orders and delivered reasons on 21 December 2015, the orders being that:
1.The residential tenancy agreement in relation to the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 comprising part of folio identifier Lot 1 DP 838361 (“Premises”) be terminated with immediate effect.
2.Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
3. The order for vacant possession be suspended until 25 January 2016.
This is an appeal against those orders. For the reasons stated below, we would dismiss the appeal.
On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted the 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 he was not able to present his case and that a refusal to allow an adjournment would result in a serious injustice to him.
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 his case. Although it was submitted on behalf of the appellant that he 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 his 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 a 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 in each case; he knew his own material; he knew his own case; he knew the respondent’s submissions; and he 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 the 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 primary judge (at [7]) referred to, and did not repeat, his discussion in Commonwealth of Australia (as represented by theDepartment of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363 (Odzic) of the relevant statutory framework, including the jurisdiction conferred by s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), ss 81, 83, and 84-95 of the 2010 RTA and ss 7 and 8 of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument).
Constitutional and jurisdictional issues
Mr Shirvington raised much the same constitutional and jurisdictional issues as the tenants in the other matters contesting the termination of their tenancies on Commonwealth land within, or proximate to, the airport site. The primary judge, at [18] in Patrick, rejected those arguments for the reasons his Honour gave in Odzic at [40]-[44], where his Honour adopted what he had said in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133 (Rigney).
The primary judge held, in Rigney at [61], that there was, at the date of the application, a matter within the meaning of Ch III of the Constitution and s 5 of the FCCA Act that the FCCA was required to resolve. His Honour, in Odzic at [44], noted that s 85 of the 2010 RTA, not s 94 (as in Rigney), was applicable in the Odzics’ case (as it is in this case). This was because the Odzics (and Ms Patrick) had not been in continual possession of the premises for 20 years or more. His Honour found that, as the Odzics had “put in issue whether, as a matter of fact, a termination notice was given to them”, there was “an existing controversy which, when decided by the Court, will determine the respective rights of the Commonwealth and the Odzics” (Odzic at [44]).
In Rigney, the primary judge rejected the submission that s 10AA of the FCCA Act attempted to grant the FCCA executive, as opposed to judicial, power (Rigney at [77]). His Honour held that s 10AA of the FCCA Act was an exercise of the legislative power conferred by the Constitution on the Parliament (Rigney at [83] and [94]). His Honour held that s 51 of the Constitution conferred legislative power to make the applicable laws and that the Instrument was not “unauthorised and ultra vires” that Commonwealth law. His Honour also held that the applicable Commonwealth law did not effect an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution (Rigney at [114]).

In Odzic at [41]-[42], his Honour specifically rejected the Odzics’ submission, referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson), that “for no sensible explanation the lessor has decided to sue the Respondents in its own courts”. His Honour stated that “the issues in the proceedings were the polar opposite to those in this case”, where “the Commonwealth is not seeking to restrain proceedings brought by a landowner in a state Tribunal, but is bringing proceedings as a landlord in a Federal Court constituted under Ch III of the Constitution” (Odzic at [42]).
Predominant use of the premises
The primary judge (Patrick at [12]-[17]) also rejected the appellant’s contention that, by virtue of s 7(h) of the 2010 RTA, the 2010 RTA did not apply because the land was predominantly used for non-residential purposes. The primary judge (at [12]) referred to his consideration in Rigney at [8]-[23] about the meaning of s 7(h) of the 2010 RTA.
The primary judge accepted that Ms Patrick ran a transport company and referred to her evidence that “she put a driver in the Premises” (at [16]). The primary judge accepted, “for present purposes that [Ms Patrick] has stored some forklifts there as part of the arrangement by which Mr Shirvington now lives on the Premises”, although his Honour did not “take this part of her evidence to establish that he was living on the Premises at the time the driver was living there” (at [17]). Whilst his Honour accepted that the storage of the forklifts was for the purposes of Ms Patrick’s business, he was not satisfied that the predominant use of the premises was for the purposes of a business or another non-residential reason, because of “the vagueness of the evidence, and the fact that the Premises are clearly used for residential purposes” (at [17]).
Application of s 85 of the 2010 RTA
The primary judge found that when the fixed term of the residential tenancy agreement expired, it continued as a periodic agreement and that, since Ms Patrick had not been in continual possession of the property for 20 years or more, s 85 of the 2010 RTA applied to the termination of the residential tenancy agreement by the Commonwealth (at [21]-[25]).
The primary judge’s approach to determining whether or not to make a termination order under s 85 of the 2010 RTA is set out in Patrick at [19]:
In light of the statutory scheme outlined in Odzic, the first step in the resolution of these proceedings is to determine whether the duty to make a termination order arises. In essence, that requires consideration of whether a notice of termination has been given in terms required by the [2010 RTA] and whether the respondents have vacated the property as required by the notice. The second step is to determine what the appropriate date is for vacant possession to be given. This involves some balancing of the parties’ interests. Part of this consideration could also involve the application of s.114 of the [2010 RTA] to suspend the date of the order for vacant possession.
Service of notice of termination
The primary judge rejected Mr Shirvington’s claim that he was the tenant. His Honour stated (at [24]):
He relies on the evidence of Ms Patrick that he lives on the Premises and ... they went to the real estate agent to change the lease into his name. No details of that visit to the agents [sic] were given, and the fact remained that Mr Shirvington was never a party to a written agreement in relation to the Premises. There was no evidence of anything said by or on behalf of the Commonwealth to suggest that a tenancy had arisen or would arise. There was no transfer of the tenancy to him by Ms Patrick and her husband and there has been no recognition of him as a tenant or sub-tenant within the meaning of the [2010 RTA] (see ss.3, 10, 74, 77), and no estoppel has arisen.
The primary judge (at [21]) noted that the term of the agreement was for 52 weeks, commencing 25 May 2007 and expiring on 22 May 2008. The primary judge also noted (at [22]) that it was a term of the residential tenancy agreement that the tenants could stay in the premises at the same or increased rent, but otherwise under the same terms unless or until the agreement was ended in accordance with the Residential Tenancies Act 1987 (NSW). The primary judge stated that this meant that, at the end of the term, the agreement continued as it had before, but without a fixed term. Accordingly, the primary judge concluded (at [23]), referring to ss 3 and 18 of the 2010 RTA, that the agreement was a periodic tenancy within the meaning of the 2010 RTA. In this circumstance, as noted above, the primary judge held (at [25]) that s 85 of the 2010 RTA applied to the Commonwealth’s termination of the residential tenancy agreement, as Ms Patrick had not been in continual possession of the premises for 20 years or more. Having regard to the requirements of the 2010 RTA, his Honour was satisfied (at [27]) that the notice of termination on which the Commonwealth relied met the requirements of the 2010 RTA.
The primary judge also rejected the appellant’s argument that the service of the notice of termination had not been proved, on the basis of the evidence before him. His Honour referred first to the evidence of a licensed process server, Mr Stephen Goodwin, and to the evidence of Ms Sarah Alderson and Ms Vivienne Li (at [28]). In particular, his Honour noted Mr Goodwin’s evidence that he served “Ms Patrick and Mr Dickinson with an envelope that he was informed contained the notice of termination and a document entitled ‘Tenant’s responsibilities and vacating checklist’” and that this evidence was not the subject of any objection. This evidence, so his Honour held, established that the envelope to which Mr Goodwin referred “did in fact contain those documents”, a fact supported by the evidence of Ms Alderson and Ms Li. His Honour noted that there was no objection to their evidence and that Ms Alderson was not cross-examined about the preparation of the notice of termination for service (at [28]).
The primary judge said (at [29]):
Mr Goodwin explained that he served the documents “by delivering the same to Kevin Dickinson personally at 1962-1970 The Northern Road, Luddenham in the State of New South Wales”. If Ms Patrick’s evidence that her husband died in 2013 is accepted, which it is, then it would have been difficult to serve him personally in November 2014. However, Mr Goodwin says further:
At the time of service I said to the person served:
Are you Mr Kevin Dickinson?” He replied: “Yes.” I said: “I have an envelope for you and Annette Patrick.” I then handed him the envelope.
His Honour concluded (at [30]) that this showed “that Mr Goodwin believed that he had served Mr Dickinson because a male person told him that he was Mr Dickinson”.
The primary judge acknowledged that there was no direct evidence of the identity of the person at the premises to whom Mr Goodwin gave the envelope containing the notice of termination and spoke and added “but there is only one likely candidate: Mr Shirvington” (at [30]). In this latter regard, his Honour stated (at [31]):
First, Ms Patrick gave evidence that she was very close to Mr Shirvington and sees him regularly. From that I infer that Mr Shirvington knew at least that Mr Dickinson was dead and most certainly that he was not living on the Premises. That inference is strengthened by the fact that Mr Shirvington was living on the Premises and, according to Ms Patrick, went with her to put his name on the lease. This supports the inference that he knew that Ms Patrick and her husband were in fact on the lease. Secondly, the evidence suggests that Mr Shirvington and his wife Debbie Shirvington were living on the Premises. Although Ms Patrick had put a driver in there at some point, there was no indication that that was an ongoing situation. Thirdly, it was a lie to tell Mr Goodwin that the speaker was Mr Dickinson, particularly in light of the fact that there was no evidence of any other Mr Dickinson. Fourthly, the only person with any interest in continuing to live at the Premises was Mr Shirvington and his wife. Thus, he was not only the only male on the Premises but the only male with any motive to lie. For those reasons, I find that the person to whom Mr Goodwin gave the Notice of Termination was Mr Shirvington.
Although the primary judge doubted some of Ms Patrick’s evidence he also accepted some of it, including that Ms Patrick and Mr Shirvington were close and saw one another on a regular basis. It was, so his Honour said (at [35]), “for that reason that I find that she was at least aware of, and most likely received, the Notice of Termination”. The primary judge held, however, that ultimately it did not matter whether Ms Patrick received the notice of termination, because he was “satisfied that Mr Shirvington was personally handed the document and, being married, was over the age of 16 at the time” (at [36]). His Honour held that, in consequence, the requirements of s 223(1) of the 2010 RTA were satisfied and that the notice was “given” within the meaning of that Act.
The primary judge added (at [37]-[38]):
[E]ven if I were wrong about Mr Shirvington, I would find that that provision had been met. Mr Goodwin knew that he was serving a notice of termination of a residential tenancy agreement. Although he does not mention in his affidavit the age of the person he handed the documents to, I infer that that person was over the age of 16 simply because Mr Goodwin was led to believe that he was talking to one of the tenants and the likelihood of such a tenant being under 16 is extremely low.
In those circumstances I am satisfied that a notice of termination was given in accordance with the requirements of the [2010 RTA].
The primary judge held (at [39]) that, as Mr Shirvington remained on the premises with Ms Patrick’s consent, Ms Patrick had not vacated the premises, although she herself was not living there. His Honour was further satisfied that the “matters in sub-s.85(3) ... have been established and the residential tenancies agreement between the parties must be terminated” (at [40]).
The primary judge rejected (at [44]) Mr Shirvington’s argument that the power to make a “termination order” under s 85 of the 2010 RTA was discretionary, for the reasons his Honour gave in Odzic at [82]-[85]. His Honour there rejected that argument because his Honour considered that the word “must” in s 85(3) unambiguously meant that if the FCCA is satisfied of these matters “there is only one decision that can be made, namely, the making of a termination order” (Odzic at [82]-[84]). A “termination order” is defined in s 80 of the 2010 RTA to mean “an order terminating a residential tenancy agreement together with an order for possession of the residential premises”.
Appropriate date on which vacant possession was to be given
The primary judge then considered the appropriate date for vacant possession to be given to the Commonwealth. As noted already, his Honour acknowledged (at [19]) that this would involve “some balancing of the parties’ interests” and “could also involve the application of s 114” of the 2010 RTA, which provides for the operation of an order for possession to be suspended.
The primary judge began his inquiry by examining the circumstances relied on by the Commonwealth, referring in this regard to his consideration of this issue in Odzic at [59]-[81], and stating his findings (Patrick at [42]) that:
a)the development of a further airport in Sydney is of the general importance for both the economic and social wellbeing of Western Sydney, if not this country;
b)significant time, effort and money has already been put into preparation of the site for the future development of the airport and the continued presence of tenants on the airport site is to increase the amount of costs likely to be incurred by the Commonwealth in that development;
c)the safety of individual tenants will decrease as more and more tenants vacate the site; and
d)Ms Patrick has been on notice since at least the beginning of the current residential tenancy agreement of the possibility of the use of the land in Badgerys Creek as an airport and the consequent need for them to give vacant possession to the Commonwealth for that purpose. That awareness was heightened by correspondence in October 2014 from the agents for the Commonwealth and put beyond doubt by the notice of termination served in November 2014.
In view of the challenge made by Mr Shirvington to his Honour’s findings, it is perhaps helpful to summarise briefly his Honour’s account as it appears in Odzic at [59]-[81]. As his Honour there noted, Mr Peter Robertson, a General Manager at the Department of Infrastructure and Regional Development, gave evidence about the history of the Commonwealth’s land acquisition program in the Badgerys Creek area. 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 for the project and project timeframes.
The primary judge in Odzic described the reasons Mr Robertson gave in evidence as to why the Commonwealth urgently required vacant possession. The reasons given by Mr Robertson were:
(a)to enable the Commonwealth to comply with its project timetable;
(b)the growing incompatibility of continued residential accommodation with the ongoing investigation and demolition works, in terms of cost and delay impacts on the work at the site; and
(c)concerns as to the safety and security of the remaining tenants and the site.
The primary judge summarised Mr Robertson’s evidence in which he explained that planning for an airport requires substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. Mr Robertson’s evidence was that, since some tenants remained in occupation, the work had either been tailored to parts of the site in the possession of the Commonwealth or the Commonwealth had liaised with tenants to ensure that testing could be conducted safely without unnecessary disturbance. The primary judge noted that Mr Robertson’s evidence was that the planning, assessment, site management and preparation activities for the airport site were being undertaken on a “whole of site” basis for all of the land to be included in the airport site.
Also in Odzic, the primary judge summarised Mr Robertson’s evidence concerning the process for accessing individual residential tenant blocks, which Mr Robertson described as being “extensive and time consuming”. His Honour also summarised Mr Robertson’s evidence regarding the timeframe for clearing the site and demolition activities. His Honour noted Mr Robertson’s evidence that, as at 22 October 2015, 117 of an estimated 163 tenants had vacated the airport site and that, once the airport site was vacated and the demolition program completed, it would be significantly easier and less costly to secure the whole site.
The primary judge referred to Mr Robertson’s cross-examination, noting that Mr Robertson had “accepted that his statement that the airport site was becoming increasingly derelict was a bit strong”, but that his evidence was otherwise unaffected. The primary judge found Mr Robertson to be a truthful witness and accepted his evidence.
The primary judge then went on to consider the other matters on which Mr Shirvington relied on the basis that they might inform the question of the appropriate date by which vacant possession of the premises ought to be given to the Commonwealth. His Honour did so on the basis that, “as a matter of practical reality”, the termination order would affect him and his wife and notwithstanding that he had found that Mr Shirvington was not a “tenant” within the meaning of the 2010 RTA; his interests were contingent on the residential tenancy agreement and Ms Patrick’s ongoing consent to him living on the premises; and his interests had “no true relevance to the issues to be decided” as Ms Patrick had “consent[ed] to the orders of the Court” (Patrick at [43]-[44]).
In this context, the primary judge identified nine matters on which Mr Shirvington relied. These matters, and the primary judge’s conclusions in relation to each, are set out below.
(1) Hardship caused by the proposed termination and/or eviction
The primary judge rejected Mr Shirvington’s claim that the “proposed termination and/or eviction will cause hardship to the Second Respondent”, on the basis that there was “no evidence of any hardship beyond the ordinary inconvenience of moving house” (at [44(a)]).
(2) Age, infirmity and adverse effect on Mr Shirvington’s health and livelihood
The primary judge also held that there was no evidence to support Mr Shirvington’s contention that he “is aged or infirm and/or the Orders sought will adversely affect [his] health and livelihood” (at [44(b)]).
(3) Retaliatory or partly retaliatory orders
Again, the primary judge held that there was no evidence to support Mr Shirvington’s claim that the “termination and/or eviction orders sought are retaliatory or partly retaliatory” (at [44(c)]).
(4) Unduly brief period for vacating the land
After noting that there was “little evidence as to when Mr Shirvington first moved into the Premises”, his Honour explained his finding that Mr Shirvington had been living there since 2011 by reference to Ms Patrick’s evidence to that effect. The primary judge found that Mr Shirvington had been on notice of the need to vacate for over a year and that there was “nothing beyond mere assertion to suggest that that [was] inadequate time to prepare to vacate” (at [44(d)]).
(5) Lack of urgency and pending commercial requirement
For the same reasons as he had rejected this submission in Odzic at [95]-[101], the primary judge rejected (at [44(e)]) Mr Shirvington’s submission that there was no urgency for the Commonwealth to assume vacant possession because the Commonwealth had given “a 99 year right of refusal to open or use Badgerys Creek as a commercial airport… to Macquarie Airports”; that Macquarie Airports has no commercial use or plan “to operate or use Badgerys Creek as an airport at any time in the foreseeable future including the next 30 years”; and that “there was no pending commercial requirement for the orders for termination for over 12 years”. Briefly, his Honour found (at [44(e)]) that the submission was not supported by the evidence before the Court. In Odzic, his Honour held that none of the documents on which the Odzics relied in this regard was specifically addressed in their submissions (Odzic at [97]) and that none of the matters to which the Odzics referred undermined Mr Robertson’s evidence.
(6) Lack of suitable or available alternative leaseholds
The primary judge found that neither Mr Shirvington nor his wife gave evidence of any attempts to locate alternative suitable accommodation (at [44(f)]).
The primary judge noted that Mr Shirvington tendered a folder of material that “included some documents relevant to the availability of accommodation in the Greater Western Sydney region” (at [44(f)]). His Honour said (at [44(f)]):
The first of those documents related to community housing. There was no clear evidence about Mr Shirvington’s financial circumstances. For that reason, it would seem that the availability of community housing is not relevant to their circumstances. The second group of documents consists of advertisements for rental accommodation that seem to have been downloaded from an online real estate website. However, they do not establish anything relevant other than that, at certain dates the properties shown in the advertisements were available for rent for particular amounts. There is no evidence that these were the only properties available, or what properties were available at other times or in other locations. None of this material carries any weight.
(7) Failure to offer compensation

Mr Shirvington complained that the Commonwealth had not offered him any compensation for “the loss of the Respondent’s property affixed to the land or otherwise and for the cost of complying with the eviction notices” (at [44(g)]). The primary judge held that there was no basis in evidence or submissions for any right to compensation. His Honour also stated that it was not clear how such a right might bear upon the determination of an appropriate date for vacant possession of the premises, especially as there was no evidence about Mr Shirvington’s financial means.
(8) Express termination provision in tenancy agreement
Mr Shirvington submitted that because there was an express termination provision in the residential tenancy agreement, the rights of the parties were governed by that clause. The primary judge (at [44(h)]) stated that his Honour had dealt with and rejected that argument, and a similar argument, in Odzic at [106]-[109], noting that the express provisions were sufficiently similar in both matters.
In Odzic it was submitted by the appellants that cl 42.2 of their residential tenancy agreement (which was relevantly the same as cl 40.2 of Ms Patrick’s residential tenancy agreement) was an express provision regarding termination, and that their rights were governed by that clause. It was further submitted that, under that clause, in order for the Commonwealth to have the right to terminate the agreement, the Commonwealth had to require vacant possession, and that could not occur without a decision of the relevant Minister. The primary judge rejected this submission, on the basis, first, that the agreement was subject to the 2010 RTA and, in consequence, any termination must take effect under Pt 5 of that Act; and, secondly, that Mr Robertson gave evidence that the Commonwealth required vacant possession of the premises, thus meeting “the condition precedent ... to the right of the Commonwealth to terminate the [a]greement by six months’ written notice” (Odzic at [108]).
(9) Service of notice before the introduction of s 10AA of the FCCA Act
The primary judge rejected (at [44(i)]) Mr Shirvington’s submission that “[b]ecause the termination notice was served before the introduction of s 10AA into the FCCA [Act], it was not effective for the purposes of the Commonwealth law”, for the same reasons he had rejected this submission in Odzic at [110]-[111]. In that case, the primary judge held that “[a]n Act does not have retrospective application simply because it requires consideration of past events. Further, just because notice was given ‘under’ the [2010 RTA] before this Court ha[d] jurisdiction in relation to Commonwealth tenancy disputes does not mean that it was not given ‘under’ the Act once the Court did have that jurisdiction” (Odzic at [111]).
The primary judge concluded (Patrick at [45]) that Mr Shirvington had shown “no real basis for his opposition to the orders sought by the Commonwealth”. At [46], his Honour stated that:
In light of the circumstances relied on by the Commonwealth as summarised above and the fact that Mr Shirvington has put forward nothing of any substance in opposition to the orders sought and that Ms Patrick has consented to the orders of the Court save as to costs, I am satisfied that the appropriate date on which the respondents are to give vacant possession of the Premises is 28 December 2015, but that the order for vacant possession should be suspended until 25 January 2016. In fixing that date, I have taken into account the time of year, even though that was not addressed by either of the parties.
Accordingly, his Honour made the orders set out at [10] above.
Grounds of appeal
The grounds of appeal in the proposed amended notice of appeal were as follows:
(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 finding that the termination notice had been served and in finding that it was served on Mr Shirvington and in finding that he acted as agent for Ms Patrick Dickinson or one of them [sic].
(5)The primary Judge erred in assuming Mr Shirvington was the only male person living on the Premises; his son also lives on the premises.
(6)The primary Judge erred in holding that the termination notice had been given.
(7)The primary Judge erred in not finding that Mr Shirvington was, at the time the Application was brought, the lessor of the premises.
(8)The primary Judge erred in holding that the termination notice was valid and effective.
(9)The primary Judge erred in his finding [sic] the property was correctly identified in the termination notice.
(10)~~The primary Judge erred in not admitting evidence or the further evidence of the Appellants.~~
(11)The primary Judge erred in failing to accept the evidence of Ms Patrick; Ms Patrick was upset nervous [sic] and apprehensive before attending court but gave her evidence honestly and to the best of her ability such that an adverse finding of credit was perverse or in error.
(12)The primary Judge erred in finding Ms Patrick has submitted to the orders of the Court save as to costs.
(13)The primary Judge erred in ordering termination forthwith and vacation on or before 28 12 2015 of the premises the subject of the action.
(14)The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].
(15)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.
(16)~~The primary judge erred in deferring costs or not making any orders as to costs before pronouncing final judgment.~~
(17)The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
(18)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.
(19)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.
(20)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.
(21)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.
(22)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.
(23)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.
(24)~~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 proposed new grounds of appeal raised by Mr Shirvington for which leave is required. The paragraphs struck through, grounds 10, 16 and 24, reflect the grounds in the proposed amended notice of appeal which the appellant notified the Court were abandoned. It is also clear that ground 15 concerning alleged bias was not pressed in that form in this appeal.
The proposed amendments, apart from paragraphs 19 and 20, 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 Mr Shirvington’s case had been presented below.
Since the application to amend to add grounds 19 and 20 was not opposed, we would grant leave so to amend.
It is therefore necessary to rule on the application to amend to add grounds 5, 9, 12, 17, 18, 21, 22 and 23, as well as leave to amend ground 11. The Court indicated that it would rule on the proposed amendments in its final reasons for judgment.
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 where it is expedient and in the interests of justice that that should be 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 refuse leave to amend to add proposed ground 5, that the primary judge erred in assuming Mr Shirvington was the only male person living on the premises; his son also lives on the premises. Whether or not the notice of termination had been ‘given’ in conformity with the 2010 RTA was, as the primary judge noted one of two important contested matters at the trial (Patrick at [11]). The appellant did not seek to adduce the evidence relevant to this proposed ground in the first instance proceeding, although the evidence was in existence then and could have been adduced before the primary judge. Further, had this ground been raised at the trial, the Commonwealth might have conducted its case differently or met the ground by adducing further evidence.
We would refuse leave to amend to add proposed ground 9, that the primary judge erred in finding the property was correctly identified in the termination notice. The basis for contesting his Honour finding (at [27]) that the notice of termination correctly identified the property was not identified in the appellant’s submissions. The notice of termination identified the premises as 1962-1970 The Northern Road, Luddenham, NSW 2745. The residential tenancy agreement identified the premises as 1962-1970 The Northern Road Luddenham, NSW 2745; and the primary judge made order in respect of that premises. This ground is hopeless.
As to ground 11, we would grant leave to amend only in part. Most of the proposed amendment (“Ms Patrick was upset nervous [sic] and apprehensive before attending court but gave her evidence honestly and to the best of her ability”) is an assertion and could not disclose an appellable error. We would, however, grant leave in so far as it is sought to challenge a failure to accept the evidence of Ms Patrick “such that an adverse finding of credit was perverse or in error”, as this depends on an analysis of the primary judge’s reasons for judgment and no apparent prejudice will be caused to the respondent.
We would refuse leave to amend to add proposed ground 12, that the primary Judge erred in finding Ms Patrick has submitted to the orders of the Court save as to costs. Counsel for the appellant conceded at the hearing of the appeal that Ms Patrick filed a submitting appearance, save as to costs. This ground is hopeless.
We would refuse leave to amend to add proposed ground 17, that the primary judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty. After judgment was reserved and in response to the Court’s request to the parties, the Commonwealth provided a note to the effect that:
(a)No evidence was admitted in any of the Federal Circuit Court proceedings from which the Under 20 Appeals are brought (the Under 20s Proceedings Below) from any of:
ŸMr Azar;
ŸMs Simone Fogarty; or
ŸMr Lopco Neskovski.
(b)No party sought to adduce evidence from Mr Azar in the Under 20s Proceedings Below.
(c)The appellants sought to rely in the Under 20s Proceedings Below on evidence from Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski which was purported by the respondents in those proceedings to be expert evidence, but all such evidence was specifically rejected by the trial judge.
(d)The attempt to rely on the purported expert evidence of Ms Fogarty, Ms Uren, and Mr Neskovski, together with the rejection of that evidence by the trial judge is recorded at pages 127 and 167-168 of the transcript of the hearing of the Under 20 Proceedings Below, but the relevant portion of the transcript was not included in the appeal book and was not therefore evidence in the appeals.
(e)The Respondent did not propose inclusion of the relevant portion of the transcript in the appeal book because the rejection of the evidence by the trial judge was not challenged in the Notices of Appeal.
In his note, also provided in response to the Court’s request, the appellant confirmed that the primary judge declined to admit the evidence of Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski. The appellant did not dispute that no party had sought to adduce evidence from Mr Azar in his proceeding. We proceed to consider the proposed ground on this basis.
Before doing so, we observe that the appellant submitted, in the note to which we have just referred, that proposed ground 12 in Odzic (the equivalent ground in this appeal is ground 17), be read with ground 6 (the equivalent ground in this appeal is ground 10) that the primary judge erred in not admitting evidence of the appellant. We observe, however, that the appellant specifically abandoned ground 10 in this appeal: see document headed “Corrected – appellant’s abandoned grounds of appeal” provided to the Court on 27 April 2016; see also appeal transcript p 180. So far as the appellant’s note complained about a ruling or rulings by the primary judge concerning the evidence of Ms Simone Fogarty, Ms Leanne Uren or Mr Lopco Neskovski, this was not raised in any ground or proposed ground of appeal.
Proposed ground 17 finds no basis in the proceeding before the primary judge concerning Ms Patrick and Mr Shirvington, or in his Honour’s reasons for judgment. The primary judge did not consider any expert evidence in this case because none was admitted into evidence in this case in the FCCA. Since no evidence of the kind referred to in proposed ground 17 was before him, the primary judge cannot have erred in the way suggested in that proposed ground. We also note that the Commonwealth did not seek to rely on the evidence of Mr Azar in this case, presumably because the Commonwealth considered that his evidence was not relevant to the issues in dispute.
We also note that, in his reasons for judgment in Odzic at [97] (to which the primary judge in Patrick referred to at [44(e)]), his Honour stated that he had regard to a folder of material that included some documents that his Honour considered relevant to arguments regarding a pending commercial requirement for termination. Even if this material were characterised as expert evidence (though it is not), it is clear from his Honour’s reasons that he considered this material carefully before making relevant findings. Also, his Honour in Patrick at [44(f)] referred to material tendered in Mr Shirvington’s case in relation to the availability of accommodation in the Greater Western Sydney region. Once again, even if this material were characterised as expert evidence (though it is not), it is clear from his Honour’s reasons that, although he found that the evidence did not relate to their circumstances, he examined it carefully, and found that it did not establish that there was no suitable alternative accommodation available for rent within a reasonable period in the relevant region. The present appellant made no submissions that his Honour erred in this latter regard.
In relation to proposed ground 18, 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 21, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Wendy 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 tenants, 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 Mr Shirvington (or Ms Patrick). In this case, the primary judge did not make any finding about relocation assistance provided by the Commonwealth by Ms Salkeld or anyone else. Secondly, the proposed ground does not correspond to a ground taken by Mr Shirvington (or Ms Patrick) 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 22, 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. 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 relation to proposed ground 23, 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, leave to amend to add this ground should also be refused. Although the appellant raised the issue of compensation at first instance, the primary judge (at [44(g)]) found that Mr Shirvington had provided no basis in evidence or submissions to support the existence of any obligation on the Commonwealth’s part to offer to compensate him. The submissions on behalf of Mr Shirvington on appeal did not address this claim or proposed ground of appeal, which has no prospects of success.
Respondent’s notice of contention

The respondent relied on a notice of contention dated 9 February 2016. The ground on which the respondent relied was as follows:
1.If there was a defect in the relevant termination notice or manner of service of the notice as contended by the Appellant, the Court was nonetheless correct to make the termination order because it was appropriate to do so in the circumstances of the case, and the Court was (or ought to have been) satisfied that the person to whom the notice was given did not suffer any disadvantage because of a defect in the notice or manner of service (s 113 of the [2010 RTA]).
Parties’ submissions – common issues
The common issues were identified by the appellant as, first, a separation of powers issue; secondly, that there was no “matter before the FCCA”; thirdly, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the FCCA Act; fourthly, that the Instrument was invalid; fifthly, 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 sixthly, that there was apprehended institutional bias.
The revised written submissions of the appellant 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.
Part 5 of the 2010 RTA dealt with the termination of residential tenancy agreements. 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 is terminated and by which vacant possession of the residential premises is 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.
Part 5 included s 82 dealing with the requirements of termination notices:
(1)       A termination notice must set out the following matters:
(a)       the residential premises concerned,
(b)the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,
(c)if the notice is not given under section 84, 85, 96 or 97, the ground for the notice,
(d)       any other matters prescribed by the regulations.
(2)A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.
(3)A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.
Part 5 also included ss 84 and 85, which provided as follows:
84 End of residential tenancy agreement at end of fixed term tenancy
(1)A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.
(2)The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended.
85 Termination of periodic agreement
(1)A landlord may, at any time, give a termination notice for a periodic agreement.
(2)The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
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
Whether infringing separation of powers principle
Notwithstanding reference to a separation of powers issue in the revised written submissions on common issues, Mr Shirvington did not apparently rely on the separation of powers argument and it does not therefore appear necessary to consider the argument in his appeal. The particular argument, that the orders sought by the Commonwealth in its application in the FCCA were beyond power as involving an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution, was apparently made only in the appeals in which the tenants of land within the airport site had been in continual possession of the same residential premises for 20 years or more (the 20 years and over appeals). In that circumstance the orders sought by the Commonwealth required an exercise of power under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act, which it was submitted by the tenants in those cases involved an exercise of non-judicial power by a federal court.
Section 94(1), which was a focus of the separation of powers argument, was inapplicable in the present case, where Ms Patrick had been in possession of the premises for less than 20 years. In this case, the orders made by the primary judge and sought by the Commonwealth were in exercise of s 85 of the 2010 RTA and s 10AA of the FCCA Act. Section 85 provided for the termination of a periodic agreement, which is what the agreement had become (as discussed hereafter). After receiving an application under the 2010 RTA in a proceeding commenced after the minimum notice period, the State Tribunal or the FCCA must, by virtue of s 85(3) of the 2010 RTA, make a termination order if it is satisfied that the termination notice was given in accordance with s 85 and that the tenant has not vacated the premises as required by the notice. This involved no exercise of discretion such as that impugned in the related appeals involving s 94(1) of the 2010 RTA and s 10AA of the FCCA Act.
In this case, as in the case of other tenants who had been in possession of the leased premises for less than 20 years, a question of the appropriate exercise of discretion arose at a different point. In a case in which the FCCA exercises power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, s 8 of the Instrument modifies the 2010 RTA, with respect to the conferral of discretion “in relation to the day vacant possession of the premises is to be given to the landlord”. Such is the effect of s 8(2) of the Instrument which provides that the 2010 RTA must be read as including a provision that, if the FCCA 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. The exercise of discretion in relation to the day vacant possession is to be given does not, on any view, involve a conferral of non-judicial power.

We accept that the fixed term of the residential tenancy agreement having expired, the agreement continued as a periodic agreement on the same terms as applied immediately before the end of the fixed term. The agreement made some provision for continuation on the expiry of the fixed term on 22 May 2008, permitting the tenants (Ms Patrick and Mr Dickinson) to stay in the premises under the same terms. Accordingly, when the fixed term expired, the agreement continued. At the time the agreement was made and, indeed, when the fixed term ended, the Residential Tenancies Act 1987 (NSW) applied. On the repeal of that Act, however, and the commencement of the 2010 RTA, cl 3 of Sch 2 of the 2010 RTA applied (by virtue of s 226 of the 2010 RTA). This clause made specific provision for transition and savings with respect to existing residential tenancy agreements. Clause 3 was in the following terms:
Application of Act to existing residential tenancy agreements
(1)The terms included in a residential tenancy agreement by this Act are included in any existing residential tenancy agreement on the repeal of the former Act.
(2) This Act applies to any such agreement despite the terms of the agreement.
(3) This clause is subject to this Schedule and the regulations.
On commencement of the 2010 RTA that Act applied to the residential tenancy agreement with Ms Patrick, it being an “existing residential tenancy agreement”: see cl 2 of Sch 2 of the 2010 RTA. The agreement was a periodic agreement: see s 3 of the 2010 RTA; and Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016) at [14.60]. See also McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019 at [17]; Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 at [5]-[8]; and Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623 at [13]-[14]. The effect of s 18 of the 2010 RTA is that, as the primary judge said, a fixed term agreement that continues after a day on which the fixed term ends continues to apply as if the term of the agreement were replaced by a periodic agreement. In these circumstances, s 85 of the 2010 RTA governed the termination of the residential tenancy agreement with Ms Patrick.
Weighing of competing considerations and date of termination order
As we have already stated, s 85(3), which was applicable to the termination of a periodic agreement, required the making of a termination order where the FCCA was satisfied that the termination notice was given in accordance with that provision and the tenant had not vacated the premises as required by the notice. If the conditions stipulated by s 85 were satisfied, the FCCA was obliged to make a termination order. Section 85 did not confer a discretion. In so far as the appellant submitted that an exercise of discretion miscarried in the making of the termination order under s 85 of the 2010 RTA, this submission was misconceived. As we have already noted, where the FCCA exercised power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, s 8 of the Instrument operated to confer a discretion on the FCCA “in relation to the day vacant possession of the premises is to be given to the landlord” since, by virtue of s 8(2) of the Instrument, the 2010 RTA was to be read as including a provision that, if the FCCA 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.
As we have seen, the primary judge treated the appellant’s challenge to the evidence of Mr Robertson, particularly as to urgency and commercial necessity, as relevant to his exercise of discretion in making orders in relation to the day vacant possession was to be given. His Honour also considered the interests of the appellant at this stage too.
Before addressing each of the matters relied on by the present appellant as relevant to the exercise of discretion, the primary judge acknowledged (at [43]) that Mr Shirvington was not in fact a tenant of the Commonwealth within the meaning of the 2010 RTA and observed that his interests were contingent on the residential tenancy agreement and Ms Patrick’s ongoing consent. His Honour opined that Mr Shirvington’s interests had “no true relevance to the issues to be decided” because Ms Patrick had consented to the orders of the Court. The reference to Ms Patrick’s consent was presumably a reference to the fact that she had filed a submitting notice, as discussed earlier. Nonetheless, his Honour took account of Mr Shirvington’s interests, since, “as a matter of practical reality” the termination order would affect him and his wife.
We observe that the parties to the appeal did not challenge, or direct argument to, this aspect of his Honour’s analysis. Whether or not it was open to him to consider Mr Shirvington’s interests in considering his exercise of discretion “in relation to the day vacant possession of the premises is to be given to the landlord” is a question that should not be determined without the benefit of argument. In view of the conclusions we reach below, it is unnecessary to say anything further about his Honour’s approach here.
For present purposes, we shall assume that it was open to his Honour to consider Mr Shirvington’s interests in exercise of discretion in relation to the day vacant possession of the premises is to be given to the landlord, particularly bearing in mind that no party suggested that it was not open to his Honour to do so.
We have already considered and rejected the appellant’s submissions that Mr Robertson’s evidence should have been rejected, and that the primary judge gave no adequate consideration to his particular needs. His Honour’s reasons for judgment demonstrate that he considered the evidence before him, as well as the parties’ submissions, and in so doing considered the parties’ competing needs and interests. As indicated, we discern no appellable error of the kind referred to in House v The King. We accept that, as the respondent submitted, his Honour’s orders included that vacant possession be given on or before 28 December 2015, but that the order for vacant possession be suspended until 25 January 2016; and that these orders were lawfully made, particularly having regard to the definition of “termination order” in s 80 of the 2010 RTA. We do not accept the argument put to the Court by counsel for the appellant at the hearing that the terms of the orders of the primary judge were inconsistent with Pt 6 of the 2010 RTA.
Disposition of grounds in the amended notice of appeal
The foregoing consideration leads to the conclusion that grounds 1 to 3 (discussed at [96]-[143] above) must fail. So too must ground 8, so far as it relied on the arguments considered in those paragraphs. Grounds 4 and 6 fail for the reasons set out at [218]-[240]. Ground 8 also fails for the same reasons. Ground 7 fails for the reasons set out at [211]-[217]. Ground 13 fails as discussed in [243]-[248] above. Ground 14 fails as discussed at [241]-[242] above. Ground 15 fails for the reasons given at [151]. Ground 18 fails for the reasons set out at [159]-[172].
We do not consider that ground 11 was made out, in so far as it is sought to challenge a failure to accept the evidence of Ms Patrick on the basis that the primary judge’s “adverse finding of credit was perverse or in error”. We observe first that his Honour did not in fact reject all Ms Patrick’s evidence, although he set out in some detail the factors that “cast[] a good deal of doubt” over it (Patrick at [35].
As we have already noted, his Honour rejected Ms Patrick’s evidence in her affidavit of 28 August 2015 that she was not did know of the FCCA proceeding until her barrister informed her of it on 11 July 2015. His Honour recorded (Patrick at [33]) that, under cross-examination, Ms Patrick “ultimately accepted” that she had received court documents earlier and that her counsel had submitted that she appeared “somewhat uncertain of her answers” with regard to the receipt of court documents. The primary judge considered that “[t]hat [was] an understatement” and that her evidence in cross-examination was “inconsistent and evasive” (Patrick at [33]). His Honour explained that, although initially Ms Patrick appeared “certain of her recollection”, her “confidence was undermined” when her attention was directed to a particular email exchange. Further, after noting that Ms Patrick first responded by saying that she did not know the exact dates, his Honour observed that this may have been true, but this meant that “what she said in her affidavit was plainly false”. In consequence, whilst noting the gravity of the finding, his Honour found that Ms Patrick made her affidavit “without concern for the truth of what it contained” (Patrick at [33]). In this context too, the primary judge referred (at [34]) to the facsimile makings on the affidavit that indicated that a draft of the affidavit was sent to her from a company, which, according to Ms Patrick, was owned by Mr Shirvington.
In our opinion, the appellant has not established that any of his Honour’s findings as to Ms Patrick’s evidence were perverse or in error. His Honour had the benefit of seeing and hearing all the evidence in the case, including that given by Ms Patrick. He rejected part of her evidence on the bases explained above. As Mansfield and Bennett JJ (with whom Black CJ generally agreed) said in Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454 at [38], “[i]t would only be in a clear case that the Court might disturb a finding of credit where the primary judge has taken into account a number of apparent inconsistencies in the versions of events given by a witness from time to time and has had the benefit of seeing and hearing the evidence”, citing Paterson v Paterson [1953] HCA 74; 89 CLR 212 at 219-225; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 at [63]; Fox v Percy [2003] HCA 22; 214 CLR 118; Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [67], and [90]-[100]; and Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-497.
Grounds 19 and 20 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; and the claimed reasonable belief on the part of the appellant that since December 2000 he really believed that Badgerys Creek was not being considered as a site for the airport. As to the first of these matters, ground 19, 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, the basis on which the Commonwealth sought the termination order was in respect of the premises which were to form part of an airport. 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 8(2) of the Instrument, 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 [59] in Odzic, which the primary judge adopted in the present matter, 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. His Honour noted 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 20, 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. To the extent the appellant in this case advanced the submission that because the lessor did not plead that express provision for termination, it was legally irrelevant to rely upon it in evidence, we would reject that submission. As the primary judge pointed out, the application to that court was not a pleading.In the absence of probative evidence as to the appellant’s thinking, this ground must fail.
We note that, for the reasons already stated, we would not grant leave to amend the notice of appeal to add grounds 5, 9, 12, 17, 21, 22 and 23.
The application to adduce further evidence on appeal
On this appeal the appellant sought to adduce the following further evidence:
1.        Affidavit of Mr Ken Shirvington dated 17 February 2016;
2.        Affidavit of Mr Ken Shirvington dated 13 January 2016;
3.        Affidavit of Ms Sandra Uren dated 6 March 2016;
4.        Further affidavit of Ms Sandra Uren dated 6 March 2016;
5.        Affidavit of Dr Anthony Green dated 9 March 2016;
6.        Affidavit of Mr Kingsley Liu dated 1 February 2016;
7.        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; 94 ATR 376 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.[117] The Full Court referred to Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389 at 403–404 [68]–[72], which cited what the High Court had said in CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 (in the context of the similarly worded s 93A(2) of the Family Law Act 1975 (Cth)) and which, in Sobey, referred to decisions of the Full Court of this Court including Cottrell v Wilcox [2002] FCAFC 53 at [20]–[24]; Gao v Official Trustee in Bankruptcy [2003] FCAFC 84 at [23]; Freeman v National Australia Bank Ltd (2003) 2 ABC (NS) 32 at 48–50; [2003] FCAFC 200 at [68]–[74] and Ye v Crown Ltd [2004] FCAFC 8 at [157]–[161].
…
[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 172, 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 seven affidavits listed above.
Affidavit of Ken Shirvington dated 17 February 2016
This affidavit consisted of 19 paragraphs, with seven annexures. At the hearing of the appeal, however, counsel for Mr Shirvington sought to rely on paragraphs 1 to 7 only.
Paragraph 1 stated that he was the appellant. Paragraph 2 stated that the primary judge “appeared to have bias in my Judgement 21 December 2015 questioning the integrity of both myself and Ms Patrick”. Paragraph 3 referred to and set out paragraphs three and four of the affidavit of Mr Stephen Goodwin dated 20 August 2015, discussed above. Paragraph 4 noted that only Ms Patrick’s name appeared in the table marked “KS2” attached to Mr Goodwin’s affidavit.
None of these paragraphs was relevant to any issue on the appeal. Paragraph 2 was objectionable as to form.
In paragraph 5, Mr Shirvington deposed that he was admitted to hospital on 23 November 2014 and was discharged from hospital late in the afternoon of 25 November 2014. He said that he was “confined to the house, mainly bedrest, between discharge and ... 2 December 2014”, on which date he spent the day in hospital undergoing a diagnostic procedure. In paragraph 6, Mr Shirvington further deposed that the gate “at our property” was always locked because the Shirvingtons were concerned to ensure that the miniature horses in the house yard were not inadvertently let out onto the nearby road. In paragraph 7, Mr Shirvington deposed that he was “not sure when or where Mr Goodwin allegedly served the documents but it raises serious questions”; that the documents were not served on him and he had never received a notice of termination; and that he was not cross-examined in the FCCA “to suggest” that he received them or “why they were served on” him.
As to paragraphs 5 and 6, we reject this evidence since it would have been available at the time of the hearing; it could have been put in answer to the affidavits of Mr Stephen Goodwin as to service, which were read before the primary judge, to which there was no objection and in respect of which Mr Goodwin was not cross-examined. Further, for the reasons already stated, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
We also reject paragraph 7, since apart from the observation that he was not cross-examined at the hearing in the FCCA, the evidence would have been available at the time of the hearing; could have been put to Mr Goodwin in cross-examination; and, for the reasons already stated, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. That Mr Shirvington was not cross-examined was known prior to the conclusion of the trial and was due to a circumstance known him – that he was overseas.
In submissions made on behalf of Mr Shirvington, his counsel argued that the evidence in Mr Shirvington’s 17 February 2016 affidavit was relevant to his Honour’s finding that it was likely that Mr Goodwin handed the notice of termination to Mr Shirvington when he attended the premises on 29 November 2014; that we should receive it “as a matter of fairness”, bearing in mind that it was not put to him in cross-examination that he was the recipient of the notice of termination and that it would show that “his Honour’s finding of credit against Mr Shirvington was perverse”. Assuming the evidence was relevant, this cannot alter the fact that, as stated, it was available to be led at the trial and, as his counsel acknowledged Mr Shirvington was not available for cross-examination on the day set for his cross-examination because he was overseas. We reject the suggestion, if made, that the Commonwealth’s case was unclear. Recognising no termination order could be made unless there was evidence that permitted the primary judge to be satisfied that a termination notice was given in accordance with s 85 of the 2010 RTA (and that the tenant, Ms Patrick, had not vacated the premises as required by the notice), the Commonwealth adduced the evidence to which we have earlier referred, including the affidavits of Mr Stephen Goodwin dated 2 December 2014 and 20 August 2015. As we have already stated, on the evidence before him, it was open to his Honour to take the view that it was likely (or more probable than not) that Mr Goodwin had, at the premises, handed the envelope, with the notice of termination, to Mr Shirvington.

In the result, we reject the entirety of that part of the affidavit of Mr Shirvington of 17 February 2016 that was sought to be tendered on his behalf.
The respondent’s primary position was that the Court should not admit Mr Shirvington’s affidavit of 17 February 2016, which it submitted, to the extent relevant and otherwise admissible, could have been adduced before the primary judge. We have accepted that submission. In the event, however, that the affidavit was received into evidence on the appeal, the respondent sought to cross-examine Mr Shirvington on his statements concerning the service of the notice of termination. We did not rule at the hearing of the appeal on the respondent’s primary submission that the Court should not receive Mr Shirvington’s affidavit of 17 February 2016, but indicated that we would permit the cross-examination of Mr Shirvington to proceed on the basis that we would rule on the admissibility of his affidavit and, in consequence, the receipt of his evidence in cross-examination subsequently.
In cross-examination, Mr Shirvington agreed that he had a son who lived at Badgerys Creek with him. His son was approximately 25 years old and had lived in Sydney during the past 12 months. When counsel for the respondent put to him that “on 29 November ... a gentleman attended your premises and said ‘I have a delivery for a Mr Dickinson’”, Mr Shirvington relied “[t]hat is not correct” and that he did not receive “that envelope”. His evidence was that only he and his wife were “in the building at that time” and that he was “bedridden, so there’s no way possible [he] would have answered anyone”. He also said that he was “[i]n bed, up walk around, go back”. When counsel for the respondent suggested that if he did not receive the envelope, then his son did, Mr Shirvington replied, “[t]hat’s no[t] possible”.
Since we reject Mr Shirvington’s affidavit of 17 February 2016, we do not receive the evidence in cross-examination.
Affidavit of Ken Shirvington dated 13 January 2016
We note there was a further affidavit of Mr Shirvington dated 13 January 2016, consisting of eight paragraphs, which was contained in a list of affidavits on which the appellant relied dated 12 April 2016 and the Court had directed the appellant (in this and the related appeals) to file. Although it was not listed as relevant to this appeal but listed in connection with a related appeal involving Mr Shirvington, we assume that the affidavit of Mr Shirvington filed in this appeal dated 13 January 2016 is sought to be read in this appeal. The respondent appears to have notified objections to it dated 18 March 2016.
In our opinion, the affidavit was relevant to the interlocutory application for a stay. So far as this appeal is concerned, it referred to nothing relevant to this appeal which Mr Shirvington had not previously covered in his affidavit before the primary judge or that could not have been adduced before his Honour. We note that the assertion about “my tenancy” in paragraph three is misconceived: the primary judge found that Mr Shirvington was not a tenant and we have found not appellable error in this regard.
On the assumption we have made, we reject this affidavit.
Affidavit of Ms Sandra Uren dated 6 March 2016
We shall assume that this affidavit was sought to be read in the appeal. The respondent notified objections to it dated 18 March 2016.
This affidavit is of nine paragraphs. In it Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” from September 2015, which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose at paragraph 9 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 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 note that this material, if relevant, could have been tendered at the hearing before the primary judge.
Further, 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 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, on the assumption we have made, 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, of 10 paragraphs, which the appellant sought to rely on in his appeal. The respondent notified objections to it dated 18 March 2016.
In paragraph 5, Ms Uren sought to give evidence about what she said were the deficiencies in the Western Sydney Airport Draft Environmental Impact Statement released in October 2015, and sought to attach a transcript of the speech in 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 the 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 is not explained how it is said to be relevant to the evidence given by Mr 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 shows “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 and entitled “Affordable rental housing: the problem and its causes.” We would reject this paragraph. The first sentence was not relevant to this appeal. As to the paper sought to be annexed, it too was in a general form. It did not go to the specific position of the 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 which Ms Uren sought to give evidence about. 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 on 18 March 2016. Those objections were that the expert evidence was inappropriate for an 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 Environmental Impact Statement –Western Sydney Airport (EIS) discussed by Mr Green 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 has 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 was 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 is 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, fall 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 turns to what is said to be ten “critical infrastructures” where the airport introduces risks. Dr Green’s affidavit then concludes at paragraph 37 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 Canberra 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 is not plain that, although there are references to what Dr Green described 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 appellant 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 was in terms formal and, so far as relevant, did 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 ninety-seven (297) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Robertson and Griffiths.
Associate:
Dated: 2 March 2017

Appeal from:	Commonwealth of Australia v Patrick & Anor [2015] FCCA 3413
File number:	NSD 62 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 power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – 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 less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession 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 Act1996 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) ss 10AA Federal Court of Australia Act 1976 (Cth) s 27 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, 82, 83, 84, 85, 94, 119, 120, 121 Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Antoun v R [2006] HCA 2; 224 ALR 51 Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376 Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454 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 CDJ v VAJ [1998] HCA 67; 197 CLR 172 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133 Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Fox v Percy [2003] HCA 22; 214 CLR 118 Gronow v Gronow [1979] HCA 63; 144 CLR 513 House v The King [1936] HCA 40; 55 CLR 499 Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623 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 McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 Paterson v Paterson [1953] HCA 74; 89 CLR 212 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 R v Hughes [2000] HCA 22; 202 CLR 535 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 Shanahan v Scott [1957] HCA 4; 96 CLR 245 Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016)
Date of hearing:	13 - 15 April 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	297
Counsel for the Appellant:	P E King
Solicitor for the Appellant:	The People’s Solicitors
Counsel for the Respondent:	J Doyle with D W Rayment
Solicitor for the Respondent:	Australian Government Solicitor

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