STEPHENS v Commonwealth of Australia
[2015] FCCA 1548
•3 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEPHENS & ORS v COMMONWEALTH OF AUSTRALIA | [2015] FCCA 1548 |
| Catchwords: ADMINISTRATIVE LAW – Interlocutory relief – application seeking declarations as to the invalidity of notices purporting to terminate tenancies – application dismissed. |
| Legislation: Federal Circuit Court (Commonwealth Tenancies Disputes) Instrument 2015 |
| First Applicant: | RICK STEPHENS |
| Second Applicant: | GEOFFREY MERRETT |
| Third Applicant: | BRADLEY PHILLIPS |
| Respondent: | COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT |
| File Number: | SYG 1502 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 3 June 2015 |
| Date of Last Submission: | 3 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. King |
| Counsel for the Respondent: | Mr J. Doyle Mr D. Rayment |
ORDERS
The interlocutory application for relief by the applicants is dismissed.
The matter be fixed for hearing of any interlocutory application, including any application for summary dismissal at 10:15am on 4 August 2015.
The applicants file and serve a separate s.78B Notice within 7 days in respect to any alleged issue in the respective proceedings and to file and serve an affidavit of service of the s.78B Notice within a further 7 days and to file and serve by the 23 June 2015 an affidavit in respect to the responses to the s.78B Notice.
The respondent to file and serve any application for summary dismissal or any other interim relief on or before 11 June 2015.
The applicants to file and serve any affidavit material in response by 18 June 2015.
The respondent to file and serve any affidavit material in reply by 23 June 2015.
The respondent to file and serve any submissions in support of an interlocutory application by 17 July 2015.
The applicants to file and serve any submissions in answer by 24 July 2015.
Liberty be granted to the respondent to file and serve any cross claim on or before 24 July 2015 and direct it will be returnable for directions on 4 August 2015.
These orders do not present the respondent from commencing fresh or separate proceedings in relation to the applications.
Costs of the applicant’s interlocutory application are reserved.
Liberty to apply on 3 days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1502 of 2015
| RICK STEPHENS |
First Applicant
| GEOFFREY MERRETT |
Second Applicant
| BRADLEY PHILLIPS |
Third Applicant
And
| COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT |
Respondent
REASONS FOR JUDGMENT
I make a procedural direction that these two proceedings in respect of the ex parte alleged urgent relief be heard concurrently, and that evidence in one proceeding is evidence in the other.
This is an interlocutory application purportedly within the Court’s jurisdiction under s.10AA of the Federal Circuit Court Act 1999 in which the applicants in the respective proceedings seek declarations as to the invalidity of notices purporting to terminate tenancies and the alleged relief in relation to the Federal Circuit Court (Commonwealth Tenancies Disputes) Instrument 2015 alleging the same is invalid and/or alleging that s.10AA is invalid, as well as purporting to seek relief under the injunctive provisions of the Residential Tenancies Act 2010.
The obvious inconsistency in relation to the final orders being sought by the applicants and the benefit that would be achieved by the applicants in removing the application of the remedial provisions of the Residential Tenancies Act2010 was in no way satisfactorily explained. The applicants in the proceedings are seeking urgent interlocutory relief, effectively in the form as follows:
1. Order under Residential Tenancies Act 2010 [NSW] section 187 (1)(a) restraining the breach of the leases in respect of the land at Badgerys Creek specified in the schedule to which the Respondent is a party, and breach of sections 49, 50 and 52 of the Act.
2. Order restraining the Respondent from terminating the tenancy of the Applicants as representatives of persons having leasehold rights under leases of less than 20 years, with respect to the land or dispossessing the Applicants and each of them on or after 15 June 2015, pending determination of the issues in dispute between the parties in the proceedings.
3. Further or alternatively order restraining the commencement of any action in the Court to the effect in order 1, or alternatively an order staying any action by the Respondent in this Court to obtain a termination order under Residential Tenancies Act 2010 [NSW] and to dispossess and demolish the residential premises and other buildings and equipment on the land pending determination of the present proceedings.
The Court was informed by Mr King of counsel that none of the applicants to these proceedings are parties to any other proceedings in this Court and that, relevantly, in relation to the residential tenancies all are ones in respect of whom any notice of termination does not purport to take effect before the commencement of this Court’s jurisdiction.
Insofar as the proceedings Frost & Ors v Commonwealth of Australia as represented by the Department of Infrastructure and Regional Development [2015] FCCA 1553 purport to be representative proceedings, I have made no representative order and I am far from satisfied as to this Court’s jurisdiction to do so. Nor has any proper case been identified by reason of which any representative order should be made even if there was power. It is not, however, necessary to determine that issue today.
It was alleged that there was urgency in relation to this matter because of an alleged dispossessing of the applicants on or after 15 June. The foundation for that allegation is, in essence, the identification of a notice of termination of one or more of the tenancies purportedly served in compliance with the time requirements for termination of a tenancy under Part 5 of the Residential Tenancies Act 2010.
The Residential Tenancies Act 2010 is one in relation to which it provides a statutory right to the landlord under s.83 and s.85 to bring a tenancy to an end and/or seek termination orders in certain circumstances. The taking of that step by the Commonwealth is not a proper basis to assert a prima facie case of a risk of being evicted on 15 June. It is clear under the requirements of the Residential Tenancies Regulation 2010, cl.22 of Part 5, that further steps are required to be taken by way of the commencement of proceedings after the expiry of the relevant time and, relevantly, that those in possession of residential premises have the benefit of the protection of s.120 of the Act, which is as follows:
(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.
Note : Under section 106 a landlord may apply to the Tribunal for an order declaring that a tenant has abandoned the residential premises.
(2) A court that finds an offence under this section proven may, in addition to any other penalty it may impose, order that compensation be paid to the person against whom the offence was committed by the person who committed the offence or on whose behalf the offence was committed.
(3) This section applies to a person who enters residential premises on his or her own behalf or on behalf of another person.
It is in those circumstances that the assertion of alleged breaches of quiet enjoyment or other rights of the applicants by reason of the exercise by the respondent of purported rights arising under the Residential Tenancies Act 2010 fails to identify any prima facie case that would warrant the grant of any interlocutory relief at this stage by this Court.
Effectively, what the applicants were seeking to do by these proceedings was to prevent the respondent being able to take steps in accordance with cl.22 of the Residential Tenancies Regulation 2010 upon expiry of the time that identifies the termination of the notice period. There is no right or basis upon which this Court could grant interlocutory relief preventing the respondent from seeking to exercise the rights arising under the Residential Tenancies Act2010 and/or the enforcement procedures under the Residential Tenancies Regulation 2010.
Part of the argument advanced by Mr King is to the effect that there are Constitutional arguments that he alleges raise a serious question as to the validity of the provisions of s.10AA and/or the instrument to which I have referred and/or an argument that some of the premises fall within s.7(1) (h) whereby the Residential Tenancies Act 2010 purportedly does not apply because the premises are used for the predominant purposes of a trade, profession, business or agriculture.
How removing the applicants from the protection of this this remedial legislation benefit the applicants has not been, as I have said, explained. An assertion was advanced that somehow that would give rise to the notices of termination that have been served being invalid. Far from that being the case, if it is a position that the tenancies are not protected by that legislation, it will be the common law and equitable rights that determine the rights of the parties, and the notices are likely to be held to be effective termination of the tenancy agreements and the applicants will not then enjoy the benefit of the protection of that Act.
On my reading of cl.5 of the Federal Circuit Court (Commonwealth Tenancies Disputes) Instrument 2015 that instrument has been drawn in a fashion to ensure its extended application where it refers to a dispute that involves a tenancy within the meaning of the Residential Tenancies Act 2010, and to that extent a matter falling within Part 2 need only involve a tenancy within the meaning of the Residential Tenancies Act 2010 to give rise to the application or operation of that provision.
That broader language would clearly be one intended to protect the applicants if otherwise they had fallen into the position identified by Mr King where part of the premises appeared to be used for a trade, profession, business or agriculture.
S.78B of the Judiciary Act1903 provides that the Court may deal with proceedings which are interlocutory proceedings for urgent relief, if the Court thinks it is necessary in the interests of justice, that raise a Constitutional issue without giving a notice under s.78B. I am far from satisfied that this interlocutory application is one that would fall within s.78B as it is not clear that there is a real and substantial Constitutional question raised by these proceedings. As this is an interlocutory matter I find that there is no constitutional ground raised that can support the interim relief claimed.
At this stage, it would appear to me that there is a real question as to whether or not the proceedings are ones that should be dealt with summarily.
I am satisfied that there is no prima facie case entitling the applicants to any injunctive relief in circumstances where the applicants clearly have the protection of the statutory provisions that I have identified which requires the respondent to take the steps required under cl.22 for enforcement of the taking of possession. I am concerned that the whole proceedings appear to be misconceived. There is no basis for the granting of any interim relief of the kind identified in the two applications.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 10 June 2015
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