Stephens v Commonwealth of Australia (No.2)
[2015] FCCA 3404
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEPHENS & ORS v COMMONWEALTH OF AUSTRALIA (No.2) | [2015] FCCA 3404 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – purported representative action – tenancies terminated in concurrent proceeding – application dismissed. |
| Legislation: Constitution (Cth), s.51 |
| Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) v Stephens [2015] FCCA 3403 Stephens & Ors v Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) [2015] FCCA 1548 |
| First Applicant: | RICK STEPHENS |
| Second Applicant: | BRADLEY PHILLIPS |
| Third Applicant: | GEOFFREY MERRETT |
| Respondent: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| File Number: | SYG 1502 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 18 & 19 November 2015 |
| Date of Last Submission: | 14 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. King |
| Counsel for the Respondent: | Mr J. Doyle, Mr D.W. Rayment & Ms A. Mitchelmore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1502 of 2015
| RICK STEPHENS |
First Applicant
| BRADLEY PHILLIPS |
Second Applicant
| GEOFFREY MERRETT |
Third Applicant
And
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Respondent
REASONS FOR JUDGMENT
On 1 March 2004, Mr Stephens entered into a residential tenancy agreement (“Agreement”) as tenant in respect of the land situated at 105 Lawson Road, Badgerys Creek NSW 2555 (“Premises”). The Premises are part of a larger area of land of which the Commonwealth is the registered proprietor and which it proposes to develop for the purposes of an airport.
On 26 November 2014 the Commonwealth gave Mr Stephens a Notice of Termination of the residential tenancy agreement in respect of the Premises specifying 15 June 2015 as both the date of termination and the day on which vacant possession of the Premises was to be given. Mr Stephens did not vacate the Premises by that date and the Commonwealth commenced proceedings in this Court against Mr Stephens seeking, amongst other things, orders terminating the residential tenancy agreement and for vacant possession. Judgment in that matter has been handed down at the same time as this judgment and the reasons in that matter ought to be read together with, and as part of, these reasons.
The second and third applicants live on the Premises, although they are not tenants within the meaning of the Residential Tenancies Act 2010 (NSW) (“Tenancies Act”). Together with Mr Stephens, they commenced these proceedings prior to the commencement of the Commonwealth’s action, seeking the following declarations:
1.DECLARATION that the notice of termination served on the First Applicant on or about 24 November 2014 is invalid and of no effect.
2.DECLARATION that the law made by the Respondent on 4 March 2015 styled Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 ['the Instrument'] is invalid and is not authorised by the amending law Federal Courts Legislation Amendment Act 2015 [Cth].
3.DECLARATION that Residential Tenancies Act 2010 [NSW] has no application to tenancy disputes requiring the making of orders under the said State law in Federal Circuit Court of Australia under Federal Circuit Court of Australia Act 1999 [Cth] section 10AA.
4.DECLARATION that Federal Circuit Court of Australia Act 1999 [Cth] section 10AA is invalid as unauthorised by Constitution section 51, nor by any other constitutional power of the parliament, and is made in contravention of Constitution Chapter III.
5.DECLARATION that the Instrument is invalid as unauthorised by Constitution section 51 nor by any other constitutional power of the parliament.
(Errors in original)
The applicants also sought a number of interlocutory orders which were refused by Judge Street on 3 June 2015: Stephens & Ors v Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) [2015] FCCA 1548. The matter was subsequently transferred into my docket and on 13 July 2015, I made orders that it be determined concurrently with the proceedings brought by the Commonwealth against Mr Stephens.
Both sets of proceedings were ultimately heard concurrently with a number of other matters concerning tenancies of properties in the vicinity of the Premises. Judgment in all of those matters has been handed down at the same time as this judgment.
The issues raised in these proceedings were also raised in the Commonwealth proceedings brought against Mr Stephens. No additional evidence was adduced or submissions made in these proceedings.
For the reasons that I have given in Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) v Stephens [2015] FCCA 3403, the Notice of Termination served on Mr Stephens was valid, the second and third applicants were found not to be co-tenants, and none of the applicants’ challenges to the jurisdiction of this Court succeed.
It may be noted that these proceedings were purportedly brought as representative proceedings. No argument was presented in support of this Court’s jurisdiction to determine such proceedings. My preliminary view is that there is none. However, as the arguments raised in the proceedings have been rejected and the proceedings must fail, it is unnecessary to give any further consideration to that question.
Conclusion
The application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
2